FOIA Facts: Circumventing the FOIA

Disclosure laws like the Freedom of Information Act (“FOIA”) and state public record laws are designed for the purpose of allowing citizens know what is going on in their government. There has always been tension between government agencies, legislatures and the public on the quantity and quality of information released under these laws.

It now appears that there is a new trick in circumventing sunshine to the public, and allowing governmental operations to circumvent the FOIA. The Sarbanes-Oxley Act of 2002 created the PCAOB (Public Company Accounting Oversight Board), which oversees, regulates and issues guidance on public accounting firms. The PCAOB makes rules for public accounting that are subject to the SEC approval. These rules are then used to conduct investigations to discipline public accounting firms and persons associated with these firms. The PCAOB also conducts continuing inspection of public accounting firms. In short, the PCAOB operates as a government body, regulating the accounting field.

The PCAOB is not subject to the FOIA. It was created as a private sector, non-profit corporation. While it commonly posts reports and other information on its website, the PCAOB doesn’t have to worry about pesky FOIA requests seeking to truly know what it is doing with its power. It can operate in the dark without sunshine. Congress should amend the act creating the PCAOB, and should either add a disclosure element to its charter that mirrors the FOIA or make its records subject to the FOIA, either through the PCAOB or the SEC (who has approval over the PCAOB’s rulemaking).

Another quasi-governmental agency that is not subject to any disclosure rules is the Washington Metro Transit Authority (WMTA). The WMTA operates the subway and the buses in the Washington D.C. area, including the states of Maryland and Virginia. WMTA is funded by federal and state dollars as well as tolls collected by passengers. However, WMTA is not subject to any state or federal disclosure law.

The subway, known locally in the D.C. area as the metro, is beginning to show its age. Recently, two Red line trains crashed at the Woodley Park station. Rail lines are beginning to show their age from the daily wear and tear of nearly 30 years of heavy usage. However, those who have an interest in learning about metro operations are only able to glean information through the goodness of any disclosure WMTA deems to make. Congress should act on this matter as well, and put disclosure provisions into the WMTA charter.

I’m sure there are many other examples of government sidestepping disclosure provisions in setting up agencies that either perform governmental functions or are entirely funded by government. The loss of disclosure in these functions is a loss to the public. It is ironic that a country attempting to export democracy to the rest of the world makes no effort to do so at home.