So it's Sunshine Week - the one week a year that the media pays attention to open government and writes articles about how bad the government is at it. Those of us who deal with FOIA and other government access laws know that its much more than just a once a year item and hope that next week, or next month those "celebrating" Sunshine Week will help push transparency issues when its not a special week for it.
But in honor of Sunshine Week, I'm going to pour some water on outrage that has been bubbling up - I've been outraged on some of these things for a long time, but Congress, the Courts and the Executive Branch have done nothing on them. First up, is the White House's deletion of its FOIA regulations for its Office of Administration. The US Today has a good explanation of this - and for those of you not wanting to click on the link- the W. Bush administration stopped the practice of having this office be subject to the FOIA which the current administration followed and which was blessed by the Courts. Thus, the regulation wasn't really something that was adhered to and it has been dropped. Do I think this office should be subject to the FOIA? Yes I do, but the outrage at this point should be on the fact that there has been no law making it specifically subject to the FOIA. This would be very pro transparency legislation.
Next up is the State Department and the Hillary Clinton email. A few years ago I brought a lawsuit on behalf of clients for certain records including emails. Very few emails were located and through that lawsuit it was learned that the State Department routinely deleted email tapes and had only master tapes that could be used in an emergency and were not really searchable for FOIA requests. So the ironic thing about the whole Clinton email thing is that her actions may end up having more of her emails from her time at the State Department located than if she had actually followed the actual protocol for sending emails on State Department servers and email accounts. This only highlights the need for all agencies to follow strong record management policies, including having agency records management personally brief all incoming agency personal, including the highest executive at the agency, and also the need to follow the recently introduced Capstone protocol introduced by the National Archives and Records Administration.
And finally, the Department of Justice has introduced new guidance for proactive disclosures. Hopefully, agencies will take the guidance to heart and increase the use of this very active tool for transparency.
Have a safe and healthy Sunshine Week!