When it comes to the free flow of information, the Western Pacific Fishery Management Council (Wespac) has locked itself into the proverbial smoke-filled back room. While other regional councils are taking steps to make their actions more transparent, the Honolulu-based council has been pulling down the shades. And while the administration of President Obama has exhorted executive agencies to “disclose information rapidly in forms that the public can readily find and use,” Wespac has taken affirmative steps to discourage public access to information about the council’s practices – even as the council faces a lawsuit alleging Freedom of Information Act violations and has been dragging its feet on complying with a plethora of other FOIA requests.
At the council’s March meeting in American Samoa, it voted to amend its “Statement of Organization Practices and Procedures” in several respects having to do with public access to council records. Among other things:
- Council minutes, previously available for inspection at the council office in Honolulu, are now to be available only upon the filing of a FOIA request.
- The council’s “chart of accounts,” which details how financial records are to be kept and which was previously available for inspection at the council office, is again only available through the filing of a FOIA request.
- Procedures for travel reimbursements, once available for inspection at the council office, are now off-limits altogether.
The matter came before the council at the end of the final day of its four-day meeting, and council members showed little interest in having the rationale for the proposed changes explained by Kitty Simonds, the council’s executive director, or her staff. No document was available to members of the public that described or explained the amendments, making a mockery of the opportunity for public comment. It was clear that the council expected none, as chairman Sean Martin began to call for a vote on a motion to approve when Linda Paul, director for aquatic resources of the Hawai`i Audubon Society, reminded him that the public had not been given a chance to testify.
Martin halted the vote, allowing Paul to speak in opposition to the changes. She included in her testimony comments from council member Peter Young, who could not attend the meeting but had shared his concerns with Paul in an email message. Indeed, Young’s email served as the only heads-up to anyone outside of the council’s inner circle as to the nature of the proposed changes. The agenda gave no hint of what was under consideration, identifying the matter only as: Agenda Item 13.F, “SOPP.”
Young, who has been at loggerheads with Simonds over the lack of transparency in council management, voiced his disappointment in the statement read by Paul. “We thought it was hard to get information from Wespac in the past,” he said in his email to Paul, which she had permission to relay to the council. “If these changes go through we will be forced to use FOIA to get anything meaningful from Wespac.”
“This seems in direct contradiction to the recent statements by the president about being more open and providing information to the public.”
Paul credited Young with alerting her and others to the proposal to change the SOPP. But when Paul checked the table at the back of the meeting room, where council staff makes available information on those items appearing on the agenda, there was nothing at all on the SOPP changes, she said. “So I’m going to have to take Peter Young’s word, what he said, as to the nature of those changes…”
The changes, she said, “would restrict access to information currently available to both the council and the public. For example, the … current SOPP requires that council staff provide regular financial reports to the council and to the public. The proposed change would delete this section and others which cover employment practices, grievance procedures, termination procedures and required reports. If removed from the SOPP neither the council nor the public would be aware of the existence of these procedures
Paul took note also of the changes with regard to minutes, the accounts chart, procedures for processing travel claims, personnel rules, and other procedures.
“The proposed restrictions on information now available to the public were
brought to our attention, as I said, by Peter Young who, even though he is a member of this council, and as such has oversight responsibility over council staff, has had difficulty getting access to the previously mentioned procedures and records under the current SOPP. The proposed changes would make it even more difficult for this council to exercise its oversight responsibilities over council staff and their work and restrict
the public’s right to know what its public servants are doing,” Paul said.
“The Freedom of Information Act reflects our nation’s fundamental commitment to open government. But its existence does not imply that this is the route that the ordinary citizen should have to take in order to monitor the agencies that are administering public policy or spending public funds. While the FOIA does provide disclosure exemptions for certain things as national security matters, private personnel records, and ongoing enforcement actions, these are the exceptions, not the rule.”
The motion to approve the changes passed, with Dan Polhemus, a council member representing the state of Hawai`i, casting the sole dissenting vote.
But the council action may not be the last word. Under the Magnuson-Stevens Act, amendments to council SOPPs must be approved by the Secretary of Commerce. Concerns over the council’s amendments may be addressed to acting NMFS administrator James Balsiger, or the head of the National Oceanic and Atmospheric Administration, Jane Lubchenco.
Already, Young has registered his protest. In a formal “Statement of Disagreement” with the council’s revisions, dated April 18, Young gave Secretary of Commerce Gary Locke the particulars of his objections. “The most egregious of the revisions removes provisions that require Reports and Information to Council members on a regular basis,” Young wrote. “And to further insult the public process, the proposed revisions to the SOPP were never available for public review, neither prior to nor at the 144th meeting.”
“Because they strictly limit information on Council operations, they limit my ability to comply with the oath, taken upon my appointment to Wespac, ‘to serve as a knowledgeable and experienced trustee of the Nation’s marine resources’…”
The revisions also conflict with the Council Rules of Conduct, Young wrote, noting that those rules require financial interest information be made available for public inspection at Council offices. The revised SOPP, Young wrote, “specifically deletes that requirement.”
Young concluded his comments by asking that the council’s SOPP revisions be rejected “in their entirety.”
Conflicts with Magnuson-Stevens
The council’s efforts to make access to certain records more difficult by amending its SOPP are in direct conflict with the requirements of the Magnuson-Stevens Act, which governs actions of all eight fishery management councils.
According to the latest reauthorization of the act, which occurred in 2007, detailed minutes are to be kept for each open council meeting and are to include copies of all statements filed during the meeting. Those minutes, as well as “other documents which were made available to or prepared for or by the council, committee, or panel incident to the meeting, shall be available for inspection and copying at a single location in the offices of the council.”
Environment Hawai`i requested to see all the materials distributed to council members at the Samoa meeting. In addition, a separate request was made for the documents relating to the SOPP changes. By press time, no response had been received.
The day following the council’s vote on the SOPP changes, the National Marine Fisheries Service published in the Federal Register of March 27 proposed changes to regulations governing the operations and administration of all fishery management councils. One area in particular that NMFS called out were council statements of organization, practices, and procedures.
Noting that “the general public often does not understand the councils’ functions, how they are organized and what their limits are in fisheries management and policy,” NMFS proposes requiring SOPPs to be made available on the internet. (The Wespac SOPP is already on the council’s website, [url=http://www.wpcouncil.org,]www.wpcouncil.org,[/url] under the “About Us” link. At press time, the revisions to the SOPP had not yet been posted.)
In addition, the proposed rule would require changes in the content of SOPPs. They would need to include a clear description of the procedures by which councils propose regulations. Also, amendments to SOPPs would need to be consistent with the terms of the grants NOAA provides to the councils for their operation, the Magnuson-Stevens Act, and other federal law.
The deadline for comments is July 7. The Environment Hawai`i website (www.environment-hawaii.org) contains a link to the Federal Register notice.
— Patricia Tummons
Volume 19, Number 11 May 2009