In August 2012, the conservative watchdog group Landmark Legal Foundation made a Freedom of Information Act request for records at the Environmental Protection Agency — specifically seeking records of any efforts to slow down the issue of new regulations until after the 2012 election.
FOIA requests are supposed to be acknowledged and complied with very promptly. In this case, EPA bureaucrats did precisely what the Freedom of Information Act is intended to prevent — they slow-walked Landmark’s request past the 2012 elections, so that voters could not use the information to make their decision. They used one form of government opacity (foot-dragging) to protect another (a secretive regulatory process).
The incident raises an important question about government transparency in general. As the Roman poet Juvenal famously asked, “Who will guard the guards themselves?” Can bureaucrats be trusted when they are tasked with providing records of their own behavior? In this case, the answer is evidently no.
After more than two years of legal wrangling, Landmark finally asked a federal court to sanction the EPA for spoliating (or destroying) evidence. Even as he opted not to impose such sanctions, Judge Royce Lamberth this week issued a 25-page spanking of the agency for its “shoddy,” “offensive” and “insulting” attitude toward transparency in general and this FOIA request in particular.
One employee, Nena Shaw, was singled out for providing a “fuzzy” account of her foot-dragging conduct and possibly “lying” about it. At the very least, Lamberth noted, she displayed “utter indifference” to her obligations under FOIA.
“Two possible explanations exist for EPA’s conduct,” the judge wrote. “Either EPA intentionally sought to evade Landmark’s lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward Landmark’s request. Either scenario reflects poorly upon EPA and surely serves to diminish the public’s trust in the agency.”
The judge could find no “clear and convincing evidence” of “bad faith conduct” by EPA, but noted, “There is no doubt that EPA’s behavior following Landmark’s August 2012 FOIA request raised a reasonable suspicion of wrongdoing.”
President Obama promised the most transparent administration in history. Yet each time a problem in the federal government makes a bump in the night and someone shines a light on it, it reveals yet another brood of bureaucrats scurrying to cover their tracks. Unfortunately, this is how federal agencies are run when no one is watching.
The IRS, for example, went to great lengths to pretend it could not access the emails of bureaucrats who had targeted conservative nonprofits for rough treatment. Veterans’ Affairs officials hid outbreaks from the public and manipulated scheduling systems in order to make it appear everything was going well — meanwhile, veterans were suffering without care.
If not for the Benghazi massacre and the subsequent investigation, the public might never have even known that then-Secretary of State Hillary Clinton conducted all sensitive government business on a completely non-secure private email account from which she could completely erase anything. This is the first step toward thwarting lawful public records requests by American citizens.
Far from the most transparent ever, the Obama’s administration has tested the faith of even the biggest believers in open government. Is there any law on transparency that they will not consider themselves above obeying?
