Bill Would End FOIA Shield for Smithsonian

St. Thomas countered by saying that a recent Government Accountability Office report on Smithsonian governance found that the institution's policy is consistent with FOIA.

But Melanie Sloan, director of Citizens for Responsibility and Ethics in Washington, said there is no appeal if the Smithsonian refuses a FOIA request; if the FOIA exemption were removed, disputes could be resolved in court. "The reason they want to keep the exemption is they want to hide problems from the public," Sloan said. "The Smithsonian isn't really interested in transparency."

Carl Malamud, who founded Media.org, which advocates for disclosure of public records, said his experience filing FOIAs concerning the institution shows the policy leaves "too much arbitrary discretion" to Smithsonian administrators. "Grassley's bill would clarify that the Smithsonian belongs to all of us," he said, "and is not some private institution which can do as it will."

Public Citizen President Joan Claybrook said Grassley's bill "is a terrific idea," and she supports inserting it into Leahy's FOIA legislation. "I don't think that there is any substantive opposition to it," she said. A coalition of news media organizations also expressed strong support for the legislation.

Smithsonian General Counsel John Huerta declined to comment on Grassley's proposal, but said in an interview in the spring that the Smithsonian recently revised its FOIA guidelines largely because of coverage by The Washington Post.

Huerta said when The Post sent a FOIA request on April 26, 2006, seeking all expense account reports and compensation records for then-Secretary Lawrence M. Small and the institution's top business executive, Huerta went to Small to retrieve the records under an old open-records policy, which would have required the documents to be released.

"Larry balked, and we couldn't proceed under those circumstances," Huerta said. Huerta said he took the issue to the Board of Regents, which, instead of granting the FOIA request, hired an accountant to review the records requested by The Post.

That audit, eventually obtained by The Post in early 2007, found that Small had $90,000 in unauthorized expenses, including chartered jet travel, a trip by his wife trip to Cambodia, hotel rooms, luxury car service, catered staff meals and expensive gifts. The regents subsequently ruled that those expenses, plus $2 million in housing and office expenses, were reasonable.

The fallout from those stories led to Small's resignation. A day after Small's resignation was announced, Huerta wrote then-Deputy Secretary Sheila Burke urging the release of most of the documents sought by The Post under its 2006 FOIA request.

"If the institution's FOIA response draws criticism, Congress could reconsider the Smithsonian's exemption from FOIA and related statutes," Huerta said at the time. "Any determination by Congress to cover the Smithsonian under these statutes would impact greatly the institution's culture and the way the Smithsonian does business."

In December 2007, the Smithsonian produced documents initially requested 18 months earlier, but, by that time, The Post had obtained many of them from other sources. A FOIA request to review transcripts of regents' meetings and other records has been pending for seven months.

Staff writer Derek Kravitz contributed to this report.