In This Issue: [click on the link to go to the corresponding section]
On September 24th a federal judge granted a request by Citizens for Responsibility and Ethics in Washington (CREW) to depose David Addington, Vice President Cheney’s chief of staff, and the official at the National Archives and Records Administration responsible for presidential papers under the Presidential Records Act. The judge granted the request based on three White house declarations that led her to question whether the vice president is preserving all vice presidential records, or only two subsets of records. On the eve of the first scheduled deposition, Vice President Cheney and the other defendants filed an emergency petition asking the U.S. Court of Appeals for the D.C. Circuit to demand the judge vacate the discovery order because they claim the deposition of Addington raises separation of powers concerns.
The Reporters Committee for Freedom of the Press (RCFP) released an interactive version of the "Open Government Guide" – a resource for navigating the open meetings and open records laws in the 50 states and the District of Columbia.
On October 2nd, Citizens for Responsibility and Ethics in Washington (CREW) announced a federal judge rejected the Secret Service’s claim that its newly created category of "sensitive security records," whose very existence the agency said it could neither confirm nor deny, were exempt from the FOIA. This development is important to CREW’s investigation of White House visits by convicted lobbyist Jack Abramoff and his associates and illustrates the larger problem with information control markings: if the Secret Service’s marking does it exist, it is yet another example of the over 130 unique control markings and processes in use throughout the federal government- 81% of which are based not on statute or approved regulations, but are the product of department and agency policies.Legislation recently passed by the Senate Homeland Security and Governmental Affairs Committee to address this issue is discussed below; also read our analysis of House-passed proposals here.
In September, the Government Accountability Project (GAP) realeased Running the Gauntlet: The Campaign for Credible Corporate Whistleblower Rights, a report surveying the dangerous landscape of corporate whistleblower laws and recommending strategies for those in need of help. This report is excerpted from a comprehensive corporate whistleblower survival guide, Committing the Truth, scheduled for publication next year.
In response to secrecy provisions in the Administration’s proposed financial industry bailout bill, more than 50 open government groups and advocates, including many coalition partners, joined OpenTheGovernment.org in writing to the Senate Committee on Banking, Housing and Urban Affairs and the House Committee on Financial Services to urge that the final agreement be grounded in transparency, with all relevant records publicly available. Under the Administration proposal, the Treasury’s actions could not be reviewed by Congress or by the courts. Congress responded to the public outcry over secrecy in the proposal by including provisions that allow for both Congressional and limited judicial oversight in its legislative proposals .
On Tuesday, September 23rd, the Senate Homeland Security and Governmental Affairs Committee approved legislation to create a tiered system of markings agencies can use to control the dissemination of documents. The Senate legislation codifies President Bush’s proposed framework for standardizing the over 130 different labeling or handling processes and procedures for so-called "controlled unclassified information" in existence across the federal government. The creation of a such a system is a necessary, but not sufficient, condition to improve information sharing and reduce the risk of terrorism. The system must be accompanied with a regimen that strictly limits the creation of control markings and a process to begin the removal of such markings from government information. Additionally, when addressing control markings, Congress must also deal simultaneously with the burgeoning over-classification of government information, which officials have estimated to encompass at least 50 percent of classification (either unnecessarily classified or classified at too high a level). By taking up legislation to limit information control markings and to develop legislation to end the over-classification of government information, Congress will gain a significant opportunity to reduce secrecy and restore public trust by opening the government.
The final version of the 2009 Defense Authorization bill passed by the House and Senate in the final days of September and signed into law on September 30th contains several provisions to strengthen oversight of controversial contracts and increase competition. However, some important provisions to increase transparency were watered down. For example, negotiators agreed to deny the public access to a database that will be created to monitor companies that have faced criminal and civil actions. According to Patrice McDermott, Director of OpenTheGovernment.org, "It’s heartening that Congress is creating the tools it needs to conduct effective oversight, but to increase public trust in the federal government’s ability to manage taxpayer dollars, it is equally important that the public has access to the information."