Opinion: A Workable "FOIA"






Opinion: A Workable "FOIA"
A potential solution to the Senate's FOIA logjam? An Inspector General

Written by McEntire




The idea of the limited release of classified information in Europeia has a long history, but for the sake of this article I will focus on the last several months, where the idea really heated up and gained some steam due to the advocacy of Senate Speaker Olde Delaware. During the previous Senate election, candidate OD proposed a Freedom of Information Act to allow for the release of classified information from the early Republic. Now-Senator Gem also expressed some support for a mechanism to release information, although noting that the idea needed a lot more discussion.

Relatedly, in January Ervald posted this Grand Hall thread detailing conversations he'd had with Astrellan to create some kind of "ombudsman" or "public advocate" who could conduct oversight investigations when charged with specific questions by the citizenry.

The conversations in the Senate have recently stalled, with the Speaker saying he would pause the Senate's efforts and "talk to the next President" about a potential solution. The state of conversations, and the valid concerns of the idea's detractors, led me to question, is there a workable mechanism to allow for comprehensive oversight investigations, transparency, and limited declassification of records?

What is a Freedom of Information Act (FOIA)?

First of all, we need to get some clarity in terms here. The irl Freedom of Information Act (FOIA) allows any citizen to request documents from the government and pay to receive all documents pertaining to whatever issues they requested. Government officials are responsible for furnishing all of their own records relating to whatever topic or specific terms over a specific period of time. There are many exceptions that administrators can use to except certain records from release - including classified materials, materials that are personal or political in nature, etc.

By contrast, if we are talking about a law that allows government officials, such as Senators, to request that certain documents be declassified, that would not be a FOIA, it would just be normal government disclosure. To be clear, Europeia has neither of these processes currently set up. There is no mechanism by which citizens can request records (classified or otherwise), nor is there a method by which government officials can request things to be declassified. We have made steps with very limited disclosures directly from the Europeian Intelligence Agency to a select Senate committee, a practice started during my Speakership.

The Problem with FOIA, and a Potential Solution

As many have noted, a question with creating any method of disclosure or declassification is... who does it? After all, it is a lot of work. Typically in real life, the task of sorting through records, determining what may meet certain exceptions for release, etc. would be handled by a FOIA officer. Putting all of that work of disclosure onto, for instance, the DEIA, seems entirely inoperable. That would be half of the DEIA's job at that point. I agree with this, and it's why I am not proposing a broad FOIA that would allow any citizen to request records.

However, does that mean that we should have no method of disclosure or declassification? I don't think so. And a possible answer may lie in a recurring position that keeps popping its head up: its current iteration being the Government Accountability Office. We have had this position created by multiple presidential administrations in one form or another, typically in charge of researching, collecting data, or answering specific inquiries. It's clear that there is some utility in it, but it's never quite worked.

If we combine the idea of a GAO-like government research function with the idea of declassification, we solve several problems with both of these ideas. First of all, neither government research nor "FOIA officer" on their own would have enough work to create a new government office. Nor would they be particularly interesting. But combined, it seems like a job that could be of interest to many Europeians and be of significant help to our region.

And that is where we get to my proposal: the Office of the Inspector General.

How an Inspector General Could Work

An Inspector General would be an independently-run accountability office whose express job is compiling comprehensive reports on specific inquiries regarding the government. A few important aspects to any workable Inspector General: (i) it must operate independently from the political branches of government, (ii) it must have a scope of work that is robust enough to maintain activity, but not so robust as to be overwhelming, and (iii) it must have access to (or at least the legal authority to demand access to) classified information and private subforums.

(i) Independent operation. In order to operate independently, it must have a scheme of appointment that does not make it dependent on changing political tides - perhaps being appointed through some confluence of the Executive and the Senate. The Inspector General could operate under the Executive, but independently like the EIA, which would make sense given that my proposal would continue to vest the power of declassification with the Executive. The IG could also have a longer term, much like the EIA does, so that it can complete longer-term projects. The appointment mechanism and term length are flexible in this proposal, but the point is that the office should not operate as a Ministry, but have more independence.

(ii) Scope of work. The scope of work must maintain the office itself without being overwhelming. So, a key component of my proposal would be that the IG answers specific inquiries. Who can lodge an inquiry? In my view, an inquiry should be launched either by an act of the Senate, by the President, or by petition of citizens similar to a referendum process. Inquiries would be limited to particular topics or incidents, specific government officials, time-bound, and contain specific search terms for which officials would be required to furnish records. For instance:
  • Let's say that a President has gotten a lot of flak on their work in citizen integration. They could petition the IG to launch an inquiry of the effectiveness of citizen integration and an analysis of different initiatives over the last X number of terms.
  • Or, let's say that the Senate has questions over how the Executive handled a specific incident regarding a citizen, they could ask "What were the circumstances surrounding the dismissal of Citizen XYZ during the previous term, and were proper legal protocols followed?"

The IG would then go to all government officials involved in whatever issue is being inquired and obtain all relevant records - including forum and Discord records. The government officials would be responsible for furnishing all records, including classified information, to the IG. They would additionally be responsible for lodging objections to the release of certain information, whether on the grounds that it should continue to be classified, or that it is of a personal or politically harmful nature. The IG would make determinations on these questions of what is cleared for release, and once all relevant records were assembled and objections were settled, the IG could start to write a report.

In my view, the Office of the IG would have deputies that would help with writing the report once all of the information was compiled. These deputies would only come into play once the information had already been cleared for public release. So any concern about the creeping broadening of declassification would be restricted to a single new official with access to classified information - a single official who is cleared both by the Senate and Executive for this express purpose. The deputies would help write the report, ensuring that the work of the office doesn't just fall on one person.

(iii) Universal access. The Inspector General must be given access to basically everything, so that they can sift through information and determine what meets the parameters of a specific inquiry. Alternatively, the officials themselves could be given the unilateral power to withhold records that they believe are not suitable for public release, but then we would need to pair it with robust whistleblower protections. For example, if an official withheld certain information, but then in the public report their deputy (or successor) noticed that relevant information was held back that did not meet valid objections, that individual should be protected to bring that information to the IG, who could then amend their report. Either of these schemes could work, either the IG given basically universal access, or individuals being responsible for their own disclosures, but subject to whistleblower protections.

An Archivist, Public Accountability Officer, Unbiased Critic Rolled into One

But the beauty of this proposal is that it's broader than simply someone dealing with classified information. This isn't a "gotcha" for the DEIA, or a backdoor to declassification. It's actually an office that has broad application. When Europeian citizens have a question that they deserve the real answers to, the IG could sort it out. When the Executive has a difficult problem that they're getting undue blame for, the IG could help provide deeply researched solutions. And with each inquiry or report, we build a stronger archive of Europeian history.

One important question when creating a new government office is, is it something someone would actually want to do? This is, after all, a game, and if a role isn't fun or interesting, it's unlikely to be filled. In my view, an Inspector General could operate more like a Senate clerk, with a longer time horizon and a specific charge to present just the facts. I can imagine many members of Europeia who would fill this archivist-type role well, and in fact this role would be akin to projects that the Europeian Research Institute has pursued, and also similar to the current GAO. We have precedent for this type of role, and I think that the public could benefit from getting the full story behind certain policy dilemmas or incidents.

Of course, we wouldn't want government officials having to watch every single word they said or hiding certain conversations away, so there would have to be a level of protection from disclosure for conversations that could be damaging. But if those protections are strong enough I think that this idea has real merit.

As the Senate resumes its discussions, I hope it will broaden the conversation beyond pro- or anti-FOIA to recognize that what's most important is that we establish some disclosure mechanism. And if we can pair this disclosure mechanism with strengthening our long-bemoaned government oversight, we create a policy win-win situation and a pioneering new form of accountability. Progress on transparency has been long and slow, but the regional discussion has evolved to the point where we are ready for more. And the creation of the Office of the Inspector General is a conversation worth having.

 
Very interesting article! Thank you for contributing to the EBC :)

What are your thoughts on the history of more formal / institutionalized oversight in Europeian history? Historically it seems like Europeians don't enjoy this gameplay loop, as evidenced by the relative failure of the Senate oversight reforms over the years. We have struck a "balance" now, but is this a sustainable one?

How does the history of Senate oversight inform your thoughts about the prospective of a FOIA office?

Part of me thinks that if this were to work it would work best coupled with reform to the AG office, w/ the reforms that @Darkslayer mentioned in the Kura/Dark presidential platform. Any thoughts on that?

I also think it would be very.. interesting! to compel individuals to hand over private conversations for the sake of oversight. Has that been done outside of a court? My Senate history is rusty.
 
What are your thoughts on the history of more formal / institutionalized oversight in Europeian history? Historically it seems like Europeians don't enjoy this gameplay loop, as evidenced by the relative failure of the Senate oversight reforms over the years. We have struck a "balance" now, but is this a sustainable one?
First, I would disagree that Europeians don't see the need for Senate oversight. It's true that we haven't had a robust system of Senate oversight in the past, but it continued to come up as an issue in election after election, showing that there is a demand for oversight in Europeia. We've just tended to do it in a very ad-hoc way, mostly through oversight threads that only come alive when there's an active issue. To the extent that there is a "balance," we've just learned to live without real Senate checks on the Executive.

Where this proposal differs is that it's not one-way, it's not just the Senate exerting power on the Executive. An Inspector General inquiry could be launched regarding any specific branch of government. Formalizing the process and giving it a broader purpose than "Senate checking the Executive" will normalize this type of investigation. It's really a very different type of oversight than we've conducted in the past, much more like the GAO or private media efforts (which have been successful!)
How does the history of Senate oversight inform your thoughts about the prospective of a FOIA office?
I'd point to the answer above, but also say that one of the big missteps with Senate oversight in the past is that it has been viewed as political. Removing the Inspector General's office from political considerations ensures that its analysis is seen as impartial. I think that's key. It wouldn't just be an office for witch hunts, and wouldn't focus primarily on scandals, but would be a broader body with research functions as well.
Part of me thinks that if this were to work it would work best coupled with reform to the AG office, w/ the reforms that @Darkslayer mentioned in the Kura/Dark presidential platform. Any thoughts on that?
I think that the two reform efforts should stay separate. In Darkslayer's post, he noted that special prosecutors would be appointed where a suspected offence has occurred. The IG would not be a prosecutor, by any means. There could be some overlap between the IG and the AG, but I think that AG programs like legal training are completely out of place in the IG office. So I think that the two conversations are separate.
I also think it would be very.. interesting! to compel individuals to hand over private conversations for the sake of oversight. Has that been done outside of a court? My Senate history is rusty.
The Senate has never had the power to compel anything. Any disclosure of private conversations from the DEIA to the Senate would have been completely voluntary on the part of the DEIA. I see it as an open question whether or not private conversations would be included in the definition of "records" that would be subject to IG inquiries. The exact parameters of what would be open to these inquiries, and what boundaries would have to be placed on inquiry requests for them to be considered valid, would be for the Senate to decide as they hammer out the specifics of the law.
 
The conversations in the Senate have recently stalled, with the Speaker saying he would pause the Senate's efforts and "talk to the next President" about a potential solution. The state of conversations, and the valid concerns of the idea's detractors, led me to question, is there a workable mechanism to allow for comprehensive oversight investigations, transparency, and limited declassification of records?

Hey McEntire, great to see you and wow what a great write up.

So my desire to take the issue up with the next President really comes down to the discussion President CSP and I had over the bill, specifically if it passed in its then present form would he sign it. He stated he would not, we had a pretty good discussion which boiled down to the concern that declassifying the mountain of documents would be 'soul sucking'. There was also a valid concern over adding an additional office, for me it was an officer of the university and in your proposal it would be the OIG. The only thing the President and I agreed on was that adding the mechanism for declassification through the OIM was probably the best way forward.

Then there was PhDre's 'Ministry of Pod' episode on "Big Fat Booty". which came about after a limited release of old cabinet posts, so the President told me. I know in working on the FOIA the chief argument from many critics was that there was no need for an FOIA bill because the President can unilaterally just unclassify things. So I asked the President if he would be willing to declassify things from say 2007 for example once they were scrubbed of anything still being used, I was told flat out no.

Which is kinda confusing?

Obviously to me there is a middle ground here, we just need to find it.

Also, while I am not the Director of the EIA and I do not speak for him, I would never want to see or would if I were in his shoes, release any peer to peer conversations over any event. Those discussions could contain frank and identifying information of ongoing FA or EIA operations and while my goal is for a little more transparency it is not for causing issues for regional security. My desire is for cabinet discussions or briefings on events, but not the p2p conversations.

I am not sure adding a new office to the fray is the best way forward anymore, I think Ervald's idea of an ombudsman via the OIM might be the better way forward or a Regional Archivist so to speak, someone with EAAC clearance. Maybe handled or appointed like a mod or admin.

But anyway as for our illustrious candidates. I've worked with Gleg in the Senate and I know him to be fair, reasonable and easy to work with and I know Kura to be rational, reasonable and will work with me but will take convincing (which is a reasonable take imo). I look forward to working with whomever wins.
 
(iii) Universal access. The Inspector General must be given access to basically everything, so that they can sift through information and determine what meets the parameters of a specific inquiry. Alternatively, the officials themselves could be given the unilateral power to withhold records that they believe are not suitable for public release

Jeez, access to everything, what I would have done for that back in the day eh. The power could go to their head you know, you'd need someone extraordinarily trustworthy to hold this level of responsibility. In fact, I think I could do a good job of holding this Office. Whilst the responsibility would weigh on my shoulders heavily, the scars of old have thickened and healed over and would likely protect me from the burden. Obviously, I knew a thing or two about what is best for the public to know, and what isn't. "Keep them in the dark, like mushrooms" - is what I always used to say.

*Slides my "CV" under the table in a brown envelope

who does it? After all, it is a lot of work.
Oh, no, actually forget the above.
 
I am not sure adding a new office to the fray is the best way forward anymore, I think Ervald's idea of an ombudsman via the OIM might be the better way forward or a Regional Archivist so to speak, someone with EAAC clearance. Maybe handled or appointed like a mod or admin.
I don't agree with a non-government official taking up this kind of role. They wouldn't really have any authority.

(iii) Universal access. The Inspector General must be given access to basically everything, so that they can sift through information and determine what meets the parameters of a specific inquiry. Alternatively, the officials themselves could be given the unilateral power to withhold records that they believe are not suitable for public release

Jeez, access to everything, what I would have done for that back in the day eh. The power could go to their head you know, you'd need someone extraordinarily trustworthy to hold this level of responsibility. In fact, I think I could do a good job of holding this Office. Whilst the responsibility would weigh on my shoulders heavily, the scars of old have thickened and healed over and would likely protect me from the burden. Obviously, I knew a thing or two about what is best for the public to know, and what isn't. "Keep them in the dark, like mushrooms" - is what I always used to say.

*Slides my "CV" under the table in a brown envelope

who does it? After all, it is a lot of work.
Oh, no, actually forget the above.
I'm not sure the skew of this comment, but I understand that the idea of "universal access" is perhaps scary in terms of vesting an individual with so much power. That's why I've tried to formulate this idea as more a legal entitlement for the OIG to receive all responsive records (with a mechanism for gathering these records that isn't universal access in the post that you quoted, in fact). The fact is, as someone who hasn't been a high-level member of intelligence/foreign affairs or administration, I don't really know what access looks like at that level. That's why I leave some things in this proposal as broad principles, while giving some possible specifics.

I think that a process of getting something like a FOIA into a workable state would involve extensive consultation with the Executive. Of course, the ultimate decider would be the Senate, we are a region of laws after all, not just executive fiat. But, like any legislative proposal, this needs feedback from a wide variety of stakeholders.

someone with EAAC clearance
This can change term to term, or even during a term.
Imagine the drama of someone being FOIA director and then the President removes their EAAC acecss to shut down an investigation.
This is possible, because again, ultimate power over declassification would still be vested in the Executive. I'd hope that a proposal like this would create enough of a culture shift that things like this wouldn't happen, or at least could be brought to light (and presumably viewed poorly). But perhaps a hole in the proposal to be filled?
 
Then there was PhDre's 'Ministry of Pod' episode on "Big Fat Booty". which came about after a limited release of old cabinet posts, so the President told me. I know in working on the FOIA the chief argument from many critics was that there was no need for an FOIA bill because the President can unilaterally just unclassify things. So I asked the President if he would be willing to declassify things from say 2007 for example once they were scrubbed of anything still being used, I was told flat out no.

Which is kinda confusing?


Obviously to me there is a middle ground here, we just need to find it.

I actually don't find this particularly confusing.

The Ministry of Pod asked for a specific thread that we knew existed, regarding a region that all parties involved (CSP, HEM, myself) knew was completely defunct and that there could be no issues or controversy associated with its disclosure.

In other words, the scope was limited, the time needed to consider what to hold back was minimal, the decision was straightforward.

However it appears you asked the President to declassify an entire years worth of content, to scrub them of "anything still being used." This is a much broader request and requires much more time and effort ("scrubbed of anything still being used" across a full years worth of classified documents). So I don't find this particularly surpristing or confusing. It's a lot of work to ask for everything from a year and for all of it to be reviewed for any sensitive content.
 
(iii) Universal access. The Inspector General must be given access to basically everything, so that they can sift through information and determine what meets the parameters of a specific inquiry. Alternatively, the officials themselves could be given the unilateral power to withhold records that they believe are not suitable for public release

Jeez, access to everything, what I would have done for that back in the day eh. The power could go to their head you know, you'd need someone extraordinarily trustworthy to hold this level of responsibility. In fact, I think I could do a good job of holding this Office. Whilst the responsibility would weigh on my shoulders heavily, the scars of old have thickened and healed over and would likely protect me from the burden. Obviously, I knew a thing or two about what is best for the public to know, and what isn't. "Keep them in the dark, like mushrooms" - is what I always used to say.

*Slides my "CV" under the table in a brown envelope

who does it? After all, it is a lot of work.
Oh, no, actually forget the above.
NES doing his best impression of an NS issue answer :p

@McEntire under your suggested framework, would the President still have classification/declassification powers?
 
(iii) Universal access. The Inspector General must be given access to basically everything, so that they can sift through information and determine what meets the parameters of a specific inquiry. Alternatively, the officials themselves could be given the unilateral power to withhold records that they believe are not suitable for public release

Jeez, access to everything, what I would have done for that back in the day eh. The power could go to their head you know, you'd need someone extraordinarily trustworthy to hold this level of responsibility. In fact, I think I could do a good job of holding this Office. Whilst the responsibility would weigh on my shoulders heavily, the scars of old have thickened and healed over and would likely protect me from the burden. Obviously, I knew a thing or two about what is best for the public to know, and what isn't. "Keep them in the dark, like mushrooms" - is what I always used to say.

*Slides my "CV" under the table in a brown envelope

who does it? After all, it is a lot of work.
Oh, no, actually forget the above.
NES doing his best impression of an NS issue answer :p

@McEntire under your suggested framework, would the President still have classification/declassification powers?
Yes but classified information would still be subject to an OIG inquiry. So let's say that an inquiry was launched around the terms "Lethen," "scandal," and "miniature horse."

1. Any records responsive to those terms would have to be turned over to the IG, classified and unclassified.

2. The relevant government officials would then have the opportunity to raise objections to the inclusion of certain records in the report. The nitty-gritty of this is in determining what will be considered valid objections, but if we're following real-life as a guide, then certainly anything that compromises current intelligence sources/methods, anything that could cause irreparable harm to the reputation or career of a member, etc.

3. Then, once the objections were sorted out, the OIG would write the report and be free to include any of those records that they found pertinent. That could include information that was previously classified, but was cleared for release.

So yes, the President retains classification power, but would be legally compelled to provide a justification for withholding certain records. And again, most OIG inquiries would not even deal with sensitive regional security/FA information. The office is really supposed to serve a broader accountability purpose, but I think it's a good way to get some aspects of a FOIA-type law while dealing with valid concerns around the idea.
 
My biggest concern with this and with FOIA is simply the amount of work required to sort through records. I have no idea how reliably the search function on our forum works, but even the "advanced search" is rather limited in capability. However, this seems to be the most reasonable solution I've seen so far.
 
My biggest concern with this and with FOIA is simply the amount of work required to sort through records. I have no idea how reliably the search function on our forum works, but even the "advanced search" is rather limited in capability. However, this seems to be the most reasonable solution I've seen so far.
The search function has flaws. Searching for something with 3 characters or fewer in the words yields nothing. It will totally ignore "commonly used words", which also defeats the purpose of a search. It's no google.
 
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