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Continued use of personal email and encrypted messaging in White House exposes accountability hole in public recordslaws

Alex Howard (@digiphile) March 8, 2019 So far, the public has heard robust defenses of the role of access to information and journalists in our democracy on a national Freedom of Information Day conference at the Newseum, and a forum on open government at the National Archives that included reflections from all three branches.

I didn’t go over to the Justice Department, where Principal Deputy Associate Attorney General Jesse Panuccio gave a speech at the agency’s Sunshine Week kick-off, but I did hear that he criticized unnamed groups whose requests are “straining the system.” “Some groups have turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking,” he said.

”Immediate litigation has become a feature of FOIA administration rather than a last resort, and the result is often that large and complex requests by institutional actors are moved, by court order, ahead of requests by average citizens.” Panuccio said that he sent a a memorandum to all agency General Counsels and Chief FOIA Officers stressing that “improving FOIA performance requires the active participation of agency Chief FOIA Officers.” The Department of Justice has not disclosed the memorandum yet.

They will ask: when you saw the press being suppressed, a White House that blocked info from getting to people’s reps, a President who sent memos to career employees telling them they could not be whistleblowers, they’re going to ask what did you do?

Leahy, who subsequently tweeted out a transcript of his remarks, observed that ”the list of threats to transparency under the Trump administration goes on, and expands far beyond just FOIA itself.”

“President Trump’s ongoing, opaque ties to his business organization make it impossible to know whether foreign governments and corporations are able to curry favor with him by spending money on his business,”

“The Trump administration has also issued an unprecedented number of lobbyist waivers to its appointees in secret – preventing the public from knowing whether Trump agency officials are simply continuing their advocacy on behalf of special interests in their official capacities.”

As I tweeted from the event, I learned the FOIA was amended in 1974 to include sanctions against individual federal agency employees, as noted in this 2013 paper on enforcing the public’s right to access information, after Ralph Nader suggested it: Fun facts I learned during #SunshineWeek: 1)

The fact that sanctions for violating government access laws are almost never applied at any level of government might shed some sunlight on why the state of compliance with public records laws not just in the US government but around the USA.

If FOIA officers and appointees faced fines or even jail time for obstructing disclosures under the law, we might see more of a normative shift towards the “openness by default” described in the FOIA statute.

hearing with Commerce Secretary Wilbur Ross on Thursday “to determine why he and other Trump Administration officials gave misleading testimony about how the citizenship question was added to the Census, which has been deemed ‘unconstitutional and a violation of federal statute‘