Open Government

Fight Secrecy_ Blow the Whistle

How to Help Whistleblowers Turn Their Information into Power

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This year’s Sunshine Week and its “Right to Know” mantra may take on a new significance for the federal workforce. Whistleblowers, the eyes and ears to abuses of power that betray the public trust, have a right and need to know how to safely report illegal behavior on the part of the government. In a climate in which the truth is increasingly difficult to discern amid obfuscation of the facts and unparalleled censorship, government employees are uniquely positioned to shed light on what takes place behind the Trump administration’s closed doors. In the words of U.S. Supreme Court Justice Louis Brandeis, sunlight is the best disinfectant.

That is why this Sunshine Week, watchdog groups held a training, Working with Whistleblowers: A Sunshine Week Training for Public Interest Advocates, to show activists how they can safely partner with whistleblowers to turn their information into power. The training provides key pointers from a new guide by the Government Accountability Project, Working with Whistleblowers, a Guide for Public Interest Organizations. This must-read manual covers more than 40 years of lessons learned and best practices from the nation’s leading whistleblower protection and advocacy organization.

The vital role of whistleblowers in exposing government wrongdoing is by no means limited to the current administration. Whistleblowers are as timeless an institution as corruption itself – from Deep Throat’s exposure of the Watergate scandal, to the late climate scientist Rick Piltz who disclosed the Bush administration’s attempts to downplay climate change impacts, to Edward Snowden, who followed in the footsteps of pioneer NSA whistleblowers to let us know that Big Brother is watching. Regardless of who is in power, we have always relied on courageous civil servants as the lifeline to warn the public about illegal actions by our own government.

However, in the past year we have been confronted with threats to the very fabric of our democracy. In response, this Sunshine week we are also highlighting how the Trump administration is eclipsing the sunshine of transparency with secrecy.

The Trump administration’s unprecedented attack on the truth itself is an invitation to a new generation of truth-tellers. From reports of low morale throughout the government, to a wave of rogue social media accounts by public employees comparing the administration’s latest affronts to agencies’ missions, there is a palpable undercurrent of dissent.

This phenomenon underscores the essential position of whistleblowers as an internal check on otherwise unchallenged abuses of power. And despite the courage it takes to blow the whistle, most government employees who report a workplace concern believe they are simply doing their job.

More than 95 percent of whistleblowers first raise their concern internally, according to the Ethics Resource Center. Take the case of Helen Foster, a senior career official with the U.S. Department of Housing and Urban Development (HUD). She refused to break the law by funding a lavish redecoration of HUD Secretary Ben Carson’s office, or by turning a blind eye to a nearly $11 million accounting irregularity in HUD’s budget. She informed her superiors that such actions were illegal, and her demotion quickly followed.

As in Foster’s case, employers often respond by silencing the messenger rather than heeding their warnings – creating a climate of fear that stifles open dialogue in the workplace and fails to address the underlying misconduct.

The two greatest reasons employees don’t blow the whistle are the fear that they won’t have an impact and the fear of retaliation. When their internal disclosures fall on deaf ears, the desire to make a difference is often what motivates whistleblowers to contact trusted organizations with sensitive information about government abuses ranging from violations of consumer rights to taxpayer waste.

As public interest advocates who rely heavily on whistleblowers, we have a responsibility to protect them in the process of benefiting from their knowledge – and to know our own limitations.

The confusing legal landscape of whistleblower laws, if not navigated properly, can cause grave harm to the whistleblower and even the organization seeking to serve as a conduit for the information. Reprisal actions can range from expensive SLAPP suits to subpoenas and even threats of criminal prosecution. Further, it is not easy to avoid the legal landmines, because employees’ free speech rights can vary depending on the nature of their disclosure, what agency they work for, if they are a government or contract employee, and to whom and how they make a disclosure.

Fortunately, the dos and don’ts for working with whistleblowers largely remain the same. The guide and accompanying training break them down for truth-tellers and their advocates. Rule No. 1 for any recipient of a whistleblower disclosure is to do no harm to their source. That requires consulting an attorney or organization with expertise in whistleblowing; many offer their services at no cost or on a sliding scale. Beyond that premise, organizations can use the guide to apply decades worth of lessons learned when working with whistleblowers and contributing to the public’s right to know.

Read Working with Whistleblowers, a Guide for Public Interest Organizations here.

Watch a recording of Working with Whistleblowers: A Sunshine Week Training for Public Interest Advocates here.

Stop Eclipsing Transparency’s “Sunshine” With Secrecy!

It’s often said that “sunlight is the best disinfectant,” and to honor that sentiment, transparency and free press groups around the nation have celebrated “Sunshine Week” every March. The week is intended to remind our nation’s leaders of the importance of the public’s right to know in order to keep faith in our democratic institutions, and expose transgressions against that trust like waste, fraud and abuse. However, this year is different. We are facing a crisis of corruption and self-dealing, assaults against basic facts and science, and a disturbing rollback of access to government records, which has never been that free-flowing in the first place.

Public Citizen and our allies in the open government community will use this week to make it absolutely clear to the public that the Trump administration has eclipsed basic components of a fair and just democracy: Freedom of Information, Freedom of the Press, and respect for science and data. To make that point, we worked with the artist, Robin Bell, to project a message onto the Washington, D.C. headquarters of the Department of Justice: it’s time to stop eclipsing transparency with secrecy.

 

We chose the DOJ building for several reasons: it houses the agency that oversees the Freedom of information Act (FOIA) programs for other agencies, but also has engaged in markedly worse open government transgressions under the Trump administration including not providing key information concerning the nature of Attorney General Session’s recusal from the Russia investigation, and refusing to confirm or deny the existence of records, so-called “Glomar” responses. The Sessions DOJ has also taken some steps to push back on free speech rights.

The projection at DOJ kicked-off Public Citizen and our partners’ take on Sunshine Week this year during which we will host a number of online actions to shine a light on how President Trump and his administration have eclipsed transparency with secrecy. Along our open government allies, Public Citizen signed a declaration that was sent to Congressional leaders and the White House highlighting the threats to transparency and detail ways in which this administration has prodigiously exceeded all past administrations’ reticence to open government, a sampling of which are summarized here.

Affronts to the Public’s Right to Know

The Freedom of Information Act (or FOIA,) gives the public the right to access government records subject to nine limited exemptions. Public Citizen has always had to fight hard in Congress and the courts to protect the public’s right-to-know as granted by FOIA from governments that seek to hide their decision-making from transparency’s sunlight out to fear of embarrassment and accountability. But, under the Trump administration, we have seen a marked increase in hurdles to receiving information. For example, we are facing an upswing in denials of fee waivers and responses denying disclosures arguing that requests are “not reasonably specific enough,” even though the information is as specific as its ever been in previous administrations In addition, documents have been returned with heavily-redacted documents that are full of  apparent incongruities and misuse of FOIA exemptions.

The Trump Secret Service tried to play shenanigans and transfer documents to another agency in order to keep Public Citizen from gaining information about White House visitor logs for four important government agencies: the Office of Management and Budget, Office of Science and Technology Policy, Office of National Drug Control Policy, and the Council on Environmental Quality. The administration recently backed down under the pressure from the lawsuit we filed and they settled the case. Soon we will have more vital data to continue to document the extent to which corporations have taken over our government.

On Tuesday, March 13th starting at 9:45am EDT, Public Citizen staff and allies will participate in a Twitter chat highlighting Trump’s eclipsing of Freedom of Information with redactions and denials and provide examples and insights into other affronts on the public’s right to know. Then during the U.S. Senate Judiciary hearing starting at 10:15 EDT, we will be live tweeting in order to provide civil society’s perspective on the Freedom of Information Act. And, at 11am EDT, Public Citizen’s main FOIA litigator will give a Facebook live presentation on using the Freedom of Information Act and shine some real sunshine on how the public’s right to know is being eclipsed by this administration.

Attacks on Truth and Truth Tellers

President Trump and his administration clearly do not like facing the truth—so much they revert to “alternative facts” and “white lies” to hide politically uncomfortable facts. Lying to the people is inexcusable and even in these scandal-tinged times, it cannot go undocumented. From actions like removing data from government websites or censoring climate science information on the Environmental Protection Agency and other agency pages, the administration purposely is hiding information that it doesn’t want the public to have. Other examples that this administration is willing to censor the truth when politically unfavorable: the Department of Labor removed a report about its “tip pooling” rule that showed how employers would take employee’s money and the Treasury department took down a report with unfavorable information for the proving how little workers would actually benefit from tax cuts.

One doesn’t need to follow the president on his Twitter account to know he’s frequently attacking the press, lashing out at legitimate journalistic outlets with “Fake News” claims, not coincidentally this tends to happen after some hard-hitting piece of journalism turns up another scandal tinging the presidency.

Another area where the president and his cabinet have attacked truth tellers is by issuing threats to punish so-called “leakers.” These people are really whistleblowers, and play a critical role in protecting our democracy by raising the alarm about possible wrongdoing that could further poison the public’s trust in government. Public Citizen has partnered with other watchdog groups to provide a training on Thursday, March 15 to teach nonprofit organizations how to work with government whistleblowers who want to report threats like waste, fraud, and abuse. (Say, for example, ridiculously expensive office furniture…)

Increases in Government Corruption

If there’s one thing this administration does well, it’s look out for the personal, financial interests of the Trump family and members of the president’s cabinet. It feels like not a week goes by without some sort of self-dealing scandal is unearthed showing attempts to profit off of the presidency. Starting with not actually divesting from his hundreds of businesses, to his hotels and other properties continuing to take foreign payments, to possible insider trading and officials hawking products sold by his family members, countless ethical whoppers  have faced the administration since Trump took office. Wasteful trips to Mar-A-Lago, expensive flights and jet setting on the public’s dime show the sort of abuses taxpayer monies that evidence just the sort of unethical behavior that causes frustration with our government.

And, Trump even tried to sweep self-dealing under the rug by issuing secret and supposedly “retroactive” ethics waivers. Talk about eclipsing government sunshine! Also talking about how corruption in this administration has been increasing will be Craig Holman on Thursday, March 15 at 4pm EDT live on Public Citizen’s Facebook page.

Threats to Constitutional Checks and Balances

Congress plays a critical role in providing checks and balances against harmful actions taken by the other branches of government. However, extreme partisanship has made real accountability and bipartisan oversight by the legislative branch more challenging. Public Citizen has repeatedly called on Congress to force Trump to release his tax returns—without which the public has no idea of the extent to which he and his family will benefit from the recently enacted tax bill that slashed rates for the ultra wealthy and owners of businesses like LLCs, which make up a major portion of the Trump, Inc. constellation of businesses.

Because some Congressional committees have fallen prey to partisanship, the public is still in the dark when it comes to foreign interference in U.S. elections. While Special Counsel Mueller has his job to do to get to the bottom of the Russia investigation, Congress still has a vital role in investigating foreign interference in our democracy and protecting the integrity of our elections but rather than run credible investigations, the committees charged with doing this work, have been mired in partisan maneuvers. Of course, Congress doesn’t need to act alone, a government that was really focused on sunshine would do things like provide better disclosure online election ad funding, but instead the Federal Election Commission is frozen in inaction. On Friday, March 16, Public Citizen is planning to partner with American Oversight and other good government groups to host a Twitter chat on checks and balances as an antidote to the Trump’s administration’s eclipsing of transparency with secrecy, and we’ll be releasing more details soon.

Follow the hashtags #Eclipse #SunshineWeek on Twitter all this week for more updates on how Public Citizen and our partners are exposing the ever darkening cloud of secrecy that has befallen our government.

Our FOIA explained: Questions swirl around March 24 National Mall permit for talent show

There might be nothing to it, but when I got my first look at the heavily redacted permit application for a “talent show” by an unidentified educational institution that had led the National Park Service to deny the request by the organizers of March for Our Lives for use of the National Mall, several anomalies jumped out.

For example, why refuse to release the name of the educational institution and the name of the project?  (Note that on the March’s own application, as released under FOIA, the same information as not redacted.) Indeed, the redaction invoked Exemption Six of the FOIA, which protects only the privacy of individuals.

Next, the rally permit was sought for March 24, while the date sought for the “talent show” was March 25. March 24, the day before, was handwritten into the margins as a “rain date.” A rain date BEFORE the preferred date?  And the talent show application not only was undated but did not bear a date-received stamp, unlike the rally permit. The National Park Service’s ground for denying the location for the rally was “first-come first served.”

Thus our FOIA request. It might well turn out that there is nothing untoward happening here, but it is worth inquiring further.

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In Tax Legislation, GOP May Open Churches & More to Partisan Political Manipulation

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Public Citizen joined with nine other organizations in issuing the following memo on the possible repeal of the Johnson Amendment.

As Republicans in Congress work to overhaul the nation’s tax code, some lawmakers are trying to repeal a six-decade-old law that prohibits churches and other tax-exempt groups from endorsing or opposing political candidates.

Known as the Johnson Amendment, the law has shielded nonprofits from partisanship and prevented charitable donations from being funneled into political campaigns. But President Donald Trump has urged lawmakers to do away with the measure, even though it helpsd maintain the integrity and independence of religious and nonprofit groups. It does not prohibit nonprofits from speaking out on policy issues, but it does prohibit them from being openly partisan. Without this rule, tax-exempt churches and charities would be open to manipulation for partisan political ends.

Repeal of the Johnson Amendment Would Threaten the Integrity of Charitable Organizations
Repealing the Johnson Amendment would undermine the central mission of churches, mosques and synagogues by pushing them into the center of partisan politics. These and other charitable tax-exempt groups have long been considered above the political fray, committed to ministering to the spiritual and social needs of their members and communities. Repealing the law would raise questions about whether the public’s charitable contributions are being used for political causes instead of their intended purpose.

Political Actors Could More Easily Manipulate Churches and Charitable Nonprofits
Repealing the law would permit partisan exploitation of the goodwill and integrity established by nonprofits over more than a half century. Donors and leaders with political agendas could harm a nonprofit’s mission if the organization steered its activities toward a donor’s preferred candidates.

For example, a donor could withhold a donation if a church declined to back a candidate running for Congress, or a board could change a charity’s mission based on which candidates they opposed. Changing the law could lead to divisions within houses of worship and charitable organizations, as members, donors and those they serve split along party lines.

Repeal Would Open the Floodgates for Dark Money to Flow Into Churches and Other Charitable Organizations
The repeal of the Johnson Amendment would create a substantial loophole in campaign finance law that could be exploited by those seeking to influence elections by manipulating faith leaders and faith communities.

Because tax-exempt charities are not required to disclose their donors, political donors would have a strong incentive to shift many of their political activities to charities such as churches to avoid campaign contribution disclosure laws.

And they could receive the added benefit of having their donations be tax-deductible. That would mean an even more lopsided influence for outside money in American elections than already exists under the U.S. Supreme Court’s Citizens United ruling. It would fundamentally alter the legal separation between politics and religion, opening another loophole for undisclosed donors to back political campaigns.

Current Law Affords Houses of Worship Robust Free Speech Rights
Critics of the Johnson Amendment argue that it restricts the free speech rights of faith leaders and houses of worship. But the law doesn’t prevent tax-exempt religious groups from discussing political topics; it prevents them only from endorsing or opposing candidates for public office or diverting organizational resources to partisan campaigns. That means faith leaders and houses of worship still have room to critique social, economic and political policies that affect their congregants, clients and communities. And faith leaders still can endorse or oppose political candidates, but only in their individual capacity.

The Johnson Amendment is about tax status, not speech. Houses of worship can endorse candidates, but then they must give up their tax-exempt status. The federal government does not have a duty to subsidize the political activity of nonprofit organizations.

Congress should not water down a key law that ensures that tax-exempt groups, including religious organizations, can focus on their spiritual message. Doing away with the Johnson Amendment would cast a shadow over the independence of charitable and religious institutions and compromise their core missions.

Background Materials
1. “The Johnson Amendment in five Questions and Answers” http://www.npr.org/2017/02/03/513187940/the-johnson-amendment-in-five-questions-and-answers
2. “The Devil in the Details: Proposals to ‘Destroy’ or Alter Johnson Amendment Could Create a New Deluge of Political Spending” https://www.citizen.org/sites/default/files/devil-in-the-details-johnson-amendment-report.pdf
3. “In Defense of the Johnson Amendment” http://www.insidesources.com/point-defense-johnson-amendment
4. “Churches and Campaign Activity: Analysis Under Tax and Campaign Finance Laws” https://www.everycrsreport.com/files/20121009_RL34447_22d86a9c9b98adab4e9846c34dccff3dc741b652.pdf
5. “Congress: Defend the Common Law and Common Sense of Nonpartisanship” http://thehill.com/blogs/pundits-blog/civil-rights/349641-congress-must-defend-the-common-law-and-common-sense-of

Letters of Support for the Johnson Amendment

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Congressional Russia Investigations Must Uphold Highest Standards of Transparency & Accountability

As America grapples with the reality that Russia meddled in the 2016 election, it is abundantly clear that we need robust, thorough, and transparent investigations into exactly what happened so that we can implement reforms that will ensure it never happens again. It is critical that any investigations into Russian involvement be transparent, expedient, and involve cooperation from both sides of the aisle. That is why a bi-partisan group of experts with Congressional oversight and national security experience under both Republican and Democratic administrations have come together and released a set of principles detailing benchmarks for the Congressional investigations into Russia involvement in our elections.

While getting to the bottom of exactly what happened may take time, and certainly should be comprehensive, the U.S. is facing another set of elections in just over a year. It is critical that the investigations move expeditiously with adequate support from both sides of the aisle and a strong commitment to transparency. The benchmarks lay out four key areas by which the public can evaluate whether the investigations are meeting the highest standards of transparency and accountability. These key areas include:

  • Scope and Status of the Investigation
  • Comprehensive Bipartisan Cooperation
  • Transparency of the Investigation
  • Public Reporting on the Investigation

Scope and Status of the Investigation: It is critical that the scope of any investigation allow the findings to “go where the facts lead it” and not limit the investigation to just the scope as it is initially set out. Each Congressional Committee undertaking an investigation should commit to communicating with the Special Counsel as well as each other in order to reduce inefficiencies and ensure that the committees do not undermine the efforts of the Special Counsel.

Comprehensive Bipartisan Cooperation: Maintaining public confidence in the investigations into Russian involvement in our elections is paramount. Therefore, each Committee should commit to working in a corporative, bipartisan fashion. Hallmarks of bipartisan cooperation include consultation between the chair and ranking member on procedural moves such as requesting interviews, calling witnesses, seeking documentary evidence, etc; requiring that relevant documents be shared with the full committee and be available to staff at all times; and ensuring that all Committee members have opportunities to provide input on all aspects of the investigation including any proposed committee report.

Transparency of the Investigation: In service of maintaining public confidence in the investigations, each committee should commit to upholding the highest standards of transparency. These standards include producing a full public report at the end of the investigation, holding public hearings unless the chair and ranking member jointly articulate a specific reason for proceeding in closed session, and releasing all non- classified documents pertaining to the investigation.

Public Reporting on the Investigation: Allowing the public opportunities to review the progress of these investigations is essential to upholding the integrity of the investigations. Each Committee should commit to issuing regular reports or updates including information on the staff dedicated to the investigation, the budget of the investigation, the number of hearings held, the number of witnesses interviewed, the number of document requests and their results, and finally any relevant documents themselves.

Congress has the best opportunity- and therefore the profound responsibility- to unearth the truth about attempts to infiltrate the American electoral process. Any Congressional investigation must therefore be wholly comprehensive and uphold the highest standards of transparency, accountability, and cooperation. The integrity of our democracy depends on it.

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