Redacted VA Report

Posted by Jeff Pruitt - 3/20/08 @ 1:52 pm - Filed Under Featured, Local Politics, National Politics, Uncategorized

Sylvia Smith’s story in today’s JG indicates that the Bush administration is withholding information about a study that was done regarding our local VA hospital. The study was requested by Smith under the Freedom of Information Act but had significant portions redacted. This is completely unacceptable and yet standard practice for the Bush administration. Smith told me the administration is claiming this falls under the 5b exemption . I’ll attempt to explain (thanks to a FOIA presentation from the US Navy) this exemption below as well as explain why I doubt all the redacted portions apply:

Exemption 5b:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

One would obviously wonder how in the world a consultant’s report about a VA hospital would apply to that exemption. Well one of the thresholds that must be met is that the item would be something that is normally privileged in civil discovery. This includes:

  1. Deliberate process privilege
  2. Attorney work product privilege
  3. Attorney client privilege

Only the first, deliberate process, applies to this report but what exactly does that mean and what is the purpose of that privilege? The idea is protect and promote frank discussion between those involved in the decision making process and there are two parts to this that must be met in order to claim the privilege:

  1. Information is pre-decisional - work done before any final decision or policy is made.
  2. Information is deliberative - analysis or recommendation for the decision makers

Now if liberally interpreted (and the Bush administration certainly does that) this privilege can rightfully be extended to parts of the VA report in question. However, the privilege does not extend to facts, and that’s my biggest problem with the redacted study - check out this passage from Sylvia Smith’s article:

The report also blacked out the end of the consultant’s observation that the Fort Wayne hospital is “approximately 60 years old and while its critical utilities and technical infrastructure are in better condition than its age might suggest, a site visit revealed” followed by six lines that were inked out.

The unredacted part of this paragraph probably could have been redacted since the comment “better condition than its age might suggest” is analysis and not a statement of fact. However the redacted portion after the line “a site visit revealed” should likely NOT be redacted as we can reasonably conclude that what follows this are statements of fact.

And therein lies the problem with the mass-redaction policy of the Bush administration - inconsistency. In general, information paid for by taxpayers should be readily available for the public to read. That’s not only good policy but good politics as well. Unfortunately, I doubt it surprises anyone that this administration would error on the side of secrecy…

Comments

6 Responses to “Redacted VA Report”

  1. Phil Marx on March 20th, 2008 2:23 pm

    Jeff,

    What do you expect from a guy who’s redacted the U.S. Constitution down to:

    WE THE PEOPLE OF THE UNITED STATES, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx do ordain and establish this Constitution for the United States of America.

    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

    ARTICLE II

    Section 1

    The xxxxx power shall be vested in A President of the United States of America.

    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

  2. Mike Sylvester on March 20th, 2008 6:38 pm

    You beat me to it; however, I feel you put somewhat of a wrong spin on this.

    President Bush has been terrible as far as public information goes. President Clinton was equally terrible on this issue. Our previous Mayor Graham Richard was terrible on this issue.

    To many politicians, elected officials, and government “types” are abusing their power.
    This study was paid for by the taxpayers and should be made available to the public.

    Many Democrats and many Republicans seem to hold the view that the public is not entitled to basic information and that needs to change.

    Mike Sylvester

  3. Jeff Pruitt on March 20th, 2008 8:51 pm

    That is not true. The Clinton administration was incredibly open and had a FOIA policy that erred on the side of openness and not exclusion. This is something they were repeatedly praised for.

    As an example, here’s a memo sent out by the Clinton administration:

    MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
    Subject: The Freedom of Information Act
    I am writing to call your attention to a subject that is of great importance to the American public and to all Federal departments and agencies — the administration of the Freedom of Information Act, as amended (the “Act”). The Act is a vital part of the participatory system of government. I am committed to enhancing its effectiveness in my Administration.
    For more than a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form of government. The statute was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process.

    The Freedom of Information Act, moreover, has been one of the primary means by which members of the public inform themselves about their government. As Vice President Gore made clear in the National Performance Review, the American people are the Federal Government’s customers. Federal departments and agencies should handle requests for information in a customer-friendly manner. The use of the Act by ordinary citizens is not complicated, nor should it be. The existence of unnecessary bureaucratic hurdles has no place in its implementation.

    I therefore call upon all Federal departments and agencies to renew their commitment to the Freedom of Information Act, to its underlying principles of government openness, and to its sound administration. This is an appropriate time for all agencies to take a fresh look at their administration of the Act, to reduce backlogs of Freedom of Information Act requests, and to conform agency practice to the new litigation guidance issued by the Attorney General, which is attached.

    Further, I remind agencies that our commitment to openness requires more than merely responding to requests from the public. Each agency has a responsibility to distribute information on its own initiative, and to enhance public access through the use of electronic information systems. Taking these steps will ensure compliance with both the letter and spirit of the Act.

    [signed]
    William J. Clinton

    Equating the FOIA access of the Bush administration to that of the Clinton administration is historically inaccurate. However I will agree that there are officials from both parties that have not and do not take open government seriously.

  4. Mike Sylvester on March 21st, 2008 6:30 am

    You may be able to argue that the Clinton Administration was better then the Bush Administration on these issues; however, writing one letter to your Deartment Heads does not change decades of practices and policies and you know that. Government needs to be more transparent.

    I remember many documents that the Clinton Administration would not release.

    Heck the Clintons are still hiding numerous records while Hillary is running for President! Who gave donations to their Library? Hillaries records as First Lady. The Clinton’s tax returns.

    Mike Sylvester

  5. Charlotte A. Weybright on March 22nd, 2008 12:15 pm

    The FOIA applies to governmental agencies not to private parties. From the FOIA website:

    “The Freedom of Information Act (FOIA), Title 5 of the United States Code, section 552, generally provides that any person has the right to request access to federal agency records or information. All agencies of the U.S. Government are required to disclose records upon receiving a written request, except those records that are protected from disclosure pursuant to nine exemptions and three exclusions.”

    The Code of Federal Regulations codifies the procedures and guidelines.

    Mixing the idea that the FOIA applies to private individuals, companies, or corporations is misleading.

    The real outrage in this mess is the fact that $530,000 was spent and the result is a report that is being hidden from the public. We have fought this for four years now, and we are still at square one.

    Even the FOIA can’t stop the government from using the exemptions and exclusions.

  6. Local Columnist Highlights Secrecy of Bush Administration | Fort Wayne Politics on March 23rd, 2008 10:25 am

    [...] Smith has a column in today’s JG that is a follow up to the story she wrote earlier in the week regarding the VA hospital report that was redacted by the Bush Administration. In this column she [...]

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