[Congressional Record: July 16, 2008 (Senate)]
[Page S6873-S6875]                      


      By Mr. GRASSLEY (for himself and Mr. Specter):
  S. 3276. A bill to provide for the application of sections 552, 552a, 
and 552b of title 5, United States Code, (commonly referred to as the 
Freedom of Information Act and the Privacy Act) and the Federal 
Advisory Committee Act (5 U.S.C. App.) to the Smithsonian Institution, 
and for other purposes; to the Committee on Rules and Administration.
  Mr. GRASSLEY. Mr. President, the Smithsonian Institution is an 
important icon to many Americans. It houses treasures of our national 
history in its museums across the country. The Smithsonian Institution 
is not just a museum but also an educational institution and a research 
complex. It consists of 19 museums and galleries, 9 research 
facilities, and has 144 affiliated museums around the world. The 
Smithsonian manages this vast array of facilities and receives 70 
percent of its funding directly from the federal government through 
congressional appropriations. There is no debate that the Smithsonian 
is an important part of our country.
  However, over the last few years I have been critical of the 

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of the Smithsonian Institution, beginning with story after story 
detailing the ``Champagne lifestyle'' the former Secretary of the 
Smithsonian enjoyed at institution expense. Through my oversight of the 
Smithsonian as a tax-exempt entity, and investigative reporting by the 
Washington Post, other egregious examples have emerged. These 
revelations have detailed the Smithsonian's management failures and lax 
accountability over the spending of millions of institution dollars.
  The former secretary spent millions of institution dollars on the 
redecoration of his office, housing allowances, and household expenses 
including chandelier cleaning and a new heater pump for his lap pool. 
He and his wife enjoyed first-class plane travel and top hotels.
  Ultimately, Secretary Small resigned on March 26, 2007.
  The deputy secretary and chief operating officer of the Smithsonian 
Institution, announced her resignation on June 18, 2007, after earning 
more than $1.2 million in 6 years for outside duties, including highly 
compensated seats on corporate boards, and that she and other top 
executives were frequently absent from their Smithsonian duties.
  An independent management report released in June 2007 concluded that 
Smithsonian leaders took extraordinary measures to keep secret top 
executives' compensation, expense-account spending, ethical missteps, 
and management failures.
  In August 2007, the Smithsonian replaced Gary M. Beer as chief 
executive of Smithsonian Business Ventures after an inspector general's 
report found he had abused his institution-issued credit card and 
billed thousands of dollars in expenditures that were unauthorized or 
lacked evidence of a business purpose.
  In December 2007, W. Richard West, Jr., who was the founding director 
of the National Museum of the American Indian, retired after 
disclosures that he spent extensive time away from the museum and spent 
more than $250,000 in 4 years on trips to places including Paris, 
Venice, Singapore, and Indonesia.
  In February 2008, Pilar O'Leary, the head of the Smithsonian Latino 
Center, resigned after an internal investigation found that she 
violated a variety of rules and ethics policies by abusing her expense 
account, trying to steer a contract to a friend and soliciting free 
tickets for fashion shows, concerts, and music award ceremonies. 
Ultimately, the Smithsonian Inspector General concluded that there were 
14 violations of ethical and conflict of interest policies. The public 
did not learn of the reason for her resignation until April 15, 2008, 
when the Washington Post published a story after requesting under the 
Freedom of Information Act and ultimately receiving a heavily redacted 
copy of the Smithsonian Inspector General's report on Ms. O'Leary.
  When Ms. O'Leary's resignation was announced to Smithsonian staff, 
the Smithsonian's official e-mail did not mention ethical lapses and in 
fact praised her work.
  Only upon the specter of public disclosure did the Smithsonian's 
acting secretary say in a second e-mail to staff that O'Leary had 
``engaged in behavior that violated our Standards of Conduct and other 
Smithsonian policies between August 2005 and September 2007.''
  The acting secretary at the time said such reports from the Inspector 
General were not always public, but Smithsonian officials determined 
O'Leary ``held a position of such significant responsibility and public 
visibility that disclosure . . . was warranted.''
  This raises a series of disturbing questions. What if a Post reporter 
had not somehow learned of the O'Leary report and formally asked the 
Smithsonian for a copy? Would the circumstances of Ms. O'Leary's 
resignation ever have seen the light of day? Once the report was 
released in a redacted form, was it appropriately redacted or was it 
redacted beyond what is reasonable to protect the privacy of third 
parties? Does the Smithsonian withhold other potentially embarrassing 
reports? If the individual had not been the head of a Smithsonian 
agency, and had a lower stature, would the report ever have been 
disclosed in any form?
  If the past is prologue, probably not. The Smithsonian points out 
that it is not subject to the Freedom of Information Act, FOIA.
  Many people would naturally think that the Smithsonian is subject to 
FOIA and must comply with requests. I know that I believed it was, 
especially given that taxpayer funds make up 70 percent of its budget. 
However, because the creation of the Smithsonian was different than the 
creation of other Federal Government agencies, there is an open 
question as to what open government and good governance statutes apply 
to the Smithsonian. For example, the Smithsonian's own website states, 
``The Smithsonian Institution is not an executive branch agency and is 
not required by statute to provide documents to the public.'' However, 
the Smithsonian does state that it is guided by ``internal policy, and 
by FOIA and other relevant law'' when providing documents to the 
public. What this highly technical answer means is that the Smithsonian 
doesn't believe it is required to respond under FOIA but it will as 
long as its interests are in line with the release.
  The legal status of the Smithsonian is also an open question with the 
prevailing law finding that for purposes of the Privacy Act and FOIA, 
the Smithsonian is not a government ``agency'' subject to the 
requirements. Instead, the Smithsonian calls itself a ``trust 
instrumentality of the United States.'' However, the Smithsonian takes 
a different position when it is faced with a lawsuit filed under the 
Federal Tort Claims Act and considers itself a ``federal agency.'' 
Taken together, these decisions have given the Smithsonian the best of 
both worlds--they are a government entity when information is sought 
that could embarrass them, but when they are sued, they get all the 
defenses of a government entity.
  In light of the oversight findings and the many scandals that have 
raised questions about accountability and mismanagement at the 
Smithsonian, I'm introducing the Open and Transparent Smithsonian Act 
of 2008. This bill simply states that for the purposes of FOIA, the 
Privacy Act, and the Federal Advisory Committee Act, the Smithsonian 
shall be considered a Federal Government agency. This is a simple, 
straightforward way to bring transparency and accountability to the 
Smithsonian without expending additional Federal resources. This is 
especially important given that the Smithsonian received continual 
increases in congressional appropriations from fiscal years 1999-2008, 
now totaling $682 million in taxpayer dollars for fiscal year 2008.
  On July 1, Wayne Clough took over as only the 12th secretary in 
Smithsonian history. He comes at a critical juncture. Will the 
Smithsonian recover from a series of scandals and regain its sterling 
reputation? Or will it backslide into bad old habits that could lead to 
more scandals?
  The new secretary deserves the best possible chance to succeed. One 
of the best tools Congress can give him is a clear, definitive 
statement through legislative action that the Freedom of Information 
Act does indeed apply to the Institution, and that the Smithsonian's 
business is the people's business.
  In addition to adding the Smithsonian to FOIA and Privacy Act, 
section 3 of this bill includes another important transparency fix to 
the Privacy Act. Currently, the Privacy Act provides that disclosure of 
information by a government agency is limited unless an enumerated 
exception applies. One of the most widely used exceptions allows for 
the disclosure of information to ``either House of Congress, or, to the 
extent of matter within its jurisdiction, any committee or subcommittee 
thereof.'' However, the Department of Justice has interpreted this to 
only allow for disclosures to chairmen of committees, excluding 
information from ranking minority members.

  In a December 2001 letter opinion, the Department of Justice 
concluded, ``the Privacy Act prohibits the disclosure of Privacy Act-
protected information to the ranking minority member.'' The rationale 
for this decision was that longstanding executive branch practice on 
this question shows that ``ranking minority members are not authorized 
to make committee requests.'' This opinion clearly looks past the plain 
language of the statute that says that the exception applies to 
``either House

[[Page S6875]]

of Congress or to the extent of matter within its jurisdiction, any 
committee or subcommittee thereof.'' This interpretation clearly 
bypasses the inclusion of the word ``or'' and instead reads that 
Congress only intended it to apply to committee chairman. Conveniently, 
this opinion has been repeatedly used to block information requested 
from ranking members.
  Section 3 of the bill corrects this erroneous interpretation by 
clearly adding in that chairman and ranking members may qualify for the 
exception under the Privacy Act. This provision is consistent with the 
intent of the Privacy Act exception and the goals of making the 
government more transparent and accountable under good governance 
  This bill is a simple, straightforward effort to make our Federal 
Government more accountable to the American taxpayers. Further, it will 
help ensure that Congress has the necessary access to documents from 
the executive branch so it can conduct its constitutionally required 
duty of oversight. I am pleased that Senator Specter has joined as an 
original cosponsor and urge my colleagues to support swift passage of 
this important legislation.