Legal Issues

by Tim Cushing


Filed Under:
congress, foia, transparency



House Committee Head Tells Federal Agencies To Stop Handing Out Communications With Congress To FOIA Requesters

from the perfectly-legal-obfuscation dept

Barack Obama promised the "most transparent administration ever," then spent years undermining his own promise. The Trump Administration has made no such promises (other than "if you don't like your Forever Wars, you can keep them...") but it's working overtime to make the faux transparency of the Obama years look like a high water mark in government accountability.

Multiple federal agencies are no longer allowed to communicate directly with the public through social media accounts. Anything posted must be approved by administration staff. Open.gov is shut down and Trump has decided against following in his predecessor's footsteps, refusing to release White House visitors' logs.

The release of the logs was Obama's idea. Nothing in the law compels release of this information. Trump's refusal aligns him with many former presidents, but not with the public's increasing transparency expectations. There was no exploitation of a loophole by Trump. Just a decision to restrict this administration to what the law says must be done, not what his constituency might expect.

The same goes for the latest non-transparency news to come from Washington. Whatever minimal transparency gains might have been achieved in the last several years are being rolled back by the controlling party.

The chairman of the House Committee on Financial Services sent a letter last month to the head of the Treasury Department instructing him to decline Freedom of Information requests relating to communications between the two offices, a letter that open records advocates called "deeply troubling."

[...]

The letter reads that since the Committee on Financial Services has legislative and oversight jurisdiction over the Treasury Department, all records of communication between the two offices and any documents produced remain in the committee's control — even when in the physical possession of the Treasury Department.

"The Committee expects that the [Treasury Department] will decline to produce any such congressional records in response to a request under the Freedom of Information Act or any other provision of law agreement," the letter states.

This blanket FOIA refusal instruction wasn't limited to the Treasury Department. The Associated Press obtained similar letters sent to a number of other agencies under the House Finance Committee's control, including the Consumer Finance Protection Board, FEMA, and the FDIC.

As the letter points out… scratch that. It doesn't. It's only after reading the letter that you arrive at this unwritten conclusion. FOIA law exempts many congressional "records" from being liberated with FOIA requests. This includes communications between Congress and more FOIA-responsive agencies. One end -- the end with the most power -- can fully control the release of communications involving other agencies. This is all due to [ta-da!] laws Congress wrote and passed. You see how that works?

So, we can be irritated (and rightly so) that this appears to be more opacity meant to separate us from our public servants and separate our public servants from accountability, but unfortunately, this is all very lawful -- a word deployed most frequently to defend actions which appear to be illegal. And here is the expected deflection:

"Congresswoman Waters has known about these letters for more than a month and she never raised any objections or said anything about them until a reporter asked," committee spokesman Jeff Emerson said in a statement.

"Here’s the truth: The position taken by the Committee is fully consistent with the legal position Republicans and Democrats have jointly taken for over three decades to protect Congressional records."

The problem here is the law. And the law must be changed by legislators -- the very group least likely to order itself to be more transparent. As for the argument about opacity = better oversight? May I direct your attention to four years of leaked surveillance documents illustrating just how meaningless the term "oversight" is.


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  • identicon
    bosyber, 12 May 2017 @ 4:05am

    So I guess the message is: if you want it to change, send letter to your congress(wo)man, and get your friends, associated to do the same to urge a change in law. And hope it has some effect?

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 12 May 2017 @ 6:21am

      Re:

      So I guess the message is: if you want it to change, send letter to your congress(wo)man, and get your friends, associated to do the same to urge a change in law. And hope it has some effect?

      Oddly enough that is exactly what Obama told one person who was lobbying for a good cause (can't remember what it was just now but is was a genuine good cause).

      He said - I can't just do it - you have to get other people to tell me to do it!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2017 @ 1:33am

      Re:

      No, If you want government transparency and oversight, then either be prepared to write a large blank check, or hold your congress critter at gun point.

      Laws are only valid as long as a will to enforce them exists. Otherwise they are no better than toilet paper. As with most things nowadays, there is a lack of will on both sides. People won't vote out their own bad apples, and the bad apples have no intent of supporting anyone but themselves. (Note: Yes all of them are bad apples. All of them need to be removed from power. It's not a question anymore. Even if they have done some good, they've been around too much of a corupptive influence to not have absorbed some of it.)

      If anything the message is: Enforce your will as citizens on the government you supposedly own, or watch it serve only itself in your name.

      reply to this | link to this | view in chronology ]

  • identicon
    spodula, 12 May 2017 @ 4:18am

    Drain the swamp

    Then replace it with a Marsh...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2017 @ 5:03am

    Open.gov is shut down

    Says it all really.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2017 @ 5:10am

    Build a wall ...

    ... around Washington DC and arrange for every opening to be one-way ... in. Politicians check in, but can't check out. After that's done, contact the Guinness book of world records and inform them of the new record breaking roach motel.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 5:45am

      Re: Build a wall ...

      I'm pretty sure Mexico will have no problem paying for this wall. In fact, where can I chip in? Is there a GoFundMe page???

      reply to this | link to this | view in chronology ]

  • identicon
    JimD, 12 May 2017 @ 5:51am

    think you can make government honest ?

    Should be obvious by now that people in government strongly dislike 'transparency' with the public -- and vigorously act to block it.
    Transparency is harmful to their careers.

    Imploring government personnel (especially elected officials) to do otherwise is a clear failure. The FOIA legal approach is also a demonstrable failure -- FOIA filings fail to deliver requested information in over 80% of cases.

    Cataloging here... the endless, specific transparency failures of government... is a totally ineffective approach.

    Root problem is that most people (including the well educated) do not comprehend the sociological and historical nature of government.
    Government and the general populace are in a competitive, not cooperative relationship.

    Always assume that government actors actively oppose transparency-- that enlightened understanding will greatly ease your confusion and frustration.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 12 May 2017 @ 6:22am

      Re: think you can make government honest ?

      I think it will ease your confusion - but not your frustration.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 8:30am

      Re: think you can make government honest ?

      Why do you think unethical behavior is unique to politicians?

      People in general tend to be biased in their own favor and having a bit of cash helps with their less than ethical activities. Poor people maybe unethical, but they lack the resources to do much. So, I would assume that unethical behavior is much more prevalent among the upper classes from which most politicians emerge. One does not magically become unethical immediately upon entering politics, they were corrupt to begin with.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 2:30pm

      Re: think you can make government honest ?

      The problem isn't "government". It's corruption. All three branches have been compromised by money. The two parties are both owned by private sector interests. Policy is for sale. US as a hollow husk of a real democracy. Look outside your borders.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 12 May 2017 @ 9:29am

    Ah, Nixon. Good times.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2017 @ 3:09pm

    Amazing how we all look at things so differently. Coming from a country girl

    reply to this | link to this | view in chronology ]

  • identicon
    FOIA user, 13 May 2017 @ 8:37am

    The conclusion of this article appears to lack critical reasoning although the writing is so unclear it is difficult to understand the point being made.

    No statutory FOIA exemption allows an executive agency to withhold Congressional correspondence, so it appears unlikely that a court would allow such an exemption. The Congressional letters demanding withholding is not a valid statutory exemption.

    It would have been helpful for the author to consult with an experienced FIOA attorney for insight. Instead, the author simply adopts the non-sense from the Congressional letters as authoritative legal reasoning. It is not.

    reply to this | link to this | view in chronology ]


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