AP CEO: It's Harder To Use Public Records To Hold Government Accountable

Matt Vespa
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Posted: Mar 18, 2015 3:45 PM
AP CEO: It's Harder To Use Public Records To Hold Government Accountable

Sunshine Week took a dark and ominous turn when the Obama administration decided to exempt the Executive Office of the President from FOIA requests. Additionally, the CEO of the Associated Press, Gary Pruitt, said that it’s becoming harder–and more expensive–for citizens to use public documents to hold government officials accountable. And this isn’t just a Washington D.C. problem; state courthouses are becoming more like fortresses in guarding public records. When documents are turned over, it’s done in the slowest, most lethargic way possible. At the same time, the fear of retribution by a government entity, like the Obama White House, also seems to be a factor in AP’s FOIA request about who foots the bill for Michelle Obama’s dresses [emphasis mine]:

Associated Press journalists filed hundreds of requests for government files last year, simply trying to use the rights granted under state open records laws and the U.S. Freedom of Information Act. What we discovered reaffirmed what we have seen all too frequently in recent years: the systems created to give citizens information about their government are badly broken and getting worse all the time.

We’re talking about this issue now because of Sunshine Week, created a decade ago to showcase the laws that give Americans the right to know what their government is up to. These days, Sunshine Week is a time to put a spotlight on government efforts to strangle those rights.

The problem stretches from town halls through statehouses to the White House, where the Obama administration took office promising to act promptly when people asked for information and never to withhold files just because they might be embarrassing.

A few months ago, the Treasury Department sent us 237 pages in its latest response to our requests regarding Iran trade sanctions. Nearly all 237 pages were completely blacked out, on the basis that they contained businesses’ trade secrets.

When was our request? Nine years ago.

It takes the State Department about 18 months to answer -- or refuse to answer -- anything other than a simple request. This week we filed a lawsuit against the department for failing to turn over files covering Hillary Rodham Clinton's tenure as secretary of state, including one request we made five full years ago.

As the president said, the United States should not withhold or censor government files merely because they might be embarrassing.

But it happens anyway.

In government emails that AP obtained in reporting about who pays for Michelle Obama’s expensive dresses, the National Archives and Records Administration blacked out one sentence repeatedly, citing a part of the law intended to shield personal information such as Social Security numbers or home addresses.

The blacked-out sentence? The government slipped and let it through on one page of the redacted documents: “We live in constant fear of upsetting the WH (White House).”

This whole revelation just adds fuel to the fire of the Clinton email fiasco, where the press has been suspecting that State Department officials are protecting Hillary. 

Moreover, this piece by Dan Metcalfe in Politico, who took Hillary to the woodshed over the email controversy, explains why access to such documents is essential to government accountability. Metcalfe ran the Office of Information and Privacy from 1981-2007, and helped enact FOIA standards for the entire Executive branch [emphasis mine]:

...[T]he official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton). That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place. And an agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”

In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever. “Nice work if you can get it,” one might say, especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.

… [T]here is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.

But having spent a quarter-century at the forefront of the government’s administration of the FOIA, including its transition to electronic records and its involvement in so many Clinton administration “scandals du jour,” I know full well that both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better and an attempted verbal “cover” of the situation (if not “cover-up”) that is truly reminiscent of years past.

Now, Mr. Metcalfe isn’t a conservative smelling blood in the water; he said he would still vote for Hillary if she were to become the Democratic nominee in 2016. Nevertheless, “asleep at the switch,” that seems to be a characteristic of the Obama administration regarding how it conducts its foreign affairs. For Clinton, it adds to the negative narrative about her and former President Bill Clinton. They’re secretive, and worst of all; they play by their own rules. The public has every right to verify if these hypotheses about public figures are true - especially ones who are running for president.

At the same time, Hillary has a history of being inauthentic, even going back to her 2000 New York Senate campaign. Republican strategist Mike Murphy used the phrase” duplicitous” to describe her then-Senate campaign, noting that she was trying to market herself as a centrist Democrat when she obviously falls into the lefty, progressive wing of the Democratic Party.

Yet, getting back to 2016 rumblings, it appears the former Secretary of State’s server was vulnerable to “spoofing,” where hackers–or foreign governments–impersonate her in emails to her various contacts. Guy will have more on this later today, but will this server be handed over to a third party for an investigation? No. Clinton said it would remain private at her UN Presser last week. Also, since it was established in a private residence, it affords her additional legal protections from criminal, civil, or administrative subpoenas.

Well, Happy Sunshine Week, everyone.