Homeland Security reverses secrecy policy, but protests persist

Janet Hale, DHS undersecretary for management, issued a memo announcing the policy changes. The memo and a revised management directive were posted online by the Federation of American Scientists' Project on Government Secrecy.
Hale referred to the nondisclosure agreement as "an interim measure" and said that the DHS Office of Security will now develop an "education and awareness program" for all employees on safeguarding sensitive but unclassified information.
The program will consist of classroom or computer-based training sessions "designed to educate employees on what constitutes [sensitive but unclassified] information and the standards for handling and disseminating it." According to the management directive, that category covers information that, if released, "would cause harm to a person's privacy or welfare, adversely impact economic or industrial institutions, or compromise programs or operations essential to the safeguarding of our national interests."
The American Federation of Government Employees and the National Treasury Employees Union welcomed the policy reversal. They had protested the policy and threatened to sue the department over it, saying that the nondisclosure agreement would undermine national security and the public interest by suppressing whistleblowing activity and discouraging dissent.
"The original directive was nothing more than a fear tactic being used by DHS to censor its employees," AFGE president John Gage said. "We are pleased that DHS has recognized its error and is taking the steps to correct it. We only hope that the agency continues on that positive path."
The unions added that they appreciate the necessity--and importance - of safeguarding classified information.
Gage and NTEU president Colleen Kelley issued a joint statement, however, saying that the management directive "still covers a broad and vaguely defined universe of information. It opens up the possibility of using the designation to cover up misconduct, among other things."
They were especially concerned about the "for official use only" category of information.
"DHS' decision to keep the FOUO category is an invitation for injustice," the two said. "The potential for misuse here is astronomical. The policy still is not clear regarding who can designate FOUO and how employees who are found in violation of the agreement will be disciplined.
"Additionally, we still are concerned with the overly broad, subjective designation of sensitive but unclassified information," they added.
AFGE assistant general counsel Anne Wagner said her union wants the department to work with it to develop clear guidelines for handling and designating information, and laying out the consequences for unauthorized disclosure.
The department's reversal has halted legal action for now, but AFGE isn't closing the door on a lawsuit.
"I think because of the vagueness of the directive, we are still considering the possibility of pursing litigation," Wagner said.
Jack Johnson, DHS chief security officer, said the new training program is specifically intended to educate employees on the different types of designations for information, and when and how to use them. He said within a month, the department will begin training new employees. Later, the training effort will be expanded to include all 180,000 workers in the department. The training will be web-based, and recurrent training will be provided in the future.
Johnson said DHS has dealt with "unprecedented amounts and types of information." The department had to find a way to handle the information, he said, and the nondiscolsure agreement was the "quickest and easiest way" until a new policy could be determined.
He said each of the designations have specific criteria associated with them, and are made by officials based on training and departmental guidance. He added that each bureau or agency within the department has officials who can help employees if they have questions about making designations, along with the DHS Office of Security.
"It's not a unilateral, arbitrary designation that we're doing," he said. "We face a balancing act every day about safeguarding information, but at the same time ensuring that we have the ability to share that information with our partners."
The Project on Government Oversight, a watchdog group, said the revised policy is "still problematic" for several reasons. For example, the department still prevents employees from disclosing information that is available to the public under the Freedom of Information Act. Also, any employee, detailee or contractor within the department can designate information to be withheld.
"The Department of Homeland Security's revision of its policy for handling sensitive information changes nothing," said POGO general counsel Scott Amey. "To ensure that secrecy oaths do not happen, Congress must pass legislation and make its intent known. A government agency should never threaten its employees or contractors with criminal prosecution for disclosing information that is available under the Freedom of Information Act."


Homeland Security Dropping Pledge of Secrecy for Workers
By Christopher Lee
Washington Post Staff Writer
Thursday, January 13, 2005; Page A19
Workers at the Department of Homeland Security will no longer be required to sign a controversial secrecy pledge prohibiting them from sharing sensitive but unclassified information with the public, DHS officials announced this week.
The three-page nondisclosure agreement, required since May for all 180,000 department workers and contractors, had been criticized by federal employee unions and government watchdog organizations. They called it an unprecedented clampdown on free-speech rights.
Jack Johnson, chief security officer at DHS, said in an interview yesterday that the agreements were always intended to be temporary until agency officials developed training for handling sensitive information.
"Was it perfect? -- no," Johnson said. "But it was decided that was an interim measure to ensure that employees had the appropriate amount of awareness as they were safeguarding this information. . . . Were they told specifically that it was going to be temporary? Probably not."
The form defined as "sensitive" any information that could "adversely affect the national interest or the conduct of federal programs" or violate a person's privacy -- a lower barrier than damaging national security.
Violators risked administrative, disciplinary, criminal and civil penalties. One provision required signers to consent to government inspections "at any time or place" to ensure compliance. Johnson said yesterday that such searches were to apply only to "a very narrow work space area."
Within the next month, the department will begin computer-based training sessions for employees on handling sensitive information, Johnson said. He said the criticism had led the department to "fast-track" the training program.
The decision to drop the nondisclosure agreements was first reported Tuesday by Federal Times.
In a statement, the American Federation of Government Employees and the National Treasury Employees Union called the decision positive but warned that DHS still has broad leeway in defining materials as "for official use only."
Scott Amey, general counsel of the Project on Government Oversight, a watchdog group, said department employees are still at risk of unfair disciplinary action.
"A government agency should never threaten its employees or contractors with criminal prosecution for disclosing information that is available under the Freedom of Information Act," Amey said in a written statement.
Johnson yesterday denied that DHS had asked staffers for the House Committee on Homeland Security to sign nondisclosure agreements.
Moira Whelan, minority spokeswoman for the committee, said that department agencies had, in fact, asked Republican and Democratic staff members to sign such agreements six months ago as a condition for receiving a specific piece of sensitive but unclassified information. The staff members refused, she said yesterday, and the committee reached an agreement with DHS that they would no longer be asked to sign them.


OPM Suggests Letting Employees Leave Early on Wednesday
By Stephen Barr

Thursday, January 13, 2005; Page B02
There are times when working inside the Beltway has its advantages.
Faced with the prospect of traffic gridlock caused by pre-inauguration events, the Office of Personnel Management told agency heads yesterday that they may allow their downtown Washington employees to leave work early on Wednesday.
"Should circumstances dictate, individual agency heads are reminded that they have discretion to grant excused absence for their employees," Kay Coles James, the OPM director, wrote in a memo.
James, in a separate statement, said federal employees should look to their agencies for "specific guidance on the status of their agency operations throughout the [inauguration] week."
Del. Eleanor Holmes Norton (D-D.C.) wrote James on Monday to ask that federal employees be sent home at noon or 1 p.m. Wednesday because some downtown streets will be closed for an opening ceremony, "Celebration of Freedom," that begins at 4 p.m.
The street closings, Norton said, will cause "extreme inconvenience" to commuters and create bottlenecks that hamper the movement of emergency vehicles.
Norton said yesterday she appreciated OPM's advisory, noting that employees given an excused absence -- administrative leave with pay -- will not have it count against their vacation time.
In her memo, James told agency heads that a large crowd is expected for the "Celebration of Freedom" event on the White House Ellipse and that streets bordered by Constitution Avenue and E, 15th and 17th streets NW will be closed.
"We anticipate major traffic congestion problems," she said, especially for federal employees who commute from or to Virginia.
She said agency heads should consider encouraging federal employees in the downtown area who are not needed for essential business to request annual leave, take compensatory time off or take leave without pay Wednesday.
OPM issued a similar advisory in June for the funeral of Ronald Reagan, the 40th president. Officials closed Constitution Avenue and blocks on each side of the avenue for the funeral.
Inauguration Day, next Thursday, is a paid holiday for federal employees who work in the District and Montgomery, Prince George's, Arlington and Fairfax counties, as well as in Alexandria and Falls Church, OPM said.
Federal authorities have announced plans to close 100 square blocks of downtown Washington to vehicles Thursday and to restrict traffic on some downtown streets.
Unions Urge OSC Probe

Two federal unions yesterday urged a Senate committee to investigate a reorganization at the Office of Special Counsel, the independent federal agency that protects federal employees from prohibited personnel practices.
The American Federation of Government Employees said the head of the agency, Scott J. Bloch, had told about a dozen career employees last week that they had 10 days to agree to move to field offices in Dallas, Oakland, Calif., and Detroit or face dismissal.
The National Treasury Employees Union said the reorganization also would put a political appointee in charge of investigating Hatch Act violations instead of a career executive. "Forced involuntary transfers -- regardless of the name given to the action -- are an improper use of management authority by the special counsel," said Colleen M. Kelley, the NTEU president.
On Monday, three watchdog groups complained that Bloch's reorganization was an attempt to purge career employees and replace them with political allies. The complaint was made by Danielle Brian of the Project on Government Oversight, Jeff Ruch of Public Employees for Environmental Responsibility and Tom Devine of the Government Accountability Project.
The Senate Homeland Security and Governmental Affairs Committee "is looking into the situation and is interested in learning more about the plan" and in understanding how the agency "is addressing concerns that have apparently been raised by certain employees," a spokeswoman said.
An Office of Special Counsel spokeswoman has called the accusations "inaccurate" and said the reorganization is designed to improve the agency's performance.


Take Your Time
By David McGlinchey
[email protected]
Citing traffic and large crowds at inauguration activities, the Office of Personnel Management has called on federal agencies to help Washington-based employees deal with commuting on Jan. 19, the day before the inauguration. OPM officials decided, however, to rebuff a call from a lawmaker to give government employees the afternoon off.
Federal employees in the Washington area already receive an official holiday on Thursday, Jan. 20 - Inauguration Day. The inaugural parade and related celebrations have historically shut down long stretches of the city's streets. To minimize tie-ups, Del. Eleanor Holmes Norton, D-D.C., had appealed to OPM to dismiss federal workers in Washington early on Wednesday.
"I have been working with the Secret Service and other security officials to keep already serious congestion problems in the city from becoming worse as we prepare for the presidential inauguration," Holmes Norton wrote in a letter to OPM Director Kay Coles James.
Holmes Norton noted that security officials are planning to close several downtown Washington streets at 3:45 p.m. on Jan. 19.
"I am writing to recommend and to ask that federal employees be dismissed at noon or 1 p.m. to avoid huge traffic snarls," she wrote. "The Secret Service has clearly gone as far as they can by delaying street closures until immediately before the ceremony, but there is nothing they can do about the fact that the ceremony begins at rush hour."
James signed a memo Tuesday calling on agencies to look for creative ways to keep employees out of traffic. The burden, however, will remain on employees.
She said nonessential federal employees might want to "request annual leave, previously earned compensatory time off, or leave without pay on Wednesday, Jan. 19." James also recommended telecommuting, using public transportation and leaving extra time for the evening commute out of Washington.
Fare Thee Well
Several days after James announced her resignation as director of OPM, federal workers unions and public service advocacy groups released conciliatory statements despite the fact James has clashed with some groups over White House plans to overhaul the federal workforce. Union leaders generally had kind words for her personally - if not the policies she was responsible for promoting.
"Kay Coles James has always had a consistent open-door policy in regard to talking with our union representatives," said American Federation of Government Employees President John Gage. "We appreciate her willingness to listen to our concerns. We wish her the best with her future endeavors."
Colleen Kelley, president of the National Treasury Employees, said, "While we did not always agree, it was a pleasure to work with her."


Federal Whistleblower Office Accused of ‘Purging’ Staff
by Brian Dominick (
Jan 13 - The federal agency tasked with evaluating workplace complaints among US government employees is once again coming under fire for suspicious practices, this time from its own employees, who claim that the man President Bush appointed ostensibly to protect whistleblowers and other workers is engaged in punishing critics within his own office in order to stock it with friendly new hires.
According to public employee advocacy organizations and a lawyer representing staff of the US Office of Special Counsel (OSC), some twelve people -- more than a fifth of the office’s investigative and legal staff -- face the choice of moving to a distant city within two months or losing their jobs.
Some of the affected employees have retained an attorney and complained to three nongovernmental organizations that specialize in advocating for the rights of government employees who bring allegations of misconduct against government agencies. The workers’ representatives say the affected employees have reason to believe that the reassignments amount to an attempted "purge." They further suggest that Special Counsel Scott Bloch is gradually doing away with his critics while making way for pliant, fresh-faced replacements, fitting a pattern of "cronyism" they allege he has engaged in throughout most of his thirteen-month tenure as head of OSC.
Bloch did not issue the reassignments with the expectation that the employees would accept them, said Tony Vergnetti, a partner at the private practice Shaw, Bransford, Veilleux & Roth, P.C. and an expert in federal employment law. Vergnetti is representing "several" of the twelve employees who received transfer orders last week.
"Our clients feel very strongly that the reasons proffered by the OSC -- and we’re seeing different ones each day -- are just completely unfounded," Vergnetti told The NewStandard, noting that the affected staff were offered just ten days to accept the transfer, two weeks to find new housing at least halfway across the country, and 60 days to report to their new assignments.
Contrary to a statement in a recent OSC press release that "extensive discussions with [OSC] staff" preceded the decision to transfer a dozen employees to OSC field offices in Detroit, Houston and Oakland, Vergnetti said that the relocation announcement "took everybody by surprise." The affected workers’ advocates say that not one of them -- including senior OSC staffers who have served under Bloch’s predecessors -- was consulted on the move.
Furthermore, no call for relocation volunteers preceded the decision, and Bloch has reportedly refused to allow other staff to voluntarily take the places of those ordered to relocate to new assignments.
Vergnetti said the relocation announcement was "very upsetting" to his clients. "Ten days to decide is completely unreasonable," he said, since many of the workers "have well-established family lives" and roots in the DC area.
Although Vergnetti stopped short of explicitly questioning the motives behind Bloch’s move, Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), was more willing to speculate. PEER has long been critical of Bloch for what the group calls "crony" hiring practices and his refusal to release documents pertaining to personnel decisions.
Since assuming office, Ruch told TNS, Bloch has exclusively filled openings at OSC with non-civil service employees appointed without competition, including many fresh out of the Christian conservative Ave Maria Law School. Ruch also said Bloch has employed no-bid contractors, an unusual practice at OSC.
All of the staff directly affected by unilateral relocation orders are career civil service workers, according to both Vergnetti and Ruch. None of the Bloch’s own appointees has been told to move. "The best we can figure," Ruch said, speaking for PEER, "is that if [Bloch] didn't appoint them, he suspects their loyalty."
Normally, federal employees concerned that they are being punished for speaking out on the job, or for any other illegitimate reason, would turn to the Office of Special Counsel for assistance in seeking redress. Staff of OSC themselves, however, have no direct recourse for registering such a complaint of their own within the system.
"Our biggest concern is [that] OSC… is not policed by any governmental agency other than Congress," Vergnetti told TNS. "So, to ensure that [OSC] complies with [workplace] laws, the employees are really left without any meaningful forum to question or challenge the legitimacy of these reassignments."
With no other agency to turn to, the employees are hoping for congressional intervention. "Their sole avenue to keep this train from leaving the station," Vergnetti said, "is that Congress will conduct some sort of oversight hearing or some sort of investigation into the reassignments."
Toward that end, three independent organizations have written a joint letter to Senators Susan Collins and Joseph Lieberman, heads of the Senate Committee on Government Oversight, the body directly responsible for the Office of Special Counsel.
In addition to PEER, the letter is signed by the Project on Government Oversight and the Government Accountability Project.
According to the groups, Bloch’s actions threaten to "transform the OSC from an independent agency whose mission is to protect the merit system, into a role model for destroying it."
The advocacy groups also say they have "every reason to believe that the employees directly affected by the ‘reorganization’ have been deliberately targeted to make way for Mr. Bloch’s own hand-picks. Virtually all of the employees affected are individuals who either work under, or have themselves dared to engage in even mild private discussions with Mr. Bloch over the advisability of management and policy decisions he has made over the last twelve months."
The letter goes on to state that OSC employees, "whose morale is now at an all-time low," have been "living in a culture of fear" since Bloch issued a gag order to employees, forbidding staff -- part of whose job, ironically, is to protect whistleblowers -- from discussing OSC policy outside the agency.
Two federal employees’ unions joined the call this week. The American Federation of Government Employees, which represents 600,000 workers, issued a statement demanding an investigation. The National Treasury Employees Union made a similar call on Wednesday.
Bloch has faced considerable criticism from PEER and others in the past. When he was nominated to head the Office of Special Counsel, Bloch was helping run the Office of Faith-Based Initiatives at the Department of Justice. The special counsel is itself an appointed position with a fixed, five-year term of office. Ostensibly to protect the independence of the agency, the special counsel cannot be unseated unless convicted of a crime.
Last year even the Bush administration, under pressure from gay rights activists and members of Congress, rebuked Bloch’s conservative ways, criticizing the special counsel’s suggestion that discrimination against federal employees based on their sexual orientation is permissible.
But nearly a year later, and despite having issued an apparent retraction of the change, language protecting federal employees from discrimination based on sexual orientation remains absent from OSC literature.
Bloch’s spokesperson, Cathy Deeds, failed to return several calls and an email on the matter of Bloch’s relocation orders, but speaking to the Washington Post she called charges that they are punitive "outrageous and inaccurate."
OSC employees issued relocation orders on January 7 have been told they must give Bloch their answer by Monday. PEER and the other groups argue it would be more efficient to fill openings in the other workplaces, including the as-yet-unopened Detroit field office, with an allotment Congress recently gave the OSC to hire seven new employees, rather than shuffling so many settled workers around.

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