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Bill Would End FOIA Shield for Smithsonian
Sen. Grassley Says Goal Is Greater Openness

By James V. Grimaldi and Jacqueline Trescott
Washington Post Staff Writers
Saturday, July 19, 2008

A longtime critic of the Smithsonian Institution introduced legislation in the U.S. Senate this week that would wipe out the national museum complex's exemption from the Freedom of Information Act and the Sunshine Act.

The legislation, co-sponsored by Sen. Charles E. Grassley (R-Iowa), ranking member of the Finance Committee, and Sen. Arlen Specter (Pa.), the top Republican on the Judiciary Committee, would require the Smithsonian to hold meetings in public and make records available to the public upon request.

The Smithsonian, created by Congress as a federal trust, was exempted from FOIA in two rulings in the mid-1990s. The U.S. Court of Appeals for the District of Columbia Circuit decided FOIA would apply to the Smithsonian only if Congress changed the law to say so explicitly.

Grassley said the legislation marks a major test for the Smithsonian's pledge of transparency and the newly installed secretary, G. Wayne Clough, former president of Georgia Tech. A spokeswoman declined to say what Clough thinks of the proposal.

"He comes at a critical juncture," Grassley said in a Senate floor speech. "Will the Smithsonian recover from a series of scandals and regain its sterling reputation? Or will it backslide into bad old habits that could lead to more scandals?"

Grassley noted that the 18 museums and nine research facilities receive 70 percent of their funding from congressional appropriations. "One of the best tools Congress can give him is a clear, definitive statement . . . that the Smithsonian's business is the people's business."

The Smithsonian's attorneys have opposed applying FOIA to the institution. Spokeswoman Linda St. Thomas said, "The Smithsonian's governance reforms have resulted in greater transparency and accountability, and our FOIA policy is consistent with the approach taken by organizations that report to Congress such as the Library of Congress."

Roger W. Sant, chairman of the Smithsonian Board of Regents, said in an e-mailed statement yesterday that the Smithsonian would continue working with Congress on issues of openness, and noted, "We are confident that the Smithsonian has gone well beyond just FOIA in increasing transparency."

Senate staff members said Smithsonian officials quickly moved behind the scenes to oppose an attempt by Grassley to attach the legislation as an amendment to another bill sponsored by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.). That bill would require Congress to make clear when it is adding exemptions to FOIA.

Grassley's bill put Leahy into a particularly difficult position because he is also on the Board of Regents, which oversees the institution, and some of those members are known to oppose applying FOIA to the Smithsonian.

Leahy spokesman David Carle said the senator has worked to change the culture of secrecy at the Smithsonian. "He took the lead in arranging for groups representing the FOIA community to get a high-level meeting with Smithsonian officials in recent months to find common ground on policy improvements," Carle said. "He's had his own run-ins with the culture."

Patrice McDermott, a public-records advocate who is the director of OpentheGovernment.org, has participated in those talks. She said Leahy has worked hard to make the Smithsonian more transparent but called the Smithsonian's FOIA policy "a mess" that contains many more exemptions than the federal law. "They want the public to think they are acting in accord with FOIA, but they are not," McDermott said.

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.

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