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Too Many Secrets Harm Our Democracy and National Security

By Kate Oh, Policy Counsel, ACLU

This week, an unusual array of characters and objects competed online for a dubious honor: Santa Claus, U.S. Department of State cables, a partial smiley face, Superman’s alter ego, a missing snack car on an Amtrak train, the retort “OK,” Beyoncé, and Conan the military dog. They were all the targets of the federal government’s excessive, arbitrary, or even absurd attempts at secrecy — with Conan’s example voted the winning favorite of Twitter users. 

And the winner for best worst example of government secrecy is…Conan!

The online tourney was held as part of the Accountability 2021 coalition effort to bring government transparency and accountability reforms to the forefront of the national public policy debate. Although the examples may be amusing and funny at first blush, they illustrate a pernicious problem for our democracy: our government keeps too many secrets. And the egregious secrecy can be found across the federal government and for too many reasons, from a misunderstanding of what must truly remain secret to a massive backlog of public requests for information. 

This state of affairs is incompatible with a system of government that is meant to be open, well-functioning, and accountable to its people. History has proven again and again that undue government secrecy thwarts oversight and weakens checks and balances against abuses of power — allowing corruption, incompetence, and human rights violations to fester. 

Too many secrets in the national security context are even more corrosive, with enormous stakes for civil liberties and democratic accountability as well as profound life and death implications. One crucial example is the U.S. government’s post-9/11 treatment of detainees in U.S. custody overseas, who had been abused, tortured, and even killed by government agents using illegal interrogation tactics that were secretly authorized by a handful of Bush administration officials and justified on the basis of highly classified, and later repudiated, Department of Justice legal opinions. Had those senior officials engaged in open debate about their plans and justifications with Congress and the American public before implementation, it’s hard to imagine that they would have so brazenly rushed ahead despite the widespread condemnation that the later revelations would provoke.

Among the most instructive examples of secrecy are the ones where a federal agency redacted or withheld information that came to light later or elsewhere, exposing the flawed or even indefensible judgment behind the government’s decision to hide it. In the WikiLeaks case, one of the online contest candidates, the Department of State responded to a Freedom of Information Act (FOIA) request from the American Civil Liberties Union by sending back redacted versions of embassy cables that were already in the public domain — a shady decision compounded by the fact that the records contained criticisms of U.S. government policies such as torture and detention at Guantanamo. Those sources of shame for the U.S. government were conveniently withheld from the public as national security secrets. 

In some instances, the federal government will refuse to even confirm or deny that a particular government record exists (i.e., issue a “Glomar” response) in response to a public request, even after having confirmed the existence of the same record in a different context. That is precisely what happened in another ACLU lawsuit in which the federal government stonewalled the release of rules governing the use of lethal force — whose existence the Department of Defense confirmed in an official report. Because those government rules reportedly loosened safeguards against civilian casualties, the unjustified secrecy grossly undermined the public’s ability to supervise what our government was doing, including taking actions on matters of war and peace that kill innocent people in our name. 

Secrecy undermines our democracy, our constitutional system of checks and balances, and our security. That is why leading civil society organizations, including the ACLU, have called on President Biden to embrace sweeping policy changes to truly “bring transparency and truth back to government.” 

As several of the Twitter contest contenders exemplified, the need to fix the nation’s system for classifying and declassifying national security information is especially acute and urgent — the central focus of a coalition letter to the President that the ACLU and other advocates signed this week. It’s past time to overhaul and rein in the government’s secrecy regime, and the broken classification and declassification system is a prime place to start.

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Repairing FOIA: Shining a Brighter Light on Government Actions

By Zach Brown, Public Citizen

Above all else, information is meant to be shared.

While this statement could be applied to a variety of different circumstances it couldn’t be truer than when it comes to information about our government’s actions. Just as telescopes provide us grand images of the stars and microscopes provide insight on a cellular level, everyday Americans have a special tool for learning about the operations of government agencies: The Freedom of Information Act. For more than 50 years, the Freedom of Information Act has provided members of the public with the right to information about governmental activities and has led to bombshell discoveries across the nation and spurred critical accountability actions.

However, over time, FOIA’s revealing light on government actions has unfortunately been dimmed quite a bit.

One of the main problems information requesters face is government agencies’ overuse of FOIA exemptions to keep information away from the public. FOIA’s exemptions to disclosure are supposed to be narrowly construed, but too many times these exemptions have been overused and interpreted broadly by federal agencies to put a lamp shade on FOIA’s illuminating power.

For example, just last year in the aftermath of a newly passed COVID-19 relief package, the American public rightfully wanted to know who was receiving the small business loans. Pretty reasonable, right? But how did the Small Business Administration respond? By citing FOIA exemption 4 (exempting confidential commercial information from disclosure) and FOIA exemption 6 (meant to protect private personal information from disclosure). And if you’re reading this wondering how on Earth does the name of a business receiving a pandemic small business loan fall under this exception, you’re definitely not alone, as a Federal Judge found that neither of the exemptions offered fit the bill and ordered that this information be shared (and the revelations highlighted that more transparency was definitely needed).

Furthermore, this longstanding overuse of exemptions by agencies has been compounded by court decisions that constrain the public’s right-to-know. For example, in the 2019 U.S. Supreme Court case Food Marketing Institute v. Argus Leader Media, the longstanding legal test for when information can be withheld as “confidential” commercial information under FOIA’s fourth exemption was set aside. The prior test looked at whether the information would cause substantial competitive harm. The Supreme Court’s decision, however, looked at whether the information is actually and customarily treated as private and whether the government assured that it would be kept confidential. Under this test, information can be withheld even if releasing it would cause no harm to the company.

In addition to overuse of exemptions, outdated technologies and insufficient allocation of resources oftentimes slows down the FOIA process to a snail’s crawl. For instance, even though the law states a 20-day deadline for government agencies to respond to FOIA requests, this goal is seldom met. Requesters often don’t receive responses to their FOIA requests for years.

Reforms to increase government transparency are urgently needed.

Luckily, we’re not in the fight alone.

Last year, 40 advocacy organizations and experts began working together to craft a much-needed plan to address the gaps in our current system of government disclosure. And while the full report is far more expansive than FOIA and open government, the Accountability 2021 plan detailed various steps that need to be taken to improve government transparency.

For one, FOIA is in desperate need of some legislative reform—let’s call it installing a brighter bulb in the FOIA flashlight. Congress should pass legislation that implements a balancing test regarding when FOIA’s exemptions can be used that requires agencies and courts to weigh the interest in withholding information with the public’s interest in obtaining the information. Additionally, FOIA reform must address the Food Marketing Institute decision and clearly state that exemption 4 only applies to records whose release would cause substantial competitive harm. In a similar vein, it’s also imperative that we pass legislation to clarify the language of FOIA to ensure that the federal court system’s authority to hear FOIA cases includes the explicit power to require agencies to make records affirmatively available to the public, not just to the FOIA requester. And, if the government were required to proactively share more information without requiring people to request it via FOIA, it would definitely save us all some time!

Additionally, like switching to energy efficient light sources, the FOIA process urgently needs to be brought into the year 2021. The government should be investing in modernizing the recordkeeping of federal agencies and providing them with the technological tools needed to more easily access and retrieve requested documents. And not only does recordkeeping need to be modernized, but it also needs to be uniform and usable to everyone, regardless of whether they are sighted. In the wake of Trump’s secrecy-addled administration, it’s time for our federal government to take the future of transparency in government seriously. The American people deserve it.

Thus, our fight for transparency and accountability must be unwavering. Just last week, Adina Rosenbaum, an attorney from Public Citizen’s Litigation Group, spoke at a virtual briefing organized by Open The Government explaining both the expansive uses of FOIA and the urgent need for its reform. In her presentation, Rosenbaum reiterated that while under FOIA, agency records should be presumed to be public records unless they meet an exemption, in practice, it often seems that agencies are actively searching for ways to withhold information rather than doing their best to share information. Therefore, our advocacy must also work to change the culture of government secrecy itself, stressing that bolstering FOIA not only benefits the public, but the agencies themselves.

https://youtube.com/watch?v=4et7tz9XaqM%3Ffeature%3Doembed

Public Citizen will continue to advocate for progressive reform to increase transparency and accountability.

FOIA’s light on our government’s actions isn’t one we can afford to let flicker further.

This blog post by Public Citizen originally appeared here.

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Anti-Corruption Week: Holding Power to Account and Fostering Public Trust

By Delaney Marsco, Ethics Counsel, Campaign Legal Center

The public’s trust in government is at near-record lows. While the reasons for the public’s poor view of the government are many, lack of government accountability only adds to the distrust.  The purpose of Anti-Corruption Week this month is to shine a spotlight on the much-needed and attainable reforms that can increase government accountability, reduce corruption and begin to restore public confidence.

The factors that contribute to government corruption are not new, but they are peskily resilient: pay-to-play influence and the revolving door between special interests and government; the rise in lobbyist-run agencies; the shattering of norms against conflicts of interest; and blatant examples of self-dealing across the federal government.

The public’s intuition is common sense: the influx of money in politics must be having a corrupting effect on the political process. The rules of the game appear to be rigged to make influence more effective and more secret at the same time. Now, more than ever, it is critical to establish meaningful guardrails to protect the integrity of government to ensure it acts in the public interest. Only then can we hope for the public’s trust in government to improve.

Common sense reforms, like those proposed in Accountability 2021, can fight against these forces that harm our democracy.

To prevent corruption in the federal government and reverse the trend of unfair privileged access and influence by wealthy special interests, the Biden administration must elevate ethics as a core value. Prioritizing meaningful structural ethics reforms and committing publicly to adhere to the rules and values and norms behind them can help us achieve a more accountable government.

Key reforms include:

  • Relaunching ethics.gov, so that the public has full, convenient access to all ethics documents. Meaningful disclosure allows the public to scrutinize officials’ financial interests and ensure they are prioritizing the public interest instead of personal gain. Any disclosures must be searchable, sortable, downloadable, and machine-readable.
  • Establishing a Lobbying Reform Task Force to make recommendations that will improve lobbying disclosures and require reporting by currently unregistered lobbyists.
  • Enforcing and bolstering existing ethics and conflicts of interest laws, including the conflict-of-interest statutes, the Lobbying Disclosure Act, the Foreign Agent Registration Act, and the Hatch Act.
  • Appointing someone in the executive branch to oversee the implementation of a bold ethics agenda.

The reforms boil down to a few key principles. First, the public should know what interests are present in government decisions, either through access or based on the past affiliations of government officials. Second, violations of rules against conflicts of interest need to be enforced in meaningful ways. And third, government needs to embrace ethical, conflict-free governance as a core value.

The result would be less corruption and less policy done for secret or private reasons. The public deserves no less. And in time, it might start to trust the government’s integrity again.

The Biden administration has a once-in-a-generation opportunity to embrace and promote these meaningful ethics reforms, and there is no time to waste. In an advocacy letter to the administration this week, accountability advocates will urge Biden to relaunch Ethics.gov and will host a virtual briefing on corruption in government and the recommendations in Accountability 2021 to prevent it.

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Advocates push Biden for swift action on Accountability 2021 recommendations

During Sunshine Week, the annual celebration of the importance of open government and freedom of information, government accountability advocates announced plans to amplify the recommendations in Accountability 2021 in the weeks ahead. Convened by Open The Government, a broad coalition of more than 40 good government, democracy reform, anti-corruption, and civil rights organizations created Accountability 2021 as a roadmap for the Biden administration to repair gaps in oversight laws and practices in the federal government.  

Earlier this year, accountability experts scored a major victory when Biden signed an executive order on ethics commitments for the executive branch, including a pledge prohibiting officials from interfering with federal law enforcement matters at the Department of Justice, and a transparent, science-based response to the pandemic.

But the Biden administration can and must take swift action to adopt more of the practical yet transformational solutions mapped out in Accountability 2021 in the lead-up to Biden’s first 100 days in office. In the days ahead, a coalition of good government organizations will advocate for specific recommendations through engaging blog posts, messaging on social platforms, opinion articles and virtual events that will be featured on the Accountability 2021 site.

Look for insights and information on the following:

Pandemic Response and Preparedness (Week of March 22)

Following the one year anniversary since the World Health Organization declared COVID-19 a pandemic and lockdowns began, advocacy efforts include the release of a special Open The Government report that sheds light on how the government’s secretive response to the pandemic undermines the public’s access to information and contributed to its devastating impact on millions of Americans, especially communities of color. We are also pushing for agencies to create standard procedures for collecting, disclosing and maintaining pandemic related data to the public and for Congress to pass the Scientific Integrity Act.

Whistleblowers (Week of March 29)

Although Congress has advanced whistleblower protections in the public and private sectors over the past decade, whistleblowers still face retaliation for speaking out against wrongdoing because the laws that protect them from demotions, harassment, and other forms of retaliation are inadequate. Whistleblower advocates will urge Biden to take steps to support and protect federal employees, appoint a Special Assistant to review the federal whistleblowing system and recommend reforms, and require agencies’ non-disclosure agreements comply with whistleblower laws.

Right to Know (during the Week of April 5)

Open government is at the foundation of an accountable government, and Americans have a right to know what our government is doing. Advocacy efforts will focus on recommendations to the Biden administration to elevate transparency in the White House and update the Freedom of Information Act.

Anti-Corruption (during the Week of April 12)

As Americans will be filing their tax returns this week, advocates will focus on measures that will ensure future candidates and cabinet officials disclose their tax returns and ethics forms.  The Biden administration must prioritize the investigation and prosecution of ethics laws, and increase transparency around ethics with the relaunch of Ethics.gov.

National Security (Week of April 19)

Over-classification of government information is rampant, preventing access to information where secrecy serves no national security interest. Advocates will call on the Biden administration to review and revise its classification policies and restrict agencies’ ability to circumvent public records laws.

First 100 Days Snapshot (Week of April 26)

The recommendations in Accountability 2021 will forge a new path toward long-lasting oversight and accountability. At the first 100-day marker, we will take a snapshot of the progress the Biden administration has made towards advancing accountability and highlight necessary next steps.

Our assessment of the Biden administration’s adoption of more of the recommendations in Accountability 2021 will continue beyond the first 100 days with an emphasis on the media’s access to information, police use of force and misconduct, and more.

To participate in any of the advocacy efforts outlined above or to recommend others to feature in blog posts, social media engagement, virtual discussions or in sign-on letters, please email us at info@openthegovernment.org.