The Myth of Transparency in the Obama Era

The federal culture of secrecy is alive and well despite pledges of
a new government transparency. Agencies are still bitterly resisting
requests and lawsuits for release of internal records under the Freedom
of Information Act (FOIA), according to documents released today by
Public Employees for Environmental Responsibility (PEER).

On
his first full day in office, President Barack Obama vowed to conduct
government business with openness and ordered federal agencies to
"adopt a presumption in favor of disclosure, in order to renew their
commitment to the principles embodied in FOIA." Since that promise,
PEER has filed eight new FOIA lawsuits, as agencies either ignore
requests and appeals or improperly withhold records.

A typical
example is the PEER lawsuit against the Interior Inspector General (IG)
to force release of its long-stalled investigation into the Hubbell
Trading Post scandal, in which one of the last authentic Indian traders
was put out of business by a misguided and inept National Park Service
investigation. The Interior IG would not release either the results of
its investigation into the matter or the backup materials.

After
PEER sued the IG in September 2009, the agency dribbled out a few
documents but withheld most. Of 153 responsive documents identified by
the IG, the agency refused to release more than half of them (84). It
partially released 51 documents but many of these are so heavily
blacked out (see below) that they are incomprehensible. In total, the
IG only fully released 18 documents out of the 153 records.

The
IG is claiming the need to protect the privacy of parties involved as
the basis for most of the withholdings but these same parties, both
high Park Service officials and others, are named in court records that
are publicly available. In addition, the IG is withholding other
records on the ground that they are pre-decisional, even though this
deliberative process exemption does not usually apply to a law
enforcement investigation. Finally, the IG claims that some records
would reveal law enforcement techniques without explaining or even
hinting what those secret techniques could possibly be.

"In
this case, the Inspector General is acting as a Deflector General by
burying its own investigation," PEER Executive Director Jeff Ruch,
noting that the IG investigative report was finished back in January
2008 and has still not been fully released. "The Inspector General is
supposed to reveal not conceal."

Tomorrow, the Justice
Department is scheduled to answer the PEER suit and must decide whether
it will defend the withholdings and redactions made by its client, the
Interior IG. On March 19, 2009, Attorney General Eric Holder issued a
memo to all agencies declaring that henceforth "the Department of
Justice will defend a denial of a FOIA request only if (1) the agency
reasonably foresees that disclosure would harm an interest protected by
one of the statutory exemptions, or (2) disclosure is prohibited by
law." This case will be an early test of the "Holder Doctrine."

"Declaring openness is one thing. Delivering it is another," added
Ruch. "Until officials are held accountable for wrongly withholding
public records, the Obama openness directive will have more rhetorical
than practical effect."

Look at typical redactions by Interior IG

See the index of documents produced or withheld thus far

Revisit the Hubbell Trading Post case

View Attorney General Holder's memo