CREW today paid homage to this year’s Sunshine Week by issuing an assessment of the Obama administration’s response to Freedom of Information Act (FOIA) requests. Our reaction is mixed. President Obama has made undoubtedly clear his commitment to open and transparent government through his January 2009 FOIA Directive and the December 2009 Open Government Directive.

Unfortunately, however, a culture of secrecy lives on in executive agencies despite obvious and pressing needs for disclosure. CREW’s report highlights:

• the Justice Department’s refusal to disclose the notes of former Vice President Dick Cheney’s interview on the Valerie Wilson leak with the FBI,

• the Health and Human Services Department’s refusal to provide documents regarding the monumental failure to send H1N1 vaccines to where they were needed most,

• and the Department of Veterans Affairs’ failure to turn over records regarding the under-diagnosis of PTSD as a cost-saving measure.

CREW’s Executive Director Melanie Sloan said today:

While the Obama administration has made some progress in increasing government transparency, CREW’s experience indicates there is still a long way to go. Sunshine Week is the perfect time for the administration to reassess and reinvigorate agencies’ efforts towards making the government more accountable to the American people.

Click here to read CREW’s report.

While the administration has been touting its success in bringing transparency to the executive branch, especially through the use of the Freedom of Information Act (FOIA), we at CREW have had a very different experience. We have yet to see an increase in discretionary releases, still face the same resistance at the agency level, and overall have not experienced the promised change.

So today CREW, along with two very experienced FOIA litigators, Scott Hodes and Dan Alcorn — and David Sobel from the Electronic Frontier Foundation — sent this letter to White House Special Counsel Norm Eisen and Cass Sunstein, administrator of OMB’s Office of Information and Regulatory affairs. Our letter requests a meeting to discuss with them our proposals for transforming the FOIA into a statute that actually delivers on its promise of openness in government.

As our letter points out, changing federal agencies’ culture is really the key to change. The prevailing mindset at agencies is that the FOIA is most safely administered under a presumption of non-disclosure. In this way, agencies avoid the embarrassment and discomfort that often results from disclosure of records that identify agency problems and poor administration.

Our suggested reforms include better use of technology in administering the FOIA, such as allowing FOIA requests to be filed on-line and providing on-line tracking so FOIA requesters can easily determine the status of their requests. To address the dismal state of agency FOIA regulations — many of which conflict directly with the FOIA — we recommend OMB issue model regulations for all agencies to consider and implement. Despite the attorney general’s March 2009 FOIA guidance directing agencies to consider discretionary releases, especially of Exemption 5 material (which includes documents subject to privilege in civil discovery) that is not happening.

We propose additional guidance that would require agencies to balance the public interest in disclosure against the harms Exemption 5 is intended to protect against. And we recommend that all agencies disclose certain identifiable data sets on an ongoing and voluntary basis, such as daily schedules for agency heads.

Many of our proposals are not new; we have made them again and again to various people within the Obama administration. We share the president’s commitment to a truly transparent and accountable government. But in our collective wisdom, focusing so intently on developing metrics to measure agency change — the ongoing effort of the administration — ignores a critical reality: measuring change presupposes change is happening in the first place.

On December 4, 2009, CREW posted documents released by the Department of the Army in respect to CREW’s Freedom of Information Act Request (FOIA) for documents about the diagnosis of Post Traumatic Stress Disorder (PTSD) for Army soldiers. The FOIA request stemmed from a Salon.com article about an Army sergeant who recorded a doctor at an Army medical facility at Fort Carson, Colorado, telling him during an appointment, “clinicians up here are being pressured to not diagnose PTSD and diagnose anxiety disorder [instead.]”

CREW asked for records related to guidance given to army staff and contractors regarding the diagnosis of PTSD. So far we have received about 143 pages, all of which have been posted on www.governmentdocs.org. The documents include an investigative report conducted by the Army into the allegations that medical staffers were pressured to improperly diagnose PTSD at Ft. Carson. Unsurprisingly, the investigator did not find evidence of doctors being pressured or that anyone in the chain of command attempted to influence diagnosis.

What the report did find however, was:

". . .evidence of potential systemic pressures inherent in the Army physical disability evaluation processes that may influence MEDCOM [U.S. Army Medical Command] behavioral health providers in the course of conducting PTSD evaluations. These potential pressures may lead providers to avoid making a diagnosis of PTSD on medical boards contrary to their clinical judgment." (emphasis added)

These pressures seem to spring from two main sources. First, mental health providers interviewed in the report claim that understaffing and overwork have led them to look for, in the words of the report, “more efficient ways to get the job done.” One interviewee commented, “I have heard staff describe that it would be easier to diagnose Anxiety Disorder NOS because the MEB [Medical Evaluation Board] would be less likely to be returned. . .”

Second, the report’s author writes that the “requirements for evaluating PTSD are more strenuous than for any other mental disorder.” Providers need to document years of history for patients and corroborate facts regarding the traumatic event with the patients’ commanders or other sources. (In a December 2009 memo, the Army did slightly back off the requirement that MEBs and soldiers “provide credible supporting evidence of a PTSD stressor” but maintained that a traumatic stressor is required for a proper PTSD diagnosis.) As one interviewee put it, “Documenting the diagnosis of PTSD sufficient to withstand review by the PEB [Physical Evaluation Board] and the US Army PDA [Physical Disability Agency] is at times a challenge.” The same interviewee noted that the Army published an extensive, 20 plus page, guideline on the proper diagnosis of PTSD, but not for any other mental health condition. A different interviewee commented that, “I may have heard that a PTSD diagnosis is reviewed more carefully by the PEB.”

While it remains to be proven if commanders have advocated for a diagnosis cheaper or easier than PTSD, it seems clear, even from the small number of interviews conducted for this report, that Army mental health providers are facing systemic pressure to not diagnose PTSD.

From these documents, it also appears the Army’s mental health doctors are overworked, understaffed, and remain overburdened by bureaucracy and paperwork. The Army and the Defense Department should investigate further and ensure that these factors aren’t denying our soldiers the care they need and deserve.

CREW also requested PTSD documents from the Department of Veterans Affairs, and those can be found here.

After over three years of waiting for a response, CREW finally received documents from the National Security Agency (NSA) on Wednesday related to our FOIA request from 2006. CREW had originally sent FOIA requests to the NSA, the Central Intelligence Agency (CIA), and the Federal Bureau of Investigation (FBI), in order to determine the details of their reporting requirements to the President’s Foreign Intelligence Oversight Board. This board provides advice to the President concerning the quality and adequacy of intelligence collection, analysis, and estimates of counterintelligence and foreign intelligence activities.

CREW was hoping to unearth records that could shine a light on the investigative activities of the CIA, FBI, and NSA and show how they have been contrary to the intelligence laws and directives which govern foreign counterintelligence and international terrorism investigations.

The investigative methods used by the Department of Defense, the NSA’s parent body, have been called into question and the NSA has recently been accused of violating U.S. laws and regulations. The Obama administration, in its efforts to maintain transparency and openness, has recently released documents to both the Electronic Frontier Foundation and the American Civil Liberties Union about CIA investigations conducted under the anti-terrorism program during the George W. Bush administration. In June of 2009, CREW received a response to our FOIA request with the CIA for documents regarding their investigative activities. We encourage document reviewers to read the most recent documents we have received from the NSA as well as previous FOIA responses.

And don’t forget to keep checking back for new information after the holiday!

In April, Salon printed an article with additional evidence, on tape, of Army medical personnel talking about the pressure to deny the diagnosis of Post-Traumatic Stress Disorder (PTSD) to military personnel. CREW has taken an active role in this issue.

In May, in light of those news reports that the Army has instituted the cost-cutting practice of ordering doctors to misdiagnose soldiers returning from battle with anxiety disorder rather than post traumatic stress disorder (PTSD), CREW and VoteVets.org today asked the chair of the House Armed Services Committee to investigate the extent of this outrageous practice.  Our letter can be found here.

We've been trying to get information from the Army, to no avail. So we're going to court.

Today, CREW filed a lawsuit against the Army, CREW v. Dep't of the Army, challenging the Army's failure to produce records in response to CREW's FOIA request seeking documentation of Army guidance that discourages diagnoses of post traumatic stress disorder (PTSD). The Veterans Affairs has issued similar guidance that CREW also is seeking to document through a FOIA request that is also the subject of pending litigation.

Our CREW's complaint and FOIA request can be found here.

CREW, along with 36 other organizations, has sent a letter to the White House urging that the White House's Office of Administration (OA) once again become an agency subject to the Freedom of Information Act (FOIA), as had been the case in previous administrations.  The letter can be found here.

Of the request to subject the OA to FOIA, Anne Weismann, CREW's chief counsel, said:

For eight long years the Bush administration used legal tactics such as changing the status of OA, to keep the public in the dark about what transpired at the White House. Starting with his own offices, President Obama now has the perfect opportunity to make good on his promise of transparency. We hope he decides to keep his word to the American people.

As the letter from the 37 groups details, allowing public access to the activities of the Executive Office of the President and its components like OA plays a critical role in meeting the president's commitment to transparency and accountability. 

Some background to give context to letter:  From its inception in 1977, OA functioned consistently as an agency subject to the FOIA, adopting comprehensive FOIA regulations and processing hundreds of FOIA requests. The Bush administration radically departed from all prior administrations when, in the midst of litigating a FOIA request from CREW seeking documentation of the millions of missing White House emails, it decided OA no longer is an agency. That change in course meant that OA need not comply with CREW's or any other information requests under the FOIA.

CREW is still in court working to uncover the millions of missing White House emails.  For background on that scandal, check out our report, Without A Trace.

In 2008, under the Freedom of Information Act (FOIA), CREW sued the Department of Justice (DOJ) for failing to turn over former Vice President Cheney’s FBI interview regarding the leak of Valerie Plame Wilson’s covert identity.

No surprise, the Bush administration had refused to disclose the interview even though Special Counsel Patrick Fitzgerald had never promised Cheney confidentiality and the criminal investigation is over.  When the administration changed, President Obama expressed a commitment to transparency and accountability and Attorney General Eric Holder followed up with a memo to agencies requiring greater responsiveness to FOIA requests.

Earlier today, Attorney General Eric Holder issued new FOIA guidelines.  From Department of Justice's  press release announcing the change: 

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government.  As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so.  In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full. 

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request.  Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law.  Under the previous defensibility standard of the rules rescinded today, the Department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold. 

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests.  In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA. 

One of the most important item in the release is this line:

Today’s memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft. 

Upon reviewing Holder's memo, CREW issued the following statement:

CREW welcomes the attorney general's guidance and his command to all agencies to administer the Freedom of Information Act (FOIA) with a presumption of openness and disclosure. This memorandum represents a return to the core purposes of the Act, especially by declaring that FOIA's exemptions will no longer be used to prevent embarrassing disclosures, errors and failures by government officials. It is now up to each agency and department to implement the FOIA as President Obama and Attorney General Holder intend, with an emphasis on transparency and speed in responding to all FOIA requests. We trust that upon re-examining some of the most pernicious FOIA decisions of the last eight years, this administration will agree the public has a right to know the true facts behind some of the most controversial decisions of the Bush administration and will resolve litigation in those cases by disclosing requested records.

CREW filed a Freedom of Information Act (FOIA) request with the Federal Reserve Board seeking records that identify the recipients of the over $2 trillion in financial assistance the Board has paid out in the last two years.  The FOIA and other documents can be found here.

CREW made this request in the wake of the Board's refusal to provide Senator Bernie Sanders (R-VT) with this information and his introduction of legislation today, S. 513, that would require the Board to disclose the financial institutions receiving taxpayer-backed loans and other financial assistance from the Board.  Senator Sanders also posted video of his attempt to obtain the information from Fed Chair Benjamin Bernanke, to no avail.  Bernanke just said NO.

As CREW explained in its request, the documents it seeks are essential to understanding and assessing the government's response to the devastating economic financial crisis our nation faces.  CREW's Chief Counsel, Anne Weismann, put it like this:

Telling Americans that they are not entitled to know which banks are receiving 2.2 trillion dollars of taxpayer money is unacceptable under any terms. This administration has promised transparency and we expect it to deliver.

Anne is right.  It's just unacceptable.