by Chris Horner, Senior Legal Fellow
Another day, another federal agency whose bureaucrats, working on the taxpayer’s time and dime, using taxpayer computers and other resources, claim that certain of their work must be kept secret from the public because they’re really working for an international body (also funded by US taxpayers).
This time, it is the National Toxicology Program (NTP), an agency of the Department of Health and Human Services, making that plea to keep the records of one of its career employees — part of whose job is to collaborate with US-taxpayer funded bodies — secret, even though they are on the HHS computer system, relating to her work.
Why, imagine a Secretary of State’s aides claiming they were really working for a private foundation when engaged in certain workday activities. Ok, right, somebody actually is making that claim. Which we know, because those emails were turned over. But not this time, not HHS when it comes to its own environmental bureaucracy (this particular FOIA request, by the Free Market Environmental Law Clinic, amid evidence of government participation in yet another ideological push against abundance and all that makes it possible).
This should sound familiar, particularly to observers of the federal environmental bureaucracy. I dedicated the better part of a chapter in my book, “The Liberal War on Transparency,” to a high-profile example of this behavior, one which prompted congressional oversight and was ultimately smacked down by an Inspector General.
At that time, Susan Solomon, a climate activist working at the National Oceanic and Atmospheric Administration (NOAA), declined to produce her emails for possible release under several FOIA requests, having rationalized that she was really working for the UN’s Intergovernmental Panel on Climate Change (IPCC). So, NOAA repeatedly claimed ‘no records’, until one day after informing me on the phone that a delay in responding to my request was due to deliberating over what were agency records and what were IPCC records. Wait, what?
In short, we see on occasion how taxpayer-funded activists simply pretend that, when they were busy on taxpayer time in taxpayer-funded offices on taxpayer-funded computers, doing a job related to, and sometimes even specifically tasked to them as part of their taxpayer-funded position, why they really weren’t working for the U.S. taxpayer at all. No, they were really working for the United Nations, World Health Organization, you name it. Show me the pay stub.
It was precisely that issue that put a halt to NOAA’s game. In the end, NOAA dropped its ruse, eventually searching Dr. Solomon’s home computer and non-official accounts to comply with the public records law. Still, that didn’t end the affair: the Department of Commerce’s IG entered the picture. The investigators’ summary of their findings is too exhaustive to replicate here, though you can read for yourself (Department of Commerce Inspector General, “Examination of issues related to internet posting of emails from Climatic Research Unit,” alternately styled “Response to Sen. James Inhofe’s Request to OIG to Examine Issues Related to Internet Posting of Email Exchanges Taken from the Climatic Research Unit of the University of East Anglia, UK,” February 18, 2011, PDF p. 18, doc page numbers 13-16).
But, so the routine goes, usually, until we sue to overturn the claim that these documents aren’t government records, but UN et al. records free from FOIA. That is just wishful make-believe to avoid producing documentation of how public positions and resources are being used, that they’d rather keep private from the people paying for those resources and positions.
Incidentally, this same move was tried by George Mason University — a move that was ultimately smacked down by the Virginia courts — regarding their faculty’s advocacy of using RICO laws against those who oppose their political agenda. In that case, I reminded the school of how this turned out when NOAA tried it, to no avail; so we sued, and won release of what are plainly public records.
NTP/HHS FOIA officers either haven’t learned history, or prefer the delay the consequences of it repeating itself.