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5 Transparency

Introduction: The Central Intelligence Agency’s Budget? What Budget?

The US Constitution seemingly requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time” (Art. I, sec. 9, cl. 7 [emphasis added]). Now, suppose you want to know how much the Central Intelligence Agency (CIA) spends and on what. Suppose further that you suspect the CIA is spending your hard-earned tax and deficit dollars wastefully or on ille- gal domestic surveillance. A logical first step would be to take a look at the CIA’s budget—the account of receipts and expenditures mentioned in the Constitution. However, one would search in vain. The CIA’s budget is secret, and under the Central Intelligence Act of 1949, it accounts to the Treasury for its expenditures by a nonpublic “certificate.”

In the 1970s, William Richardson, a member of the electorate, loyal cit- izen, and taxpayer, sued to have the CIA Act declared unconstitutional. A lawyer with a background in military intelligence, he was apparently incensed by the CIA’s secretive domestic spending (Wharton 1995). He had a dual constitutional complaint. On the one hand, he could not obtain the CIA’s budget; on the other, without the CIA’s budget numbers, the Trea- sury’s published “Combined Statements of Receipts, Expenditures, and Balances of the United States” was “a fraudulent document” (United States v. Richardson 1974, 169). How could Richardson be an informed citizen and voter if the government was withholding some budget information from

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124 5. Transparency

him and putting out disinformation in its constitutionally mandated ac- count of receipts and expenditures?

Richardson never received an answer. When the case reached the Su- preme Court, a slim majority of five justices decided not to give him one. Instead they found that he lacked standing to bring the suit in the first place. He had no concrete personal injury, only a generalized grievance, perhaps shared with millions of others (see Chapter 6 on standing). The four dissenting justices would have granted standing for a variety of rea- sons. One justice, William O. Douglas, had a good deal of sympathy for Richardson’s cause:

The sovereign of this Nation is the people, not the bureaucracy. The state- ment of accounts of public expenditures goes to the heart of the prob- lem of sovereignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to run our affairs. . . .

The public cannot intelligently know how to exercise the franchise unless it has a basic knowledge concerning at least the generality of the accounts under every head of government. No greater crisis in confidence can be generated than today’s decision. Its consequences are grave be- cause it relegates to secrecy vast operations of government and keeps the public from knowing what secret plans concerning this Nation or other nations are afoot. (United States v. Richardson 1974, 201–202)

Douglas was in the minority, but his views succinctly capture one of the chief concerns that frame administrative law’s requirements for open government.

In 2013, by contrast, Edward Snowden’s “leaks” raised a countervailing concern for public consideration of transparency in national security policy. According to his information, some of which the Washington Post published, the CIA requested $14.7 billion for fiscal year 2013. Of this total, $2.3 billion was for human intelligence; $2.5 billion for security, logistics, and missions; $2.6 billion for paramilitary and covert operations, probably including drone strikes; $1.7 billion for “technical collection” efforts such as intercept- ing radio and telephone communications; and $68.6 million for providing cover for its operatives (Ehrenfreund 2013; Gellman and Miller 2013).

As Richardson contended, knowledge of the CIA’s budget could shed a great deal of light on what it does and where. As one observer explained,

The CIA’s dominant position [in national intelligence] will likely stun outside experts. It represents a remarkable recovery for an agency that

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125The Administrative Law Framework for Transparent Government

seemed poised to lose power and prestige after acknowledging intelli- gence failures leading up to the Sept. 11, 2001, attacks and the 2003 U.S.- led invasion of Iraq.

The surge in resources for the agency funded secret prisons, a con- troversial interrogation program, the deployment of lethal drones and a huge expansion of its counterterrorism center. The agency was trans- formed from a spy service struggling to emerge from the Cold War into a paramilitary force. (Ehrenfreund 2013)

This conclusion speaks to Douglas’s point. The shift in an agency that spends billions of dollars annually from gathering intelligence to para- military activity in Afghanistan, Pakistan, and elsewhere is presumably something of which citizens—the “sovereign of this Nation”—ought to be aware. But as Director of National Intelligence James R. Clapper Jr. main- tained, it is presumably also something that should be secret: “Our budgets are classified as they could provide insight for foreign intelligence services to discern our top national priorities, capabilities and sources and methods that allow us to obtain information to counter threats” (Gellman and Miller 2013). Therein lies the core of the problem of government transparency: What information should be public, what should be secret, why, and if the “sovereign people” do not decide, who should and how?

The Administrative Law Framework for Transparent Government

As Douglas argues, open government is a prerequisite for government by the people. The Constitution’s framers were acutely aware that without a good measure of transparency, the system they designed would fail. James Madison, author of the Bill of Rights and chief architect of the separation of powers, ranked openness alongside other fundamental constitutional val- ues: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowl- edge gives” (1999, 790; see also US House of Representatives 2001, 1; US Senate 1974, 37–38). In addition to the Receipts and Expenditure Clause, the Constitution requires that “each House [of Congress] shall keep a Jour- nal of its Proceedings, and from time to time publish the same” (Art. I, sec. 5, cl. 3). It also requires a record of presidential vetoes and publication of the names of those members of Congress voting to override or sustain them (Art. I, sec. 7, cl. 2).

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126 5. Transparency

Nevertheless, the framers recognized that some matters would have to be secret. Constitutionally, whatever material Congress wants to keep se- cret it may omit from its journals (Art. I, sec. 5, cl. 3). The Constitution itself was framed under a veil of strict secrecy.

American constitutional democracy relies heavily on administrative law to determine what should be open, what should be secret, and how deci- sions regarding governmental transparency should be made, challenged, and reviewed. Since adoption of the Administrative Procedure Act (APA) of 1946, five main approaches to regulating openness have become widely used: public reporting, freedom of information, protection against inva- sions of privacy, open meetings, and whistle-blowing.

Public Reporting

As amended, section 552 of the APA requires all covered agencies to pub- lish the following in the Federal Register: (1) descriptions of their organiza- tion and location, along with whom to contact for information, to make submittals or requests, or to obtain decisions; (2) explanations of their op- erations and procedural requirements; (3) procedural rules, descriptions of forms and where to obtain them, and information regarding the content of papers, reports, and examinations; (4) substantive and interpretive rules and policy statements; and (5) amendments, revisions, and repeals of any of the above. A public protection clause provides that no person may be held responsible for noncompliance with an agency requirement in any of these categories that was not properly published.

The agencies are also required to make some documents available for public inspection and copying, unless they are published. These include final adjudicatory opinions, concurrences, and dissents; adopted policies and interpretations that are not available in the Federal Register; and staff manuals and instructions that affect the public. These materials must be indexed for public inspection or sale. They may be posted on the Internet in what are often referred to as “electronic reading rooms.” Anything in a document that creates a “clearly unwarranted invasion of personal pri- vacy” should be deleted.

These requirements are important. They go a long way toward over- coming what Congress perceived as excessive administrative secrecy in the 1930s and 1940s. However, they are really just the tip of the iceberg. Agencies face myriad reporting requirements. Along with special reports mandated by Congress, they routinely publish annual reports on their per- formance and finances. The Government Accountability Office publishes reports on virtually every significant aspect of administration, including

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127Public Reporting

personnel practices, organizational design, budgets and financial manage- ment, performance, and the implementation of specific statutes.

Agencies also issue news releases and public relations material. As elec- tronic government continues to develop in the digital age, more and more agencies at all levels are maintaining websites. The federal government puts a massive amount of information online—sometimes, perhaps, too much. After the terrorist attacks of September 11, 2001, many agencies re- moved information about water resources, chemicals, nuclear energy, and other potentially dangerous topics (OMBwatch 2001).

Today, the emphasis is on performance reporting. For instance, the Gov- ernment Performance and Results Act Modernization Act of 2010 requires the US Office of Management and Budget (OMB) to maintain a website that includes descriptions of the federal government’s priority and per- formance goals with “an identification of the agencies, organizations, pro- gram activities, regulations, tax expenditures, policies, and other activities that contribute to each Federal Government priority goal” (sec. 7[c6]). Ex- ecutive Order 13,514 (2009), titled “Federal Leadership in Environmental, Energy, and Economic Performance,” requires OMB to prepare scorecards (available at sustainability.performance.gov) related to agencies’ promo- tion of environmental sustainability. The scorecards rate agencies on re- duction of greenhouse gases and energy, use of renewable energy, potable water intensity, fleet petroleum usage, and green buildings. In total, all the reports, scorecards, and other information made public by the federal gov- ernment would probably overwhelm any citizen diligently trying to un- derstand and evaluate federal administration.

However, not all information is equal. Government reports are some- times criticized for blurring the distinction between factual reporting and spinning information for favorable public relations. Reading The United States Government Manual, one might assume that the federal government houses the most benevolent, caring, rights-protecting, and efficient agen- cies imaginable. Never mind that federal agencies are routinely denounced by politicians and the media, largely distrusted by the public, and fre- quently sued.

Agencies may change their mission statements as they update their stra- tegic plans. In the recent past, two particularly sweet-sounding mission statements belonged to the Department of Health and Human Services and the US Botanic Garden. The former portrayed itself as “the Cabinet-level department of the Federal executive branch most involved in the Nation’s human concerns. In one way or another, it touches the lives of more Amer- icans than any other Federal agency. It is literally a department of people serving people, from newborn infants to persons requiring health services

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128 5. Transparency

to our most elderly citizens.” The Botanic Garden has informed “visitors about the aesthetic, cultural, economic, therapeutic, and ecological impor- tance of plants to the well-being of humankind.” Not to be outdone, the Department of Justice, usually a no-nonsense law enforcement agency that includes the Federal Bureau of Investigation and the Bureau of Prisons, has presented itself as “the largest law firm in the Nation [serving] as counsel for its citizens” (Office of the Federal Register 1999, 271, 45, 323).

Freedom of Information

Freedom of information is aptly defined as regulations and laws “that pro- vide members of the community with a legally enforceable right of access to information in the possession of government” (Zifcak 1998, 941–942). The first freedom of information law was apparently introduced in Swe- den in 1766, but contemporary US federal freedom of information did not begin to develop until enactment of the APA in 1946. The APA’s provi- sions were rudimentary, perhaps naive, and they largely failed. The act provided, “Save as otherwise required by statute, matters of official record shall in accordance with published rule be made available to persons prop- erly and directly concerned except information held confidential for good cause found” (sec. 3[c]). Between a citizen’s need to show that he or she was “properly and directly concerned” and an agency’s ability to with- hold information for undefined “good cause,” the APA became “a basis for withholding information” despite “the clear intent of the Congress to promote disclosure” (US Senate 1974, 6–7). The Freedom of Information Act (FOIA) of 1966 amended the APA in an effort to fix these problems. The Presidential Records Act of 1978 later applied the basic principle of open government to presidential materials.

The Freedom of Information Act

After its initial enactment in 1966, FOIA was significantly amended in 1974, 1986, and 1996 and again in 2007 by the Openness Promotes Effectiveness in Our National Government Act (OPEN Government Act). From its in- ception, FOIA sought to balance four concerns: open access, privacy, nec- essary secrecy, and the government’s ability to obtain information. FOIA promotes access by giving all individuals a right to information. There is no requirement that they be properly and directly concerned with the information sought. With one exception explained below, anyone can ask for anything, although the fees agencies charge to supply information may vary with the purpose for which it is sought.

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129Freedom of Information

By itself, FOIA is primarily a disclosure statute. However, it instructs and permits agencies to withhold substantial categories of information at their discretion. These categories are called “exemptions,” of which there are nine. They guard individuals’ privacy, trade secrets, and commercial, geological, and geophysical information, as well as protect governmental secrecy in the interests of national security, law enforcement, effective deci- sionmaking and management, and administrative efficiency. Personal pri- vacy is also protected by the Privacy Act of 1974, as reviewed later in the chapter. The ability to collect information is crucial to contemporary gov- ernmental policymaking and regulatory enforcement. FOIA works in con- junction with other statutes, such as the Federal Trade Secrets Act (1948), to protect some types of commercial information, whether submitted vol- untarily or under compulsion.

Basically, FOIA operates as follows. Activity is triggered by the sub- mission of a FOIA request to an agency. Requests may be submitted by corporations and associations as well as by individuals. Foreigners may also request information. Federal agencies cannot make FOIA requests of one another. There is no standard form, though the US Department of Jus- tice publishes the FOIA Reference Guide (2010), which provides advice on how to request information. Individual agencies also provide online forms for FOIA requests. The requester is obligated to “reasonably describe” the agency records he or she is seeking—that is, to provide enough specific- ity to enable a professional employee, familiar with the material, to locate it without undue effort. Only information in the form of records is cov- ered. One could ask an agency for a record on John Lennon but should not request all the information it might have on him scattered throughout its documents or organized as records on other subjects (Weinberg 2000). If the information is electronic, the agency may create the requested re- cord, depending on the circumstances. Requesters should indicate whether they want a record in electronic form. Under the OPEN Government Act, agencies are also required to “make the raw statistical data used in [their] reports available electronically to the public upon request” unless it falls under one of the exemptions or is protected by another statute (sec. 8[c]). Until the OPEN Government Act made records maintained and managed for agencies by contractors subject to FOIA requests, agencies were respon- sible only for records under their control, generated within the agency or placed in its files, and used by the agency for some work purpose (Bureau of National Affairs, Inc. v. U.S. Department of Justice 1984). The agency bears the burden of persuasion in demonstrating that the requested information is not an agency record. Requests should be in accordance with the agen- cy’s published rules regarding time, place, fees, and procedures.

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130 5. Transparency

FOIA’s coverage is very broad, applying to the CIA, Federal Bureau of Investigation, military, executive departments and agencies, independent regulatory commissions, and government corporations. As noted above, today it can extend to records held by contractors. FOIA also covers those units in the Executive Office of the President that have statutory responsi- bilities, such as the Office of Management and Budget, but not those that are purely advisory (e.g., the Council of Economic Advisers) (Funk, Shap- iro, and Weaver 1997, 595). It does not apply to Congress, the judiciary, or the president.

Timeliness has been a long-standing FOIA problem. There has been far more FOIA activity than Congress foresaw in 1966, and efforts have been made to prod the agencies to process requests more promptly. Today, agen- cies have twenty days (up from the original ten) to tell a requester whether the information sought will be released. This can be extended by ten days to channel the request to the proper agency unit. The agency may “toll” the twenty-day period (that is, stop the clock) when it “reasonably” asks the requester for additional information or clarifies fee assessments with him or her. The clock starts running again when the requester responds (OPEN Government Act 2007, sec. 6[a][1][I, II]). If the agency’s response is posi- tive, it still may take years to supply the information itself to the requester. Agencies are required to explain their denials of requests. These may be appealed within the agency, in which case the agency has another twenty days to decide whether to release the information.

Along with timeliness, fees have been an issue. When FOIA went into effect, some agencies levied exorbitant charges for reviewing, searching, and copying. Amendments adopted in 1974 limited these but had the effect of subsidizing searches initiated for commercial gain, as when a business seeks information on its competitors. Additional amendments passed in 1986 regulate fees according to how the information will be used. These are highly detailed, but their gist is that requests for information of value to scholarship, research, news reporting, and the public’s understanding of government are billed for less than those seeking information for com- mercial purposes. The OPEN Government Act defines “representative of the news media” to include any entity, be it a person or organization, that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” “News” means information dealing with “cur- rent events” or of “current interest” (OPEN Government Act 2007, sec. 3).

Although FOIA applies broadly across the federal executive branch, as amended the nine exemptions exclude a considerable amount of informa- tion from mandatory release:

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131Freedom of Information

1. National defense or foreign policy information that is properly classi- fied for secrecy.

2. Information “related solely to the internal personnel rules and prac- tices of an agency.”

3. Information that is specifically prohibited from disclosure or regu- lated by another statute.

4. “Trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

5. Inter- or intra-agency memos or letters that would not be available by law to a party in litigation with the agency.

6. “Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

7. “Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement re- cords or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confi- dential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confiden- tial basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal inves- tigation or by an agency conducting a lawful national security intel- ligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.” Exemption 7(C) was the focus of litigation creating an important exception to FOIA’s usual operation and is detailed below.

8. Information pertaining to the regulation of financial institutions. 9. “Geological and geophysical information and data, including maps,

concerning wells.” (sec. 552[b][1–9])

Two points about the exemptions should be borne in mind. First, infor- mation in these categories may be released at an agency’s discretion unless it would violate some other law. In other words, the fact that requested in- formation falls into one of the exemptions does not necessarily determine whether it will be released. Over the years, federal attorneys general have

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provided different guidance. Some, such as Janet Reno (1993–2001), have promoted disclosure; others, including John Ashcroft (2001–2005), have sought to dampen it. Reno authorized the Department of Justice to defend the agencies in FOIA suits only when release of the information sought would create “foreseeable harm.” Under Ashcroft, the department de- fended agencies whenever they had a “sound legal basis” for withholding information (Office of Information and Privacy 2001). President Barack Obama’s attorney general, Eric Holder (2009–), replaced this standard with a “presumption of openness” by asserting that “the Department [of Justice] will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law” (Office of Public Affairs 2009). Neverthe- less, the Obama administration has demonstrated a penchant for secrecy (J. Ball 2012). For instance, Obama’s Executive Order 13,526 (2009) au- thorizes agencies to classify information after they receive FOIA requests (sec. 1.7[d]).

Second, FOIA specifically provides that “any reasonably segregable por- tion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt” from release (sec. 552[b]). To the extent technically feasible, the agencies should identify the places where deletions were made.

FOIA has engendered far more litigation than can be reviewed here. A great deal of it is incredibly detailed and fact specific. This seems partic- ularly true in suits over what constitutes a record. One example should be of particular interest to public managers. In Bureau of National Affairs, Inc. v. U.S. Department of …