Open Letter on Open Government

Dear U.S. Sen. John Cornyn:

You and I spoke once on a flight between D.C. and Dallas about a rare bipartisan issue — the importance of freedom of information in promoting government transparency and accountability. Your leadership on this topic has been critical to ensuring citizens know what their government is doing and can serve as a check on waste, fraud and abuse.

I write now because my work representing federal employees around the country has brought to my attention a threat by the U.S. Department of Homeland Security (DHS) to such efforts. As you know, many times it is federal employees who are in the best position to observe and report wrongdoing and inappropriate expenditures of our tax dollars. Last week I encountered two incidents involving employees of different DHS components in different parts of the country:

• An employee’s being given a written counseling for forwarding to a home email account a work email that addressed only routine administrative work and not any Privacy Act information about other staff, nor any classified or law enforcement matters. While a written counseling is not considered formal discipline, I have seen them used to justify a more serious penalty later and giving a failing performance appraisal.

• A supervisor’s inclusion of this warning in even the most routine emails:

WARNING: This document may contain information exempt from public release under the Freedom of Information Act (5 USC 552). This document is to be controlled, handled, transmitted, distributed and disposed of in accordance with Department of Homeland Security policy relating to FOR OFFICIAL USE ONLY (FOUO) information and is not to be released to the public or personnel who do not have a valid “need to know” without prior approval from the originating agency.

The President’s Nov. 4, 2010, Executive Order 13556 on “Controlled Unclassified Information” (CUI) was a valuable start toward standardizing practices for control of sensitive information while avoiding a level of safeguarding that stymies public scrutiny. But now, more than five years later, a look at these directives confirms that the effort is stalled. For example, the link for regulations on CUI is noted with “PLACEHOLDER,” as is the CUI “Marking Handbook.” Proposed rules were issued May 8, 2015 but have no effect until finally adopted.

As shown by the written employee counseling and FOUO signature block, agencies like Homeland Security allow managers to act based on impulse, not uniform policy. I must wonder if a federal employee who receives a sexually harassing email is prohibited from forwarding that email home so that she has a record of it. Similarly, if a DHS employee receives an email from a supervisor that describes plans to spend $10 million on a lavish conference in Las Vegas, is it misconduct for him to forward the message to a Washington Post reporter if his supervisor included a signature block designating the email as “For Official Use Only”?

Existing laws against whistleblower and EEO retaliation help little if potential whistleblowers do not report in the first place after hearing that a colleague has been disciplined for disclosing an email that covered something as routine as scheduling an administrative meeting.

I request you ask DHS Secretary Jeh Johnson whether he considers the matters I describe above to appropriately reflect DHS policy. Please also ask that the National Archives and White House identify the expected date for adoption of final CUI regulations. Your involvement in these matters can prevent your good work on FOIA issues from being subverted.

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