This is your FIRST Principles Update for October 2, 2017, by NEWS MEDIA FOR OPEN GOVERNMENT, a coalition of media associations advancing newsgathering, press freedom and open government. For more, visit foropengov.org or follow us @foropengov.
Vulnerable sources inside government may not fully understand their rights, the various whistleblower channels for reporting issues internally, and potential consequence from retaliatory actions for going public. “Journalists need to understand not only the value of a whistleblower’s information but also the unique challenges and risks faced by sources who are employees,” writes Dana Gold in a new guide for journalists on working with whistleblowers from the Government Accountability Project. “A relationship with a journalist can be the highest stakes and most stressful partnership in a whistleblower’s professional life.” Trust and mutual understanding are key to ensuring the flow of important information to the public while protecting sources.
GAP is a non-profit organization providing legal and other advice to government employees on whistleblower rights. GAP has experience working with potential whistleblowers and journalists while a news story is in development. They understand the importance of exclusivity and work carefully to help protect both whistleblowers and the journalists working on a story.
While experienced journalists may be familiar with the advice, the guide provides good recommendations for security, a healthy dose of reality to the limits of whistleblower protections and some interesting surprises. I didn’t know, for example, that 19 of 20 whistleblowers actually attempted to use internal channels before going public, according to one survey.
(In full disclosure, I attended a retreat organized by GAP to discuss issues surrounding government employee rights and provided input on an early version of the draft guide.)
FOIA AS DISINFECTANT AGAINST PREFERENTIAL TREATMENT IN IMMIGRATION
When first-term U.S. Representatives Bryan Fitzpatrick (R-PA) and Dwight Evans (D-PA) sought to put together reforms to the immigration process, they included a provision that fought preferential treatment of certain immigration cases and looked to FOIA for help. To combat the problem, they included language in their legislation that would require the Department of Homeland Security to log all communications from third parties about particular immigration cases and ensure responsible disclosure. Sec. 8(e)(2)(c)(ii) says:
|(ii) TRANSPARENCY.—The log of communications described in clause (i) shall be made publicly available in accordance with section 552 of title 5, United States Code (commonly known as the “Freedom of Information Act”).|
They went further in the next paragraph (SEc. 8(e)(3) for anyone keeping score) to require that if anyone receives helpful information and tips about the immigration process, that same information should be proactively disclosed to the public, which echoes the FOIA’s requirement that agencies affirmatively disclose information that the agency reasonably anticipates would be of interest to future requesters.
|(3) PUBLICATION OF INFORMATION.—If, as a result of a communication with an official of the Department of Homeland Security, a person or entity inquiring about a specific case or generally about the immigrant visa program described in section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)) received generally applicable and non-case-specific information about program requirements or administration that has not been made publicly available by the Department, the Director of United States Citizenship and Immigration Services, not later than 30 days after the communication of such information to such person or entity, shall publish such information on the United States Citizenship and Immigration Services Web site as an update to the relevant Frequently Asked Questions page or by some other comparable mechanism.|
If this provision does become law, it will be interesting to see whether this provision has any impact. It could be very hard to enforce, unless an investigative reporter or two goes through these communications one-by-one (and key information isn’t redacted under one of FOIA’s exemptions). This may be a case where the public interest in disclosure (to ensure equal treatment) would outweigh a particular interest protected under one of the exemptions) and a public interest balance test more broadly applied that it is currently would provide more disclosure. Of course, disclosure itself may deter bad behavior, which is the most difficult kind of impact to see.
FARM BILL HISTORICALLY SOWS SECRECY
Congressional gears are revving up for the push to reauthorize spending on farms and supplemental nutrition programs in schools, and this year we are particularly worried that the must-pass legislation will become a vehicle to undo pro-disclosure court decisions or impose secrecy without public discussion.
Traditionally the legislation has been known as the Farm Bill and is reauthorized every 5 years. The legislation marries congressional action to aid small family farms (or at least funding intended to help small family farms) with food and nutrition assistance programs. Under political pressure to pass the legislation, lawmakers have historically accepted pernicious secrecy provisions as part of the cost to moving the legislation.
News media groups in our coalition have been successful in fighting against such provisions, but we’ve also seen secrecy provisions slip through. In 2008, Congress dropped a provision that would have barred disclosure of basic phone book information on farms that contribute to the food supply, while enacting a provision that vaguely allowed the U.S. Department of Agriculture to withhold any information provided by a farm “in order to participate in programs of the Department” or geospatial information that describes farm property or operations. It turned out that local land assessors were stymied in their work by the provision.
Transparency has a few influential lawmakers in its corner. Senators Patrick Leahy (D-VT) is a longtime champion of government openness and an active watchdog over efforts to cut narrow loopholes into FOIA’s disclosure requirements. He’s the ranking member on the Appropriations Committee, where he helps oversee government spending. He also shepherded several successful campaigns to strengthen FOIA and held numerous oversight hearings during his tenure leading the Senate Judiciary Committee. Chuck Grassley (R-IA) also chairs the Senate Judiciary Committee, and he has been a strong defender of FOIA.
To be sure, while the farm bill debates are just now ramping up in the halls of Capitol Hill with hearings as a setup for bigger debates likely to occur next year, we remain concerned this legislation will again become a host for dangerous anti-transparency provisions and will be watching closely.
Did you know that federal inspectors general have their own council composed of inspectors general from federal agencies? That council has created a one-stop shop for all public inspector general reports at Oversight.gov, a website run by the Council of the Inspectors General on Integrity and Efficiency (CIGIE). CIGIE claims the IGs that contributed reports to the site receive about 500,000 complaints annually of waste, fraud and abuse. Reports contributed to the site identified over $26 billion in savings in 2017.