Discussion

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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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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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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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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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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 Justice (1984), a US court of appeals had to de- cide whether government officials’ telephone message slips, daily agendas, and appointment calendars were agency records. It reached the following conclusions:

1. The telephone message slips “are not ‘agency records’ within the meaning of FOIA. No substantive information is contained in them. No one but the official for whom the messages were taken used the telephone slips in any way. And, in many cases, there might be no way for the official to segregate personal from business calls.”

2. “The daily agendas are ‘agency records’ within the meaning of FOIA. They were created for the express purpose of facilitating the daily activities of the Antitrust Division. Even though the agendas reflected personal appointments, they were circulated to the staff for a busi- ness purpose.” They were created “for the convenience of [the] staff in their conduct of official business.”

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3. “The appointment calendars are the most difficult to categorize. . . . We conclude, however, that these particular appointment calendars are not ‘agency records.’ They are distinguishable from the daily agendas in two important respects. First, they were not distributed to other employees, but were retained solely for the convenience of the indi- vidual officials. Second, . . . the appointment calendars were created for the personal convenience of individual officials so that they could organize both their personal and business appointments.” (Bureau of National Affairs, Inc. v. U.S. Department of Justice 1984, 1495–1496 [em- phasis added]).

Public managers sometimes assume that anything work related may be obtained under FOIA for all the world to see. Bureau of National Affairs sug- gests FOIA’s operation is more complex and less governed by categorical rules. This also tends to be the case with regard to the specific exemptions. Although it is not possible to treat each of these in detail here, the follow- ing general points are important:

• Exemption 1, for national security, does not affect the government’s ability to classify documents. Where an agency’s very admission that it does or does not have a record could compromise national security or foreign policy, it may respond that it can neither confirm nor deny the existence of the record. For historical reasons, this is called a “Glomar denial” or “Glomarization”1 (Funk, Shapiro, and Weaver 1997, 607).

• Exemption 2, for personnel rules and practices, covers less than its language suggests. The Supreme Court interpreted it to exempt only internal information that would be of no interest to the public. For example, records pertaining to the Air Force Academy’s internal dis- ciplinary system are not exempt (Department of the Air Force v. Rose 1976).

• Exemption 3, for information protected by another law, occasion- ally gives rise to an issue of statutory interpretation. However, the principle is clear enough: agencies may withhold information when disclosure is prohibited or regulated by other statutes. As explained immediately below, releasing such information may violate the APA.

• Exemption 4, for confidential commercial information and trade secrets, has had a difficult history. FOIA by itself would allow the

1. The term comes from a FOIA request for information about the CIA’s connection to Howard Hughes’s effort, using the Glomar Explorer, to retrieve a sunken Soviet submarine. See Phil- lippi v. CIA (1976).

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134 5. Transparency

release of such secrets, however defined. To defend against this pos- sibility, firms developed “reverse FOIA” suits. A business can file suit in a district court to block an agency from disclosing information requested on it. The firm’s challenge takes the form of contending that release would be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as defined by section 706 of the APA (see Chapter 6). For example, all things being equal, releas- ing information covered by an act protecting trade secrets would vi- olate section 706. Under Executive Order 12,600 (1987), agencies are required to inform businesses that their commercial information is being sought.

• Exemption 5, dealing with inter- and intra-agency memos, is inter- preted to privilege (i.e., shield from disclosure) two types of informa- tion. One is information generated by an attorney-client relationship that would not be available in litigation. The other is information covered by executive privilege. This is a somewhat more amorphous concept derived from judicial interpretation of the separation of pow- ers that permits the president to withhold some executive branch in- formation from Congress and the judiciary (Nixon v. Administrator of General Services 1977; United States v. Nixon 1974). The general princi- ple underlying exemption 5 is that predecisional information is priv- ileged to protect the free flow of ideas within and among agencies. In other words, before a decision is made, participants should be able to engage in uninhibited brainstorming and feel free to bounce half- baked ideas off one another. Who would start a thought with, “This may sound crazy, but . . . “ if the rest might be on the front page of a newspaper someday? The predecisional exemption applies to private parties who participate in a decision as well as to agency employees. Predecisional material is not privileged if it becomes specifically in- corporated into the final decision. Executive privilege is more central to the Presidential Records Act, as explained in the next section.

• Exemption 6 protects only against “unwarranted” invasions of per- sonal privacy. It should be considered in conjunction with the Privacy Act, which is discussed below. It applies only to human beings, not to corporations or associations. Under some circumstances, its coverage is broad enough to allow withholding information to protect the pri- vacy of the relatives of an individual on whom information is being sought.

• Exemption 7(C), which allows withholding law enforcement informa- tion that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” was the subject of National Archives and

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135Freedom of Information

Records Administration v. Favish (2004), a major Supreme Court deci- sion, which is discussed below.

• Exemptions 8 and 9, dealing with financial institutions and geology, are of less importance to public managers generally. Nine was in- cluded to assuage oil industry concerns that information about po- tential oil and natural gas fields, developed at great expense through exploration, would be released to competitors or speculators.

Returning to exemption 7(C), Allan Favish sought photographs taken at the scene of Vincent Foster’s suicide. Foster was President Bill Clinton’s deputy White House counsel, and the photos were held by the National Archives and Records Administration (NARA). The issue was whether NARA could withhold them under section 7(C). Foster was dead and, of course, could not assert a right to privacy. However, his family did so, and this led the Court to establish two important principles. First, it is appro- priate “to conclude from Congress’ use of the term ‘personal privacy’ that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions.” Second, the usual FOIA rule hold- ing that it is irrelevant why a requester seeks information does not ap- ply to section 7(C). Here, the Court spoke to the essence of government transparency:

FOIA is often explained as a means for citizens to know “what the Gov- ernment is up to.” . . . This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy. The state- ment confirms that, as a general rule, when documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they seek the information. . . . The information belongs to citizens to do with as they choose. . . . The disclosure does not depend on the identity of the requester. As a general rule, if the information is subject to disclosure, it belongs to all.

When disclosure touches upon certain areas defined in the exemptions, however, the statute recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it. In the case of Exemption 7(C), the statute requires us to protect, in the proper degree, the personal privacy of citizens against the uncontrolled release of information compiled through the power of the state. . . .

Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to estab- lish a sufficient reason for the disclosure. First, the citizen must show that

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the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Oth- erwise, the invasion of privacy is unwarranted. (NARA v. Favish 2004, 167, 171–172)

In reaching its decision, the Court was careful to distinguish between the narrow wording of exemption 6, which speaks to creating “a clearly unwarranted invasion of personal privacy,” and the broader language of 7(C), which requires only a reasonable expectation that the release of information would be an “unwarranted invasion of personal privacy.” “Personal” in 7(C) does not protect nonhuman “legal persons,” including corporations and other “artificial entities” (Federal Communications Com- mission v. AT&T 2011).

Enforcement of FOIA depends heavily on the federal district courts. The act places the burden of persuasion on the agency to show that nondisclo- sure is legal. The district court makes its determination de novo (afresh) rather than being bound by the agency record. It may review the records at issue in camera (i.e., privately in chambers). When requesters substantially prevail, agencies may have to pay their attorneys’ fees and related costs. The OPEN Government Act makes these fees available when the requester has a substantial claim and the agency changes its position prior to trial. This is intended to potentially compensate requesters for their legal fees when agencies agree to release information just before going to trial, as well as to deter agencies from dissuading requesters from suing with the prospect of incurring heavy, nonreimbursable pretrial costs. The act also specifies that attorneys’ fees will be paid from the agencies’ own budgets rather than the Treasury Department’s Claims and Judgment Fund (sec. 4[b]).

Theoretically, a court’s finding that an agency acted arbitrarily and ca- priciously can result in a Merit Systems Protection Board (MSPB) disci- plinary action against an official, though apparently by 1997 there was only one such finding and no actual discipline (Funk, Shapiro, and Weaver 1997, 593). When a suit involves discovering what information actually exists, the agency is required to provide an index of its relevant records to both the court and the requester (known as a “Vaughn index”; see Funk, Shap- iro, and Weaver 1997, 607).

Evaluations of freedom of information radically differ. In principle, it is broadly accepted as necessary for representative government. Voters like Richardson need information to fulfill their roles as citizens. The OPEN Government Act is premised on the belief that “the effective functioning

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of a free government like ours depends largely on the force of an informed public opinion” (sec. 2[1][c]). Access to public information, as Madison maintained, is a key to governmental accountability. Every US state has a statutory-based freedom of information policy, as do most, if not all, de- mocracies abroad. As early as 1946, the United Nations General Assembly resolved that “freedom of information is a fundamental human right and is the touchstone for all the freedoms to which the United Nations is con- secrated” (Zifcak 1998, 942). Nevertheless, there may still be some hold- outs. In 1982, when he was still merely a law professor, Supreme Court Justice Antonin Scalia denounced the premise “that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press” (quoted in Strauss et al. 1995, 909).

There is broad agreement that implementation of FOIA is costly, liti- gious, and time-consuming. Explanations vary with respect to why the act has not worked better. Clearly, the volume and expense were unantic- ipated. In fiscal year 2012, there were 651,254 requests government-wide and a backlog of 71,790 requests (FOIA.gov, n.d.). The government spends an estimated $300 million to $400 million annually on FOIA requests (Na- tional Security Archive 2006). No doubt many requests are frivolous, and most may be for commercial information that has no immediate value to the public. However, requesters’ ardor for information is not the sole prob- lem. The federal government’s administrative culture has been slow to change from valuing secrecy to embracing openness (Warren 1996, 187). As of 2000, the vast majority of agencies paid no attention to FOIA activities in their annual performance plans (Piotrowski and Rosenbloom 2002). The OPEN Government Act seeks to change this culture by requiring agencies to report on their timeliness in processing requests and to appoint chief FOIA officers with responsibility for compliance, monitoring and improv- ing implementation, and designating FOIA public liaisons to help resolve disputes with requesters (sec. 10[k]).

The OPEN Government Act will promote better agency reporting and processing of requests. However, at least for the near future it is likely to remain true, as Professor Robert Vaughn, for whom the Vaughn index is named, maintains, that “the Founding Fathers would be proud of the act—unless they could see how the people[‘s] government often frustrates its purpose” (Mashaw, Merrill, and Shane 1992, 697). Federal judge Pa- tricia Wald’s summary may be best: “Something like [FOIA] had to be invented to prevent a ‘curtain of fog and iron’ from falling between the American public and its government,” but “FOIA, like all basic freedoms, sometimes hurts the worthy and sometimes helps the unworthy” (Strauss et al. 1995, 909).

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The Presidential Records Act

The Presidential Records Act was adopted to resolve an issue simmering in the demise of Richard M. Nixon’s presidency. Who has control over the release of presidential papers, tapes, and related materials—a former pres- ident, claiming executive privilege, or the federal government? The act placed presidential and vice presidential materials in the custody of the archivist of the United States, with the “affirmative duty” to make them public “as rapidly and completely as possible” (sec. 2203[f][1]). It allows former presidents and vice presidents to prevent access to some records for twelve years after they leave office. Most of the FOIA exemptions apply to disclosure by the archivist. However, papers and so forth that might be covered by FOIA exemption 5 should not be withheld simply because they reveal internal White House deliberations or staff advice. The act allows a former president or vice president to sue the archivist to prevent access to specific documents by asserting constitutional executive privilege, the full scope of which is uncertain and depends on case-by-case judicial inter- pretation. The act is considered of great value to historians, public interest groups, the media, and, ultimately, the American people.

Its first application was to President Ronald Reagan (1981–1989), whose papers became eligible in 2001. However, implementation was frustrated by President George W. Bush (Bush II), whose father, President George H. W. Bush, was Reagan’s vice president and could figure prominently in the released documents. Bush II issued Executive Order 13,233 (2001), block- ing the archivist from permitting access to any papers that either a former or incumbent president wanted withheld. In some cases the order would have allowed the family members of incapacitated or deceased former presidents to prevent access. It also increased vice presidents’ control over their papers. Bush II’s order was broadly based on claims of constitutional executive privilege. It flipped the legal process regarding access. Under its terms, the burden was on those seeking access, not former presidents seek- ing to prevent it. Individuals and associations suing for access to blocked material would have to demonstrate a specific need for the records in- volved (US House of Representatives 2001; Allen and Lardner 2001).

Bush’s order provoked criticism in Congress, legislative attempts to nullify it, and at least one lawsuit, brought by the American Historical Association, the National Security Archive, the Reporters Committee for Freedom of the Press, Public Citizen, the American Political Science Asso- ciation, and independent scholars (American Historical Association v. NARA 2007; see Miller 2001; Lardner 2001). In the lawsuit, the US District Court for the District of Columbia narrowly ruled that a section (3[b]) of the Bush

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II order that would have extended a president’s or vice president’s ability to prevent the archivist’s release of records indefinitely was “arbitrary, ca- pricious, and contrary to law in violation of the Administrative Procedure Act” (American Historical Association v. NARA 2007, 3, 33).

On the second day of his presidency, Obama replaced Bush II’s order with Executive Order 13,489 (January 21, 2009). It specifies that in the ab- sence of a claim of executive privilege, presidents and vice presidents can only prevent the release of records for “a time certain” rather than indef- initely (sec. 2[b]). However, like Bush II’s order, it apparently limits the release of records that might fall under FOIA exemption 5 by stating, “A ‘substantial question of executive privilege’ exists if NARA’s disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch” (sec. 1[g]). The order also requires NARA to “abide by any instructions given . . . by the incumbent President [regarding a claim of executive privilege] . . . unless otherwise directed by a final court order” (sec. 4[b]). Eventually, the federal courts are likely to determine when as- sertions of presidential executive privilege can override the presumption that records covered by FOIA exemption 5 are subject to disclosure under the Presidential Records Act.

Privacy

The federal Privacy Act of 1974 reflects the APA’s broad interest in pro- tecting individual rights against administrative encroachment. Its cov- erage within the executive branch is similar to FOIA, though somewhat broader because it extends to advisory units in the Executive Office of the President. The act was a congressional response to a variety of issues that crystallized in the Watergate years (1972–1974), especially concern over the abuse of agency information about private individuals. There was also a sense that the federal government was collecting too much per- sonal information and safeguarding it poorly. For example, during the 1960s some federal agencies used personality tests and privacy-invading questionnaires that contained items such as the following true-false ques- tions: “My sex life is satisfactory” and “There is little love and compan- ionship in my family as compared to other homes” (Westin 1967, 256–268). A congressional investigation concluded that there was a high potential for misuse of such information because “confidentiality of government files is a myth. Such files float from agency to agency. Federal investiga- tors in some instances are given access to information far removed from the subject of their inquiry” (US Congress 1966, 398). At one point, some

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nondefense agencies were routinely requiring their employees to fill out a questionnaire that was originally designed for use by patients in govern- ment hospitals. The form asked numerous detailed questions about phys- ical and mental health symptoms, including bed-wetting and nightmares (see Rosenbloom 1971, 213).

The Privacy Act is primarily concerned with regulating the collection, management, and release of information regarding individual citizens and permanent residents. It does not apply to corporations, associations, or other organizations. The following are its main features:

1. Access to records: Individuals have a right to review agency records on them. If they find errors, they may request that the records be amended. If the agency refuses, the individual involved may file a statement of disagreement, which essentially becomes part of the record. A person may also request information about the purpose, nature, and date of agencies’ disclosure of records on him or her. A general exemption prevents individual access to CIA and law en- forcement agency records.

2. Management of records: Agencies are required to publish notices in the Federal Register explaining the nature of their record systems and policies regarding access, disposal, storage, and related matters. They must also develop safeguards against inaccuracies and misuse of in- formation, including through computer matching. The information contained in an agency’s records should be relevant to its mission.

3. Restrictions on disclosure: In principle, the act prohibits the disclo- sure of any record on an individual without his or her prior consent. However, there are twelve specific exceptions in which such consent is not required. The most important among these are that records may be disclosed to Congress, to law enforcement agencies at all levels of government, in response to a FOIA request, and in “compelling cir- cumstances” regarding an individual’s health or safety. Records may also be released for “routine use,” which is rather circularly defined as use “for a purpose which is compatible with the purpose for which it was collected.” (sec. 552a[b][1–12], [a][7])

In a case with odd protagonists, U.S. Department of Defense v. Federal La- bor Relations Authority (FLRA) (1994), the Supreme Court noted that the re- lationship between FOIA and the Privacy Act is “convoluted.” Information protected by the Privacy Act may nevertheless be disclosed under FOIA’s sixth exemption unless it would “constitute a clearly unwarranted invasion of personal privacy.” How does one determine what is “unwarranted”?

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In U.S. Department of Defense v. FLRA, two local unions were seeking the names and home addresses of the employees in the bargaining units they represented, some of whom were not union members. The Department of Defense (DoD) supplied the employees’ names and workstations but, cit- ing the Privacy Act, not their home addresses. The unions filed unfair labor practice charges with the FLRA, which ultimately ordered the DoD to sup- ply the home addresses. The DoD refused, and the conflict went to court.

The Supreme Court applied the following framework for analyzing the relationship between the Privacy Act and FOIA exemption 6. First, “in evaluating whether a request for information lies within the scope of an ex- emption that bars disclosure when it would amount to an unwarranted in- vasion of privacy, a court must balance the public interest in the disclosure against the interest Congress intended the exemption to protect.” Second, and the key point, “the only relevant public interest to be weighed in this balance is the extent to which disclosure would serve FOIA’s core purpose of contributing significantly to public understanding of the Government’s operations or activities.” Third, “whether an invasion of privacy is war- ranted cannot turn on the purposes for which the information request is made.” (NARA v. Flavish, discussed above, was decided under exemption 7(C) but may have implications for this third point in the DoD v. FLRA framework for interpreting exemption 6. See also U.S. Department of Justice v. Reporters Committee for Freedom of Press 1989).

In applying this three-step analysis to the facts, the Court had no trouble finding that the home addresses were protected by the Privacy Act. The public interest in disclosure was “negligible, at best”—”virtually nonex- istent.” This interest must be defined in terms of what the public might learn from disclosure, not whether releasing the home addresses would improve collective bargaining in the federal government. Consequently, “a very slight privacy interest would suffice to outweigh the relevant public interest.” The Court reasoned that even though home addresses are often available through phonebooks and other published sources, “the employ- ees’ interest in nondisclosure is not insubstantial” because “many people simply do not want to be disturbed at home by work-related matters.” It also noted that if the unions could obtain the addresses, they would like- wise be available to commercial advertisers and solicitors (U.S. Department of Defense v. FLRA 1994, 487–489 [Syllabus], 497–501).

The Privacy Act is enforced through civil lawsuits and criminal prosecu- tions, though instances of the latter are very rare (Funk, Lubbers, and Pou 2000, 819). There have been a few highly publicized allegations of viola- tions of the act. During the 1992 election campaign, one Elizabeth Tamposi allegedly went rummaging through the State Department’s passport files

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on candidate Bill Clinton and his mother, Virginia Dell. Toward the end of Clinton’s presidency, agency information on Linda Tripp, a key figure in the Monica Lewinsky episode, was improperly released. However, en- forcement for anything other than an agency’s failure to provide access or correct its records is difficult. Suits for money damages require a showing of actual damages and that the violation at issue was intentional. Damages for mental and emotional distress are not available (Federal Aviation Admin- istration v. Cooper 2012). The Privacy Act has not produced a great deal of litigation, perhaps because its exceptions are broad and winning damages is so difficult (Bonfield and Asimow 1989, 560). Every state has a counter- part of the federal act. Privacy may be further protected by regulations requiring agencies to develop “privacy impact assessments” dealing with personal information held in electronic form and shared among agencies and levels of government such as contained in the Implementing Recom- mendations of the 9/11 Commission Act of 2007.

Open Meetings

The federal government and all fifty states promote transparency through open meetings laws. Their purpose is to place agencies’ oral policymak- ing in full public view in order to obtain better decisions, promote greater understanding of government, and generate more trust and confidence in it. Open meetings laws complement freedom of information by creating public access to verbal decisionmaking, where there may be a relatively thin paper trail for subsequent retrieval. Such laws are based on two ma- jor premises. First, when agencies exercise delegated legislative authority orally in formulating and adopting binding public policy decisions, they ought to emulate legislatures by doing so in the open rather than behind closed doors. Second, openness combats political favoritism, corruption, and opportunities for special interests to wield undue influence.

Open meetings laws are often called “sunshine laws,” presumably in the spirit of Supreme Court Justice Louis Brandeis’s well-known statement that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman” (quoted in Buckley v. American Constitutional Law Foun- dation 1999, 223). However, despite their popularity, these laws are often criticized for being cumbersome, having a chilling effect on informal col- legial discussions, and driving agency decisionmaking backstage, which leads to “scripted,” “perfunctory” open meetings (May 1997, 421; Coyle 1995, A12). At the federal level, the major open meetings laws are the Gov- ernment in the Sunshine Act of 1976 and the Federal Advisory Committee Act of 1972.

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The Sunshine Act applies to multiheaded federal boards and commis- sions to which a majority of the members are appointed by the president with the advice and consent of the Senate. There are about fifty such units, including the Securities and Exchange Commission, Federal Trade Com- mission, Federal Communications Commission, and Consumer Product Safety Commission. Covered agencies are required to give at least one week’s advance notice of their meetings. In principle, all meetings of a quorum of the agency members necessary for official business should be open to the public. By majority vote, meetings or portions of them may be closed in the public interest for reasons that parallel the FOIA exemptions. However, a major difference is that a meeting cannot be closed simply to protect predecisional discussions from public scrutiny. The act’s purpose is to force as much of the decisionmaking process into the open as possible. Meetings may also be closed when public decisionmaking would frustrate implementation of the proposed policy. A vote to close meetings must be made public. Depending on the reason for closure, the agency must keep either a transcript, recording, or set of minutes of the meeting. This record is available to the public, except for discussion that may be withheld under an exemption. The act contains a number of requirements for reporting to Congress.

Enforcement is by civil lawsuit, though the Sunshine Act has not pro- duced much significant litigation. The remedy for improper closure of a meeting is likely to be access to the agency’s transcript. Under the federal act, an agency action cannot be invalidated on the basis that a meeting should have been open. Some state laws do provide such a remedy (Bon- field and Asimow 1989, 554). Litigation by Common Cause and Public Cit- izen established that meetings cannot be closed to shield budget decisions or simply to promote more candid discussions (Funk, Lubbers, and Pou 2000, 542).

Several features of the Federal Advisory Committee Act (FACA) were discussed in Chapter 3 on rulemaking. The whole thrust of the act was to bring the advisory committee system aboveboard. It seeks to make open- ness in advisory committee meetings the general rule (sec. 10). Notices of meetings must be published in the Federal Register, and “interested persons shall be permitted to attend, appear before, or file statements with any ad- visory committee” (sec. 10[a][3]). FACA requires that detailed minutes of meetings be kept and provides public access to these as well as to written materials supplied to advisory committees, including reports, working pa- pers, and studies. These documents may be withheld under a FOIA ex- emption. Open meetings are the norm; exceptions may be made based on the same criteria as apply to agencies under the Sunshine Act. FACA does

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not apply to committees composed solely of federal employees, the CIA, the Federal Reserve System, and local civic groups.

FACA has produced considerable litigation, mostly over what consti- tutes an “advisory committee.” Remedies for improper secrecy may include a court injunction against the use of an advisory committee report, but in some cases there may be no remedy even for clear violations—except to prevent their repetition (Strauss et al. 1995, 957). Enforcement against pres- idential advisory committees raises constitutional questions involving the separation of powers and executive privilege. Perhaps the most publicized case to date is Association of American Physicians and Surgeons, Inc. v. Hil- lary Rodham Clinton (1993). Is the First Lady a federal employee for FACA purposes? If she is not, then the President’s Task Force on National Health Care Reform was an advisory committee, and its closed meetings violated FACA. Applying dexterous statutory interpretation “to the point of disin- genuous evasion,” as one judge put it, the court concluded that First Lady Clinton was a federal employee, at least in the FACA context. The court articulated some general principles that provide useful guidance:

1. A “group is a FACA advisory committee when it is asked to render advice or recommendations, as a group, and not as a collection of individuals.”

2. “In order to implicate FACA, the President, or his subordinates, must create an advisory group that has, in large measure, an organized structure, a fixed membership, and a specific purpose.”

3. “When an advisory committee of wholly government officials brings in a ‘consultant’ for a one-time meeting, FACA is not triggered because the consultant is not really a member of the advisory committee.”

4. “When we examine a particular group or committee to determine whether FACA applies, we must bear in mind that a range of vari- ations exist in terms of the purpose, structure, and personnel of the group.” Formal groups of private citizens “brought together to give publicized advice as a group” are clearly covered; “an unstructured arrangement in which the government seeks advice from what is only a collection of individuals who do not significantly interact with each other” is not regulated by the act. (Association of American Physicians and Surgeons, Inc. v. Hillary Rodham Clinton 1993, 913–915)

FACA was back in the news in 2001–2002 in conjunction with Vice Presi- dent Richard Cheney’s refusal to release the records of the National Energy Policy Development Group, which he chaired. The Bush II administration claimed that the task force was not a government unit subject to FOIA.

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But it may have been an advisory group subject to FACA. The Natural Re- sources Defense Council sued for records on its membership and meetings, and in an unprecedented step, the US General Accounting Office took sim- ilar legal action (Nakashima 2001; Milbank 2002). Eventually, after reach- ing the Supreme Court, which sent it back to the district court for further action, the case was dismissed in In re Cheney (2005) (see also Cheney v. District Court 2004).

It is difficult to predict the future of FACA. On the one hand, the law has significant implications for reinvented government, in which it is com- mon to form public-private partnerships and collaborative governance ar- rangements with private organizations and multilevel governmental units. Some public-private partnership meetings may fall under the act. Hillary Clinton’s case also drew attention to the potential for using the act to delay, if not upend, federal policymaking. On the other hand, remedies for viola- tions have been tepid thus far.

Whistle-Blower Protection

Providing legal protection to whistle-blowers is another way to promote transparency. Public-sector whistle-blower protection regulations are in- tended to prevent reprisals against public employees, contractors, and others who expose wrongdoing observed in their relationships with gov- ernment agencies. Exposure of maladministration can be internal to an in- spector general or other agency official. It may also be external to some outside agency, a legislature, media outlets, or some other party. More broadly, whistle-blower protections seek to transform organizational cul- tures to view whistle-blowing as a civic obligation and public virtue rather than as insubordination, snitching, or tattling. The premise is that insiders are in an excellent position to reveal maladministration and protect the public from it. At the federal level, whistle-blowing is defined as disclosing violations of laws, rules, or regulations, mismanagement, “gross waste of funds,” abuses of authority, and substantial and specific dangers to public safety or health (Civil Service Reform Act 1978, sec. 1206[b]). This covers a very broad array of activity encompassing everything from illegal han- dling of radioactive materials to run-of-the-mill violations of federal per- sonnel law.

As noted in Chapter 2, all civilian public employees in the United States enjoy a measure of constitutionally protected free speech on matters of pub- lic concern. This includes whistle-blowing but excludes “work-product” speech as explained earlier with reference to the Supreme Court’s decision in Garcetti v. Ceballos (2006). However, even public employees’ speech on

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146 5. Transparency

matters of public concern may legitimately provide cause for discipline when it significantly harms the employer’s interests in confidentiality, ef- ficiency, performing ongoing operations, and similar matters. Although whistle-blowing is a form of protecting the public’s interests, it can also create unnecessary public anxiety and disdain for government or hinder administrative agencies in implementing their missions effectively. The free speech rights of government contractors parallel those of public employees, as may those of individuals who are engaged in preexisting commercial re- lationships with public agencies (Board of County Commissioners, Wabaunsee County v. Umbehr 1996; O’Hare Truck Service, Inc. v. City of Northlake 1996).

A problem for whistle-blowers is that vindicating these rights may in- volve a tortuous path of litigation. Under constitutional law, the public employee, contractor, or supplier of goods or services to a government has the initial burden of persuasion in showing that his or her protected speech triggered a reprisal. The burden then shifts to the agency involved to show that its action served a substantial governmental purpose or that it would have taken the action based on other factors even if the speech had not occurred. An agency may also prevail if it can show that the action is justified based on information it gained after disciplining an employee or terminating an economic relationship with a contractor or other party. Statutory whistle-blower protection regulations are intended to afford an easier—though sometimes still difficult—route for combating reprisals.

The 1978 federal Civil Service Reform Act prohibited taking any per- sonnel action as a reprisal against a federal employee’s whistle-blowing. The Merit Systems Protection Board and the Office of Special Counsel were charged with enforcement. These provisions were strengthened by the Whistleblower Protection Act of 1989, which (1) extends protection to cover threats of retaliation; (2) provides protection if an employee can show that retaliation was a factor, rather than the dominant factor, in an adverse action; (3) raises the government’s burden of persuasion in show- ing that the action was taken for reasons other than retaliation; and (4) permits employees to initiate action for redress before the MSPB when the Special Counsel does not act on the matter (Warren 1996, 401).

Interpretation of federal whistle-blower protection law by the US Court of Appeals for the Federal Circuit and the MSPB is highly detailed, often turning on the precise meaning of a single word. In general, a federal em- ployee is not protected if he or she (1) reports the wrongdoing to the wrong- doer, even if that person is his or her supervisor, because the wrongdoer is probably aware of the wrongdoing and, consequently, the employee is not “disclosing” it to him or her; (2) discloses wrongdoing to a wrongdoing supervisor who is aware of his or her conduct because in that situation the

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147Whistle-Blower Protection

disclosure is about the nature of the conduct rather than the conduct itself; (3) discloses wrongdoing through normal channels as part of his or her reg- ular job responsibilities; (4) lacks a reasonable belief that wrongdoing oc- curred; or (5) discloses information in contravention of a law or regulation. By contrast, disclosure is likely to be protected if it is part of one’s normal responsibilities but reported “outside normal channels” or disclosed outside assigned responsibilities to a proper party (see US MSPB 2010, esp. 17–18).

Thirty-four states provide some degree of whistle-blower protection. Some protect state employees; others, public and private employees; and North Dakota’s law applies to private employees only. Most regulations cover violations of law, though they may pertain to breaches of state, but not federal or local, law. Louisiana’s coverage extends only to federal, state, and local environmental protection laws. Alaska “prohibits public employ- ers from discharging, threatening, or otherwise discriminating against a public employee who reports to a public body or participates in a court action or inquiry on a matter of public concern.” Colorado protects disclo- sures about state agency actions that are not in the public interest. Nebraska provides employees with a right to disobey illegal orders: “It is unlawful for an employer with 15 or more employees, or a union or employment agency to discriminate against a person who has opposed any practice or refused to carry out an action that is a violation of state or federal law.” Pennsylvania appears to be the only state that covers violations of ethical codes (National Conference of State Legislatures 2010).

A whistle-blower’s charges will not be protected if he or she makes them knowing them to be false or, depending on the specifics of the law, with disregard for their truth or falsity. Claims that turn out to be false may be protected if they were made in good faith—that is, the whistle-blower reasonably believed them to be true. Under some laws, individuals seeking personal gain by whistle-blowing may be afforded less protection.

Whistle-blower protection statutes vary in their procedural require- ments. Some require that the first effort to expose wrongdoing be made internally within the organization in which it is occurring. Others allow disclosure directly to an external state agency, such as the federal Office of Special Counsel, a personnel board, an auditor’s office, or a law enforce- ment authority.

Remedies for retaliation against protected whistle-blowing also vary. Public employees are generally made whole through reinstatement and back pay, benefits, and seniority. They may also recoup attorney’s fees. Punitive damages are sometimes available. However, fines for violating whistle-blower protection laws may be light, such as $500 in Pennsylva- nia. The MSPB notes that at the federal level “perceptions of retaliation

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against those who blow the whistle remain a serious concern. In both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both” (US MSPB 2011, transmittal letter).

Qui Tam

Laws may offer financial gain as an inducement for private individuals to expose fraud and cheating against the government. The federal False Claims Act of 1863, revised in 1986, authorizes qui tam (pronounced “kwee tam”) actions against federal contractors and other private entities that are paid or funded by the government. Qui tam is short for “qui tam pro rege quam pro sic ipso in hoc parte sequitur,” which means “who as well as for the king as for himself sues in this matter” (USLegal, n.d.).

In modern terms, qui tam actions empower a whistle-blower to try to recover public funds by suing a person or organization that has allegedly defrauded the government. Because a qui tam plaintiff, called a “relator,” sues on behalf of the government, he or she is not required to show a per- sonal injury, as is usually necessary to gain standing to litigate. If the suit is successful, the relator will share the funds recovered with the government.

Under the False Claims Act, the Department of Justice has the option of joining the suit. As amended in 1986, the act enables successful whistle- blowers to receive up to 25 to 30 percent of the recovery in the absence of the department’s intervention and 15 to 25 percent with it. Defendants are prohibited from taking adverse actions against their whistle-blowing employees and may be required to reinstate them with double back pay and other compensation. From 1986 through 2006, the federal government recovered over $18 billion through qui tam suits, and whistle-blowers re- ceived about $1.8 billion. Cases involved Medicare and Medicaid fraud, defective products, and false billing, among other matters (Chang 2009; LawyerShop.com, n.d.; The Qui Tam Online Network, n.d.).

Conclusion: An Opaque Fishbowl?

Here is a snippet from a brief conversation I had with a USA Today reporter in the mid-1990s when “reinventing government” was a hot topic:

Reporter: “Can government operate like a business?” Me: “Which one? Tobacco? Silicone implants?” Reporter: “What?” Me: “Did you ever try to ‘FOIA’ Philip Morris or Dow Corning?”

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149Additional Reading

The reporter laughed. Of course, she might have had the same response if asked whether she had ever tried to FOIA the CIA for its budget num- bers. Many contend that public administrators operate in a fishbowl; many others say government has a strong penchant for secrecy. For some, the water in the fishbowl is too clear; for others, it is too murky. And many feel quite passionately about how open government should be. But as one of the twentieth century’s leading public administrative thinkers, Dwight Waldo, was fond of asking, “Compared to what?”

If the comparison is to the private sector, many executives with expe- rience in both government and business would undoubtedly agree that “governmental management tends to be exposed to public scrutiny and to be more open, while private business management is more private and its processes more internal and less exposed to public review” (Allison 1994 [1979], 136). If the comparison is to public administration before and af- ter the development of regulations for transparency, there would be broad agreement that freedom of information, sunshine, and whistle-blower pro- tection have advanced, though not fully achieved, their purposes.

It is worth keeping Waldo’s question in mind when assessing transpar- ency policy. If criticism alone could make for perfection, freedom of infor- mation in particular might be among the most perfect of all public policies. The job of improving and fine-tuning transparency policy is more difficult than diagnosing what is wrong; it requires prescribing what will be bet- ter. As noted in the chapter’s discussion of United States v. Richardson, open government necessarily involves trade-offs and balances among competing concerns of fundamental importance to US democratic constitutionalism. The exemptions in FOIA and open meetings laws, exceptions in the Privacy Act, crafting of whistle-blower protection, and judicial decisions dealing with transparency inescapably provide an ever-evolving, applied political theory of openness in contemporary US government. The tensions among openness, security, administrative effectiveness and efficiency, access, pri- vacy, confidentiality, the public’s sovereignty, and workable constitutional democracy may be irresolvable yet manageable through continual adjust- ments to transparency policy. And clearly, the long-term trend has been toward better implementation of FOIA and other transparency provisions.

Additional Reading

Foerstel, Herbert N. Freedom of Information and the Right to Know. West- port, CT: Greenwood Press, 1999.

Peltz-Steele, Richard. The Law of Access to Government. Durham, NC: Carolina Academic Press, 2012.

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150 5. Transparency

Piotrowski, Suzanne J., ed. Transparency and Secrecy: A Reader Linking Lit- erature and Contemporary Debate. Lanham, MD: Lexington Books, 2010.

Discussion Questions

1. Do you agree with the Supreme Court’s decision regarding FOIA ex- emption 7(C) in the Favish case? Why or why not?

2. Is there any exemption in FOIA that you would eliminate? How about exemption 5, the gist of which does not apply to open meetings and pres- idential records?

3. The Civil Service Reform Act of 1978 contains significant whistle- blower protections; yet even after these were strengthened in 1989, the Merit System Protection Board reports that reprisals against whistle- blowers are still common. Why do you think this is the case? What, if any- thing, can be done to reduce reprisals?

4. Do you think the Privacy Act and FOIA exemptions 6 and 7 ade- quately protect Americans’ personal privacy from government incursions? If not, what might be done to provide greater protection?

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