Sunshine and Shadows – Part 2

In Sunshine and Shadows – Part 1 we summarized some of Sunshine Week’s events, noting highs and lows in civil society efforts to advance openness in government. Now we’ll dive into some of the noteworthy happenings related to openness in Congress and the Executive Branch.

Congress

During Sunshine Week, the House Oversight and Reform Committee held a hearing examining transparency under the Trump Administration, with a focus on whether federal agencies are complying with FOIA and the failure of many to implement the FOIA Improvement Act of 2016.

Meanwhile on the Senate side, Judiciary Committee members Chuck Grassley (R-Iowa), Patrick Leahy (D-Vt.), John Cornyn (R-Texas) and Dianne Feinstein (D-Calif.) expressed concern over negative trends in compliance with FOIA, including a lack of responsiveness to requests, long delays and record numbers of FOIA lawsuits.

The Judiciary Committee members pointed to troubling evidence that this administration is failing to adhere to its requirements under the FOIA law.  Although the Executive Branch processed a record number of FOIA requests in Fiscal Year 2017, the Justice Department was sued more frequently under FOIA than ever before, and request backlogs continue to grow at many agencies. Requesters received censored files or nothing at all in 78% of requests, a record over the past decade.

More promising was the Sunshine Week vote in the House to make the Mueller report public. Though not binding, the resolution received an overwhelming 420 votes in favor of disclosure, with no members opposed and four voting present. The Senate blocked a vote on the subject. We will have to remain vigilant to ensure that the victory for transparency is not a symbolic one, and will continue to use all avenues available to ensure the public has access to the report.

It would be a gloomy world indeed if we only had sunshine one week a year.  Other important developments around freedom of information occur even in the darkest of winter.  Since the beginning of 2019 we’ve seen civil society push back against efforts to keep government information in the shadows. 

For example, FY 2019 appropriations legislation included provisions to shine a light on private prisons and detention centers. The mandates, championed by OTG and many of our partners, require the Departments of Homeland Security and Justice to apply FOIA requirements to private contractors housing detainees and inmates. Sen. Leahy, who led the charge for the provisions, noted in a keynote address at the National Archives Records Administration “rampant abuses at private detention facilities and prisons have largely remained hidden from public view because they have not been subject to federal transparency requirements.  But these private contractors are engaged in fundamentally governmental operations, and they should not escape public scrutiny because of a blind spot in our laws. Our government should never operate in the shadows by proxy.”

To date, a number of legislative proposals have been introduced to advance openness and accountability, including HR 1, an expansive bill aimed at strengthening transparency and increasing accountability by reducing the influence of big money in politics and expanding voter rights. We’ll have more updates as openness and accountability legislation progresses.

Executive Branch

While there has been some forward progress on transparency thanks to champions in Congress, the Executive Branch continues to push back on openness. In a recent example that garnered an almost unprecedented response by civil society, the Department of the Interior is attempting regulatory rollbacks of FOIA provisions. One proposed DOI rule would, contrary to law and the spirit of FOIA, allow the agency to refuse to honor certain FOIA requests and limit its response to certain requesters. A final rule has not yet been issued but the proposal received over 65,000 comments.

Similarly, the DOI also attempted to change its records schedule. That proposal received more than 12,000 comments and is also still under review. However, thanks to pressure from a coalition of openness groups, NARA will now be posting all proposed records schedules to the Federal Register at the same time as the notice.

A less commented-upon setback came in the form of the U.S. backsliding in its efforts under the Open Government Partnership, a multinational platform intended to advance domestic transparency reform efforts. The walk-back did not come as a surprise to those involved in the OGP process, and even leadership within OGP noted the poor performance by the US Government.

In fairness, frustration with the OGP process had been building even prior to Trump’s swearing in. Civil society actors were often frustrated with the minimal return on investment of the countless hours they spent working with the Obama administration on OGP commitments.  The disappointments notwithstanding, U.S. civil society continues to support those civil servants who stayed on to work on openness issues in the current administration, and while some have invested limited resources on more direct advocacy for transparency measures, others have continued to support the OGP process by and sharing openness proposals in meetings or through the government hosted GitHub sharing site.

For those of us dedicated to advancing government transparency and accountability, every week is Sunshine Week. We advance legislation in Congress, bring lawsuits, engage grassroots advocacy, seek information through FOIA requests, and work with our allies throughout government and civil society to make as much progress as possible given the nearly insurmountable obstacles in our path.

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