Federal secrecy watchdog has yet to bite

The federal agency charged decades ago with policing excessive government secrecy has never taken a single action against a federal official.

Transparency advocates fear the Office of Special Counsel’s (OSC) inability to carry out a prosecution points to problems in the underlying law and represents a lost opportunity by Congress to hold federal officials accountable for cover-ups.

{mosads}“There is a risk that there is a lot of arbitrary and capricious withholding, and DOJ [the Department of Justice] is just not doing its job in making sure these individuals are held to account,” said Dan Epstein, executive director of the right-leaning Cause of Action.

“It appears that process isn’t happening, which provides incentives to employees to withhold documents.”

The Office of Special Counsel is normally tasked with protecting whistleblowers, fighting retaliation in federal offices and other issues.

By law, it is also supposed to investigate potential cases of “arbitrary and capricious withholding of information” under the Freedom of Information Act (FOIA) and determine whether action should be taken against the agency staffer responsible. Cases are supposed to be referred to the OSC by the Justice Department. 

But in the 37 years since the office has had that power, it has never once prosecuted a government official for improperly holding back information.

“OSC has not received a court referral or a notification from the Attorney General after a court made an arbitrary/capricious finding in a FOIA lawsuit,” agency spokesman Nick Schwellenbach said in an emailed statement to The Hill. “Thus, we have neither conducted an investigation pursuant to [the law] nor prosecuted anyone for arbitrary and capricious withholding.”

The OSC says that, before it can act, it needs a court’s determination that an agency official wrongfully withheld documents, which would then be passed along by the Justice Department. But the law is mixed on the matter, at times appearing to give citizens the ability to pass along suspicions of agency wrongdoing, which has made the precise process somewhat murky.

“[T]he legislative history and the specific provision in FOIA make the full scope of our jurisdiction unclear,” Schwellenbach said.

“As a matter of general policy, OSC defers to the court process.”

The high hurdle of the “arbitrary and capricious” standard makes it difficult for a court to send a case to the OSC, which some see as a problem in the underlying law.

“Even if OSC abashedly changes course on this now, the fact remains that [the law’s] arbitrary and capricious standard is not as accessible to FOIA requesters as many might prefer,” said Daniel J. Metcalfe, the founding director of the Justice Department’s Office of Information and Privacy, which is responsible for FOIA matters.

“In recent years, there has been so much highly questionable agency handling of FOIA requests that having a vital sanctions provision has become increasingly important,” added Metcalfe, who now teaches secrecy law at American University Washington College of Law, referring to desired safeguards against the illegal redactions.

Even if the OSC did chase down leads from the public, it’s unclear whether they would get any.

“Nothing would probably stop us from opening an investigation if we just received it directly from an individual,” OSC Deputy Special Counsel Adam Miles told Texas’s Longview News-Journal last year.

“But we don’t receive those, because I don’t think individuals know they can do that.”

With just about 120 full-time employees, the OSC is also one of the smallest agencies in the government and has to fight for every dollar it gets. There has been a small uptick in OSC funding over the years, but it pales in comparison to the increase in its caseload over the same period.

“Ideally, in principle they would fulfill every aspect of their mission, but until the funding is there, I just don’t see it happening,” said David Pardo, a lawyer who represents whistleblowers and used to run Merit Systems Protection Board Watch.

In at least one example provided to The Hill, the OSC declined to investigate a FOIA matter because a court had not referred it, citing budget reasons and fears of duplicating work.

For former watchdogs involved with government documents, though, having a shoestring budget might not be enough of an excuse.

“Although I’m sympathetic to budgetary concerns, that [defense] is highly questionable to say the least,” Metcalfe said, adding that removing individuals from the complaint process degrades the backstop given to requesters.

“I dare say that the committees on the Hill that have oversight for FOIA administration ought to be concerned about that,” he added.

Lawmakers in Congress are currently debating updates to FOIA, which would mandate a “presumption of openness” and limit the government’s use of some exceptions under the law.

But the effort would likely do nothing to address the lack of focus against internal agency officials who hold information back.

“This has been a provision that just hasn’t gotten a lot of attention from anybody over the years,” said Anne Weismann, the chief counsel at Citizens for Responsibility and Ethics in Washington.