Could Better FOIA Response Have Averted the Massey Energy Mine Disaster?

A January 2010 inspection report covering the Massey Energy Upper Big Branch Mine in West Virginia shows a federal safety inspector saw a flawed ventilation system and was told "not to worry about it," reports The Huffington Post. The company was fined $70,000 for an "unwarrantable failure" to follow safety rules. The Charleston Gazette's Ken Ward Jr. first reported about the documents, which weren't released by the Mine Safety and Health Administration (MSHA) until more than a week after the April mine explosion.

The timing leaves journalists wondering if a more transparent MSHA could have averted the mine disaster. The Huffington Post reports how Ellen Smith, the managing editor of the Mine Safety and Health News newsletter, used to praise MSHA for its freedom of information work until the Bush administration used the 9/11 attacks as a reason to clamp down on information. Despite the Obama administration's emphasis on improved transparency, Smith thinks disclosure has gotten worse under Obama.

Read more here.

Document Warns 9/11 Commission to "Not Cross the Line"

Using the FOIA, The ACLU obtained a document wherein the 9/11 Commission was warned on Jan. 16, 2004, by high-level Bush administration officials to "not cross the line" in its investigation (see CIA4-007).

Click here to read why some think the memo is a small part of a cover up to gag the 9/11 Commission from true fact-finding.

The Robert Jackson Steering Committee Seeks Bush-Era Legal Memoranda Regarding Torture

On Thursday, January 7, an organization of attorneys, journalists and advocates filed a FOIA request for the DOJ's Office of Professional Responsibility's report regarding the conduct of President Bush's top lawyers in the Office of Legal Counsel who authored memoranda purporting to authorize torture and aggressive war. The request also seeks a 10-page rebuttal of the 2008 report by then-Attorney General Michael Mukasey.

See the request and transmittal letter here.

Millions of Bush Administration E-mails Found

The AP reports that computer technicians found 22 million missing White House e-mails from the George W. Bush administration as part of litigation brought against the Executive Office of the President in 2007 by two private groups - Citizens for Responsibility and Ethics in Washington and the National Security Archive. The two groups alleged the Bush White House failed to install an electronic record-keeping system.

Before the emails are released to the public, the National Archives will have to process the records for release. The records won't be available until 2014 at the earliest.

For more details regarding the e-mail discovery, click here.

American Small Business League to Recoup Legal Fees from the DOJ

Now that the Small Business Administration (SBA) has dropped its appeal of a California federal court's legal fees award, the American Small Business League will collect its attorneys' fee award from the Department of Justice.  

The case stemmed from the SBA's denial of the League's request for names of firms receiving small business contracts and the amounts awarded in 2005 and 2006.  The SBA claimed it didn't have records of the names and that the information was stored at the General Services Administration.  The Court found the SBA's argument "curious" and awarded the SBA to hand over the records and pay the League's attorneys fees in May 2008.  

Click here for details on what the League says the records reveal about the Bush administration. 

Bush Administration Document Evidencing 2007 "Endangerment Finding" Released

The Environmental Protection Agency released a 2007 report called the "endangerment finding" written by Bush administration officials that concluded that the government should begin regulating greenhouse gas emissions because global warming posed serious risks to the country.  The Bush administration refused to make the report public because it opposed new governmental efforts to regulate greenhouse gases.

The report was released pursuant to a FOIA request by the environmental trade publication Greenwire.   

Get more information here. 

2009 Secrecy Report Card

Hot off the presses -- OpenTheGovernment.org released its 2009 Secrecy Report Card today. It details slight decreases in secrecy across a variety of indicators during the last year of the Bush-Cheney administration. It also provides a six-month overview of the Obama administration's track record on openness issues as well as a section on financial transparency during the economy crisis.

Highlights include:

• Almost $200 Spent Creating and Securing Old Secrets for Every Tax Dollar Spent Declassifying
The government spent nearly $200 maintaining the secrets already on the books for every one
dollar the government spent declassifying documents in 2008, a 2% increase in one year. At
the same time, 16% fewer pages were declassified than in 2008.

• Reported Invocations of the "States Secrets" Privilege Continue to Rise
Invoked only 6 times between 1953 and 1976, the privilege has been used a reported 48
times—an average of 6 times per year in 8 years (through 2008)—more than double the aver-
age (2.46) in the previous 24 years.

• President Bush Surpassed All Presidents Since Kennedy in Assertions of Executive Privilege
President G.W. Bush asserted Executive Privilege 6 times in response to congressional re-
quests, as of August 21, 2008.

• 2,083 Orders of the Secretive Foreign Intelligence Surveillance Court
The Department of Justice reported that, in 2008, the FISC approved 2,083 orders—rejecting
one and approving two left over from the previous year.

Get the complete report here.

Release Defense documents still redacted

Although the Department of Defense released 12 documents related to detainee abuse, the redaction of key details is still pretty heavy, The Public Record reported. Some of what the Obama administration redacted had been previously released under Bush. One page is fully redacted. What wasn't redacted, however, suggests that Bush player a larger role in prisoner interrogation than he has admitted to. "I got my marching orders from the president," Maj. Gen. Mike Dunlavey said.

The Department of Defense released redacted documents Thursday related to abuse and torture of detainees held in U.S. custody at Guantanamo Bay and other overseas prisons.

The 12 documents were released as part of the American Civil Liberties Union's long-running Freedom of Information Act (FOIA) lawsuit against the government.

The Obama administration agreed to reprocess the documents, but it continues to withhold many key details related to the Defense Department's use of torture methods. In some documents, the Obama administration has withheld details that were previously disclosed by the Bush administration.

More here.

Newsweek: Obama opts against public disclosure

David Sobel, a lawyer who specializes in FOIA cases, told Newsweek that "nothing has changed" since Obama promised a new era of openness. Instead, the Bush administration's policies are being continued. FOIA experts say Obama's directive for federal agencies to presume disclosure of FOIA requests contained a loophole. The memo "said the new standard applies 'if practicable' for cases involving 'pending litigation.'" The recent controversy of over the denial of White House visitors logs falls into this category due to a pending Bush-era lawsuit for such records.

As a senator, Barack Obama denounced the Bush administration for holding "secret energy meetings" with oil executives at the White House. But last week public-interest groups were dismayed when his own administration rejected a Freedom of Information Act request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies. One reason: the disclosure of such records might impinge on privileged "presidential communications." The refusal, approved by White House counsel Greg Craig's office, is the latest in a series of cases in which Obama officials have opted against public disclosure. Since Obama pledged on his first day in office to usher in a "new era" of openness, "nothing has changed," says David -Sobel, a lawyer who litigates FOIA cases. "For a president who said he was going to bring unprecedented transparency to government, you would certainly expect more than the recycling of old Bush secrecy policies."

The hard line appears to be no accident. After Obama's much-publicized Jan. 21 "transparency" memo, administration lawyers crafted a key directive implementing the new policy that contained a major loophole, according to FOIA experts. The directive, signed by Attorney General Eric Holder, instructed federal agencies to adopt a "presumption" of disclosure for FOIA requests. This reversal of Bush policy was intended to restore a standard set by President Clinton's attorney general, Janet Reno. But in a little-noticed passage, the Holder memo also said the new standard applies "if practicable" for cases involving "pending litigation." Dan Metcalfe, the former longtime chief of FOIA policy at Justice, says the passage and other "lawyerly hedges" means the Holder memo is now "astonishingly weaker" than the Reno policy. (The visitor-log request falls in this category because of a pending Bush-era lawsuit for such records.)

More here.

Obama embraces another Bush secrecy policy

The Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Obama administration after Secret Service rejected requests for White House visitor logs, the Washington Post reported. CREW specifically sought data on the visits of coal company executives but had submitted a broader request for logs that was also denied. Obama's administration says the policies are being reviewed.

President Obama has embraced Bush Administration justifications for denying public access to White House visitors logs even as advisers say they are reviewing the policy of keeping secret the official record of comings and goings.

In recent days, the Secret Service has rejected requests from two organizations for the logs, which document the West Wing meetings that have helped shape Obama's policies on banking regulation, economic recovery, foreign policy and the auto industry.

Today, Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Obama administration seeking release of the visits of coal company executives to the White House. Msnbc.com reported today that their broader request for logs since Jan. 20 was also denied.

More here.

Charles Davis' take on White House FOIA decision

From Jurist:

Charles N. Davis [Executive Director, National Freedom of Information Coalition]: "The May 19 federal appellate court decision finding that the White House's Office of Administration is not subject to the Freedom of Information Act is an act of legal finery in bad need of a legislative fix.

Indeed, the court's decision is but the latest example of how crabbed judicial interpretation of the Act has restricted its ambit even as the digital communications of the era bedevil a law created in the days of manila folders and Smith-Corona typewriters.

In upholding a ruling last year by a federal judge, the appeals court found that the White House does not have to make public internal documents examining the potential disappearance of emails during the Bush administration.

More here.

Obama follows Bush in keeping details of FBI database secret

President Barack Obama refused to reverse a Bush policy that protected information about the FBI's Investigative Data Warehouse. "As a result, there is no public list of all the databases the FBI sucks into this computer warehouse; no information on how individuals can correct errors about them in this FBI database; and no public access to assessments the bureau did of the warehouse's impact on Americans' privacy," the AP reported. The warehouse is five years old and contains more than 50 databases.

Despite a pledge to open government, the Obama administration has endorsed a Bush-era decision to keep secret key details of an FBI computer database that allows agents and analysts to search a billion documents with a wealth of personal information about Americans and foreigners.

President Barack Obama's Justice Department quietly told a federal court in Washington last week that it would not second-guess the previous administration's decisions to withhold some information about the bureau's Investigative Data Warehouse.

The Electronic Frontier Foundation, a digital rights advocacy group, had sued under the Freedom of Information Act to get records showing how the FBI protects the privacy of Americans whose personal information winds up in the vast database.

More here.

Obama releases memos describing torture techniques

The Huffington Post posted the four torture memos released by President Obama on Thursday. The memos, which were issued by the Office of Legal Counsel, detail interrogation techniques -- "exactly what the Bush administration authorized for 'high value detainees' in U.S. custody."

As part of an ongoing court case, the Department of Justice released on Thursday memos issued by the Office of Legal Counsel between 2002 and 2005, detailing techniques used for interrogation of terrorism suspects. In doing so, President Obama declared:

"While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release."

Certain aspects of the documents are redacted -- including the names of CIA officials -- but the evidence is of enough weight that Senate Judiciary chairman Patrick Leahy already felt compelled to offer the following statement.

More here.

For the press release from the Department of Justice, click here.

Obama approves $1 million for FOIA ombudsman

The Bush administration provided no funding for the new Office of Government Information Services and attempted to relocate it under the Justice Department, which defends the government FOIA decisions, Columbia Journalism Review reported. The good news, however, is that Obama's budget provides $1 million to the new office, which is likely to be up and running by the end of the year in the National Archives, instead.

The budget President Obama just signed includes one million dollars for the new Office of Government Information Services, which will be housed in the National Archives that is charged with serving as a government wide ombudsman for the Freedom of Information Act process.

Gary Stern, the Archives’ general counsel, speaking in January before a Washington College of Law-sponsored conference on freedom of information, made it clear that the agency was expecting an initial appropriation of that amount, and said that most of the funds would go towards the office’s director and a half dozen support staff.

The Bush administration had, despite the explicit intent of congress, signed a quiet budget provision in an attempt to put the office within the branch of the Justice Department charged with defending the government’s FOIA decisions, and provided it with no funding. Outside advocates and members of Congress members who’d worked on creating OGIS not surprisingly viewed this as a rather naked conflict of interest and an attempt to neuter the office.

More here.

Judge orders fed. govt. to release documents

From the AP:

A judge has ordered the federal government to turn over documents related to the shooting of a fleeing drug smuggler or to explain why it is withholding them. The shooting led to the imprisonment of two Border Patrol agents and later a commutation of their sentences by President George W. Bush. The judge, Richard Leon of Federal District Court, acted in response to a suit by Judicial Watch, a conservative watchdog group, which got no response from the Departments of State, Justice and Homeland Security after filing Freedom of Information Act requests two years ago for records relating to the smuggler, Osvaldo Aldrete Davila. Judicial Watch says it wants the government’s records to answer questions about the prosecution of the agents and how regularly the Justice Department offers immunity to drug smugglers to help prosecute law enforcement officers.

More here.

Obama fails three early tests

Could his promise have been too good to be true?

The Obama administration, which vowed to usher in a "new era of openness in our country," either has delayed action on requests for access to government records or refused to disclose them in three early, high-profile tests of the pledge.

This week, Justice Department lawyers announced that they'd continue to assert the state secrets argument made by the Bush administration in a lawsuit alleging that five men were tortured abroad in U.S.-run prisons.

In a separate case, the Obama Justice Department has agreed with the Bush administration — at least initially — that the news media shouldn't have immediate access to court records in the ongoing Guantanamo detainee litigation.

More here.

Obama contradiction leads to bill

The Obama administration ruffled quite a few feathers by taking the same position as former President Bush on an issue involving government secrecy and torture, two positions Obama condemned upon entering office. Now legislation has been filed to limit the use of the "state secrets" privilege, the Boston Globe reported. Senate Judiciary Committee Chairman Patrick Leahy said the bill "does not restrict the government's ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill afford to delay consideration of this important legislation."

House and Senate committees yesterday introduced bills that would sharply curtail the government's use of the "state secrets" privilege, a policy used by President Bush to argue that a lawsuit involving allegations of torture should be dismissed - and a position that the Obama administration has now adopted.

Drafted and filed separately by the House and Senate Judiciary committees, the legislation was filed just days after Justice Department lawyers working for the new administration told a federal appeals court that its position did not differ from the Bush administration's: the court should throw out a lawsuit that accuses Jeppesen Inc., of helping the CIA secretly transport five terrorism suspects overseas for harsh interrogations, on the grounds that the suit involved state secrets that, if revealed, could jeopardize national security.

More here.

Obama reaffirms one of Bush's state security privileges

Several judges for the U.S. Ninth Circuit Court of Appeals were shocked when Obama's administration agreed with the Bush administration's handling of a "case involving rendition and torture," The New York Times reported. It was argued that the state secret privilege was for national security reasons, prompting anger from the ACLU.

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

More here.

ACLU tests whether Obama will keep his word

Now that President Obama has advised federal officials to process records requests with a presumption of the openness, the ACLU is trying to obtain at least 50 secret Justice Department memos which supposingly justify or provide details of interrogations or wire tapping. The McClatchy Washington Bureau site provides links to the request letter, a list of the missing memos and more on Obama's executive order. Click More Here below.

Dozens of secret documents justifying the Bush administration's spying and interrogation programs could see the light of day because of a new presidential directive.

The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.

For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.

More here.

'Secrecy is for losers'

Newsweek's Jonathan Alter looks back at the history of White House secrecy as openness morphs from "geeky" to "hip." He calls for a mandate that all of the government's private sector contracts be made public, which he says will lead to competitors racing to "convince the government they can do the same things cheaper."

For a long time now, there's been too much secrecy in this city." Those were the most important words President Obama spoke on his first full day in office. Obama then signed executive orders to shift the balance back toward openness in government. At least in theory, the burden of proof will move from those who would release information to those who would classify it. It's significant Obama led off this way. He went right after not just George W. Bush and Dick Cheney, but an eternal bureaucratic impulse. Will Obama's emphasis on discipline and control eventually lead him to share that impulse? We'll see.

Thomas Jefferson argued that "information is the currency of democracy," and for generations peacetime America respected the principle. Believing, as Secretary of State Henry Stimson did, that "gentlemen don't read other gentlemen's mail," the nation chose not to even have an intelligence service until World War II. Then came the Atomic Energy Act of 1946 and the National Security Act of 1947, which essentially said that a certain constantly expanding category of information was "born classified." That means no formal process for assessing if something should be secret or not—just an officious bureaucrat with a big stamp.

More here.