Author: Patrice McDermott

Deregulating Transparency— DOT and the Airlines v. Public

Patrice McDermott Accountable Government, Government Openness, Secrecy

USA Today recently reported that—in the Administration’s effort to reduce regulations and their costs—the Transportation Department has abandoned two proposals from the Obama administration that aimed to provide air travelers with more information about fees on bags and other services before they buy tickets.

According to DOT Secretary Elaine Chao, “The department is committed to protecting consumers from hidden fees and to ensuring transparency. However, we do not believe that departmental action is necessary to meet this objective at this time. … Although we believe there would be benefits of collecting and publishing the proposed aviation data, the department also takes seriously industry concerns about the potential burden of this rule.”

The burdens on industry, that is.  According to USA Today, “most airlines said the costs providing the information would be burdensome and the information wouldn’t increase the transparency of pricing. Airlines also worried that the disclosures could require reporting of propriety information.”

In other words, as in most Republican administrations, asserted burdens outweigh public benefits from transparency and the ability to make informed choices.

Continued resistance to transparency and accountability — DoD’s massive toxic waste responsibility

Patrice McDermott Government Openness, Secrecy

In it’s most recent update to a disturbing and deeply-researched ongoing report, ProPublica documents the state of toxic pollution left behind by the military across the U.S. This is a problem of massive proportions that is more than three decades in the making — ever since

Congress banned American industries and localities from disposing of hazardous waste in these sorts of “open burns,” concluding that such uncontrolled processes created potentially unacceptable health and environmental hazards. Companies that had openly burned waste for generations were required to install incinerators with smokestacks and filters and to adhere to strict limits on what was released into the air. Lawmakers granted the Pentagon and its contractors a temporary reprieve from those rules to give engineers time to address the unique aspects of destroying explosive military waste.

A quarter of a century ago, the U.S. Senate passed a resolution that ordered the Department of Defense to halt the practice “as soon as possible.”

As part of this investigation, ProPublica acquired a dataset of all facilities that the Department of Defense considers contaminated—and have used the data to publish an interactive news application called Bombs in Your Backyard that enables the public to find hazardous sites near them — and learn what, if anything, is being done to remedy the pollution.

The “what, if anything, is being done to remedy the pollution” is a telling saga of the Pentagon turning its head to avoid confronting the devastation created by its “open burn” policy and practice.  It merits a close reading. Below are some highlights on the secrecy and lack of accountability aspects.

ProPublica points to federal records identify nearly 200 sites that have been or are still being used to open-burn hazardous explosives across the country. Some blow up aging stockpile bombs in open fields. Others burn bullets, weapons parts and…raw explosives in bonfire-like piles.  While the “facilities operate under special government permits that are supposed to keep the process safe, limiting the release of toxins to levels well below what the government thinks can make people sick,” according to ProPublica, officials at the Environmental Protection Agency, which governs the process under federal law, acknowledge that the permits provide scant protection.  Indeed, internal EPA records obtained by ProPublica show there are

…at least 51 active sites across the country where the Department of Defense or its contractors are today burning or detonating munitions or raw explosives in the open air, often in close proximity to schools, homes and water supplies. The documents — EPA PowerPoint presentations made to senior agency staff — describe something of a runaway national program, based on “a dirty technology” with “virtually no emissions controls.” According to officials at the agency, the military’s open burn program not only results in extensive contamination, but “staggering” cleanup costs that can reach more than half a billion dollars at a single site.

The sites of open burns — including those operated by private contractors and the Department of Energy — have led to 54 separate federal Superfund declarations and have exposed the people who live near them to dangers that will persist for generations.  …

Of course, the Pentagon could determine with greater accuracy any possible health threat. It could, for instance, actually sample and test the emissions generated by the burns. Aside from a few research sites, neither the EPA nor the Pentagon was able to point to an example where this was done.

It has fallen to non-government researchers, however, to probe the depths of the Defense Department’s indifference to public health and safety:

ProPublica reviewed the open burns and detonations program as part of an unprecedented examination of America’s handling of munitions at sites in the United States, from their manufacture and testing to their disposal. We collected tens of thousands of pages of documents, and interviewed more than 100 state and local officials, lawmakers, military historians, scientists, toxicologists and Pentagon staff. Much of the information gathered has never before been released to the public, leaving the full extent of military-related pollution a secret. …. (Italics added)

“They are not subject to the kind of scrutiny and transparency and disclosure to the public as private sites are,” said Mathy Stanislaus, who until January worked on Department of Defense site cleanup issues as the assistant administrator for land and emergency management at the EPA.

ProPublica’s examination suggests that the Department of Defense has used an array of bureaucratic tools to shorten the list by almost any means legally available ever since Congress directed it to fix its contaminated sites. The agency also has for decades lobbied Congress for legislation that would make the military exempt from the nation’s most significant antipollution laws — the very laws that compel it to clean up old bases in the first place, and has fought to steer the science that determines how some of the most poisonous contaminants are regulated.

It is depressing to note that such DoD resistance to following the law and protecting the health of their employees and their families — and the surrounding public —  is a recurrent theme. In 2011, POGO reported on Toxic Secrecy: The Marine Corps’ Cover-up of Water Contamination at Camp Lejeune, and a broad array of non-profit organizations allied to fight a attempt under the auspices of the National Defense Authorization Act (since attempted on a regular basis) to to exempt from disclosure under the FOIA “information on military tactics, techniques, and procedures, and of military rules of engagement.” Just about anything they want to keep secret, in other words.  A coalition letter addressing the latest attempt is here.

 

 

Trump nominates person with no statistical experience to head Bureau of Justice Statistics, further threatening credibility of DOJ information

Patrice McDermott Accountable Government, Government Openness

As reported in The Crime Report, the assault on the credibility of the Bureau of Justice Statistics continues:

President Trump has announced his intention to appoint a director of the Justice Department’s Bureau of Justice Statistics (BJS) who has no apparent experience in the field. … The only statistical experience cited by the White House in Anderson’s background was co-creating the Anderson and Hester Computer Rankings, which boast of computing college football’s “most accurate strength of schedule ratings,” taking into account the quality of teams’ opponents.

The Bureau was established in 1979 “to collect, analyze, publish, and disseminate information on crime, criminal offenders, victims of crime, and the operation of justice systems at all levels of government.”

Until 2012, the BJS directorship required Senate confirmation— when Congress changed the law and made the job a presidential appointment. According to Washington Bureau Chief, Ted Gest:

BJS directors under President Obama, James Lynch of the University of Maryland and William Sabol, now of Georgia State University, both were long-time criminologists and recognized experts in crime and justice statistics.

In May, under the auspices of the American Statistical Association, four former BJS directors wrote to Attorney General Jeff Sessions urging that “serious consideration” to head BJS, which operates in Sessions’ Department of Justice, “to individuals who have strong leadership, management, and scientific skills; experience with federal statistical agencies; familiarity with BJS and its products; visibility in the nation’s statistical community; ability to interact productively with Congress and senior DOJ staff; and acceptance of the National Academies’ Principles and Practices for a Federal Statistical Agency.”

The letter was signed by Lynch, Sabol, Jeffrey Sedgwick, who served as BJS director in the last three years of the George W. Bush administration and now directs the Justice Research and Statistics Association, and Lawrence Greenfeld, who headed BJS in the first five years of the Bush administration.

Anderson does not appear to have any of those qualifications.

The same four recent BJS directors wrote in May to leaders of the Senate and House Judiciary Committees arguing that the requirement for Senate confirmation for the BJS director should “be restored and that the director’s status be changed from serving at the will of the president to serving a fixed term of at least four years, staggered from the presidential election.”

The ex-directors said in their letter: “It is imperative that policy discussions about the often-contentious issues regarding crime and justice be informed by statistical data trusted by the public to be objective, valid, and reliable…”

“To ensure BJS data are viewed as objective and of highest quality, BJS must be seen as an independent statistical agency wherein data collection, analysis, and dissemination are under the sole control of the BJS.”

 

AG Sessions is a threat — to accountable government through reliable information

Patrice McDermott Government Openness, Secrecy

In late 2016,  the threat of the impending Trump Administration to access to reliable and accurate government information caused a number of academic libraries, data scientists and others to initiate Data Refuge focused on climate and environmental data. The Environmental Data & Governance Initiative (EDGI), another collaboration, is focused on potential threats to federal environmental and energy policy, and to the scientific research infrastructure built to investigate, inform, and enforce them. Its Capacity and Governance working group monitors changes to federal agency governance, budgets, enforcement, scientific research, and rulemaking capacity.i

At the time, openness advocates warned that the utility of government data could be easily undermined by not just being removed (or made difficult to find) but also by changes to the data fields. That warning has now proved true — but not in the areas that are being closely monitored by the above efforts. We have learned that it is not only the new leaders of environmental and energy agencies that are a threat to the accurate information needed to hold government accountable. FiveThirtyEight has documented that AG Sessions is yet another.

In late October, the site reported that “The First FBI Crime Report Issued Under Trump Is Missing A Ton Of Info“:

Every year, the FBI releases a report that is considered the gold standard for tracking crime statistics in the United States: the Crime in the United States report, a collection of crime statistics gathered from over 18,000 law-enforcement agencies in cities around the country. But according to an analysis by FiveThirtyEight, the 2016 Crime in the United States report — the first released under President Trump’s administration — contains close to 70 percent fewer data tablesI than the 2015 version did, a removal that could affect analysts’ understanding of crime trends in the country. The removal comes after consecutive years in which violent crime rose nationally, and it limits access to high-quality crime data that could help inform solutions.  …

Among the data missing from the 2016 report is information on arrests, the circumstances of homicides (such as the relationships between victims and perpetrators), and the only national estimate of annual gang murders.

While changes to the report typically go through a body called the Advisory Policy Board (APB), responsible for managing and reviewing operational issues for a number of FBI programs, these changes did not. Rather, the FBI Office of Public Affairs — rather than the Advisory Policy Board — determined which data tables to remove  based on a “review the number of times a user actually viewed the tables on the internet.”

So, can a concerned person or organization obtain the removed fields?  According to FiveThirtyEight,

While the UCR says that the data no longer included in the report was available upon request, the FBI only provided a raw data file, which is more difficult to analyze — especially compared to easily accessible data tables — and does not always match the figures posted online in the UCR reports.3

The FBI noted that in addition to its decision to streamline the report, UCR had launched a Crime Data Explorer, which aims to make crime data more user-interactive. But data contained in the explorer does not replicate what is missing from the 2016 UCR report, and it doesn’t allow users to view data for particular years, but rather aggregates trends over a minimum period of 10 years. The National Incident-Based Reporting System is another tool the FBI uses to provide more detailed information on crimes, but it too does not replicate what is missing from the 2016 UCR report and has a substantially lower participation rate4 from police departments across the country.

 

i The End of Term Harvest and subsequent EOT Web Archive also received intense new interest.The Web Archive contains federal government websites (.gov, .mil, etc) in the Legislative, Executive, or Judicial branches of the government — with a focus on websites that were at risk of changing (i.e., whitehouse.gov) or disappearing altogether during government transitions.

The ‘A’ in CIA does not stand for Accountability

Patrice McDermott Government Openness, Secrecy

Recently, the CIA has been in the news. This in itself is unusual and the contexts of the news stories makes it even more so.  None of the stories are good news for public accountability.

On October 17, Reuters reported “CIA says mistakenly ‘shredded’ Senate torture report then did not” according to Christopher Sharpley, the acting CIA Inspector General, during his confirmation hearing before Senate Intelligence Committee as President Trump’s nominee for the position.

Sharpley said the CIA received the report in December 2014 on a computer disk, which was then uploaded into a classified system. Shortly thereafter, he said, the agency was told to delete it because of ongoing Freedom of Information Act (FOIA) litigation.

An email was sent saying the disk should not be destroyed, but Sharpley said he was told months later it could not be found and that an employee said it had been shredded.

But he said the disk was discovered later, after the FOIA litigation concluded that the report was a “congressional” document not subject to FOIA requests.

Sharpley said around that time, (Senator Richard) Burr (chair of the Senate Select Committee on Intelligence), asked him to return the disk and he did so. (Emphasis added)

The timing is interesting….

Of course, Sharpley neglected to mention that the DC circuit ruled it was a congressional record for purposes of FOIA, and that the court explicitly said Burr’s letter was entitled to zero weight:

Before turning to an application of the law to the facts of this case, we must make it clear that we can give no weight to the letter sent by now-Senate Committee Chairman Richard Burr to the President in January 2015. The letter was sent after Appellants had submitted their FOIA request and after they had filed suit in the District Court. Therefore, the letter is a “post-hoc objection[] to disclosure,” and, as such, it “cannot manifest the clear assertion of congressional control that our case law requires.”

Sharpley also would not commit to protecting any future reports, such as one related to the committee’s probe of potential links between Trump’s campaign and Russian efforts to interfere in the 2016 U.S. election. This brought a rebuke from Senator Wyden:

“I think your highest duty here is to follow the law. The notion that the chairman asked for it and that’s all that governed your judgment isn’t acceptable to me.”

The above scenario is troubling enough. A POGO report the previous day—the day before the confirmation hearing—adds to the concerns.  As POGO points out, the Office of the Inspector General depends on whistleblowers to report waste, fraud, and other abuses. In the case of the CIA, however,

President Trump’s nominee to be the Central Intelligence Agency’s Inspector General—its top independent watchdog—is named in at least three open whistleblower retaliation cases.  …

Despite a statement POGO received from a senior Republican Senate staffer that Congress has a need-to-know: “There’s no question that information about outstanding retaliation cases involving Sharpley should be fully disclosed before members of Congress are asked to approve such a key CIA official,” POGO notes

It remains unclear whether Sharpley or the CIA has disclosed to Congress a complete list of the open matters, or any details concerning them. If not, Congress may still learn about them through other avenues: key members of a confirming committee are often provided any FBI files that contain details of cases involving the nominee, potentially including criminal or administrative matters. Such material, if it is available, is likely to be of interest for the Senate Intelligence Committee, which must examine Sharpley’s fitness for office, as well as to members of the Whistleblower Protection Caucus and of the full Senate, who will be required to vote on his confirmation.

The Committee has not yet voted on Sharpley’s nomination.

Moving from the IG to the Director’s office, on October 20, the Washington Post reported that, according to CIA Director Mick Pompeo,

“The intelligence community’s assessment is that the Russian meddling that took place did not affect the outcome of the election.”

As the Report states, however

This report includes an analytic assessment drafted and coordinated among The Central Intelligence Agency (CIA), The Federal Bureau of Investigation (FBI), and The National Security Agency (NSA), which draws on intelligence information collected and disseminated by those three agencies. It covers the motivation and scope of Moscow’s intentions regarding US elections and Moscow’s use of cyber tools and media campaigns to influence US public opinion. The assessment focuses on activities aimed at the 2016 US presidential election and draws on our understanding of previous Russian influence operations. When we use the term “we” it refers to an assessment by all three agencies.

…

We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election. The US Intelligence Community is charged with monitoring and assessing the intentions, capabilities, and actions of foreign actors; it does not analyze US political processes or US public opinion. (Emphasis added)

Greg Miller noted in the Post article that

“Pompeo’s mischaracterization of the intelligence report was the latest in a series of statements from the former Republican congressman that have seemed aimed at minimizing the significance of Russian interference in the 2016 election.”

Zinke Evading Public Scrutiny — and Public Comment — to Build a Road Through a National Wildlife Refuge

Patrice McDermott Accountable Government, Secrecy, Uncategorized

On July 12, 2017 and August 2, 2017, Defenders of Wildlife filed Freedom of Information Act requests with the U.S. Fish and Wildlife Service for all records related to the Trump administration’s consideration of a potentially illegal land exchange to remove wilderness wetlands in Izembek National Wildlife Refuge in Alaska from federal public ownership for the construction of a road through Izembek National Wildlife Refuge. Defenders of Wildlife received more than 600 documents including evidence that the Interior Department is pursuing the land trade with King Cove Corporation — and doing so as much under the radar and without public comment as possible.

In order to pursue the road, the Interior Department is preparing to set aside a decades-old ban on development in federally protected wilderness areas. As Juliet Eilperin notes in her Washington Post article, the documents obtained by Defenders of Wildlife, primarily internal agency emails, reveal how much discussion is intentionally taking place out of public view as federal, state, local and tribal officials work to approve a land exchange.

Congress directed Interior in 2009 to study whether it served the public interest to construct a road through the refuge. Four years later, the department produced an environmental-impact statement that concluded that the project should not be pursued because many species would be harmed, as the road’s construction, use and maintenance would disturb and fragment their habitat. In spring 2017, Fish and Wildlife Service officials produced an updated analysis of the two routes Alaska is contemplating through the refuge. It concluded that both would have “major” impacts on brants, tundra swans, emperor geese, bears, fish and, potentially, caribou.

“Both routes are equally destructive to the refuge’s purposes,” one official wrote in an April 28 email.

The documents from the U.S. Fish and Wildlife Service make clear that Interior Secretary Ryan Zinke has elevated the issue to one of the agency’s top priorities, and his appointees have taken deliberate steps to conceal the plan from the public.

At one point, a refuge official relayed his conversation with a department attorney about questions Zinke raised over public review of agency action related to Alaska’s survey of a possible road through Izembek:

He indicated the Secretary would like to see folks on the ground doing the survey in the next couple of days,” the official emailed colleagues. “He did not seem to [sic] excited about the direction that it was going out for public comment.”

In a separate exchange three days later, a senior Interior Department attorney in Alaska emailed another high-ranking official there to clarify that the land swap proposed by the town’s tribal corporation should be kept under wraps.

“I’m not sure if you were provided a copy of the letter from King Cove Corporation to Secretary Zinke requesting a land exchange so here it is,” the lawyer wrote. “I understand it [sic] King Cove is not going to make this request public but rather let the Department roll it out when it is ready.”

 

—

 

Secrecy Setback for Government-funded/Corporation-run Prisons

Patrice McDermott Government Openness

An August post discussed claims by private prison companies that receive federal funding currently that they are exempt from Freedom of Information Act (FOIA) requests due to a loophole in the current law. On October 10, 2017, the US Supreme Court denied a petition by two private prison corporations, GEO Group and Corrections Corporation of America (recently rebranded as “CoreCivic”) seeking to block the release of government documents about their immigration detention practices.

The Center for Constitutional Rights (CCR) and the Detention Watch Network (DWN) brought a case in 2013, under the Freedom of Information Act (FOIA), to force the US government to release of  records on a “detention bed quota” that requires funding for 34,000 beds for detained immigrants “at any given time.” As the corporations are funded by the federal government and perform a government function, the records are held by the government, not the corporations. A federal district court ruled in July 2016 that the government must release details of its contracts with private prison corporations.

The government chose not to appeal. The country’s two private prison corporations, however, intervened to appeal the decision to the Second Circuit Court of Appeals, which dismissed their petition in February. GEO then petitioned the Supreme Court for a full review of the case, asking for the right to prevent the government from releasing information under the FOIA.

The Supreme Court’s decision lets stand the February ruling by the Second Circuit Court of Appeals, putting an end to the private contractors’ attempt.

On Tuesday, Mary Small, policy director of Detention Watch Network, said

Today’s decision by the Supreme Court has finally put an end to private prison contractors’ relentless attempts to keep their secrets buried. Private prison contractors have a long history of hiding profiteering schemes and covering up deadly abuses in immigration detentions. With this decision, the Supreme Court has signaled agreement that private prison contractors must not act with impunity and dictate government secrecy. This victory is especially important as we face a presidential administration committed to mass privatization as well as mass detention and deportation.

 

Trying to See Into, If Not Through, the Swamp

Patrice McDermott Accountable Government, Secrecy

A recent investigation by ProPublica and The New York Times reveals that, at key regulatory federal agencies, members of the deregulation teams, have deep industry ties and are reviewing regulations their previous employers sought to weaken or kill. As ProPublica notes, “Appointees include lawyers who represented businesses in cases against government regulators, staff members of political groups raising so-called dark money and employees of industry-funded organizations opposed to environmental rules. At least four were registered to lobby the agencies they now work for and at least two may be positioned to profit if certain regulations are undone..  As ProPublica points out, however, “a full vetting of industry connections has been difficult because some agencies have declined to provide information about the appointees — in many cases, not even their names.”  It is not just to the media who have been stonewalled…

Rep. David Cicilline (D-R.I.) is among a group of Congress members who wrote to Mick Mulvaney (OMB Director) and Neomi Rao (Administrator of OIRA) in August expressing grave concerns about the secrecy of the Regulatory Reform Task Forces, calling on the administration to release the names of all deregulation team members as well as documents relating to their potential conflicts of interest, and requesting information about the nature of their meetings. They have received no response to date.

The result of the information revealed by ProPublica and the New York Times, combined with the non-response from OMB, has led Cicilline and a group of other House Democrats to introduce a bill — the Determining if Regulatory Actions are in the Interest of the Nation or the Swamp (DRAIN the Swamp) Act — to require federal officials —before they implement significant changes in U.S. regulations—to disclose any potential conflicts of interest and project how much they would personally benefit from any particular regulatory changes. They would also be required to identify any conflicts of interest for President Trump or senior members of his administration when changing major rules. The bill is co-sponsored by leading House Democrats, including Reps. John Conyers, Jr. (D-MI), Peter DeFazio (D-OR), Raul M. Grijalva (D-AZ), Gerald Connolly (D-VA), and Lloyd Doggett (D-TX). As of this posting, it does not yet have a bill number.  To date, it has no Republican co-sponsors.

 

EDGI Provides Documented Evidence of Changes to Federal Government Websites

Patrice McDermott Uncategorized

A new report from the Environmental Data & Governance Initiative (EDGI) adds to its careful documentation of the dismantling of access to US government information — in particular federal environmental and energy policy, and to the scientific research infrastructure built to investigate, inform, and enforce public protections.

The new report, Confirmation of Changes to the Federal Emergency Management Agency’s Hurricane Maria Webpage, confirms and documents changes to websites described by the Washington Post article,“FEMA removes statistics about drinking water access and electricity in Puerto Rico from website”.

The toxic swamp of special interests leadership at Interior; where do their loyalties lie?

Patrice McDermott Accountable Government

The Western Values Project has created a thoughtful and well-documented site — the Department of Influence  —  to document the revolving door between special interest lobbyists and political appointees at the Department of the Interior. Such information is particularly pertinent at a time when the Secretary of the Interior has stated — in a speech to an oil industry group — that almost one-third of career bureaucrats at his department are “not loyal to the flag,” and not in lockstep with him and President Trump. “I got 30 percent of the crew that’s not loyal to the flag,” Zinke said. “We do have good people, but the direction has to be clear and you’ve got to hold people accountable.”

Readers are reminded that the “swamp” of campaign — and Administration — fame is, in their minds, the career civil servants who take this oath of office

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. [emphasis added]

Disturbingly (if not surprisingly), the link at the Office of Personnel for this oath leads to a page with this information:

You have reached a collection of archived material.The content available is no longer being updated and may no longer be applicable as a result of changes in law, regulation and/or administration. If you wish to see the latest content, please visit the current version of the site.

The current version of the site does not take you, however, to any information about, or affirmation of, the Oath other than a Affidavits form that includes the Oath and Affidavits As to striking against the federal government and one As to the purchase and sale of office.

Neither the Oath nor these affidavits require an affirmation of loyalty to “the flag,” to the head of the employee’s agency, to any outside interests, or — most importantly — to the President.