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Watchdog: Accountability

Marilyn Tavenner's deleted emails pose question: Is the FOIA the law federal officials break most often?

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Mark Tapscott,Watchdog,Barack Obama,Freedom of Information Act,Accountability,Healthcare.gov,Fred Upton,NARA,Transparency,FOIA

Are federal transparency and record-keeping laws the statutes most often broken by officials of the U.S. government?

That's a reasonable question to ask following Friday's disclosure that emails to and from a top federal official may be "lost."

Right on cue, when the going gets tough, the Obama administration proclaims it can't find the documents.

The latest example comes from Marilyn Tavenner, the federal government's top Medicare and Medicaid official, who told a subordinate to delete a sensitive email to the Obama White House.

The Oct. 5, 2013, email from Tavenner to a communications subordinate forwarded a previous email discussion Tavenner had with a group of officials at the White House and the Department of Health and Human Services about the disastrous launch of the Obamacare program's healthcare.gov website.

President Obama appointed Tavenner in 2013 as director of the Centers for Medicare and Medicaid, which is part of HHS.

The Tavenner emails were included in documents HHS turned over last week to the House Committee on Energy and Commerce.

The documents were received the day after HHS officials told the committee that Tavenner had deleted most of her emails to avoid overloading the system. The committee had requested copies of the documents Oct. 10, 2013.


Marilyn Tavenner (Photo: Graeme Jennings/Washington Examiner)
That revelation drew a pointed response from the energy and commerce panel's chairman.

"Right on cue, when the going gets tough, the Obama administration proclaims it can't find the documents,” said Rep. Fred Upton, R-Mich.

“Time and again, the self-proclaimed 'most transparent administration' has been anything but. And now we know that when healthcare.gov was crashing, those in charge were hitting the delete button behind the scenes. What was the Obama administration trying to hide?” said Upton.

Like memos, reports and other official documents, emails, telephone text messages and instant messages on government business are required to be preserved by federal record-keeping regulations issued by the National Archives and Records Administration both for historical purposes and because they are accessible under the Freedom of Information Act.


Fred Upton (Photo: Graeme Jennings/Washington Examiner)
Names of some of the White House officials in the Tavenner email were redacted by HHS, which claimed such redactions were justified by “longstanding executive branch institutional interests.”

The FOIA includes nine exemptions under which federal officials may redact information contained in documents, but "longstanding executive branch institutional interests" is not one of the nine.

That term, however, may be the HHS twist on an exemption created by the Obama White House in April 2009: "White House equities." That term is also not included among the FOIA's nine permissible exemptions.

Even so, Obama officials in the White House, the Department of Justice, the Environmental Protection Agency and HHS have cited "White House equities" to justify redactions and refusals to provide copies of documents sought by journalists, think tanks and congressional committees.

As a result, thousands of documents related to such Obama-era scandals as the botched launch of healthcare.gov, the Fast and Furious government gun-running scandal, illegal IRS targeting of Tea Party and conservative groups, and the attack on the U.S. Consulate in Benghazi that killed four Americans, including Ambassador Chris Stevens, have been withheld from the public, news media and Congress.

In a related development, Cause of Action, a nonprofit watchdog group, filed suit in federal court Monday claiming 12 federal agencies, including the Office of Management and Budget and the Internal Revenue Service, were prevented from complying with the FOIA by White House interference based on the "equities" claim.

Obama administration officials aren't unique in making up new FOIA exemptions to avoid disclosure of documents required to be made public and to be preserved.

During President George W. Bush's first term and following the Sept. 11, 2001, terrorist attacks, White House and other federal officials claimed they could withhold thousands of "sensitive but unclassified documents" they judged to be potentially of interest to terrorists such as nuclear power plant specifications and chemicals being used or stored near populated areas.

Danielle Brian, executive director of the nonprofit Project on Government Oversight, views the "White House equities" claim as more disturbing than the Bush administration's refusal to produce "sensitive but unclassified" (SBU) documents.

"I actually think the White House 'equities' claim is worse. Both the Bush and Obama administrations created catchall categories for information that was unclassified, but that they didn't want released," Brian said.

"But in the case of the White House 'equities' claim, it appears to be trying to legitimize withholding information that should be released but is embarrassing."

Patrice McDermott, executive director of OpenTheGovernment.org, a nonprofit that like POGO focuses on government transparency issues, pointed out that the Bush SBU invention had roots in a memorandum by Adm. John Poindexter, who was President Reagan's national security adviser.

McDermott said she believes "the Federal Records Act [administered by NARA] is more violated than FOIA — as it — ostensibly —does not permit discretion.

"But then we have the destruction of evidence — such as the torture tapes — with complete impunity. FOIA may be more abused, as it is by statute more open to discretionary withholding."

Mark Tapscott is executive editor of the Washington Examiner.
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