Familiar barriers slow Obama's transparency drive

[March 18, 2011]  WASHINGTON (AP) -- One government agency is still trying to find correspondence for a political reporter between federal officials there and prospective presidential candidates -- from the 2008 election. Another censored 194 pages of internal e-mails about President Barack Obama's new rules on open government. Another agreed to hand over records of travel expenses then changed its mind and refused to turn them over.

Two years after Obama pledged to reverse the Bush administration's penchant for secrecy and comply more closely with the U.S. Freedom of Information Act, The Associated Press grapples with many of the same frustrating roadblocks and head-scratching inconsistencies. Several recent examples are described below. Exasperating delays and denials also affect ordinary citizens, researchers and businesses, and they frustrate the administration's goal to be the most transparent in history.

Obama's administration this week defended its progress in disclosing more information rapidly and reducing backlogs of requests for information. Agencies also are posting online large sets of data on auto safety, air quality, crime, health care and employment, which means fewer requests have to be filed in the first place, they said.

"Greater transparency and a more open government are happening right now," said Melanie Pustay, director of the Justice Department's Office of Information Policy. Her office is responsible for government-wide compliance with the Freedom of Information Act.

Yet it remains a hair-pulling, exhausting experience to ask for federal records from the government. The law can be complicated even when it's applied properly. Patience is a virtue.

Even close allies remain critical of what the government is doing.

John Podesta, the former Clinton White House chief of staff who led Obama's transition team, told senators this week that federal agencies have done a poor job of keeping Obama's promise to reinvigorate the open records law. And Podesta, who runs the progressive Center for American Progress, singled out the Justice Department for defending government efforts to withhold information in new ways under nine narrow provisions in the law that balance disclosure against important principles like security and privacy.

The Supreme Court weighed in twice in recent months, both times with decisions that open-government advocates applauded. In a ruling issued this month, the court rejected 8-1 the government's broad use of a provision protecting agency personnel rules to withhold Navy maps relating to its main West Coast ammunition dump. The Associated Press is among 20 news organizations that filed a brief urging the court to limit the personnel exemption.

During 2010, Americans arguably learned more about U.S. diplomacy and the wars in Iraq and Afghanistan from the unauthorized release of classified documents by the anti-secrecy organization WikiLeaks than through disclosures under the Freedom of Information Act or records that the administration published. Thousands of diplomatic messages leaked by WikiLeaks also made clear that a lot of what U.S. officials insist is confidential isn't a secret at all.

Among the classified documents WikiLeaks revealed? A "scene-setter" message from the U.S. Embassy in Ottawa to the White House prior to Obama's February 2009 trip to Canada. The message, which won't be officially declassified until 2019, informed the president that he is enormously popular in Canada, Canada is America's largest trading and energy partner, and Canada is a staunch and like-minded ally of the U.S.

The Freedom of Information Act requires the government to keep secret information that, if disclosed, might harm national security, reveal the identity of law enforcement informants or undermine a criminal investigation. Agencies also can withhold other materials, such as records that reveal their decision-making behind the scenes, a company's trade secrets or matters of personal privacy.

As the world's largest news organization, the AP asks more than 1,000 times for copies of government records in federal, state or local offices. Its efforts under the Freedom of Information Act last year led to stories about:

• The Homeland Security Department's practice of detouring hundreds of requests for federal records to senior political advisers for unusual scrutiny, probing for information about the requesters and sometimes delaying disclosures deemed politically sensitive. AP obtained more than 1,000 pages of internal e-mails. Congress and the inspector general are investigating.

• Public housing agencies across the country operating with no budgets, untrained staff and shoddy record-keeping, wasting millions of taxpayer dollars. Internal documents showed the agencies didn't follow financial rules and lacked the most basic policies for spending petty cash or using government credit cards.

• Previously undisclosed offenses, including excessive drinking, drug use, sexual misconduct and mishandling weapons, by more than 200 security employees in Afghanistan, Iraq and other countries working for companies under State Department contracts.

• The Small Business Administration's bungling in the aftermaths of Hurricanes Katrina and Rita. The SBA, the lead federal agency helping people rebuild their homes and businesses, rejected loans that should have been approved and approved questionable loans. Only 60 percent of the loan money approved by SBA ultimately reached applicants.

• The government giving millions of dollars in bonuses to bank regulators at federal agencies that missed or ignored warning signs of the worst financial crisis in generations.

Sometimes, the AP's efforts to dislodge government files aren't so successful, especially on a fast-breaking news story when deadlines matter. The following examples are taken from inside the working files of AP reporters:

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The Federal Aviation Administration delayed releasing by nearly one year records that showed it was the agency's idea to keep the public in the dark about a low-level flight by Air Force One over New York City's waterfront.

The unannounced flight in the spring of 2009 turned into a public relations disaster as panicked New Yorkers, fearing another 9/11-style attack, emptied office buildings. In the aftermath, Louis Caldera, director of the White House military office that authorized the flight, was fired.

After AP requested records about the FAA's role in the flight, the agency said it wouldn't turn over records that revealed how it made its internal decisions. The FAA dropped its argument when AP appealed. But the delay postponed the disclosure for almost 10 months, long after the episode had faded from the news, that the FAA had recommended keeping the flight secret from the media and the public unless they called to ask about it.

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The AP asked the Justice Department for records showing how much the U.S. spent during the last five years on first-class and business travel for government witnesses who testify in federal cases. The department quickly denied the request, saying it couldn't release the records without permission of the government witnesses or proof they had died. It also cited reasons of personal privacy and the need to protect law enforcement records.

AP appealed the decision, arguing that the Justice Department wasn't obeying Obama's order in January 2009. The president told agencies to adopt a presumption in favor of disclosure. AP said the government was forcing AP to show that it was entitled to the records, when the burden of proof was on the government to show why revealing the costs would invade the privacy of witnesses.

The Justice Department agreed. It withdrew its denial and agreed to look for the information. A few months later, it cited new reasons for withholding the information and refused to provide the files.

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When AP tried to peer behind the crafting of the Obama administration's new rules for open government, the White House Office of Management and Budget invoked a legal provision to block its internal deliberations from outside scrutiny.

The December 2009 "Open Government Directive" required every agency to take immediate, specific steps to open their operations up to the public. But OMB censored 194 pages of internal e-mails about the directive that AP asked to read. It blacked-out entire pages of e-mails between federal employees discussing how to apply the new openness rules. One redacted message discussed how to respond to AP's request for information about the new transparency rules. Other blacked-out sections included messages discussing changes the White House wanted and rules that were never made official.

Overall, the OMB cited the "deliberative process exemption" to withhold the information -- which Obama said to use more sparingly -- at least 192 separate times.

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The State Department dropped a request for information about a troubled cultural exchange program for foreign college students without asking the AP whether it still needed it. When AP first sought the information one year ago, the department warned that it was taking 333 days on average to process such requests. More than a year later, officials said they didn't have any records of complaints about a program that allows foreign college students to enter the U.S. on work visas for up to four months. The department later said it began keeping records of complaints after AP asked for them, but still didn't turn them over.

Following a lengthy investigation by reporters, the AP in December described serious flaws with the State Department program. Foreign college students were forced to work in strip clubs in Michigan, and AP identified numerous housing and labor violations.

The AP learned in January that a senior State Department official decided that the AP no longer needed the records because it already published its story.

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Back in 2007, as the race for the White House intensified, the AP asked federal agencies for copies of correspondence between officials there and 16 prospective presidential candidates. On Tuesday, the Homeland Security Department notified the AP to say it was still searching for the records -- two years after Barack Obama defeated John McCain.

In its request, AP sought copies of any letters sent to the department by then-prospective candidates Obama, McCain, Joe Biden, Mitt Romney, Mike Huckabee and 11 others. Such correspondence can reveal circumstances when candidates asked the government for help on behalf of a constituent or campaign donor, and provide insights into connections between candidates and government officials.

The AP asked federal agencies to search for any letters quickly because information about the election was newsworthy. The department said AP's request didn't merit special consideration. Now, nearly four years later, it says it is reconsidering.

[Associated Press]

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