Grassley Statement: Sunshine Week and Government Transparency
Congressional Record Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
“Sunshine Week and Government Transparency”
Mr. President, last week marked the tenth anniversary of Sunshine Week, an initiative that’s become a nation-wide effort to promote openness and transparency in government. As Justice Brandeis wrote in 1913, “sunlight is said to be the best of disinfectants.” That’s what Sunshine Week is all about: shining a bright light to provide accountability and ensuring the public’s right to know what its government is doing.
James Madison wrote in The Federalist, Number 51, that “If men were angels, no government would be necessary.” This passage has been quoted and used time and again for different purposes. Sometimes correctly; other times incorrectly. Nevertheless, it’s important to keep in mind its context. Of course men aren’t angels. Rather, we’re all ambitious and “ambition must be made to counteract ambition.” Thus, Madison described the Framers’ challenge of forming a government administered by man as how to “enable the government to control the governed; and . . . oblige it to control itself.”
Madison went on to explain the need for the government structure we all know and live under now with proper checks and balances. Because of this structure, which is the best in the world, we celebrate Sunshine Week and continue to ensure the public can hold its government accountable.
There is perhaps no better tool that Americans have to help ensure that open government and transparency prevail than the Freedom of Information Act. Enacted almost five decades ago, FOIA gives the public the right to government information, opening wide the curtains on the public’s business and helping to ensure that government officials remain accountable.
Unfortunately, as Madison explained so long ago, when ambition seeks to counteract ambition there are challenges to allowing sunlight to disinfect the “culture of obfuscation” that permeates certain corners of the federal government. When this happens, FOIA’s effectiveness is undermined and the public becomes even more skeptical of government. This sort of government behavior and secrecy knows no partisan boundaries. Both Democrat and Republican administrations have failed to provide the level of transparency that federal laws require, and which the American public so rightly deserves. But efforts to change the government’s attitude toward openness and transparency should know no such partisan boundaries either.
Currently, there is bipartisan work underway in both the Senate and House to strengthen the Freedom of Information Act. These reforms are aimed at improving citizens’ ability to access government information. The Senate Judiciary Committee has passed the FOIA Improvement Act of 2015, a bill I’ve co-sponsored, and I’m hopeful it will pass the Senate very soon. The FOIA Improvement Act would codify a “presumption of openness” standard, which will help to ensure that agencies proactively disclose more information to the public. The bill also makes it easier for the public to request documents from the government, while bringing about meaningful improvements to the FOIA process.
Improvements in technology—and even improvements to our laws—will only go so far, however. Those who are entrusted with conducting the people’s business, and who serve as stewards of hard-earned taxpayer dollars, should operate under an instinct of openness rather than reflexive secrecy.
Anyone who has watched the news recently could tell you that this year’s Sunshine Week couldn’t have fallen at a more appropriate—yet very concerning—time for our Nation. Even within the past few weeks, Americans have learned of more actions and inactions at the federal level that helped keep the shutters closed on the public’s access to government business.
It’s impossible to discuss the current state of government transparency without acknowledging former Secretary of State Hillary Clinton’s use of a personal email account located on a private server in her home to conduct official State Department business.
Last week, an article in Politico by Dan Metcalfe—who served more than 25 years as the director of the Department of Justice’s Office of Information and Privacy—called Secretary Clinton’s argument that she complied with federal recordkeeping laws “laughable.” Mr. Metcalfe says that “In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever.” At minimum, he says, “it was a blatant circumvention of the FOIA by someone who unquestionably knows better.”
In an attempt to appease the increasing demand for answers, Secretary Clinton said she used a personal email account to conduct official government business simply for reasons of “convenience.” While that may be so, I fear it’s indicative of a broader fundamental disconnect between the letter and spirit of our nation’s transparency laws, and the actions and attitudes of its officials.
Let’s be clear. Transparency shouldn’t be a question of convenience. And the public’s right to know shouldn’t be curtailed simply because the release of certain information might be rather inconvenient for an agency, its leadership, or an administration.
Conducting government business on private email undermines public trust and is detrimental to good government. That’s why I’ve reiterated a request I made to the State Department in 2013 for records and communications relating to the agency’s questionable use of the Special Government Employee designation for a top aide to Secretary Clinton. This designation may have facilitated even more government business being conducted over private email, and we need to know exactly how these practices may be undermining FOIA.
I’ve also worked to shine light on the current Labor secretary’s use of private email to conduct official business while serving at the Justice Department, and on allegations of the improper use of unofficial email addresses at the Treasury Department. In our increasingly digital world, we must remain vigilant in ensuring that government officials are conducting business through the appropriate channels.
President Obama gave me high hopes at the start of his administration for a “new era of open Government”—one where transparency is the rule, as opposed to the exception. On his first day in office, the President issued a memorandum to his administration, proclaiming that “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” He’s even proclaimed that his is “the most transparent administration in history.”
Yet, time and again, we see examples of this administration operating under a ‘do as I say, not as I do’ approach to transparency. Last week, administration officials proclaimed in USA Today that
“Increasingly, government agencies are operating with a ‘default to open’ approach.” They added that “The administration also continues to make important strides in improving the Freedom of Information Act process.”
The very next day was National Freedom of Information Day. How did the Obama administration celebrate its commitment to transparency? It announced its intention to remove a federal regulation from the books that for 30 years has subjected the White House Office of Administration to FOIA requests. And just for good measure, the administration said that this official change in policy will not be subject to public comment.
But this is by no means the first time the administration has shirked its commitment to transparency. From negotiating new regulations behind closed doors, to arguing an illogically narrow interpretation of FOIA before the D.C. Circuit—an interpretation the court said would’ve left FOIA requesters in limbo for months or even years—the Obama administration seems determined to say one thing while doing another. Clearly, there is room for improvement.
But thankfully, when the government refuses to let the sunlight in, courageous citizens have stepped up to throw open the shutters. Each year, Sunshine Week provides an excellent opportunity to highlight the bravery and contribution of whistleblowers—private citizens and government employees who come forward to expose wrongdoing.
Whistleblowers are a critical component of ensuring that our government remains accountable to the people that it serves. For years, I’ve worked with fellow lawmakers to ensure that whistleblowers have the kind of protections they need to be able to shine a light on waste, fraud and abuse—without fear of retribution. Part of this effort has been through rigorous congressional oversight of agency compliance with laws like the Whistleblower Protection Act.
This also involves rooting out areas for improvement. Earlier this month, the Senate Judiciary Committee held an oversight hearing to examine the urgent need for increased whistleblower protections at the FBI, where—unlike every other federal agency—employees are not protected from retaliation for uncovering and reporting wrongdoings to their direct supervisors.
People who are courageous enough to open wide the curtains on waste, fraud and abuse should not have to fear for their livelihood; they should be honored for exposing the truth. To help advance this effort, I—along with a bipartisan group of Senators—recently launched the Whistleblower Protection Caucus. The caucus will serve as a resource for the latest information on whistleblower developments, and will foster bipartisan discussion on the treatment of whistleblowers.
Agency inspectors general, likewise, play a crucial role in bringing information about government actions—or inactions—out into the public light. It’s important that their jobs not be undermined by the very agencies within which they operate. I’m continually frustrated by the stories I hear of an agency stonewalling an inspector general’s attempt to uncover the truth. In August 2014, 47 inspectors general from across the federal government wrote to Congress about agency refusals to provide access to documents and information critical to their investigative efforts.
I am particularly troubled by recent reports from the Justice Department’s Office of the Inspector General that the FBI is failing to provide it with timely access to records. Not only is the FBI dragging its feet in turning over key documents; it’s erecting barriers to access that are in direct contradiction with federal law.
If agencies are willing to go to such lengths to prevent disclosure, we have all the more reason to recognize and support the efforts of those who—often at great risk—seek to peel back the curtains.
Sunshine Week continues to be a reflection of the tireless efforts of whistleblowers, government watchdogs, investigative journalists, and average Americans from across the country who are steadfast in their pursuit of a more transparent and accountable government. They’re doing their part. We need to do ours. Let’s build upon this tenth anniversary of Sunshine Week to engage in the discussions and work together toward the solutions that will truly usher in a new era of openness.