Senators Seek Smithsonian Transparency
Last week, Sen. Chuck Grassley (R-Iowa) and Sen. Arlen Specter (R-Pa.) submitted a bill that would bring the Smithsonian Institution under the Freedom of Information Act and Sunshine Act, a position the Institution has eluded for decades. Anyone who's followed the scandals over the past couple of years, starting with former Secretary Lawrence M. Small's excessive expenses and eventual ouster in March of last year, knows that transparency is crucial to win back public trust in the Institution and hopefully end the corruption and misuse of funds.
One can almost read the glee with which the Washington Post reports on this new development -- the paper has done a fantastic job exposing corruption inside the Institution, and is largely responsible for its recent cleansing, but not without significant leg-work. Post reporters struggled for a long time to acquire the financial documents that exposed the swath of executives who abused their positions, eventually being forced to acquire them through alternate sources.
The current disclosure responsibilities of the Institution as a quasi-public agency are still essentially that they'll hand over what they feel like handing over. Smithsonian reps say that even though not compelled to by law, their practices are good enough, insisting that they do their best to respond to every public inquiry. As the Post notes, however, if the Smithsonian declines to produce a document, there is no appeals process (as there is under FOIA). Even now the Institution claims that their recent overhaul includes self-driven transparency, but the bill co-sponsors respond that the new era must include some kind of formal check on the process.
Photo by JAGalicious
Two cases in the 1990s led to a U.S. Court of Appeals for the District of Columbia ruling that the Smithsonian did not fall under the auspices of FOIA. Cotton v. Heyman in 1992 and, more definitively, Dong v. Smithsonian Institution in 1997, established that the Smithsonian does not meet the "agency status" required to be included in FOIA, which specifically states it applies to "agencies in the executive branch." Congress later amended FOIA to include "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." Nevertheless, courts go on a case-by-case basis to determine if an organization falls under FOIA, and the Smithsonian has never been shown to have enough "independent authority," even though it is treated as an agency under some federal statutes with slightly different definitions, such as the Federal Tort Claims Act.
Ironically, it may only have seemed that the Smithsonian didn't have enough independent authority until its executives began giving themselves the authority to spend hundreds of thousands on personal expenses. At any rate, the previous court rulings state that the Smithsonian cannot be forced to follow the rules of FOIA until Congress specifically includes them in the Act. We applaud the Congressmen for going forward with the bill, and can only wonder what in the world took so long to do it.