In theory, the Freedom of Information Act (FOIA) guarantees the legal right of the American public to obtain federal agency records. Judicially enforceable, FOIA was designed to ensure public access to Executive Branch records. The U.S. Supreme Court has stated that FOIA’s purpose “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed.”
In practice, FOIA morphed into a monstrosity that not only denies citizens their right to obtain information, but causes some of the requesters to become targets of investigations. The Supreme Court has consistently held that FOIA does not permit agencies to investigate either FOIA requesters or their reasons for submitting requests. In 2004, the Supreme Court held that “[a]s a general rule, withholding information under FOIA cannot be predicated on the identity of the requester.”
President Obama pledged to foster a new era of openness and transparency. On his first day in office, he issued memoranda relating to transparency and open government issues, including “Freedom of Information Act” and “Transparency and Open Government”. Inspirational speeches are great, but actions speak louder than words. The record reflects that during Obama’s presidency FOIA has become even less transparent than before. Those asking the questions and telling the truth are being prosecuted and otherwise attacked at the rate surpassing all prior American presidencies.
Undeterred by the facts, the so-called privacy advocates and government watchdogs (financed largely by the President’s supporters) recently bestowed a Transparency Award upon Obama. Come election time, it will undoubtedly be used to exemplify this administration’s achievements in the area of enhanced transparency. While the Transparency Award is resting next to the Nobel Peace Prize on the Presidential mantel, let’s examine the facts.
One of the government’s most despised agencies, the Department of Homeland Security, has been hard at work trying to steam-clean the wrinkly uniform of its public image. The House Committee on Oversight and Government Reform recently completed an 8-month investigation that exposed the DHS under Secretary Janet Napolitano of corrupting the agency’s FOIA compliance procedures, exerting political pressure on FOIA compliance officers, and undermining the federal government’s accountability to the American people.
Sounds bad? Just wait, because it’s a lot worse than you might think. The DHS staff attempted to frustrate the Congressional investigation through official non-cooperation, tampered with witnesses and even tried to steal Committee documents. Yes, you’re reading this right. After a witness interview on March 4, 2011, Reid Cox (one of the DHS lawyers) stuffed Committee’s exhibits into his bag and headed straight for the door. Republicans and Democrats alike protested that the Department’s attorney couldn’t leave with the Committee’s exhibits. Cox disagreed and kept on going. The report noted, “Any attempt to steal Committee documents is a serious matter. If the motive for stealing Committee documents is to use them to conduct a forensic investigation to identify a Committee source, it creates an extremely sensitive situation. The Department was notified that any future efforts to remove documents would not be tolerated.”
In a March 4, 2011 e-mail to the DHS’ Assistant Secretary for Legislative Affairs Nelson Peacock, members of the Congressional committee stated: “[W]e have had some bizarre exchanges with your lawyers. They keep trying to steal the exhibits we show the witnesses.”
What was in those exhibits that the agency is so determined to hide? Some of the highlights include the evidence that career FOIA professionals at the DHS have been stymied in their statutory compliance by the unprecedented intrusion of Napolitano’s political appointees, also known as the “Front Office” staff (Noah Kroloff, John Sandweg, Amy Shlossman, Julia Fox and Jordan Grossman). Chief Privacy Officer and Chief FOIA Officer is another one of Napolitano’s political appointees, Mary Ellen Callahan.
In 2010, the writer of this article was reporting on Janet Napolitano’s testimony before the United States Senate Subcommittee on Homeland Security Appropriations. During the hearings, Napolitano repeatedly turned to her unimpressively lethargic staff for answers. Shrugging their shoulders, time and time again, they had nothing to offer. In return, Napolitano parroted their responses to members of the Congress, stating “I’ll have to get back to you on that later.”
The “Front Office” appointees don’t show much respect for either FOIA or agency personnel who intend to comply with the Act’s requirements. As the report reflects, “by July 2009, Amy Shlossman and the rest of the political appointees in the Office of the Secretary had effectively ground the Department’s FOIA operation to a halt. By burdening the FOIA Office with unnecessary questions and ignoring their concerns, the Secretary’s political staff created a problem that did not exist during the previous Administration.”
The documents show that the Secretary’s political staff attempted to edit and amend responsive documents to avoid embarrassment. For example, they insisted upon changing the original document and then submitting the amended version in response to the FOIA request. Career FOIA staff refused to let that happen and informed the “Front Office” staff that they would “under no circumstances alter agency records before they are released to “avoid embarrassment.” The career FOIA staffer was “never forgiven” for this by Mary Ellen Callahan, who refused to speak to her ever again. In December 9, 2010 e-mail exchanges between Napolitano’s political appointees, Callahan complained to John Sandweg about career FOIA staffers, stating “Are you f#*^ kidding me?” and “I have idiots for staff.”
After repeated interference by Napolitano’s political staff with the processing of FOIA requests, the career FOIA staffer offered to meet with the “Front Office” bunch to explain how the release of documents is supposed to work. Napolitano’s cronies saw it as a joke and their e-mails were included in the evidence with which Cox raced to the door. Napolitano’s appointee Amy Schlossman wrote to her colleague John Sandweg, “This woman is a lunatic. You have to attend this mtg–if nothing else, for the comic relief.”
Aggravated with the very idea of learning how FOIA is supposed to work, Amy Shlossman wrote to Jordan Grossman, “This is their [FOIA staff] f*@#^ meeting!!!!!” (the f-bomb appears in all its glory in various e-mail communications fired off by Napolitano’s belligerent appointees). During the meeting with professional FOIA staffers, Napolitano’s Front Office bunch was bored silly. The staffer giving the presentation was kicked under the table to “move it along”, because Amy Schlossman “was bored and looking at her Blackberry”. When asked during the Congressional inquiry what she remembered about the meeting, Amy Schlossman couldn’t recall anything. How surprising.
The Congressional Report details that
“Shlossman responded she could not remember, was unaware of, or simply did not know the answer to a question from Committee investigators 79 times during the course of her four-hour interview. Additionally, Shlossman left the interview room six times to confer with counsel, including twice when she was presented an exhibit in the middle of a round of questioning. Having not objected to a single question asked to the three prior witnesses whose interviews were attended by DHS counsel, Deputy General Counsel Joe Maher objected 11 times during Shlossman’s interview. The behavior of the witness and counsel during Shlossman’s interview gave Republican staff present the impression that her testimony was intentionally vague on the advice of counsel.”
Our rights under FOIA are such an inconvenience to the DHS. Anyone who threatens to expose the Agency’s woeful practices pays a heavy price. While the government doesn’t want you to know much about them, they are definitely interested in learning more about you. Making FOIA requests can get you red-flagged and investigated. As the AP reported, “Career employees were ordered to provide Secretary Janet Napolitano’s political staff with information about the people who asked for records – such as where they lived, whether they were private citizens or reporters – and about the organizations where they worked. If a member of Congress sought such documents, employees were told to specify Democrat or Republican.” Every single media request was tagged for the “Front Office” review.
Napolitano’s political appointees lied to Congress and refused to acknowledge that approval from the Secretary’s political staff was required to release a response to a significant FOIA request. In fact, it was. They still get the first crack at the decision as to whether or not FOIA requests are honored. The Congressional report details that the career staffers in the FOIA Office “was not permitted to release responses to these requests without approval from political staff”. To hide their inappropriate activities, the DHS stopped using e-mail and conducted such political approval procedures over the telephone. They were also doing their best to avoid the word “Approval”, replacing it with such cute little terms as “Awareness,” “Good to Go,” “Affirmative Statement,” “Give the Thumbs Up” and “Active Concurrence”. In spite of their effort to obfuscate the facts, they were caught red-handed, courtesy of courageous whistleblowers.
Following the protocol in releasing such records to the requesters causes severe retaliation against the agency personnel. The DHS demoted Catherine Papoi (former deputy unit chief in charge of FOIA) for disclosing that the DHS had illegally sidetracked hundreds of FOIA requests from journalists, watchdog groups and private citizens. Whistleblowers and honest reporters are loathed by the current administration more than they ever were throughout the American history. The Congressional report determined that the DHS abused the (b)(5) exception “to prevent the release of embarrassing records”. Three out of four FOIA career staff interviewed by the Congressional Committee “have been transferred, demoted, or relieved of certain responsibilities”. In the mean time, all of the “political appointees who came to the Department early in 2009 continue to have a significant role in the FOIA response process.”
The report determined that DHS regards FOIA to be “politically undesirable” and keeps a tight grip on the piggy-bank of information, hiding “abusive and embarrassing official behavior” to avoid “both the shame of public scrutiny and potential criminal prosecution”. The report states that maneuvering by the DHS “slowed a congressional investigation and interfered with the Committee’s access to witnesses. Obstructing a congressional investigation is a crime.”
18 U.S.C. § 1505 states, in pertinent part:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress — Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.”
Unfortunately for all the truth-seekers, DHS officials don’t have to worry about being prosecuted for their crimes – after all, Eric Holder is too busy prosecuting whistleblowers.
Speaking of whistleblowers, Public Law 111 -117 § 714 states:
“No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who – (1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee; or (2) removes, suspends from duty without pay, demotes, reduces in rank, seniority, stats, pay, or performance of efficiency rating, denies promotion to, relocates, reassigns, transfers, disciplines, or discriminates in regard to any employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee of the Federal Government, or attempts or threatens to commit any of the foregoing actions with respect to such other officer or employee, by reason of any communication or contact of such other officer or employee with any Member, committee, or subcommittee of the Congress as described in paragraph (1).”
In short, any federal manager who takes personnel action against a whistleblower for communicating with any member of Congress is not entitled to continue collecting a salary at the expense of American taxpayers. Does it work that way in real life? Ask 98% of whistleblowers who have lost their cases in courts.
Bill Holzerland, Associate Director for Disclosure Policy and FOIA Program Development, testified before Congress, “All in all, I would say no, there is not more transparency.” The DHS is determined to ensure that you find out only what they want you to know. The Agency’s skewed perspective of “What you don’t know can’t hurt you” doesn’t work, because in this scenario the lack of transparency can and does hurt us as a nation. The report concludes that “The extent of the mismanagement of the FOIA function at DHS calls into question the competence and commitment of high-level staff charged with protecting the homeland from serious threats.”
My suggestion would be that the DHS apply to itself the same theory it attempts to sell to every freedom-loving American: “If you have nothing to hide, you should have no problem with being watched.” Isn’t that right, DHS? Step into the scanner of public opinion and don’t forget to remove your shoes.
- Julia Davis: The Terror Within, interviewed by Peter B. Collins and Sibel Edmonds (dandelionsalad.wordpress.com)
- Secret FBI Storage Drive to Shield Evidence from FOIA? by James Corbett (dandelionsalad.wordpress.com)
- Fighting for FOIA by Ralph Nader (dandelionsalad.wordpress.com)
- Take Action: Rescind Obama’s “Transparency Award” Now! (dandelionsalad.wordpress.com)