One of the very first actions by President Obama upon taking office in 2009 was to declare a new era of government openness. Mr. President, we're still waiting.
On his first full day on the job, Obama issued a presidential memorandum on the Freedom of Information Act (FOIA) "to reestablish a presumption of disclosure" for information requested under FOIA.
Unfortunately, the foot soldiers in the federal government seem to have simply ignored the president's marching orders. So, here we are, seven years later, and the executive branch bureaucracy is still not listening. The presumption is "nondisclosure," and federal agencies will go to great lengths to keep public information locked away.
Congress is at least thinking about the problem. For example, the House Subcommittee on Government Operations held hearings on FOIA last year in which they learned in detail about how federal agencies stonewall, obfuscate and litigate in an effort to keep public information from being released to the public — and the media. While the subcommittee issued a report in January entitled, "FOIA Is Broken," it remains to be seen whether much-needed reforms will come with any teeth or funding.
Still, to its credit, the full House did pass FOIA reform legislation in January. But unless Congress can agree on real improvements — and provide a compliance mechanism — any new legislation is likely to end up lost in the quagmire of the federal bureaucracy.
Meanwhile, federal employees still believe that the information they collect using taxpayer dollars belongs to the government, not the public. Believe it. My company, ThinkGlobal Inc., has spent more than a decade struggling to get the U.S. Commerce Department to share information that the government itself admits is public and should be released.
My company's focus is on international trade, and is a long way from the controversial type of information that has resulted in WikiLeaks founder Julian Assange sequestering himself in the Ecuadorian embassy in London, or Edward Snowden fleeing the U.S. for asylum in Russia.
By contrast, the public records we have requested relate to relatively mundane government operational data. For instance: Who are the international buyers from around the world that are subsidized by American tax dollars to attend trade shows in the United States? Who are the U.S. companies receiving free or subsidized assistance to help them export? Or how much money has the U.S. Commerce Department collected from the Small Business Administration's taxpayer-funded State Trade and Export Promotion (STEP) grant program?
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In fact, at least for the Commerce Department, data translate into revenue that is used to supplement its $10 billion in congressional funding. So, the Commerce Department maintains a monopoly on much of the valuable data it collects, and then uses that very same information to run profit-making programs, including selling that data back to the public.
As an example of how insidious institutional inertia can be, my company requested data from the Commerce Department in 2011. At the time of the request, one Commerce Department official laughed and said the agency would make it so expensive that we would never be able to afford the requested data. After years of delays and appeals, the Commerce Department told us it would cost $2.3 million to process and release the records we requested. Fast forward and, after more delays and appeals, the information was ultimately released for a grand total of $190.
Allow me to do the math: To block our FOIA request, the Commerce Department overcharged us by the sum of $2,299,810.
Moreover, we know for a fact that program officers at the Commerce Department strategized with the agency's FOIA officials for creative ways in which the department could block our FOIA requests.
In arguing to withhold information that the Commerce Department has now admitted should be released, one of the agency's program officers said: "At this point, we may want to pursue exemptions for most or all of the requested information ... "
Part of the rationale for withholding the requested information was that those "public" records would be used to directly compete against the Commerce Department. "ThinkGlobal is going to use this information to prospect for ... a competing service," argued the program officer.
Yes, you read that right: The taxpayer-funded Commerce Department is worried about protecting itself from private-sector competition.
And this is not just a one-time occurrence. We currently have multiple FOIA requests that have been pending for more than a year. One of the requests has been awaiting action since 2011. After multiple delays and appeals, the Commerce Department finally promised to process and release the requested information last summer and then — nothing.
Obama was spot-on with his 2009 FOIA proclamation. And the House subcommittee was right in declaring that FOIA is, in fact, broken. The problem is that there is no mechanism for oversight, or for holding political appointees and career bureaucrats accountable. Both the White House and Congress need to ensure more accountability from the public servants charged with implementing government policy.
Sandler is the president of ThinkGlobal Inc., a content development and publishing company.