Federal Agency Transparency, Openness to Public, Media Varies, Experts Say

Especially glaring was that President Barack Obama came into office promising more transparency, said some we interviewed and those who spoke with former Washington Post Executive Editor Len Downie. He wrote a report the Committee to Project Journalists (CPJ) released last week (http://bit.ly/16RrsVh) on the Obama administration and the media. The administration is using social media, its own websites and online video to get out its message, and may be less responsive to reporters because it has its own communication methods, said the report and experts told us. Administration officials told Downie, now at Arizona State University, that they “strongly objected” to such criticism, he wrote. And a representative of government public information officers told us that non-security agencies generally are quite responsive to media inquiries.

The chill at national security and scientific agencies appears to also be occurring, though to a lesser extent, across other types of federal agencies, said those who back a federal media shield law. They told us some FOIA procedures have improved, but it often takes too long for requests to be fulfilled, and often more information than is necessary is redacted. On the other side, the experts said agencies are more often releasing on their websites information that’s been requested by FOIAs, or is just in demand, instead of only giving it to those who ask.

"Obama really did make a big play at the beginning of the administration in saying he expected agencies to be open and respond to FOIA requests,” said communications lawyer Kurt Wimmer of Covington & Burling, moderator of a New America Foundation panel (http://bit.ly/19N8Og6) Thursday on the CPJ report, in an interview. “This administration has really created a chilling effect that is pretty pervasive” as shown in the report, he said. Others used the word “chilling” to describe to us the state of openness.

"The leak prosecutions really have been exceptional, so I think there is some fence mending that needs to be done, and getting the shield law is one way,” said Wimmer, who represents an ad hoc coalition of media companies and associations including NAB that back such a law. “The report also details in an interesting way how the White House on a day-to-day basis” uses its own media and “is not talking to journalists, which is part of an overall picture of controlling your message,” said Wimmer, also general counsel to the Newspaper Association of America, another shield-bill coalition member. “But you need to control your message and be available to journalists to really” be informing the public, he continued. It’s a “tale of two scenarios” of clampdowns on media, in both national security and other settings, Wimmer said at the event.

Obama should be “fulfilling his very first promise, to make this administration the most open,” said Downie at the event. There’s been “little progress on one of the president’s first promises” made on his first day in office on Jan. 21, 2009, to improve government responsiveness to FOIA requests, he said. The report noted Obama that day directed agencies to speed up FOIA responses. There’s been “little progress” on this, with too many requests rejected or excessive fees to provide documents sought, Downie said. Leaders of a movement to get such information routinely released “are very worried” the administration won’t listen to them, he said. The “daily life” of journalists he runs into when visiting the Post who weren’t in the CPJ report “is trying to get government officials to talk to them, who are afraid to talk to them,” Downie said. The Office of Management and Budget and White House had no comment for this story.

"Anodyne” or routine correspondence “is now slapped with the ‘for official use’ label,” said Post Associate Editor Rajiv Chandrasekaran. CPJ Executive Director Joel Simon sees “a systematic effort here to really marginalize and undermine the work of the press,” he said. Non-security agencies denying documents under FOIA exemptions covering national security, deliberative documents and those with personally identifiable information are frequent, said First Amendment lawyer Kevin Goldberg of Fletcher Heald in an interview. Such agencies “continue to respond a little more slowly than certainly reporters would like, and there’s a feeling that too much information is being withheld” especially in light of the administration mandate’s to provide what won’t cause harm, he said. Goldberg, who advises the American Society of News Editors on FOIAs and was quoted in CPJ’s report, said he wasn’t speaking to us on ASNE’s behalf.

Public information officers work to guard privacy and shield personally identifiable information from release along with proprietary information and what “clearly” falls under FOIA exemptions, said National Association of Government Communicators President-elect John Verrico, also a PIO. Such officials work closely with other agency staff to consider whether information can be released without going through “very stringent” FOIA “processes,” he told us. Verrico hasn’t “seen much change” generally in non-security agencies releasing information under FOIA, he said. “There’s a definite drive to be responsive in a very timely manner that I've seen."

Many reporters find federal agencies “cumbersome” and “slow” to release information under FOIA, and often find state processes under open records laws easier, said Lucy Dalglish, dean of the University of Maryland’s journalism school and past head of Reporters Committee for Freedom of the Press. “I've gotten far more complaints from reporters dealing with the federal government, than those dealing with state” agencies, said Dalglish, also quoted in CPJ’s report, in an interview. What’s improved under this administration is the release on government websites of information that’s also been sought under FOIA, often data and statistics, she said. “They have been more sophisticated and probably user friendly.” It’s also “easier for people to submit requests via email,” and tracking systems for requestors help, said Dalglish. “They have made some advances in the consumer friendliness of it."

Agencies such as the FCC are required, even absent FOIA, to release some information, such as involving licensing and other data, and do an OK job, said Dalglish. The FCC’s approach to FOIA is consistent with the 2009 memo issued on Obama’s first day in office, said a commission spokesman. He said that memo said there should be a “presumption of openness” for agencies responding to FOIA requests.

At many agencies, it’s hard to get much information on contracting and often impossible to find out which bidders didn’t get a contract and what their bids were, said Dalglish. “That’s basic accountability information.” The federal government is “doing a better job I think of providing consumer” and taxpayer-related information, and some that deals with commerce, she said. “They are not doing so well” with what “can be used by taxpayers and citizens to hold the government accountable,” she said. This publication has found similar issues in our requests to the FCC for copies of contracts, where we couldn’t get information on losing bidders and some information on winning bids was redacted (CD May 29 p2).

PIOs or other “overseers” often monitor conversations with media by career agency staffers and political appointees, said Dalglish, Goldberg, Society of Professional Journalists Freedom of Information Committee Chairwoman Linda Petersen and others we interviewed. Some said that’s had a particularly “chilling” affect on national-security and science-related issues. Transparency across agencies isn’t “terrible” as some proclaim, but the administration hasn’t “lived up to what they or any other administration ought to be doing,” said Goldberg. This technology-focused administration is “not quite getting there,” with releasing information proactively, and experts able to speak “without an overseer,” he said. It’s “an underappreciated problem” among scientific and security agencies, said Goldberg. “Chilling the experts” is “one thing this administration is particularly good at,” said Dalglish. She said she hasn’t heard complaints about that at the likes of the FCC, FTC and SEC.

Many PIOs follow the mantra of “maximum disclosure, minimum delay,” said Verrico, whose group has about 600 such members from local, state and federal government. As “government more and more” uses social media and other Internet “tools for direct interaction with their constituents and stakeholders,” there “is still very much a need for working through the media to communicate to the public,” he said. “Because, quite frankly, just because we build a website doesn’t mean people will come.” There “always will be a strong need to be partners with the media” to “communicate important information to the public,” ranging from the Post and CNN to “the smallest trade journal that may have a few dozen avid readers” and “even the blogger community,” said Verrico. PIOs work with “some very specific blogs that are less of the tin foil hat wearing conspiracy theorists” that report and explain news, he said. It’s the “mandate” across the federal government “to proactively communicate” with the public, he said.

The federal government is less responsive to FOIA requests, said SPJ’s Petersen, also managing editor of the Valley Journals, free, monthly online and print community papers in the Salt Lake City market that she owns with her husband. “We're losing ground.” What FOIA information goes online occurs after a “filtering process” that selects what agencies want released, said Petersen. She places much of the blame for the rise of background briefings -- where government officials speak to groups of reporters on a not-for-attribution basis -- on journalists for not refusing such offers. “It’s worsened because reporters have allowed it,” said Petersen. “Younger reporters expect it, and don’t think there is another way,” while PIOs cite the availability of social and other electronic media for them to release materials as excuses to not provide on-the-record comments to journalists, she said. “It’s now become institutional off the record, where it’s working for the institution, and it’s not working for the journalist,” she said, comparing it with the Post’s Watergate revelations. “This is not a modern-day version of ‘Deep Throat,'” the source for some of the paper’s such coverage.

There’s more attention now at what agencies across the board release publicly, after leaks of classified information “have really ramped up the level of scrutiny” of what’s issued even when unrelated to classified information, said Verrico. There is now more “sensitivity,” but “historically, I have seen worse,” he said, citing a “gag order” in the 1990s during the tenure of then-Maryland Gov. William Donald Schaefer (D), when Verrico worked for the state, in response to agencies releasing information without the OK of the governor’s office. The federal government now is “proactively making some information available,” often online and more so than in the past, said First Amendment lawyer Bob Corn-Revere of Davis Wright. “However, when that is combined with tightly controlling access to information” and “to chill any possible unauthorized disclosure of information, you run the risk of only having access to what the government wants you to see, or propaganda.” Corn-Revere, who advises media and other clients on FOIA matters, said there’s much more released, but it’s often favorable to the government. “You have a government that is bent on controlling information” even though this administration came to power promising transparency, he said. This applies to prosecution of leakers and more routine media-related matters, he said.