Let the Sunshine In(Without Charging $209,990)

March 20, 2008
Category: Uncategorized

*See Update at the end of this article.

Supreme Court Justice Louis Brandeis once remarked that “sunlight is the best disinfectant.” As the storm clouds cleared from Hurricanes Katrina and Rita, that sunlight illuminated many aspects of the failed federal government response to the storms and levee breaks.

  • A Freedom of Information Act request by CBS News uncovered the Federal Emergency Management Agency’s prior knowledge of toxic levels of formaldehyde in trailers provided to nearly 150,000 hurricane-affected families.
  • An earlier FOIA request revealed how the Bush Administration turned away nearly a billion dollars of international assistance.
  • Thousands of e-mails illustrating the federal bureaucracy’s incompetence in the days following the catastrophe came to light only after journalists engaged FOIA’s requirements.

But such FOIA requests are met far too infrequently. Flawed decision-making is too often shrouded by an apparent philosophy that “what the public doesn’t know can’t hurt us.”
On October 5, 2005, Pulitzer prize-winning journalist Mark Schleifstein of the New Orleans Times-Picayune filed a FOIA request with FEMA regarding its disaster response operations and planning. After a year of no response, the agency contacted him to ask if he was still interested. He replied with an emphatic “YES.” 

Another year went by. Then, like a character in a monster movie asking “is it gone yet?” FEMA asked again whether the paper was still interested, and again it still was. That was in January. It is now late March, and FEMA has yet to act.
Mark is not alone in facing these delays. FEMA and the Department of Housing and Urban Development were due to give Congress a Disaster Housing Plan last July. Now they’ve promised April. The Army Corps of Engineers was to deliver a Category 5 hurricane protection plan in December. An interim document arrived this month, still without specific guidance on how the Corps intends to protect the coastal communities of Louisiana. The list of statutorily mandated reports either delayed or not delivered at all goes on and on.
In another journalism example, the Baton Rouge Advocate reported this week that it had filed a FOIA request in 2006 seeking documentation on FEMA’s contracting procedures and the decisions behind deploying travel trailers across the Gulf Coast. FEMA says they will release the information — for a fee. The going price for the truth is apparently $209,990, principally to defray copying costs. The agency said the documents are not available electronically and that the only hard copies are stored in its New Orleans field office. Meanwhile, on its Website, FEMA itself advises that, “If you plan ahead and copy what you have onto compact disks, you can be secure in knowing that they will not be lost in the future.”
As we mark national “Sunshine Week,” I am proud to report that Congress is making headway in attempts to assure greater government openness and transparency. 

On New Year’s Eve, the President signed into law the OPEN Government Act of 2007, which I co-sponsored with Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. The bill restores meaningful deadlines for agencies to respond to FOIA requests, and among other key reforms, sets up hot lines and an ombudsman’s office to aid requesters.

In addition, we are working to pass legislation to shield journalists from undue prosecution for protecting whistle-blowers, and I have introduced a bill to ensure that local officials determine media credentialing in a disaster — not Washington bureaucrats.
Open government is a tenet of our democracy, and accountability is never more important than in times of crisis. Only by shining the light of public scrutiny on the government’s mistakes can we take steps to prevent them from repeating.
Today, after its hefty price tag was exposed on the Advocate’s front page, FEMA now appears to have opened the door a crack to cooperation. Let’s hope it swings wide — for the Advocate, for Mark Schleifstein and for others in pursuit of the truth. The catastrophic hurricanes and levee failures of 2005 left a lot of unanswered questions and lessons yet to be learned as we prepare for future disasters. These lessons are far too important to leave in the shadows.

Update, March 21:

CBS News was not the only news organization following the formaldehyde story. MSNBC reported the chemical’s unhealthy effect on Gulf Coast families living in FEMA trailers in July 2006, and the issue had been covered in local media as well.

This column highlights CBS News’ use of the FOIA process in May 2007 to uncover internal documents in which FEMA warned its own employees of the formaldehyde hazards prior to any public acknowledgment.

My gratitude goes to both news organizations and to all journalists who remain focused on holding FEMA, HUD and other agencies accountable for their response to this and future disasters.