Broadcasting Board of Governors threatens employees with punishment for revealing non-public information
In a controversial move for a U.S. government international broadcasting agency, the Broadcasting Board of Governors (BBG) published a resolution threatening its employees with punishment and disciplinary measures for unauthorized disclosure of official non-public information. BBG manages the Voice of America (VOA) and other U.S. taxpayer-funded international broadcasters charged with providing news and information to foreign audiences. A large part of the BBG’s mission is to help combat censorship and other restrictions on media and freedom of expression in Iran, China, Russia and other countries.
Critics see the resolution as an attempt by some BBG members, but particularly the senior staff at the BBG’s International Broadcasting Bureau (IBB), to blame a number of recent blunders and setbacks on employees who leak embarrassing information to the media and members of Congress. In reality, bipartisan rebukes the BBG has received in Congress were in response to officially released information and strategic plans drawn up by BBG permanent executives. The Congress blocked their plans to end broadcasts to China, Tibet and other countries with restricted media.
The resolution is also believed to be aimed against BBG Governor Victor Ashe who has encouraged rank-and-file employees to voice their concerns and is highly critical of mismanagement at the agency. The senior staff may also want to prevent any further release of damaging information to Congress that could derail the proposed removal of restrictions of the Smith-Mundt Act on targeting Americans with BBG programs. It appears, however, that the BBG staff’s attempt to get Congress to remove these restrictions will likely end in yet another failure.
BBG Watch is posting a partial transcript of the discussion on the non-disclosure resolution at the BBG meeting, which was held last week at Radio Free Europe/Radio Liberty (RFE/RL) in Prague, Czech Republic. BBG Governor Victor Ashe was objecting to the wording of the resolution and later issued a statement explaining his reservations.
BBG PRESIDING ALTERNATIVE GOVERNOR DENNIS MULHAUPT: “Michael Lynton [BBG Interim Presiding Governor], are you on the phone?”
BBG INTERIM PRESIDING GOVERNOR MICHAEL LYNTON: “Yes, I am.”
BBG PRESIDING ALTERNATIVE GOVERNOR DENNIS MULHAUPT: “OK, fine. We’re going to move now into some business items. And the first business on this business items relates to a proposed protocol for the protection of confidential information.
By way of background, I would like to make, read the following statement:
At the request of several governors, I’d like to introduce a resolution to establish some ground rules and policy among the governors regarding disclosure of non-public and pre-decisional information. These ground rules are important to protect the integrity of the Board’s deliberative process. The Broadcasting Board of Governors operates under a number of important legal constraints that require the Board to establish a significant level of transparency and public access to Board proceedings, including the Government in the Sunshine Act and the Freedom of Information Act. The current Board has opened its proceedings in a far greater manner than any previous Board. We hold open meetings. The Agency’s FOIA, the Freedom of Information Act compliance has substantially improved over the last few years. More Board documents are posted on the BBG website for public review than at any time in the past.
To be clear, in establishing, or proposing to establish ground rules among members about the disclosure of non-public and pre-decisional information, no Governor intends to retreat to the position of public inaccessibility and to reverse the steps we have taken as a Board. In other words, we intend to be as open and transparent as law and prudent policy allow.
The fact is, however, that the Agency, the Board and each individual Governor have legitimate institutional interests toward Agency management, outside advisors and individual Governors to brief the Board and have the Board consider and discuss information without fear that information will be leaked without the Board’s knowledge or authorization. The need to protect the integrity of the deliberative process, in which the leadership of an Executive Branch agency engages in discharging constitutional and statutory duties, is well recognized in law and practice. The United States Supreme Court has recognized “the valid need for protection of communications between government officials and those who advise and assist them in the performance of their duties.” Further stated, “the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with the concern for appearances and for their own interest to the detriment of the decision making process. Further, in a separate opinion, the Supreme Court also recognized that the disclosing ” the communications and ingredients of the decision making process might inevitably injure the quality of agency decisions by inhibiting frank discussion of legal and policy matters.”
President Obama has directed all federal agencies, including the BBG, to increase transparency. But even the Administration’s Open Government Directive makes a provision for the protection of confidentiality. According to the Administration’s 2009 Open Government Directive, “nothing in this Directive should be construed to suggest that the presumption of openness precludes the legitimate protection of information whose release would threaten national security, invade personal privacy, breach confidentiality or damage other genuinely compelling interests.”
Recently, the Office of the Inspector General of the National Labor Relations Board found that the unauthorized disclosure of non-public information constitutes a violation of Federal ethics laws.
The ground rules that we are proposing that the Board should adopt are in a one page resolution which hs distributed to the Board. The resolution defines the deliberative information that should not be disclosed without the Board’s authorization. This simple policy by its terms will be interpreted in the manner consistent with the Board’s obligations under the Government in the Sunshine Act. The ground rules proposed in the resolution are based on best federal practices and experience of other agencies that are also subject to the Government in the Sunshine Act. With that I invite questions or comments on the proposed policy.”
BBG GOVERNOR VICTOR ASHE: “Isn’t the attorney who drafted it going to explain what’s in it? We’ve only had it for ten hours.”
BBG PRESIDING ALTERNATIVE GOVERNOR DENNIS MULHAUPT: “Do you have a question?”
BBG GOVERNOR VICTOR ASHE: “The question is would you explain what’s in it? I would think that the Board and you would want to know that. You can’t tell me what’s in it. You couldn’t tell me two hours ago.”
BBG PRESIDING ALTERNATIVE GOVERNOR DENNIS MULHAUPT: “Well, I’m comfortable with the policy as it’s written…”
BBG GOVERNOR VICTOR ASHE: “You’re comfortable with something you can’t explain, which is good. I admire your comfort level.”
BBG PRESIDING ALTERNATIVE GOVERNOR DENNIS MULHAUPT: “That’s fine.”
BBG’s deputy general counsel Paul Kollmer-Dorsey then read portions of the resolution, which was later posted on the BBG website:
￼￼￼￼￼POLICY REGARDING NON-DISCLOSURE OF DELIBERATIVE INFORMATION
For the purposes of this policy:
“The Board” refers to the Members of the Broadcasting Board of Governors.
“Deliberative information” means any non-public information, either tangible records or otherwise, exchanged between two or more Board members, or between Agency staff members and Board members. Deliberative information is information pertaining to (1) budgetary matters that are determined to be pre-decisional under Office of Management and Budget guidelines; (2) legislative proposals that are developed for the consideration of the Board, as determined by the Chair or Presiding Governor, subject to the Board’s further review; and (3) such other matters as the plenary Board may determine, based on the recommendation of the Governance Committee. Purely factual information that is otherwise publicly available or an individual Board member’s own opinion that does not reflect the Board’s deliberative processes is not deliberative information.
Each member of the Board has a duty to keep deliberative information privileged and confidential. More specifically, each member of the Board is obligated not to disclose:
1. The substance of deliberative information or the status of discussions about it;
2. Positions of other Board members regarding deliberative information or their individual comments about it;
3. Documents prepared to provide the Board with deliberative information or to memorialize any aspect of such deliberative information, or any subsection of documents that contain such deliberative information; or
4. The identity of Board members or staff members who provide deliberative information to and/or prepare deliberative information for the Board.
The obligation not to disclose deliberative information continues even after a final decision is publicly announced, and such information remains protected until authorized for release by the Board.
Deliberative information should only be released after consultation with the Agency’s Office of General Counsel regarding the implications of waiving the deliberative process privilege for release and upon an official Board resolution providing the authority to do so.
Disclosure of deliberative information is a serious matter and constitutes both mismanagement and misconduct. The unauthorized disclosure of official non-public information is prohibited by 5 CFR 2635.703, and employees engaging in the unauthorized disclosure of deliberative information may be subject to punishment or discipline.
This policy does not affect the Agency’s requirements to comply with the Government in the Sunshine Act and shall be implemented in a manner consistent with its provisions.
BBG GOVERNOR VICTOR ASHE: “Mr. Kollmer, just so I do understand. It’s very clear you’re saying that the whole Board would have to vote to in effect de-classify or open up documents. Is that correct?”
BBG DEPUTY GENERAL COUNSEL PAUL KOLLMER-DORSEY: “If it were deliberative information then the Board would have to lift the embargo.”
BBG GOVERNOR VICTOR ASHE: “So that’s to release it. My question is does the full Board, or a member of the Board, need to approve it being labeled deliberative or pre-decisional, to use your word, or is that something a staff member does and the Board has no role in determining what is pre-decisional? I don’t see it in here. You take care of the last part but you don’t seem to take care of the front end part”
BBG DEPUTY GENERAL COUNSEL PAUL KOLLMER-DORSEY: “Thanks, Governor Ashe. Actually, that’s the purpose of this memo. The purpose of this policy is to define the category of information which by its terms it becomes subject of this non-disclosure obligation. The Board is now making, if it adopts this policy, is making the decision that this category of information becomes protected. That’s what you’ll be doing if you vote for it.”
BBG GOVERNOR VICTOR ASHE: “At the risk of engaging in a running debate, and I’m not going to engage in a running debate; I’ll make a statement at the end. What you’re saying is a little bit like beauty. It’s in the eyes of the beholder. And your definition may be clear to you, it may not be clear to the person sitting next to you. People have major debate,s and that’s why you have lawsuits as to what is what.
I noticed, for example, that we have people going to the Hill, advocating for the CEO position and what it should contain. It’s labeled pre-decisional. But if a Governor goes, he’s in violation of confidential rule, or releases it. I don’t understand that.”
Governor Victor Ashe later released a statement in which he expressed his serious reservations about the new policy:
STATEMENT BY BROADCASTING BOARD OF GOVERNORS MEMBER, HONORABLE VICTOR H. ASHE
“I appreciate my colleagues on BBG making two significant revisions to the non disclosure protocol which was hastily drafted and ill conceived. It shows that they listened and thru the dialogue which occurred they saw shortcomings in the draft. However, many unanswered questions remain on the wisdom of this as well as its implementation.
Are Board members precluded from talking to members of Congress or their own attorneys about drafting of possible legislation? Will First Amendment rights for all be protected? What are the legal consequences should some Board member not follow this new protocol? How will the BBG determine who has violated the protocol? Will there be a hearing on this and will that be in public? Who will determine what evidence is presented and what is acceptable? These are some of the issues.
What bothers me most is that this protocol was conceived in secrecy so that few would know what was in the document until the BBG Meeting actually opened some 4500 miles from American soil in Prague, Czech Republic. It was not even listed on the first printed agenda sent out and posted on the BBG web site. I only received the actual agenda showing this 14 hours before the meeting. The actual proposal changed with each new e mail sent out. The governance committee was bypassed and never held a meeting on it. A meeting by the governance committee could have heard many of the concerns and allowed them to be corrected. A more thoughtful proposal could have been presented. That process never occurred while some Board members were excluded from the process all together. Deputy legal general counsel Paul Kollmer simply failed to answer several of my e-mails seeking clarification and information. He said later he never received them.
This issue will keep coming back to us for further clarification as to what is covered and not covered. Transparency took a beating. I have stated clearly to my colleagues that I will be guided by my conscience on this. Often this is compared to a private corporation but BBG is a public agency and should be honored to operate fully in the open. BBG should not make efforts to carve out areas of secrecy.”