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Meet the Republican Freedom of Information Frauds

March 25, 2011

In October 2001, President Bush's Attorney General John Ashcroft reversed 35 years of White House practice regarding Freedom of Information Act requests. For the first time since the passage of the Act, disclosure became the exception to the rule. As Dick Cheney's secret energy task force, 22 million "missing" Bush administration emails and Karl Rove's refusal to testify before Congress all showed, the Bush White House became the place where the sunlight didn't shine. But now that President Obama has undone the opaque Bush standard, Republicans in Washington and the states are cynically trying to use as a weapon of partisan warfare the resurrected freedom of information process they once utterly disdained.
To date, the openness the Obama administration promised to provide hasn't yet been achieved across the government. As the New York Times documented a year ago, the results of President Obama's "push for transparency have been decidedly mixed across the federal government, with progress slow and erratic." In July, the AP reported that FOIA requests to the Department of Homeland Security were subject to "highly unusual scrutiny."
As it turns out, that was all House Oversight and Government Reform Committee chairman Darrell Issa (R-CA) needed for his latest inquisition. After eight years during which President Bush as a matter of policy by default rejected Freedom Information of Act (FOIA) requests, Issa declared he now wants the names of every person making them. As the New York Times explained two months ago, that massive invasion of citizens' privacy is Issa's latest gambit to embarrass President Obama:

Mr. Issa, a California Republican and the new chairman of the House Committee on Oversight and Government Reform, says he wants to make sure agencies respond in a timely fashion to Freedom of Information Act requests and do not delay them out of political considerations...
Mr. Issa sent a letter on Tuesday asking 180 federal agencies, from the Department of Defense to the Social Security Administration, for electronic files containing the names of people who requested the documents, the date of their requests and a description of information they sought. For those still pending after more than 45 days, he also asked for any communication between the requestor and the federal agency. The request covers the final three years of Bush administration and the first two years of President Obama's.

Last week, Congressman Issa upped the ante. He sent a five-page letter to Napolitano accusing DHS of improperly demoting Catherine Papoi, the former deputy unit chief in charge of the Freedom of Information Act. As the AP reported:

"Denying or interfering with employees' rights to furnish information to Congress is against the law," Issa wrote in a five-page letter to Napolitano that was obtained by The Associated Press. "Federal officials who retaliate against or otherwise interfere with employees who exercise their right to furnish information to Congress are not entitled to have their salaries paid by taxpayer dollars."

(For its part, DHS responded that "The department has not taken any retaliatory action against employees that have provided information to your committee.")
But if Darrell Issa seems like an unlikely freedom of information champion, that's because he is.
Of course, when a Republican sat on the Oval Office, Darrell Issa and his GOP colleagues were silent as President Bush made freedom of information the exception to the rule.
Even before the September 11 attacks, the Bush White House planned to significantly curtail FOIA access. In October 2001, Attorney General John Ashcroft issued a memo which reversed 35 years of White House practice by making disclosure the exception to the rule. As the New York Times recalled in 2002:

Mr. Ashcroft said the Bush administration's standard would be to support withholding documents as long as there was a "sound legal basis" for doing so. The previous standard, issued in 1993 by Janet Reno, the attorney general under President Bill Clinton, was to support withholding documents only if "disclosure would be harmful."

Ashcroft's new standard declared that "any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information." And as it turned out, from its clampdown on the Freedom of Information Act and withholding Reagan-Bush 41 records to the clandestine Cheney energy task force and a dramatic increase in top secret classifications, the Bush administration made sure that the sun would not shine on its inner workings.
And that, as it turns out, was just fine with Darrell Issa.
As you'll recall, millions of Bush White House emails conveniently went missing between 2003 and 2005, including those in the critical days during which the administration formulated its response to Ambassador Joe Wilson and his covert CIA operative wife, Valerie Plame. In July 2007, Darrell Issa accused Plame of perjury. Then, in February 2008, Issa turned IT expert and brushed off the email imbroglio as merely a software problem:

During a House Oversight Committee hearing last month on the preservation of White House records, an indignant Rep. Darrell Issa (R-Calif.), a frequent critic of Chairman Henry Waxman's investigations, did his best to play down the extent of the Bush administration's now well-documented email archiving problems. Defending the White House's decision to switch from the Lotus Notes-based archiving system used by the Clinton administration, Issa compared the software to "using wooden wagon wheels" and Sony Betamax tapes. To observers of the missing emails controversy, Issa's comments seemed little more than an attempt to deflect blame from the White House for replacing a working system for archiving presidential records with an ad hoc substitute. But to IT professionals who use Lotus at their companies, Issa's remarks seemed controversial, if not downright slanderous. Now, according to an executive at IBM, the software's manufacturer, the California congressman has apologized for his characterization of Lotus and offered to correct the congressional record.

(Thanks to the now-settled lawsuit filed by the National Security Archive and Citizens for Responsibility and Ethics in Washington [CREW], Americans learned in 2009 that "the Bush White House, which initially denied that any e-mails had gone missing, announced in January it had located more than 22 million messages that had been mislabeled after a search by computer technicians, according to court records filed by the government on the day after Bush left office.")
As you'll recall, Bush's closest adviser Karl Rove was an essential player in producing and protecting the information black hole that was the Bush White House. When he was subpoenaed by the House Judiciary Committee investigating his role in the purge of U.S. attorneys, Karl Rove claimed "absolute immunity." Delving into the email scandal in April 2007, Time described the lengths that the White House and the Republican National Committee went to keep Bush administration communications away from the prying eyes of the American public:

Late Tuesday, the Bush Administration admitted that in reviewing documents requested by Democrats for their investigations, it discovered that as many as 50 of its staffers may have violated the Presidential Records Act. The staffers, the White House said, were using e-mail accounts, laptops and BlackBerries provided by the Republican National Committee for official executive branch communications rather than the exclusively political work for which they were intended. Because the RNC had a policy until 2004 of erasing all e-mails on its servers after 30 days, including those by White House staffers, and because some of those staffers may have deleted e-mails on their own, the White House said it could not assure Congress that they have not violated the PRA, which requires the retention of official White House documents. The White House officials who may have broken the law include senior adviser Karl Rove, his deputies and much of their staffs.

Despite that checkered past, Karl Rove and his Crossroads GPS are back in the freedom of information spotlight. Only this time, it's to rally Republicans to demand from the Obama administration the transparency they denied Americans under President Bush:

Crossroads GPS, the cash-rich Republican outside group planning to spend $120 million on the 2012 election in conjunction with its sister organization American Crossroads, announced Wednesday the launch of a website called "designed to crowd-source information gleaned from Freedom of Information Act (FOIA) requests and other public documents by organizations, individuals and journalists."
The site is meant to "facilitate efficient sharing of public information about the Obama Administration" and highlight FOIA requests that have gone unfulfilled.

For her part, Melanie Sloan of CREW called the Crossroads project a "gimmick" and rightly concluded, "It is ridiculous coming from Rove." As one Democratic official told the New York Times:

[He] "never knew Karl Rove was such a fan of F.O.I.A.'s., but we welcome his new-found interest in greater transparency. And given Crossroads and Mr. Rove's new-found interest in transparency, we look forward to their taking this opportunity to disclose all Crossroads GPS donors, which to date they have kept secret."

Meanwhile in Wisconsin, the state Republican Party is trying to out-Rove Rove.
In the Badger State, as James Fallows and Josh Marshall lamented, the GOP has taken the unprecedented step of targeting University of Wisconsin history professor William Cronon. The Republican Party has made a request under the state Open Records law demanding Cronon's email correspondence. His offense? Writing a New York Times op-ed and a blog post critical of Governor Scott Walker and the GOP war on public employees.
The GOP request was very specific about what information it wanted and who it wanted to protect:

Under Wisconsin open records law, we are requesting copies of the following items:
Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

In his thorough presentation of his case, Professor Cronon answers his own question, "If, as I believe, emails flagged by Mr. Thompson's open records request contain nothing that represents an abuse of a state email account, and no politically inappropriate activities by myself as a state employee, why not just release them?"

A political fishing expedition with the purpose of causing embarrassment to correspondents seems sure to have a severe chilling effect that could only undermine the university's longstanding reputation for defending academic freedom.

Embarrassment is precisely what the likes of Darrell Issa, Karl Rove and their allies across the nation hope to create for their Democratic enemies. Of course, given Rove and Issa's own past histories of limiting at all costs any access to information, the embarrassment should be all theirs.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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