Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
Nia Rodgers: Hey Aughie.
John Aughenbaugh: Good morning, Nia. How are you?
Nia Rodgers: I'm excellent. How are you?
John Aughenbaugh: I'm good. Because once again, we are back to a relatively arcane federal law.
Nia Rodgers: See you miss those because people have been interesting in the news and I'm sure there'll be more in the news that people will be interested about. We were always prepared for people to do something interesting in the news. But this is a nice reminder of why we started this because this is such a basic weird little act but it has so many wide-ranging effects that we could talk about it for 20 years and we still won't cover every cut.
John Aughenbaugh: Yeah, because we're doing one episode about one aspect of this law.
Nia Rodgers: We'll come back to it I feel certain with something else at some point.
John Aughenbaugh: The law is?
Nia Rodgers: The Freedom of Information Act, which is often shortened as FOIA as in not again yet but FOIA. It is 5 US Code subsection 552 1966.
John Aughenbaugh: Correct.
Nia Rodgers: Let me make sure that I know what FOIA is. FOIA is hey, government, tell me how this thing worked. Sure, here you go. I'll give you all the details on that. Except it doesn't really work that way, does it Aughie?
John Aughenbaugh: No. We're going to get to that. The Freedom of Information Act, FOIA, came about roughly three decades after the federal government expanded with the new deal. When we move into the late 1950s to early 1960s, you had a bunch of scholars, government officials, good government interest groups who were like, we have this large federal government and it collects a whole bunch of information and data, and it produces a whole bunch of paperwork, most of which is inaccessible to the American public, or for that matter, the so-called Fourth Estate, the Press.
Nia Rodgers: But it shouldn't be. Because there shouldn't be secrecy.
John Aughenbaugh: Yes. How can you judge how the government is doing?
Nia Rodgers: If they're like trust us, it's fine.
John Aughenbaugh: Yeah, if you don't know what the government is doing.
Nia Rodgers: Think about the government as your 12-year-old. If your 12-year-old said, do you trust me? I got this, you'd be like, I'm going to need more proof than that that you've got this. But those disclosure laws don't apply to everything though and I know that you're going to talk about that because it's not like the government is an open book, as we've mentioned in a previous episode where we were railing about the level of confidential because we were talking about it during the Presidential Records in the news bits where we were saying now that they label everything confidential and top secret, then it turns into this big drama. But the FOIA, it allows an individual to request disclosure of a document or a piece of information or whatever.
John Aughenbaugh: Minutes of a proceeding or meeting.
Nia Rodgers: Or the records of who came to the White House, the log of who came to the White House. That's a thing that's FOIAble. But if there's all these different things and how you put in a FOIA request is there's a form because there's a form for everything in the government. The government cannot function without a form. There's a form that you fill out and then it goes to the agency.
John Aughenbaugh: Usually, their press office and then the press office goes ahead and consults typically with the lawyers or the head of the agency, is it all right if I released this information? Now we get to where it's complicated.
Nia Rodgers: Right. Because it is my experience that their first answer is always no.
John Aughenbaugh: Yeah. Because again most people who work in the government are like, why do you want this document? Which by the way, you don't have to say why you want the information.
Nia Rodgers: Nor do you have to disclose whether you're a spy or a press person or a lawyer you're trying to sue, you don't have to tell any of that. You say, hey, I want this record and it's not up the government to decide whether your intent is.
John Aughenbaugh: Is good, nefarious.
Nia Rodgers: That's not up to the person to decide. What's up to them to decide is whether it's classified or non-classified.
John Aughenbaugh: Before we get to the various exceptions, if you will, we should note to the readers that we're talking about the Federal Freedom of Information Act. All 50 states also have versions of FOIA. At the time we are recording this, it was in the news this week that an individual requested text messages from one of the individuals who serves on the University of Virginia Board of Visitors and because of the state Freedom of Information Act, he was able to get 29 pages worth of transcripts between this particular member of the UVA board plus in conversation with two other members of the board.
Nia Rodgers: Well, and that was on his private phone, but he was doing board business.
John Aughenbaugh: That's right.
Nia Rodgers: I can't FOIA Aughie's private phone records because they are not owned by the federal government. Well, they probably are. They're probably in a database somewhere, but they are technically owned by his phone carrier and I would need to subpoena those through a legal action of some kind. That's the separation between that personal and the work things, which is why they always tell you not to use your work email or your work computer to do non-work stuff if you work for the state government or the federal government. Because anybody can ask for the records of what you were doing on your computer. It's an important thing to remember if you work for the state or the federal government, or you carry a phone for the state or the federal government, if you are a firefighter and you're assigned a phone from your local district, don't be making 1800 sex calls on that phone because those records are FOIAble.
John Aughenbaugh: Well, and also your comment right there Nia reminds me of something else that we used to be told all the time, which is technology is great but if you want to have a sensitive conversation with a co-worker, a boss, have it in person.
Nia Rodgers: Then follow up with a summary email as per our conversation.
John Aughenbaugh: You can keep out the show stuff or the non-work-related stuff that might be interjected into the conversation.
Nia Rodgers: Exactly. Also noted that a lot of news organizations use FOIA. They sue when they don't get FOIA. They'll make a FOIA request and then they get turned down and then they bring a suit because they say, why is it private? A lot of times at that point the government capitulates and gives it to them because it's not private. But I would imagine that most of it actually comes from what, lawyers and regular folk.
John Aughenbaugh: Yeah, because if you're going to go ahead and sue a federal agency for allegedly violating the civil rights of your client, you want to know what they discussed, what was the thought process behind what they did, because that does get to the intent of what a government agency might have done to your particular client.
Nia Rodgers: Listeners are not going to hear this for about a month after we record because of the way we're recording this Spring. But right now with the Ohio train mess that's going on, there will be FOIA requests for the government regulations of those. I can't remember something Southern.
John Aughenbaugh: Norfolk Southern.
Nia Rodgers: Of the rail line and whether they met standards and all that because there will be lawyers and there will be lawsuits because there's a giant black cloud over Ohio, which Ohio doesn't want that. But anyway, so, but there are exceptions to the FOIA, you can't just FOIA anything.
John Aughenbaugh: Yeah, so there are nine current exemptions to FOIA.
Nia Rodgers: I didn't realize they were that many.
John Aughenbaugh: There's nine. The first one relates to information that must be kept secret because of national security or foreign policy. That is to be determined by each president, and in fact, typically each presidents, one of their first executive orders is to identify what materials will be labeled classified and exempt from FOIA. Every president does this.
Nia Rodgers: Really? Okay, so that's just a regular presidential thing. Sir, I'm going to need you to sign this. Why? Because we don't want people getting secret information.
John Aughenbaugh: Now the next one is the one that I know you're really interested in, Nia. Matters related to internal personnel roles and practices of an agency?
Nia Rodgers: Yes, I am interested in that. We're going to come back to that because I have many questions about that.
John Aughenbaugh: The third one basically refers to specifically exempted from disclosure by law. When Congress passed the law, they went ahead and said there were certain matters that will not be released. Lot of that has to do with intelligence gathering and related matters, including their budgets.
Nia Rodgers: Really.
John Aughenbaugh: Which as we discussed.
Nia Rodgers: Right.
John Aughenbaugh: In Season 2, there or was it Season 2 or Season 1, one of our first seasons, there's an entire section of the federal government's budget that's known as Black, and in part, it's related to FOIA. Because if other countries knew how much money we were spending.
Nia Rodgers: If we had a line item; line item spying on Brazil, line item spying on Argentina, line item spying on Russia, they would be like, "Wait a minute." That makes sense.
John Aughenbaugh: Fourth one; trade secrets, commercial and financial information. This has a lot to do with government contracts. Let's say the Department of Defense has the authorization from Congress to go ahead and build a new.
Nia Rodgers: A new missile system.
John Aughenbaugh: Yes. The Department of Defense has the discretion to make any negotiation with a defense contractor, exempt from FOIA. Because in part, not only does the defense contractor not want that information released to foreign nations, or at least the Department of Defense doesn't, the contractor doesn't want that information released to competitor business contractors.
Nia Rodgers: Who could come up the next cycle and underbid them?
John Aughenbaugh: Yes.
Nia Rodgers: Does that include things like the actual specs for the missile system?
John Aughenbaugh: Yes.
Nia Rodgers: Okay.
John Aughenbaugh: Yeah.
Nia Rodgers: That falls under both, national defense and trade secret.
John Aughenbaugh: Yes. The next one is what got you really interested in FOIA. The next one is all personnel and medical files related to the personal privacy of executive branch employees. I skipped over one and I apologize. That's Number 6. Number 5 is memorandum and letters of understanding between agencies or within units of agencies. Let's say the FBI.
Nia Rodgers: We'll cover for you if you do this thing or probably not.
John Aughenbaugh: I'll give a less shall we say nefarious example.
Nia Rodgers: Good.
John Aughenbaugh: Let's say the FBI and the ATF, Alcohol, Tobacco, and Firearms, is running a joint sting operation. They're trying to negotiate who's going to be responsible for what elements of the operation. If that was disclosed in court by somebody who was charged with violating a federal law, then that perhaps could give other criminals engaged in that enterprise.
Nia Rodgers: Here's how we do it.
John Aughenbaugh: The knowledge of how the Feds actually target, for instance, gun runners or
Nia Rodgers: However, once you get to court.
John Aughenbaugh: Court.
Nia Rodgers: You as an individual, your lawyer does have the right to see certain.
John Aughenbaugh: Discovery in regards to how it relates to the prosecution of you.
Nia Rodgers: But not how it relates to the prosecution of people in general. I see.
John Aughenbaugh: Speaking of which now we're down to Number 7; records or information compiled for law enforcement purposes. Now, this one is where the FBI, ATF, the Drug Enforcement Agency, they all get into trouble because they basically smack FOIA exemptions on basically every piece of paperwork that comes into their office. Then federal judges get annoyed because defense attorneys say, judge, we need this record to figure out why the FBI targeted our client. The FBI says, but that is exempted by FOIA, and then a judge has to go ahead and say, "Okay, wait a minute here. Is this related to this particular crime and prosecution of this particular individual or is this general information about the FBI?" Because for instance, the FBI typically does not disclose when they are investigating somebody.
Nia Rodgers: They spring that on you usually and then they just show up at your door one day and say hello, we've been gathering this case on you and you're like, wait what?
John Aughenbaugh: Well, moreover, Congress has made it very clear to the FBI that you can't say publicly who you're investigating. Because if they're never charged with a crime.
Nia Rodgers: It destroys their reputation.
John Aughenbaugh: Destroys their reputation.
Nia Rodgers: Like the Atlanta bombing, there was a guy.
John Aughenbaugh: Richard Jewel, yes.
Nia Rodgers: Who was falsely made out to be the guy and it was not him, he didn't do it.
John Aughenbaugh: Yes.
Nia Rodgers: Then a judge has to make that, so that's usually federal judges are making that decision.
John Aughenbaugh: Yeah.
Nia Rodgers: That's a lot of discretion, they see a lot of stuff they probably.
John Aughenbaugh: Yes.
Nia Rodgers: They really have to keep private. Judges have to be very circumspect in that case.
John Aughenbaugh: What's that called in the law Nia is in camera review or examination, which means in the offices of the judge. It's not an open court.
Nia Rodgers: They say I'm going to chambers and live like this over.
John Aughenbaugh: Yes.
Nia Rodgers: They may know at that point they can also force a redacted version to be given.
John Aughenbaugh: Yes.
Nia Rodgers: Where they say, "Okay, if you take out this and this and this, this person can still use it for the purposes they need."
John Aughenbaugh: That's right.
Nia Rodgers: That's a much more involved.
John Aughenbaugh: Yes.
Nia Rodgers: Okay.
John Aughenbaugh: Number 8; any materials related to the examination, operating, or condition reports prepared by agencies responsible for the regulations or supervision of financial institutions.
Nia Rodgers: The SEC.
John Aughenbaugh: The SEC, the FDIC, the Federal
Nia Rodgers: Is that because if they say, "This is bank's shaky," it'll freak everybody out and that'll be the end of the economy as we know it.
John Aughenbaugh: There you go, and you're also talking about, in some cases, billions of dollars of transactions could be called into question. If, for instance, it was reported that for instance the SEC is looking at a whole bunch of investment banks in New York, or Charlotte, or Pittsburgh, which are the big three cities in the United States in regards to investment banking. If that gets out.
Nia Rodgers: Then people will go crazy.
John Aughenbaugh: People will go crazy.
Nia Rodgers: What's his name on CNN will yell, "Sell". I mean, it'll be a whole thing.
John Aughenbaugh: You're talking about the Kramer dude.
Nia Rodgers: Yes. He gets excitable.
John Aughenbaugh: I have a hard time being too critical of him because as you well know, I tend to get a little excitable about this arcane stuff. But the next one you're really going to appreciate because of your background in Homeland Security. The ninth exemption; all materials related to geological or geophysical information and data including maps concerning wells, may be exempted.
Nia Rodgers: Do we know why, listeners, we know why because poisoning the water supply of the United States is one of the most concerning things for the Department of Homeland Security.
John Aughenbaugh: Yes.
Nia Rodgers: Because you can go a long time without food and you can go a relatively decently long time without shelter in many parts of the United States. But you can't make it more than three or four days without water.
John Aughenbaugh: Yes.
Nia Rodgers: Water's just, and as we've discussed before, water is magic. Hence the whole Colorado River agreement, which is turning into a giant mess these days.
John Aughenbaugh: Giant mess in the fact that, I mean and by the way, exemption nine has now been extended to the nation's electrical grid due to a short
Nia Rodgers: It's utility now?
John Aughenbaugh: Yes. And Homeland Security has argued this in court. Any map that would go ahead and show you the precise locations of the United States energy, water, blah-blah-blah, grids is exempted from FOIA.
Nia Rodgers: Well, people go around shooting the utility grids and those are my people which is embarrassing. Those are North Carolinians like I will sit down for somebody notices that you are dummy, but I want to get back to one of these exceptions because what started this listeners was my irritation and Aughie was like yes, but there are reasons because Aughie it's funny when I am the voice of reason and he's not as much more rare than me when he's the voice of reason and I am not, which I don't know how my boss is going to feel about hearing that. But anyway.
John Aughenbaugh: By the way, there's a whole bunch of political science faculty at VCU.
Nia Rodgers: Who just choked on their breakfast bars.
John Aughenbaugh: Yeah, their breakfast bars in their cup is when they hear Nia say Aughie is the voice of reason.
Nia Rodgers: But okay, so what brought this up was there was a police officer, he worked in Virginia and then he moved to California and he killed I think his girlfriend and her father. Like he killed people in California and the police here would not release his personnel files.
John Aughenbaugh: Yes.
Nia Rodgers: There's a part of me that understands that, but there's another part of me that's like Medu killed people. But at that point, I think lose your privilege of privacy because I would like to see the disciplinary record. I would like to see if he had a problem and I feel certain that I'm not the only one. Probably the prosecutor in California wants to see that too. Did he have a problem with abuse? Did he have a problem with violence? Did he have a record of doing these things or escalating behaviors that would have maybe given somebody a clue that he was going to?
John Aughenbaugh: How did he graduate from the Virginia State Police Academy?
Nia Rodgers: That's what I want to know. Like I'm really torn with FOIA because I understand that you want to protect people's personnel records from malicious people just, I want to get Aughie's records because I want to dirt on him so I can make him sad. Or in the case of people who are, let's say having an angry divorce like you don't want them going after somebody's personality. I get that. But this seems like, tell me why this should not be the exception.
John Aughenbaugh: Listeners, what Nia is pointing to is one of the main criticisms that the media and various public interest groups have, which is exemption Number 6. How can the public know if the government is employing good people and whether or not employees are doing good work if personnel records are exempt? Advocates for government workers have successfully argued Nia, that one of the reasons why there is such an exemption is that many good talented people would never go to work for the government if they knew their personnel records, including their medical records and by the way, the reason why their are medical records could be reviewed via FOIA is that most government workers in the United States, their health insurance.
Nia Rodgers: I can see there.
John Aughenbaugh: Yes, provided by the government as an employer.
Nia Rodgers: Got you.
John Aughenbaugh: They won't go to work for the government if all of those records could be public. The logic of the advocates for government workers is we already disadvantaged government workers by and large because most of them are paid, usually 80-85 percent of what they could probably make in the private sector doing comparable work. We're already disadvantaging them via pay. But then if you go ahead and further disadvantage them by making their personnel records public, which would not be the case working for most private sector companies. Most private sector companies never have to release the personnel records of their employees and certainly don't do it with their medical records.
Nia Rodgers: Well, there's HIPAA involved in that as well.
John Aughenbaugh: That's right.
Nia Rodgers: Complications with HIPAA violation.
John Aughenbaugh: The burden for making sure government employees are doing their jobs and that they don't have medical problems that interfere with their work productivity usually falls on one, there politically appointed supervisors, or the chief executives at all levels of government, or foreseen legislative bodies to actually do their oversight function. Saying to the Department of Homeland Security, do you have good people in your border patrol unit? Saying, the Virginia State Legislature with the example that was the genesis of you wanting to do this episode. The Virginia State Legislature bringing in the superintendent of the Virginia State Police and saying, so how did this person get through successfully.
Nia Rodgers: What are you going to do to prevent it?
John Aughenbaugh: Future incidents of this nature. But this is one of the classic tensions built into the modern administrative state. On one hand, the assumption is those who work in the executive branch are neutrally competent, well-trained experts who can implement generally pretty well public policies created by the people's elected representatives. But how do you hire such neutrally competent, well-trained people if they know, if they go to work for the government, their personnel records, there are medical files will become public. Think about this Nia, and many listeners may not understand what I'm talking about, so hopefully, I do a good job explaining us. Every summer the Virginia Times Dispatch newspaper here in Virginia publishes the salaries of all Virginia State employees who make over the median amount of all public employees in Virginia which means that many people who work for instance, at VCU can have their salaries made public and it's attached by name. You can actually go into the database graded by the newspaper, type in the name of a government employee. Specify the agency and up comes their most recent salary.
Nia Rodgers: Full disclosure since we're talking about FOIA. The president of VCU is either the highest-paid individual in the commonwealth or in the top five. President Rao is very well compensated. We're just saying that because we work here and we own that, let's not pretend that that's not a thing because it's a thing.
John Aughenbaugh: But I have had issues.
Nia Rodgers: Many other people on that list are presidents of universities. Virginia presidents of universities in Virginia make more than the governor. I got feelings about that.
John Aughenbaugh: But it's not just presidents of universities. I've had former students. I have colleagues who have former students who will actually look us up, and then send us emails, usually joking about how they are making more money than their professors who have multiple degrees. I got to admit the first time it happened, I was just like, where did they get this information? But then I was just like, but it's just a salary. But they don't have access to the complete personnel file.
Nia Rodgers: I hear you would not be able to get good people. I guess where my sticking point is once you know you have a bad apple, but I guess that would be starting a precedent that then people would say, but once you release one person's personal information, there's no reason not to release.
John Aughenbaugh: Others.
Nia Rodgers: Lots of people's personnel information. This person also did a bad thing, they just didn't rise to the level of murder so I still want to see their record. I mean, I could see where that would be a slippery slope, and as Aughie as we always end up muddy at the bottom of that slope with no happiness.
John Aughenbaugh: Yeah, there's no happiness because at that point in time, there might actually be a lot of good people who say, oh to heck with this. My privacy is worth more than doing good for the public, working for a federal government agency, a state agency, a local government agency.
Nia Rodgers: I don't like it, but I can see your point. I often arrive at that Aughie. I didn't like it, but I see your point and I understand it. In this instance, it's hard because he murdered people, and I want to know, do we have a lot of murderers cops on the bay? Can we please not have those people doing that job? But then I think to myself, sometimes they release information without being asked. We also have Richmond Police just released their internal report from the summer of 2020, the Black Lives Matter summer. Think of it, right with lots of protests in Richmond, and those guys were spraying each other in the eyes with.
John Aughenbaugh: Pepper spray.
Nia Rodgers: Pepper spray because they didn't know how to use the pepper. Like, there's some real basic stuff that needs to be changed. But they released that without a big FOIA fight. They just released their internal report because they're trying to have transparency. I guess.
John Aughenbaugh: That's the other thing to take note of. If an agency is not utilizing one of the stated exemptions, you might want to ask yourself, as a consumer of government information, why are they not using the exemption?
Nia Rodgers: They wanted that to get out because they wanted to recognize that they had a problem.
John Aughenbaugh: Yeah.
Nia Rodgers: Frankly, that was the former chief and not the current chief, which also changes what people release and what they won't release.
John Aughenbaugh: Is the agency releasing information to score political points? Are they embarrassing another agency?
Nia Rodgers: Or to throw attention in a different direction.
John Aughenbaugh: That's right.
Nia Rodgers: Because by releasing this report, they've been able to more or less curb the discussion of the terrorism plot that they had last summer, that didn't happen and didn't come to anything and they just made up because people are like, yeah but look at this report where they were being all transparent and stuff. That's interesting. I didn't even think about that, but the release of reports can be strategic in order to get.
John Aughenbaugh: Yeah, you might want to be skeptical when an agency.
Nia Rodgers: They don't have to be asked.
John Aughenbaugh: Or has a history of unilaterally using these exemptions. All of a sudden I was just like, we're not going to go ahead and use that particular exemption here. You can have whatever information you want. Really?
Nia Rodgers: Let me ask you about another thing that happened not too long ago in Richmond and that is that apparently, we've had prisoners die at the Richmond jail and the sheriff has been like, yeah, I'm not going to talk about it and you can't make me. Is that true that they can't be forced to disclose any of that at any point?
John Aughenbaugh: Well, they may be forced to disclose it in court because of the lawsuit. But in regards to FOIA, it may fall within one of the exemptions in the state Freedom of Information Act. Because again, if prison officials have to go ahead and disclose how they manage their inmates, particularly smart inmate can go ahead and figure out all ways to either escape or engage in illegal activity while they are an inmate of that institution and that's the usual justification for why prisons go ahead and say, we don't have to disclose our operations.
Nia Rodgers: But now that people are dying, they may be forced to.
John Aughenbaugh: They may be forced to. Now again, if the Virginia State Legislature, you could argue, was doing its job, there would be or the local government in the city of Richmond, City Council was doing its job. They will be having the sheriff who runs the Richmond jail in front of them on a regular basis explaining, hey, what the heck is going on here, right?
Nia Rodgers: Right.
John Aughenbaugh: You get prisoners dying on a pretty regular basis and even if we are arresting people with medical health problems statistically.
Nia Rodgers: This is weird.
John Aughenbaugh: This is weird. Can you explain what's going on? Again, that goes back to if you have all these exemptions in FOIA, this puts the burden on oversight on, who's in charge in terms of the executive branch, but also the legislative branch.
Nia Rodgers: They don't get to slide. There's a reason we have the Senate Intelligence Committee and all those people.
John Aughenbaugh: Reparations checks and balances only works if each of the branches is willing to go ahead and do meaningful oversight of the other. I know you've heard me rail about the fact that we frequently give legislative bodies a free pass in part because increasingly we don't expect legislative bodies to do anything meaningful. But at some point in time, they have the responsibility and they have the powers to actually do meaningful oversight. They just choose not to.
Nia Rodgers: Can we talk about something attached to this? I want to ask you about whistleblowers. Do whistleblowers fall into this gray space, don't they? Like their material is probably in most cases exempted through FOIA. Like they are not supposed to release the Pentagon Papers or the Snowden release or write any of those things but their overriding concern is that oversight is not being right because that's what Snowden and the Pentagon Papers they were saying, there's no oversight here. We have a problem with people lying or people doing this and not being held to account? There are laws that protect those people theoretically, although Snowden I think moved to Russia to try to avoid but how's that working out?
John Aughenbaugh: But let's pause for just a moment. You're talking about once again, a conflict on one hand, there is a federal law that protects federal government whistleblowers. Problem is many of these whistleblowers, when they've taken particular jobs, have signed agreement saying that they won't disclose classified material. To get to that whistle-blower status where they might be protected by federal law, they will have to violate the terms of their employment contract.
Nia Rodgers: Got you.
John Aughenbaugh: That oftentimes acts as a disincentive because you basically have to be willing to lose your job and be potentially prosecuted before you can achieve the protection, the warm protective blanket.
Nia Rodgers: Of whistleblower status.
John Aughenbaugh: Of whistleblower status.
Nia Rodgers: I would assume that limits the number of people who do that.
John Aughenbaugh: Yes. Then that forces upon whistle-blowers, the classic, tri-part dilemma, Exit Voice or loyalty in the infamous language of Hirschman. Do you exit your agency? Do you give rise to voice, which is what whistleblowers do? Or do you keep your mouth shut, do you keep your head down and you continue to be loyal to your agency? Wow, what choices? But you are correct. Again, the idea is with FOIA. The more transparent government is, the more informed the public will be, and then the public will make better choices when they go to vote and when they tried to decide, do I support this policy? Do I support this program, etc? This all ties back to something that political scientists teach in all intro classes. Government legitimacy versus public distrust. Because if you don't have access to the material, you may not trust the government. On the other hand, if you have too much knowledge.
Nia Rodgers: You may not trust the government.
John Aughenbaugh: You may not trust the government.
Nia Rodgers: I did not see that coming. That's funny. Sorry. It's early in the day. That's what I'm going to blame that on. But I can see where knowing too much about someone might dishearten you and not knowing enough about someone might dishearten you. It is the giant conundrum in a 40-year marriage.
John Aughenbaugh: Yes.
Nia Rodgers: I know an awful lot about you and sometimes that's not a good thing.
John Aughenbaugh: Good thing.
Nia Rodgers: But sometimes it's a great thing because it's very comforting. I know an awful lot about you and I know how you're going to react or whatever.
John Aughenbaugh: I know your pathologies and sometimes your pathologies are really bad, but at other times they're very comforting because I know you're going to do x.
Nia Rodgers: Predict it within.
John Aughenbaugh: Yes.
Nia Rodgers: A very high percentage of accuracy.
John Aughenbaugh: I've gotten over the annoyance and the anger, and I've now just come to accept that about you.
Nia Rodgers: Which I think is how a lot of people feel about the federal government.
John Aughenbaugh: Sure.
Nia Rodgers: I do think though, with FOIA at least, there is a sense that the government keeps too many secrets. It's like we were talking about before that the government's first answer is, I'm not going to tell you that.
John Aughenbaugh: The default is.
Nia Rodgers: Is no.
John Aughenbaugh: Instead of the default being yes. Which is why, for instance, you and I were not all that surprised in our previous podcast episode about former presidents and former vice presidents apparently having a problem with taking with them classified documents.
Nia Rodgers: They get so many.
John Aughenbaugh: Get so many, then after.
Nia Rodgers: After a while, if the lunch menu is classified, then it doesn't matter. Classification doesn't ping on your radar.
John Aughenbaugh: Yes.
Nia Rodgers: You and I don't deal with classified documents on a regular basis, so if somebody handed us something and said, I need you to read this and then I need you to not ever talk to anybody about it again, and they said it very seriously, we would go; if somebody handed you 700 folders and said that you'd be like whatever. After about 45 or 46, you would just be throwing them on the floor.
John Aughenbaugh: Yeah, I'm asking them into the bathroom to read.
Nia Rodgers: Exactly. There's no more mystery here.
John Aughenbaugh: When you get to the 1,000th folder that says, top secret.
Nia Rodgers: You're like, is it really?
John Aughenbaugh: You look inside and it's the call logs during winter break.
Nia Rodgers: Right.
John Aughenbaugh: Really? This is top secret? My 97-year-old grandma called me, really?
Nia Rodgers: But these things do have a political effect and I did want to bring it back to what you were talking about with the UVA board of-
John Aughenbaugh: Board of visitors.
Nia Rodgers: Board of visitors members, thank you. What that individual did was they have feelings about UVA?
John Aughenbaugh: Yes.
Nia Rodgers: They were pretty.
John Aughenbaugh: Particularly in regards to UVA like many universities, having specific well-paid employees to lead the university's diversity, equity, and inclusion initiatives. This particular board member wants to "return UVA to the purpose and mission of when it was created by Thomas Jefferson." Well, that's part of a larger political debate.
Nia Rodgers: Exactly.
John Aughenbaugh: About the state's flagship universities and what should be taught there and what should be emphasized and how much money is being spent on various administrative positions.
Nia Rodgers: The FOIA request for those is a clear this needs to be known to people. That there is this discussion that's happening. You need to know that there's this political underpinning on the board of visitors, that theoretically the board of visitors is neutral, but clearly it is not. We're not slamming the board of visitors nor are we slamming these individuals. There's nothing wrong with having your personal opinion. But if you're going conduct that work in such a way that your personal opinion can be made public, as Aughie was saying, you might want to be more cautious about how you state your public opinion.
John Aughenbaugh: Yes.
Nia Rodgers: You just have to be aware that any record that you make as a state or federal employee.
John Aughenbaugh: There's a reason why certain adages have been with us for years, decades, centuries, and the one that comes to my mind is discretion is the better part of valor.
Nia Rodgers: Exactly.
John Aughenbaugh: Every once in awhile, you don't need to necessarily go ahead and open your mouth or.
Nia Rodgers: And tell your business.
John Aughenbaugh: Yeah. Send a text or put it in an email or put it down on paper. Think about it. Maybe have a face-to-face conversation with somebody where you might have plausible deniability.
Nia Rodgers: It's funny Aughie and I are advocating for that because we also advocate on the other side of being as transparent as you can possibly be. But if your purpose is nefarious, you might want to be nefarious.
John Aughenbaugh: Again, we said this in the previous podcast episode, Nia, about presidents and vice presidents struggling with classified documents. I can understand the logic of many government officials that they don't want to be embarrassed. But I think many Americans, and this takes me back to an old West Wing episode where CJ tells the White House staff, when you stop trusting the people, the people stop trusting the government. If you treat the people like idiots, then they're going to respond like idiots. If you're afraid of what you did may be embarrassing, okay. But most Americans understand that you're human and you're going to do some stupid stuff, doesn't make you a bad person and doesn't make you a bad government official.
Nia Rodgers: Everybody's done stupid stuff.
John Aughenbaugh: Yes.
Nia Rodgers: Not one person gets out of childhood without doing stupid stuff. As long as you own it, and look people in the eye and say, yeah, I did a stupid thing, then everybody goes, well, okay then, and you move on.
John Aughenbaugh: It doesn't end when you become a "professional." You hope it doesn't happen as much. But Nia, think about the number of times that you and I have had to apologize to one another because we did something stupid or we didn't think about how the other would react, or we didn't take into account that the other person has feelings or already made plans, etc. That's function.
Nia Rodgers: That's how that works.
John Aughenbaugh: Yes, and in extend that further, that's being professional, that's being collegial. Go ahead and say, hey.
Nia Rodgers: My bad.
John Aughenbaugh: I'm sorry. I didn't think, how do I make this right? But using FOIA to go ahead and cover that up when there's more serious stuff?
Nia Rodgers: Exactly.
John Aughenbaugh: That should be exempted. But this is difficult. A lot of the stuff that we talk about on this podcast is difficult stuff.
Nia Rodgers: It's nuanced.
John Aughenbaugh: Yeah.
Nia Rodgers: If FOIA was just simply no, all the time, every time, then we would be living in a dictatorship.
John Aughenbaugh: Wouldn't serve the purpose of having transparency. On the other hand-
Nia Rodgers: Exactly.
John Aughenbaugh: -if the government always said yes, you would be like, really? You went ahead and disclosed or our water grid?
Nia Rodgers: Exactly. You just told our enemies how missiles are made? Way to go. Thanks.
John Aughenbaugh: Right on it.
Nia Rodgers: It's complicated because everything is complicated, but I appreciate you pointing out why his personnel records should not be released. Because I came into this with tell me why they shouldn't be released, Aughie, because I was really grumpy; and Aughie was like, there are reasons I will tell you.
John Aughenbaugh: There are many people who graduated from the Virginia State Police Academy.
Nia Rodgers: Who are not in any way murderous jerk faces. Do we want to punish those people? No, we don't.
John Aughenbaugh: Their personnel records, I could plausibly argue with a straight face, should not be made public. They're doing good work, and they should have a modicum of privacy. I'm looking at you superintendent and other Virginia State police, you should be forced to explain to the Virginia State Legislature what the hell happened.
Nia Rodgers: How this guy got his badge and why he didn't have a badge in Virginia anymore.
John Aughenbaugh: Yeah.
Nia Rodgers: Virginia knew there was a problem of some kind.
John Aughenbaugh: But anyways, thank you, Nia. This was a really thought-provoking conversation and I hope listeners enjoyed it.
Nia Rodgers: Thank you, Aughie. I feel certain we'll come back to another FOIA request at some point in the future.
John Aughenbaugh: Sure.
Nia Rodgers: Thank you.
John Aughenbaugh: Yeah.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.