Executive secrecy expands with unprecedented new memo

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF), and welcome to The Classifieds. Read on to learn about the week’s top secrecy news.

Someone tell the DOJ executive privilege isn’t meant for private executives

The Justice Department just handed corporate lobbyists, campaign donors, and political cronies the government’s strongest secrecy protections. This dangerous move allows unelected private citizens to craft federal policy in the dark and keeps even more government records from the public.

In its latest secrecy grab, the DOJ’s Office of Legal Counsel issued an opinion to hide potentially massive swaths of communications by the president — and his top advisers — by extending presidential privilege to people outside government.

It’s not uncommon for presidents to assert executive privilege to keep records secret, and Donald Trump has invoked it to fight the release of Robert Mueller’s special counsel report, block investigators probing his mishandling of classified records, and withhold files related to the Jan. 6 attack.

But stretching the privilege to private citizens is unprecedented, and may have sweeping implications considering how often the Trump administration has relied on private citizens to shape government policy.

This memo is also the second attempt to degrade public access to presidential records under the Presidential Records Act.

In April, another OLC opinion declared the PRA unconstitutional, arguing that Trump no longer needs to abide by it. The most recent memo, stating that presidential communications privilege expands to, in effect, whoever Trump wants, creates a safety net for the Trump administration to hide records if the courts strikes down the DOJ’s PRA position. If the PRA’s constitutionality is upheld, the White House can simply say its records with outside advisers are covered by executive privilege and can’t be released.

This is yet another attempt to roll back post-Watergate reforms intended to force the Oval Office to be accountable, and is sure to be contested in court.

Archivist with no archival experience confirmed by Senate

The DOJ’s efforts to enable unprecedented White House secrecy are made far more dangerous if the archivist of the United States — who is statutorily charged with protecting and preserving public records — fails to challenge baseless secrecy claims. The question now is whether Bradford Wilson, whom the Senate recently confirmed in a bulk vote alongside 73 other nominees despite not having the qualifications to lead the National Archives, will simply rubber-stamp the administration’s records claims.

Secret Service releases privacy impact assessment of new surveillance system

The Secret Service, an agency under the Department of Homeland Security, has released a privacy impact assessment for a newly acquired surveillance platform, called Helix, that “aggregates surveillance video, facial recognition tech and license plate data,” FedScoop reported.

Publishing the assessment is notable in itself. While agencies are required to conduct and release PIAs when acquiring new technology that collects personally identifiable information, DHS has been negligent in releasing similar assessments for technology employed by its immigration agencies — calling into question whether they are conducting them at all.

How to fix FOIA: Insights from the experts

This week, I hosted a virtual panel featuring three transparency experts who recently wrapped up their terms on the federal Freedom of Information Act Advisory Committee:

• David Cuillier, director of the Brechner Freedom of Information Project (University of Florida)
• Margaret Kwoka, Frank R. Strong chair in law at Moritz College of Law (The Ohio State University)
• Ryan Mulvey, senior policy counsel at the Americans for Prosperity Foundation

If you want to hear their top recommendations for reforming FOIA and improving agency compliance, watch the full recording here.

Transparently yours,

Lauren Harper
Daniel Ellsberg Chair on Government Secrecy
Freedom of the Press Foundation