By Ethan Barton – Data was permanently lost after a computer network failed at the agency that protects federal employees against wrongful discipline, but officials there refuse to make public any documents related to the failure.
The Merit Systems Protection Board lost data when its online appeals system collapsed last July, which effected all 219 agency employees, FCW reported. The lost data concerned employee appeals, which could result in lost promotions or other career setbacks for thousands of workers.
The refusal to make public information about the failure comes as more federal employees are filing appeals against disciplinary action than ever before.
“Due to the unprecedented number of appeals being processed through e-Appeal Online, you may experience occasional slowness when using the system,” MSPB’s website says. “Thank you for your patience during this extraordinary time, and we apologize for any inconvenience.”
MSPB officials drafted a report concerning July’s computer network failure but claimed they aren’t required to make it public, thanks to Exemption Five of the Freedom of Information Act. Exemption Five allows federal officials to withhold “pre-decisional” documents and is the most frequently abused of the law’s nine exemptions.
The documents related to the system failure “consider issues, present options and make policy recommendations for consideration by agency management,” according to an email obtained by The Daily Caller News Foundation.
In other words, the report contains information that helps the agency make decisions and form policies. Agencies, however, typically release such reports while redacting only particular passages that are pre-decisional in nature.
“Any agency can only withhold the portions of the records that are covered by exemption,” Reporters Committee For Freedom of The Press attorney Adam Marshall told TheDCNF. “They have a duty to segregate all portions that aren’t covered by an exemption. If this is the final agency report … it’s not clear what’s pre-decisional about it.”
Marshall said “factual information cannot be withheld under Exemption Five and agencies are supposed to adopt a presumption of openness,” per former Attorney General Eric Holder’s 2009 guidance. President Barack Obama has often claimed during his tenure in the Oval Office that his is “the most transparent administration in history.”
Regardless, Exemption 5 under FOIA has plagued government transparency.
“Exemption 5 is also one of the most overused exemptions,” Marshall said. “It’s commonly referred to as the ‘withheld-because-we-want-to’ exemption. It can be used to withhold facts that should be released to the public” such as “a final report on an incident that affected the federal government.”
MSPB did not respond to TheDCNF’s request for comment.
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