Wednesday, February 15, 2012

So much for open government!

Every year the National Security Archive presents the Rosemary Award for the Worst Open Government Performance. According to the Archive:

The Rosemary Award is named after President Nixon's long-time secretary Rose Mary Woods and the backwards-leaning stretch – answering the phone while keeping her foot on the pedal of a tape transcription machine – that she testified caused the erasure of an 18 1/2 minute section of a key Watergate conversation on the White House tapes.

(Scroll to the foot of the linked page to see the above quotation.)

The 2012 Rosemary Award has been won by the US Justice Department. The Archive applauds:

The Rosemary Award citation includes a multi-count indictment of Justice's transparency performance in 2011, including:

  • selective and abusive prosecutions using espionage laws against whistleblowers as ostensible "leakers" of classified information, with more "leaks" prosecutions in the last three years than all previous years combined, at a time when expert estimates of over-classification range from 50 to 90%;
  • persisting recycled legal arguments for greater secrecy throughout Justice's litigation posture, including specious arguments before the Supreme Court in 2011 in direct contradiction to President Obama's "presumption of openness";
  • retrograde proposed regulations that would allow the government to lie in court about the existence of records sought by FOIA requesters, and also prevent elementary and secondary school students – as well as bloggers and new media – from getting fee waivers, while narrowing multiple other FOIA provisions;
  • a mixed overall record on freedom of information with some positive signs (overall releases slightly up, roundtable meetings with requesters, the website collating government-wide statistics) outweighed by backsliding in the key indicator of the most discretionary FOIA exemption, (b)(5) for "deliberative process," cited by Justice to withhold information a whopping 1,500 times in 2011 (up from 1,231 in 2010).

"Justice edged out a crowded field of contending agencies and career officials who seem in practical rebellion against President Obama's open-government orders," commented Archive director Tom Blanton. "Justice's leading role as the government's lawyer signals every bureaucrat they don't have to stretch as much as Rose Mary Woods to cover up the government's business."

. . .

The individual who launched Justice's successful campaign to win the Rosemary Award was career Solicitor General staffer Anthony Yang, who tried to convince the Supreme Court during oral arguments on January 19, 2011 (two years after President Obama's order for a "presumption of openness") that exemptions to the U.S. Freedom of Information Act deserved the most expansive possible reading – "exemptions are to be given meaningful reach." Yang meaningfully reached for the Rosemary Award by responding multiple times to increasingly incredulous questions from Justices Scalia (no friend of the FOIA) and Sotomayor on this point. Scalia asked, "Our cases assert, do they not, that the exceptions to FOIA should be narrowly construed?" After some back and forth, Yang said flatly, "We do not embrace that principle."

Yang was speaking for the Justice Department, and indeed, for the government as a whole, in direct contradiction to President Obama's stated polices on open government.

There's much more at the link. I highly recommend reading it to see your tax dollars at work . . . denying you access to the very information you need to decide whether or not those tax dollars are doing something useful and/or worthwhile!


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