Interior Department Wants Transparency, FOIA Process Impedes That Goal

The Obama administration touts transparency in government, but it can be hard to find at times.

Interior Department officials launched an intriguing web portal the other day, one touted as promoting transparency in government operations. Well, one place Interior officials could create a whole lot of transparency is by adding more staff to handle Freedom of Information Act requests, which currently move at a glacial pace.

"The Department of the Interior is committed to providing the American public with timely, accurate information," Interior's FOIA site states, only to quickly add that, "The Freedom of Information Act gives you the right to access any Department of the Interior records unless the information in those records is protected by one or more of the nine exemptions (reasons an agency may withhold records from a requester) and there is a sound legal basis to withhold them." (emphasis added)

This new openness site caught the Traveler's attention in part because of a FOIA odyssey it has been on since last fall. In early November the Traveler submitted a FOIA request to obtain a report from the Interior Department's Office of Inspector General. The report was the result of an investigation into how the National Park Service's Intermountain Regional Office handled a probe into charges that a man hired as the "Indian Trader" to run the retail operation at Hubbell Trading Post National Historic Site had misappropriated funds from the operation.

The OIG became involved in the matter back in November 2006. And while it completed a report, and forwarded it to then-Park Service Director Mary Bomar in January 2008, that document has yet to be released publicly.

The Traveler's FOIA request was answered in mid-December by the OIG's FOIA officer, Sandra Evans, who wrote back to say the request had been categorized as "complex," a designation that meant it would take the office "more than 20 workdays" to process.

In early January the Traveler contacted Ms. Evans to get an update. While she quickly recognized the request in question, she said a number of issues had arisen that were complicating her handling of it. For one, unspecified "administrative things" delayed the report's actually arrival at the OIG until late in 2009, she said. Then, a lawsuit by Public Employees for Environmental Responsibility seeking the same information gave that group's request priority. Second in line was a request from the attorney for Billy Malone, the Indian trader at Hubbell Trading Post.

Another factor was that Ms. Evans had come across "an additional 75 documents that had been previously given to me (in connection with the matter), so I'm in the process of trying to get those reviewed," she said. Since some of the documents were from the Park Service, that agency needed to be consulted as to what information could be released, she added. Still, Ms. Evans was optimistic that she could provide the Traveler with a redacted version of the OIG's report within a week, and that additional information would be forthcoming once it had been approved for release.

About two weeks later, with no documents in hand, the Traveler again contacted Ms. Evans, and was told that PEER's lawsuit had forced her to put other FOIA requests on hold at least until February 19 while she worked to meet its document requests.

PEER officials, fortunately, last week were willing to share with the Travelerthe few documents that they had received to date from the OIG.

Jeff Ruch, PEER's executive director, wasn't sure why the OIG had such troubles answering FOIA requests.

“It’s not atypical. What is surprising is that of the non-military agencies that we deal with ... the worst is the Interior IG, which is supposed to be making sure everyone else is obeying the rules, and they don’t apply the rules to them," said Mr. Ruch. "There was a period in the '90s when they didn’t have anybody responding to the FOIAs. They just put them in a big pile. So at least they have someone responding."

Ironically, he said, "the IG doesn’t hesitate to fault other agencies for not complying with FOIA or other administrative requirements.”

The FOIA process can appear at times to be one of obfuscation, of evasiveness. Bruce Schundler, who along with his wife has worked at a number of national parks, first as seasonal rangers, more recently as volunteers, has been stymied in his efforts to look into spending habits at Mesa Verde National Park. So long and frustrating has his odyssey become that he's built a website to chronicle it.

Mr. Schundler is no newbie when it comes to FOIA, for as a businessman in New Jersey he had "worked under the guidelines of the Sunshine Law and the Freedom of Information Act." Too, he also was a town councilman who had to deal with government openness from that side of the desk. And yet, despite this experience, he has been subjected to a correspondence-heavy, administrative maze since requesting information on Mesa Verde's fiscal 2007 and fiscal 2008 budgets, the travels of its superintendent, and the number of unfilled vacancies at the park. Mesa Verde officials initially put off his first requests for the information, saying the staff was too busy to comply immediately.

"What is ironical," Mr. Schundler wrote in response, "is that the information I requested in my first letter could have been generated on some computers within five to ten minutes. They are basic and standard reports; they are easily generated..."

What seemed to be so easy, though, has dragged on through various offices of the Park Service's Intermountain Region, to Park Service Director Jon Jarvis, and, at last check, involved Mr. Schundler sending a letter earlier this month to Interior Secretary Ken Salazar outlining his dilemma and seeking satisfaction. Here's part of that letter:

Because I have never heard back from your FOIA Appeals Officer, this letter is my last and final administrative appeal relating to what started out as a very simple FOIA request in July.

And I am writing because my experiences to date call into question the commitment of the Department of Interior and the National Park Service to ushering in a new era of openness and transparency as directed by the President. In fact, my experiences call into question whether the President’s memorandum of January 21, 2009, your own directive of July 2, 2009, and the Attorney General’s memorandum of March 19, 2009 are being ignored.

Simply stated, my recent experience seem to indicates that the Department of Interior’s and National Park Service’s commitment to openness and transparency seems to be a travesty and is close to non-existent; managers, superintendents, and FOIA officers are openly and regularly ignoring the FOIA law, its guidelines and related memorandums with impunity; and the FOIA process as it was designed to work seems to be broken and ineffective---and no one seems to care.

That’s why I’m writing you.

...

Instead of responding to a simple request concerning previous budgets, at Mesa Verde NP I was stonewalled and intimidated and eventually had to file a formal FOIA request. Instead of following 43 CFR Part 2 carefully and completely, portions of it were used by the regional FOIA Officer to deny, delay, and rebuff and this stalled the process for several more months. In the end, instead of being given an honest two hours worth of information, I was given a few minutes worth of work and given information which continues to be questionable in its accuracy. And finally, instead of getting any kind of response from your DOI’s Appeal Officers, after almost three months, I have neither heard nor received anything.

Stay tuned.

Comments

To what extent is this situation endemic to a single individual, a single park unit, or a particular regional office of the NPS, and to what extent is it indicative of a situation that is presently systematic to the operation of the NPS and the DOI? From the article above, the situation seems quite grave indeed.

As mentioned in the article, President Obama issued an Executive Order one year ago that instructed Federal agencies to expedite processing of requesets for information from the public, includiing the processing of FOIA requests. I guess it is going to take more than an Executive Order to initiate change in how our government operates?

Thanks Kurt for bringing this issue out into the open.

The NPS is criminal in their compliance to the FOIA, and I know of dozens of examples of employees getting run over with the FOIA process. The NPS routinely fails to meet established FOIA time frames, and we corruptly use threats of redaction, research / reproduction and managerial review costs as a weapon to chase away a would-be requester.

We know that if we fail to produce the documents, the worst that can happen to us is a $1000 fine. This would happen after an employee first filed suit against us in federal court. Unlikely. Obviously, we use the process as a deterrent and avoid FOIA compliance routinely. As a senior NPS manager, I have watched this intentional strategy play out many, many times.

When you hear about the National Park Traveler’s difficulties in getting information concerning the Hubble Trading Post, or read about the refusal of the Intermountain Regional office to share its FY2006 and FY2007 annual reports, or experience personally how difficult it can be to get some basic financial information from some of our national parks (www.schundler.net/FOIA.htm ), you can’t help but wonder, “At what level can employees of the National Park Service simply ignore and disobey directives from the President and/or the Secretary of the Interior? “

In contrast, on National Public Radio several weeks ago there was a discussion of a meeting between President Obama and some of the financial titans of America. When asked if the meeting and the opinions of the President would change anything, the analyst said: “When the President of the United States---when the most powerful person in the world---asks you to do something, you do it.”

Does that apply to the superintendents and regional directors in the National Park Service, and to the managers and administrators of many agencies and departments of our government?

When you read about superintendents and regional managers and directors refusing to distribute and share some of the most basic financial information ......you wonder. “What are they thinking?” When the President signs a memorandum that directs all agencies and departments of the executive branch to follow both the letter and the spirit of the Freedom of Information Act and to be proactive and cooperative in making records, budgets, and information available to the public, and when the Secretary of Interior and Attorney General try to implement those directives and instruct every branch of the government to assume a policy of openness and transparency, then one has to ask, “Does it make any difference what the President wants? Do some of our superintendents and regional directors just not care about the directives and memorandums of their superiors and from those higher up the chain of command? After all, just what wasn’t clear about the directives and memorandums from the President and the Secretary of the Interior?”

Maybe the problem is that career employees of the Park Service feel they have nothing to gain and a lot to lose if they comply with the directives concerning a new era of openness and transparency in our government. At the end of the year, they won’t be given merit badges or incentive bonuses if they follow the President’s directives. They won’t necessarily endear themselves to others in the Park Service or improve their chances of promotion. Many government employees have virtual tenure. They won’t be fired if they don’t do everything that they are supposed to do; they won’t be transferred or demoted if they ignore the President; and on the other hand, they might be embarrassed if information, minutes of meetings, and budgets for which they are responsible become widely known by fellow park employees and the public at large.

Information is power, so why give it out easily and freely? Presidents come and go, Secretaries of the Interior are short-lived, and attitudes change. So why change, why give out too much information or any information, why not just stall, go slow, and follow the letter of the law but nothing else. Why not conform technically to the Freedom of Information Act.....but give out as little as possible, taking as long as possible, and only after repeated and deliberate efforts to stall, delay, and frustrate?

Many administrators and managers know that most people lead busy lives and have limited time and energy. Most people will not write letter after letter trying to obtain information they are entitled to see, or continue trying to fight the bureaucracy. Many government emplolyees know most people will just get frustrated and give up. Like many health insurance companies, for instance, they know that fewer than five out of a hundred people will continue to fight to have legitimate claims paid; so it is in their interest to just say no---again, and again, and again.

Personally, I believe eventually things will change, and attitudes will change among federal agencies and employees. Already most of our states have “Open Public Meeting Acts” and “Open Public Records Acts”, and most states have various versions of what’s called “Sunshine Laws”. Information about how pubic funds are being spent and how decisions are made by public boards, committees, and legislatures is becoming easier and easier to obtain; and the pressure for more openness and transparency in government is growing throughout America. Consequently, the question is not if our federal agencies and departments will become more open, the question is simply when will this happen.

To accelerate the change towards an era of openness and transparency, perhaps the Park Service should require each and every new Park Service employee to take a basic on-line course on the Freedom of Information Act. If everyone knew that every citizen is entitled to have access to information about budgets, the minutes of meetings, reports, memorandums, etc, then money might be spent more carefully and better decisions might be made.

Managers at each and every level of the Park Service need to be reminded of the memorandum of the Attorney General dated March 19, 2009, in which he wrote that the government would no longer defend denial of FOIA requests unless they were clearly denied for legitimate reasons as defined by law. If superintendents and regional managers realized they were personally liable for not releasing information as directed, I suspect this would become a powerful incentive towards openness and transparency!

So what will it take? What will make every one of our parks a place that is not just “America’s Best Idea” but “America’s Best Run Idea”--- an idea that is so well run that its managers and administrators are eager and willing to share information and embrace an era of openness and transparency in government?

What will it take to get every employee of the Executive Branch to follow both the spirit and the letter of the President’s memorandum and the Secretary of Interior’s directives concerning a new era of openness and transparency?

HERE ARE SOME DOI OIG AND NPS DOCUMENTS THAT MAY BE OF INTEREST:

US Department of the Interior (DOI) closed Office of the Inspector General (OIG) investigations (various), 2003-2007, including several investigations of Native American tribes and businesses - [PDF 6.8 MB - 08-June-2009]

http://www.governmentattic.org/2docs/Closed_DOI-OIG_Invest_2003-2007.pdf

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List of United States Department of the Interior (DOI) Office of Inspector General (OIG) investigations closed 01-October-2001 – 27-October-2008 - [PDF 650 KB - 19-Oct-2009]

http://www.governmentattic.org/2docs/Closed_InteriorOIG-Investigations_2001-2008.pdf

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Records giving official guidance sent from the US Department of the Interior (DOI) FOIA Officer to DOI Bureau FOIA Officers for FOIA Implementation during 2007 [12-May-2009 PDF 2.3 MB]

http://www.governmentattic.org/2docs/DOI_FOIA-Guidance_2007.pdf

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Annual FOIA Reports for National Park Service (NPS) for 1996 – 2006 - [PDF 2.54 MB - 24-Jan-2008]

http://www.governmentattic.org/docs/ParkSvc_FOIA_Reports_1996-2006.pdf

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List of National Park Service (NPS) Headquarters "First Wednesday" Brownbag lunch talks, 2005 - 2008 - [PDF 230 KB - 02-Nov-2009]

http://www.governmentattic.org/2docs/NPS_Employee-Colloquia_2005-2008.pdf

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National Park Service (NPS) park Collections Management Reports (CMR) for FY 2007 – [PDF 8.61 MB - 13-Apr-2008]

http://www.governmentattic.org/docs/NPS_CMReports_FY2007.pdf

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National Park Service (NPS) park Collections Management Reports (CMR) for FY 2006 – [PDF 8.2 MB - 07-Jun-2008]

http://www.governmentattic.org/docs/NPS_CMReports_FY2006.pdf

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To visitors of our national parks they are amazing and wonderful places. They are places which inspire the imagination, recall the special events of our history, and evoke admiration and humility.

Nevertheless, like all special places and like any kind of organization, behind the scenes they can have problems because they are managed by people, and people are human.

Our parks can have problems because people who were attracted to the National Park Service because they loved the outdoors and loved being in and around nature were promoted to be administrators and found themselves battling bureaucracies, pushing paper, and entrapped indoors; they can have problems because people are human and they bring to their jobs all the insecurities, and fears, and uncertainties which lead to abuse and mismanagement in any organization; they can have problems because people make mistakes, they can make the wrong decisions, and they can err; and they can have problems because sometimes the wrong people simply are doing the wrong jobs.

Most organizations have some kind of “check and balances” to keep them focused on their goals and objectives, to keep them on course, and to prevent human personalities and inadequacies from getting out of hand. Usually there are incentives and disincentives to prevent as many problems as possible.

In the Park Service, there are number of ways in which good management is encouraged. First and foremost is a deep commitment on the part of most Park Service employees. For many, working for the NPS isn’t just a job, it’s a calling...a vocation...and a dream come true. In addition, every Park Service employee works within a command structure—a chain of command—which presumes those higher up the chain of command have the experience and insight to make good decisions. And finally, to make sure the command structure is working properly, there are the Whistleblower Protection Act and the Freedom of Information Act.

Every employee of the National Park Service is aware of the chain of command within the NPS; and everyone has to complete one online course on the Whistleblower Protection Act.
The Freedom of Information Act, however, often is not discussed, and employees are not required to take an online course in it or to read a summary of it----and that’s unfortunate.
To President Obama, the Freedom of Information Act is very important. In fact, the very first memorandum he signed on Inauguration Day, January 21, 2009, focused on the Freedom of Information Act when he called for a new era of openness and transparency in our government. Specifically he wrote:

“In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.”

On July 8, 2009, all the employees of the Department of Interior (and the National Park Service) were sent a memorandum about the Freedom of Information Act which included memorandums from President Barak Obama and the Attorney General confirming their absolute commitment to the letter and spirit of the Freedom of Information Act. (See http://www.doi.gov/foia/policy.html )

Essentially, FOIA gives every American citizen access to “agency rules, opinions, orders, records, and proceedings” at every level of government. It gives citizens access to how money and budgets are being spent and how decisions are being made. And it was passed forty four years ago in the hope that government agencies and departments at every level would work better and more honestly when subject to openness and transparency.

With the new administration, there have been some important changes in the presumptions and guidelines that every agency should use when citizens request information. For instance, the President has called for a “presumption of openness” and a “presumption in favor of disclosure.” The Attorney General has created and outlined new guidelines for FOIA requests based on the President’s instructions that “information should not be withheld merely because “public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.””

To be sure, when the Freedom of Information Act was first enacted, it promised Americans a “new era of open government.” It’s the law of the land, and it confirms the rights given to every American citizen.

Furthermore, the President is calling not only for conformity to the letter and spirit of the Freedom of Information Act, but also to a proactive commitment to making information available, to making minutes and budgets accessible, and to making everything our government does as open and transparent as possible.

Consequently, the question now is....what is the Park Service and each and every park within the National Park Service doing to follow the directives of the President, the Attorney General, and the Secretary of the Interior concerning FOIA? How proactive are we being? How accessible and how available are our records and minutes and budgets so people don’t even have to file FOIA requests? And when they do, how quickly are we responding, and how well are we cooperating?

Perhaps when the President’s memorandums and directives are followed, our national parks can become not only “America’s Best Idea”, but “America’s Best Run Idea.”