Today CREW received a letter (.pdf) --actually mailed a week ago to the wrong address-- from the Army Intelligence and Security Command about a Freedom of Information Act (FOIA) request CREW sent on June 20, 2005, seeking contacts between Department of Defense (DOD) officials and Congress regarding MZM, Inc. and Mitchell Wade. 

Incredibly, it took five years for the Defense Intelligence Agency to forward CREW’s FOIA request and an Army-originated document to the Army for a determination on whether it could be released.  Even more incredibly, the Army needs still more time to review this one document.  

Where is the faster, more transparent FOIA we have been promised?   Clearly at DOD there is no sense of urgency; it truly is business as usual.

Read the full letter here (.pdf)

CREW applauds the tireless work of Senator Patrick Leahy (D-VT) to bring transparency and accountability to our government. Thanks to his hard work, the newly enacted financial reform bill includes provisions subjecting the Consumer Protection Agency within the Federal Reserve and the Financial Services Oversight Council to the Freedom of Information Act (FOIA). Sen. Leahy has also pushed back against the Federal Reserve’s efforts to maintain a blanket of secrecy over its lending practices. Sen. Leahy understands that the FOIA is more than a stand-alone bill; it sets a standard of transparency that all legislation should live up to.

Reaction Of Senator Patrick Leahy To The President’s Signing Into Law Of The Wall Street Reform Bill

Wednesday, July 21, 2010

[President Obama Wednesday signed into law an historic financial reform bill aimed at correcting Wall Street excesses that nearly set off a world economic collapse.  Senator Patrick Leahy (D-Vt.) was a Senate conferee in the House-Senate negotiations on the final bill and the author of several key provisions to expand transparency and to counter financial fraud.  Following is Leahy’s statement after the bill was signed.]

This new law is about changing the culture of rampant Wall Street speculation and doing what needs to be done to get our economy back on track.  These reforms will reign in Wall Street abuses, end government bailouts and give everyday Americans the consumer protection they deserve and expect.  

This is a reset of business as usual on Wall Street.  Instead of secret deals and murky rules, we now will have clear standards, matched with real enforcement, including jail time for executives.  The disinfectant of transparency will help investors make sound decisions, and it will discourage fraud and deception.  These reforms will help build confidence in our economy and continue the progress toward full economic recovery.

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Following is a summary of Leahy-related provisions in the financial reform package.

Senator Patrick Leahy was a Senate conferee in the negotiations on the final bill.  Leahy also is the author of many elements of the reform bill, including several on FOIA and transparency, and a package of new tools for better enforcement of anti-fraud laws, including tougher criminal penalties.

Leahy-led provisions in the final bill include:

Leahy’s reforms to improve enforcement of anti-fraud laws, including tougher criminal penalties and jail time for Wall Street fraud.

Leahy Freedom of Information Act (FOIA) improvements in the final bill –

Leahy amendment requiring a FOIA impact study of a FOIA exemption for whistleblower information provided to the SEC and to the CFTC, to improve public access to information and better protect American whistleblowers.

Leahy amendment requiring a FOIA impact study of a FOIA exemption for information about participants in the Federal Reserve’s emergency credit facilities, discount windows lending programs and open market programs, to improve public access to information and better protect American whistleblowers.

Leahy amendment narrowing the FOIA exemption for whistleblower information provided to the SEC and to the CFTC.

Leahy amendment clarifying that the new Consumer Protection Agency established within the Federal Reserve will be subject to FOIA.

The final bill also maintains Leahy-supported language to ensure that the Financial Services Oversight Council will be subject to FOIA.

Leahy amendment providing that the FOIA exemption for certain Federal Reserve information will not impact pending FOIA cases.

A Leahy amendment preserves meaningful antitrust oversight of financial industry.

The Leahy small-state minimum in the formula for the Neighborhood Stabilization Program – this Leahy provision will ensure Vermont at least $5 m. in this program, which helps stabilize communities that have suffered from foreclosures and abandonments.

The Leahy Extractive Industries Transparency Disclosure Amendment will enable investors, the American public, and citizens of resource-rich countries to know what their governments and officials are receiving from foreign companies in exchange for mining rights.  The Leahy Amendment is drawn from a bill introduced by Sen. Richard Lugar (R-Ind.) and Sen. Ben Cardin (D-Md.).

Key provisions supported by Leahy in conference, sponsored by others –

Leahy is a key Senate backer of the Durbin-Welch curbs on predatory credit card rules.

Leahy is a cosponsor of Senator Sanders’s amendment that requires an audit of the Federal Reserve’s bailout allocations.

Leahy also was a key supporter of the bill’s derivatives reforms, and for including a narrow end-user exemption to allow electric cooperatives, heating oil dealers and other Main Street firms to continue to hedge their legitimate business risks.

On Wednesday evening, the Senate unanimously approved the Faster FOIA Act, which would establish a bipartisan commission to advise Congress and the president on measures to reduce the overwhelming backlog in Freedom of Information Act (FOIA) requests.

CREW applauds the Senate’s passage of this bill, sponsored by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and Sen. John Cornyn (R-Tx.), as an important first step that recognizes the value of including outside groups like CREW in assessing how to deal with persistent agency problems in implementing the FOIA. Much work remains, however, to fully achieve the goals of this legislation. Most critically, Congress must allocate the necessary funds for agencies to eliminate their backlogs and give FOIA requests the priority and attention they deserve.

Additional legislation also is necessary to realize President Obama’s goal of a more transparent and accountable government. For example, while the president and Attorney General Eric Holder have instructed federal agencies to “adopt a presumption in favor” of disclosure under the FOIA, too many agencies continue to follow the course of secrecy, especially resisting disclosure of documents that would cast them in a less favorable light. Indeed, an Associated Press review of FOIA requests filed in 2009 shows that agencies actually increased their withholding of information in 2009. At a minimum, an amendment to the FOIA that requires agencies to balance the public’s interest in the requested information against the agency’s interest in secrecy would go a long way toward making the president’s commitment a reality. The Faster FOIA Act will provide Congress an important tool in bringing transparency to the federal government, but we should not lose sight of the many other challenges that remain.

Today the Senate Judiciary Committee approved the Faster Freedom of Information Act (FOIA), bipartisan legislation sponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-Tx), that would establish an advisory commission to examine delays in processing Freedom of Information Act (FOIA) requests and recommend reforms to streamline the requesting process.  The commission would also study agencies’ chronic problem of denying FOIA request fee waivers to entitled requesters.

“Senator Cornyn and I first introduced this bill in 2005, because of the growing problem of excessive FOIA delays within our Federal agencies," said Leahy. "During the five years since then, we have successfully worked together to reinvigorate FOIA through several legislative initiatives. I urge all Senators to support these constructive improvements in our Nation’s fundamental right-to-know law."

In March, CREW and other and transparency-advocates wrote to Sens. Leahy and Cornyn expressing support for the proposed Faster FOIA Act.  You can read the letter here.

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.