A Texas congressman who is a climate change denier wants internal records from NOAA because he doesn't like a study holding that global warming continues unabated. Liberals and the scientific community are appalled. But when a liberal ox is gored by a government agency, you can bet the tables will quickly turn. The lesson is that there should be no secrecy in government even for internal deliberations on projects that are billed to the taxpayer.

Oh, The Secrets We Keep!

government-cloak-of-secrecy-open-governmentBy James A. Kidney

              While media focus was on Donald Trump and terrorism, there was little notice of a new report by the Department of Agriculture, citing new studies from the Center for Disease Control and the National Institutes of Health, affirming that there is no scientific evidence to support claims that genetically modified produce and meats cause any harm.  To the contrary, the report said, genetic modification will produce great benefits to health and increase substantially the food supply, leading to lower prices.  “A real win-win,” the report concluded.

The reaction from organizations and members of Congress opposing genetically modified organisms (“GMOs”) was immediate.  The Institute for Responsible Technology stated that the research “had to have been bought and paid for by Big Agra.”  The Non-GMO Project demanded an inquiry into the Agriculture report and the sources it relied upon.  Four liberal Democratic senators demanded that the Senate Agriculture Committee issue subpoenas for all information related to the reports and studies.  “We want to see everything,” said Debbie Stabenow, D-Mich., ranking member of the Committee.

OOOPS.  Fooled ya.

There is no such report from the Department of Agriculture.  But is there any doubt that had one been issued, the reaction from those opposed to GMOs would be as described above?  Instead, we have a leading troglodyte of the Republican Party seeking evidence to contest a study issued by the National Oceanic and Atmospheric Administration (NOAA) disputing claims published elsewhere that the rate of global warning has slowed in the last few years. Rep. Lamar Smith, a Texas Republican who is chairman of the House Committee on Science, Space and Technology and a climate science denier, launched the investigation and issued a subpoena for basically “everything” related to the NOAA study.

NOAA, every science organization you can name and the editorial page of The New York Times lambasted Smith for seeking emails and other records of scientists and bureaucrats paid by the taxpayer to ascertain whether the NOAA report was biased in favor of climate change advocacy.

As The Times editorial summarized the dispute:

Certainly, as the chairman of a congressional committee, Mr. Smith is entitled to all of the data behind the study so he can fulfill his oversight role in determining, as he put it in one letter to the agency, “the quality of the analysis and decision-making.”

At the same time, as NOAA noted, the confidentiality of communications between scientists is “essential to frank discourse.” For that reason, the agency rejected his demand.

As the American Meteorological Society pointed out in a letter to Mr. Smith, “implicitly questioning the integrity of the researchers conducting those studies can be viewed as a form of intimidation that could deter scientists from freely carrying out research on important national challenges.”

Eight leading scientific organizations echoed that concern late last month. Since then, Mr. Smith has agreed to prioritize his demands, seeking first to obtain communications from all of NOAA’s “political, policy and nonscientific staff.” But he added, ominously, that “this prioritization does not alleviate NOAA’s obligation to respond fully to the Committee’s subpoena.”

This page has little sympathy for climate change deniers such as Congressman Smith or his cause.  It is likely that he is playing to his crowd – the Republican Party, nearly all of whom in Congress and on the presidential trail deny, in whole or in part, the indisputable science of climate change.

But it is his right to do.  And while his cause may not be just to liberals, his battle with NOAA to pierce the veil of secrecy in an agency of the federal government is a sound one.

The subpoena to NOAA and the reaction to it from scientists and the left is a good example of how principle does not take one nearly as far in understanding Washington as in knowing whose ox is being gored – and who is doing the goring.

As The Times grudgingly recognized, then ran away from, Rep. Smith is well within his powers as the head of a powerful committee of the Senate to demand that executive agencies and their staffs, all of them funded by taxpayers, produce whatever records the committee wants that were received, prepared, written, disseminated or whatever on the government’s nickel.  In fact, you should not have to be a congressman to get this material.  It should be available to anyone under the Freedom of Information Act.

The counter arguments, that secrecy of communications among scientists and bureaucrats is “essential to frank discourse” or that disclosure “can be viewed as a form of intimidation that could deter scientists from freely carrying out research on important national challenges” are not only based on an extraordinarily cynical notion of the effects of  “sunshine” on teamwork, but are contrary to the basic rule of science that disclosure of processes is critical for them to be tested and examined by others.  Add to that, we are talking about government employees or contractors here.  This is not an attempt to invade the province of private corporate workers or even the personal files of individuals.

Ironically, far more personal information is disclosed daily by most Americans, either to the government or to giant corporations.  We let Apple, Facebook, Twitter and mobile phone apps of all kinds track our movements, our tastes, our purchases and our love life. Until recently, information about all of our telephone calls was in a huge storage facility at the National Security Administration in Maryland.  Even now, a subpoena secretly applied for can obtain your personal data wherever it exists, including in your home.

But ask some government employees for their government emails in which they discuss preparation of a publicly produced and paid for study of climate change.  EEEEK!  Scientists get the vapors and faint.

The reasoning behind nearly all claims of legal privilege, which is what NOAA is claiming for its personnel, is faulty.  This is especially so when it comes to matters related to public policy and even in legal matters after the subject legal proceeding is concluded.  Scientists are in the weakest position of all when asserting a “privilege” because science studies have a long history of bias, usually based on who is paying for the study.  Especially once a matter is completed – a report published, a lawsuit resolved – the reasons for confidentiality are substantially diminished.

The law is very cautious about establishing new legal privileges permitting parties to keep their communications private even if subpoenaed.  For good reason.  Society runs on information.  Keeping it secret comes at a high cost and can cover much mendacity.  There are really only three I can think of that are close to an absolute privilege.  They are for attorney-client, doctor-patient and priest-penitent communications, whether oral or in writing.  Even in these cases, exceptions are allowed.  In each of these instances, full and honest disclosure is critical to the integrity of obtaining legal counsel, medical care and forgiveness of sin.  Doubt or controversy among scientists studying climate change is hardly in the same highly personal category.  In fact, doubt and controversy are the DNA of science.

Different people and industries have tried to create new privileges, always citing as a reason the supposedly critical need for honest communications based on the confidence the communications cannot be required to be disclosed.  About 30 years ago, for example, certified public accountants argued that communications with clients in the course of an audit of public company accounts should be privileged to “encourage honest communication of important financial issues.”  The assumption seems to have been that a crooked public company cooking its books would disclose to its auditors it was doing so – but only if the conversation were privileged.

Courts rejected the supposed “client-accountant privilege” easily.  Doing so did not seem to damage the auditing profession or lead to more or fewer cooked books.

The refusal by NOAA to produce the climate change records raises a far more important issue of secrecy in our government:  The importance of internal records of government in ascertaining how our government actually works.

In my 27 years with the Securities and Exchange Commission Division of Enforcement, I know that there are many questionable judgments made every day in deciding who to sue civilly for violations of the securities laws.  The decision-making about who to sue for unlawful actions leading to the 2008 financial crash would be eye-opening for those interested in the subject, including historians.  No major figures were sued who worked at big Wall Street Banks, though the banks themselves were sued and, one or two times, so were small fry individuals.  The reasoning behind these decisions is hidden in “privileged” files that may not even be subject to a FOIA request years after the legal matter is closed and the statute of limitations has run.

The secret files at government and military agencies rarely would disclose that these agencies have done something illegal.  Rather, they would disclose the biases of decision-makers, the compromises of policy or practice they felt were necessary, the gravity with which a matter was considered, and other subjective factors going into government decision-making.  This is, in effect, what Rep. Smith is asking for.  He undoubtedly will not himself be an unbiased reviewer.  He has an axe to grind.  But really, isn’t that the case with anyone taking the time to file a FOIA request?  Isn’t the purpose usually to determine if what seems the case on the public record is really only a narrow distillation, favorably described, of something else closer to the truth?  Claiming an “exception” for little more than the vague claim of being “chilled” by honest disclosure would pretty much swallow any rule requiring disclosure.

As a practical matter, setting aside hysteric rhetoric of the scientific community, fully responding to Smith’s subpoena would, at worst, show that the study was in fact biased, in which case the public has a right to know.  Or the documents would show that scientists engaged in reasonable debate and came up with a reasoned result.  The public has a right to know that, too.

There is a chance that all branches of the federal government, along with, as is the case now, a majority of state governments, will be run by Republican conservatives.  In that case, it will be liberals who are demanding to know the true motives and thought processes behind public policies and accompanying studies that, for example, debunk climate change, find that assault rifles cause no harm, or that GMOs are good for you.

Whose oxen will you want to gore then?  Oh, and for The New York Times:  If you suspected skullduggery at NOAA or any other agency, how much respect would you have for disclosing internal documents?  The truth is not just the province of journalists.

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