After years of delay, advocates for government oversight won a major victory in May when a new watchdog agency in the executive branch was officially launched. Given the role of the Privacy and Civil Liberties Oversight Board (PCLOB), it was ironic that an early set of procedures proposed by the fledgling agency were actually very weak on government transparency.
In order to obey three statutes aimed at increasing transparency, government agencies issue procedures for how to implement the requirements of the Freedom of Information Act (FOIA), the Privacy Act and the Government in the Sunshine Act. Different procedures will have the effect of making it either easier or more burdensome for the public to access government records. Though the PCLOB states on its website that it is committed “to the greatest extent possible, making its reports and recommendations available to the American people,” its proposed procedures make it more difficult than necessary for the public to request records from the agency.
Charged with offering advice and oversight on civil liberties and privacy issues related to the government’s anti-terrorism efforts, the PCLOB is getting off the ground at the exact moment when secret government surveillance programs are coming to light. Not yet fully staffed, the board has been asked to review the top-secret spying programs revealed by National Security Agency leaker Edward Snowden, a high-profile assignment that puts the board in a position to influence how the intelligence community operates. “In a sense, we are the eyes and ears of the public,” David Medine, the board’s newly-appointed chairman, told the New York Times earlier this month. “We don’t answer to the administration,” said Medine, who worked to enforce privacy laws at the Federal Trade Commission in the 1990s.
Given the potential influence of the board on issues surrounding privacy and civil liberties, advocates hope that the proposed rules, including guidelines for filing FOIA requests, are not a harbinger of what’s to come.
“This agency, the way that it was set up was to have more public participation, was to shed light on government practices,” said Khaliah Barnes, administrative law counsel at the Electronic Privacy Information Center (EPIC), a privacy and civil liberties watchdog group. “So for this agency, with a defined role of oversight and accountability, for it to restrict public access to information is particularly troubling.”
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Like all agencies, the PCLOB submitted the proposed rules for public comment. The window for comments closed on July 15, during which time the board received four comments. Staff counsel will consider those comments in drafting final rules that the board will then vote on. Advocates will look at the final procedures to gauge the board’s dedication to transparency.
In its proposed rules, the board notes that it borrowed from other agencies’ rulebooks. Barnes says that across government agencies, the trend has been to implement procedures that actually limit public access to government records within the scope of the statute. EPIC filed a long list of comments, targeted mainly at FOIA implementation.
“Their proposed regulations in my opinion are pretty weak,” said Gavin Baker, a FOIA expert at the Center for Effective Government, an open government advocacy and research group. To add perspective, Baker said that on a scale of one to five, with one being very poor and five being fantastic, he would give the PCLOB’s proposed rules a 2, slightly below average for government agencies.
For example, Baker pointed out that the proposed rules require FOIA requests to be physically delivered, for instance by mail, when most agencies accept requests via fax, email or an online form. A second area he found troubling was the board’s confusing timeline for appealing requests, a process that is important because blocking access to the appeals process also blocks requesters from suing in court for the documents. At the same time, Baker said that he didn’t believe the rules, even if they are not changed, will have a major impact on the board’s overall transparency.
The PCLOB has been viewed skeptically by some lawmakers, advocates and the press because it is a new agency. The proposed transparency procedures were released before Medine was even installed as chairman. While it’s not clear that the board’s current growing pains will ultimately hinder its effectiveness, Baker said that being so new and understaffed is probably the reason for the weak proposals.
“I’m not necessarily taking it as any sign of malice or that the board is trying to be secretive so much as, actually, they just sort of didn’t do a great job in putting together these rules,” Baker said. “If they don’t fix these concerns when they finalize the rules, then that will be concerning.”