- The Washington Times - Thursday, May 6, 2010

Top officials at the White House Office of Science and Technology Policy say they’re proud to promote a culture of open government, but by one measure, the agency is decidedly on the side of keeping information secret.

The office, which advises President Obama on climate change, national security, health care and other key issues, won’t release almost any of its 2008-09 presidential transition records, including policy papers and even staff biographies. By contrast, other agencies across the federal government made public thousands of pages of transition records in response to Freedom of Information Act (FOIA) requests that The Washington Times filed nearly three months ago.

Often packed with information on operations, legal actions, pending issues, congressional inquiries and finances, the briefing reports that agencies sent to the presidential transition team provide valuable insight into how the federal bureaucracy prepared for a changeover in political power.

Yet not all agencies are willing to share this detail-rich information. Responses to the requests, when provided, were uneven across the government. The Department of Health and Human Services and its agencies provided hundreds of pages of records, but others, such as the Justice Department, have not responded. Still, other agencies produced records but withheld significant portions.

Analysts say the contrasting responses reflect the decidedly mixed views even inside the federal government on whether to make information public and, if so, how much and when.

“If you have the same request and completely different answers, then there’s nobody really calling the shots,” said Scott A. Hodes, a former FOIA lawyer at the Justice Department now in private practice.

The science and technology office initially declined to release any transition records, but later disclosed about 170 pages after The Times appealed the denial. But much of the office’s subsequent response consisted of blank, fully redacted records, in which the officials cited confidentiality exemptions under the open-records law.

“Because the very purpose of a disclosure to a transition team is to implement the statutory mandate ‘to promote the orderly transfer of power,’ such a disclosure could not reasonably be found to waive any applicable FOIA exemption,” the office wrote in response to The Times’ request.

The office also said briefing materials advising superiors are protected from release. Staff biographies also were withheld under an exemption that federal civilian employees “have a protectable privacy interest in purely personal details that do not shed light on agency functions.”

By contrast, the Pension Benefits Guaranty Corp. not only provided senior staff biographies in the transition materials it made public, but also included pictures of the officials.

Nonpartisan government watchdog groups questioned the differing responses across federal agencies.

“With the push by the administration to promote an open and ethical government, I’m a little surprised that the White House and some agencies aren’t being more forthcoming with transition information,” said Scott Amey, general counsel for the nonpartisan Project On Government Oversight (POGO).

“The public has an interest in learning about how the administration planned to improve government and if those transition reports are shaping policies and programs.”

Rick Weiss, senior policy analyst for the science and technology office, said the office “carefully considered” The Times’ request for transition records and the newspaper’s appeal.

“We have reviewed the request again and concluded that our responses met both the letter and the spirit of FOIA and the president’s policy on openness,” Mr. Weiss said.

In its transition report, the science office included dozens of policy papers prepared by the staff to ensure incoming administration officials were aware of issues that would require attention in early-to-mid-2009. But all of the papers released to The Times were redacted in their entirety, including the titles.

“Given that other agencies have released information, it’s hard to understand what the rationale would be for withholding information,” said Anne Weismann, chief counsel for the watchdog group Citizens for Responsibility and Ethics in Washington (CREW).

‘Spirit of cooperation’

What’s more, there’s also little consistency among agencies on the question of whether transition reports even exist.

Smaller government agencies such as the National Indian Gaming Commission, the Railroad Retirement Board and the Surface Transportation Board all provided The Times with copies of their transition reports.

The gaming commission, for instance, sent the Obama-Biden transition team a detailed report that included information on three pending issues it was facing at the time: the naming of a new chairman, filling a vacant commissioner’s position and supporting the commission’s status as an independent agency.

By contrast, agencies with higher public profiles, such as the Nuclear Regulatory Commission and U.S. Army, told The Times that a search of records found no transition reports.

The Federal Communications Commission said it didn’t have a report but located about 1,300 pages of briefing materials sent to the transition team. However, the FCC said it didn’t consider those documents responsive to The Times’ request, so the FCC didn’t supply the records.

The National Science Foundation said it didn’t have a transition report, either. Nonetheless, the foundation noted in its response that officials decided to release hundreds of pages of internal transition-related documents “in the spirit of cooperation and transparency.”

Still, the foundation also withheld portions of the transition records under the same exemptions cited by the White House’s science office.

The Federal Energy Regulatory Commission also released transition materials but withheld what it called sensitive cyber-security briefing documents. Disclosure of the information “could lead to breaches of the commission’s information systems,” the commission wrote in a response to the request.

‘A right to know’

As executive director of the White House Transition Project, a nonpartisan consortium of outsiders who assist in the transition, University of North Carolina political science professor Terry Sullivan said some transition materials on national security issues should remain secret.

“Imagine a document from the Air Force that describes capabilities of a new fighter; that might not be something that people ought to know about,” he said. Still, he added, “Agencies could try to limit their public embarrassment for stuff they screw up, and to that extent the public has a right to know.”

Typically written by career employees, the transition reports obtained by The Times show that outgoing political appointees - even though unlikely to stay in the new administration - sometimes still get involved.

At the National Institutes of Health (NIH), former director Dr. Elias A. Zerhouni, an appointee of President George W. Bush, wrote a five-page, single-spaced introduction to the NIH’s 183-page briefing book sent to the transition team. The letter outlined NIH’s history, its recent work and tells of potential “speed bumps” ahead.

Arden L. Bement Jr., the NSF director appointed by Mr. Bush in 2004, sent an e-mail to another NSF official working on the transition in July 2008, suggesting the transition report include “historical examples of new technologies spawned by NSF investments with high economic returns.”

Former Food and Drug Administration (FDA) Commissioner Andrew C. von Eschenbach, also appointed by Mr. Bush, wrote a nine-page introduction to the FDA’s report for transition officials, which included information on antiviral drugs, food and drug imports, and hiring plans.

“Rapid and radical change is occurring,” he wrote.

‘A real crapshoot’

The lack of consistency in how agencies respond to open-records requests has been an issue for years.

“It’s one of the frustrating things; it’s a real crapshoot,” said Bill Allison, a veteran investigative journalist who is now editorial director at the nonpartisan Sunlight Foundation. Mr. Allison said the foundation for years filed open-records requests to federal agencies seeking the correspondence that members of Congress send to agency officials.

Such letters often include routine referrals of letters from constituents seeking help in dealing with an agency. But the letters also include the occasional request from a member of Congress to a top agency official seeking money for a favored home-state project.

“We wanted to see what they were writing about,” Mr. Allison said.

Though the foundation made the same request to agencies across government, some provided only correspondence logs, while others sent the group hundreds of pages of letters. Still others didn’t respond.

“You can get completely different responses,” he said.

Meanwhile, little attention has been paid to whether transition reports ought to be made public. Far from considering the material secret, the Energy Department has posted thousands of pages of transition materials on its website.

But most agencies haven’t been so quick to disclose.

Former New York Times tax reporter David Cay Johnston, writing in September for the publication Tax Notes, recounted his struggles to obtain from the Treasury Department documents the IRS had prepared for the Obama transition team.

“I expected they would just be given out without a fight, because as a candidate, Obama promised to end the secretive policies of the George W. Bush administration,” Mr. Johnston wrote. Instead, Mr. Johnston said in a phone interview Wednesday, it took an outside lawyer to secure release of the records.

“You shouldn’t have to file a FOIA for a document like this. You shouldn’t have to retain counsel,” he said.

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