Government Transparency Is More Critical Now Than Ever, Experts Say

As the novel coronavirus outbreak worsens, experts are increasingly concerned about the lack of oversight holding the Trump administration accountable for protecting the public’s health. There is currently no permanent Health and Human Services Department inspector general, for example, and the Trump administration's record on transparency to date is deeply troubling. 

“The coronavirus outbreak makes it clear that the government needs to communicate clearly, operate transparently, and have the necessary resources and well-developed plans in place,” wrote Nick Schwellenbach, senior investigator at the watchdog Project on Government Oversight. “Conflicting messages from the government make it harder for the public to know how serious the risks of the coronavirus are and what to do.”

HHS, until this week the lead agency in the Trump administration’s  coronavirus efforts (on Thursday, Vice President Mike Pence said the Federal Emergency Management Agency would take the lead), has not had a permanent inspector general since May 31, 2019, and there is no pending nominee, according to the Council of the Inspectors General on Integrity and Efficiency’s tracker. The HHS IG oversees the department’s activities, including those of the Centers for Disease Control and Prevention, the National Institutes of Health and the Food and Drug Administration. 

“There is no doubt that [Acting IG Christi] Grimm and her team at OIG are working diligently to ensure that HHS officials respond to this crisis in an effective and efficient manner,” said the watchdog group Citizens for Responsibility and Ethics in Washington. However, “failure could undermine the efficacy of the administration’s response to the coronavirus and have dire effects on millions of Americans who are looking to HHS, CDC, NIH and other agencies for help.”

POGO policy counsel Rebecca Jones told Government Executive she doesn’t doubt Grimm’s dedication, but fears she “isn't empowered to vigorously oversee this massive agency” during this time of crisis. “It's important to remember that acting inspectors general don't have the same kinds of independence protections that permanent IGs do such as notice to Congress when the president plans to remove them,” she said. Despite those concerns, Jones said she was pleased that the HHS IG received supplemental funding earlier this year to oversee new programs and spending related to the pandemic. 

In the absence of rigorous IG oversight, much of the work of transparency is left to insiders willing to report problems and abuses of power. 

“Whistleblowers are our government's eyes and ears on the ground,” said Irvin McCullough, national security analyst at the Government Accountability Project, which published a new whistleblowing guide for federal employees, contractors and grantees. “During a global pandemic, their voices are critical to oversight. A lack of test kits? Ventilators? Endangering federal employees or the public? Each whistleblower has a story to tell and the right to be heard.”

He was referring to the HHS whistleblower, first reported by the Washington Post, who alleged that over a dozen HHS employees were sent to receive the first Americans returning from Wuhan, China, where the virus first emerged, without proper training or gear to deal with inflection control. 

Mark Zaid, an attorney who specializes in whistleblowers and was co-counsel for the whistleblower who’s complaint sparked the impeachment investigation, told Government Executive, “I would not be surprised” to see more come forward. Zaid’s law firm made a standing offer to represent pro bono “whistleblowers that have information pertaining to the classification” of coronavirus insight or “how the administration is handling this crisis.”  

In addition to warnings about the lack of IG oversight, there is increasing concern about the lack of access to basic information typically available to the public during previous administrations. Reuters first reported last week that the White House told federal health officials to classify coronavirus meetings, something experts deemed unusual.

“During my 30-year career in the Department of Justice, I litigated or supervised a great many cases defending the government’s decisions to classify information,” Matthew Collette, partner at the law firm Massey and Gail, LLP, wrote in Just Security. “There was no obvious connection to national security about the information that we learned last week the Trump Administration has ordered classified.”

He acknowledged there could be some classified information from CDC, such as the “location of virulent pathogens (that could be used in a terrorist attack) that HHS and CDC must classify to protect national security,” however, “from what we know of the COVID-19 meetings, they involve nothing of the sort.”

Based on his experience, Zaid similarly said it would be “atypical” to classify such information except in the cases of bioterrorism. He told Government Executive that was one of the reasons why his firm decided to make the pro bono offer to whistleblowers. 

Jones worried that classifying information around COVID-19 could be a way of “keeping the IG out of the conversation.”

Matt Topic, founder and leader of the law firm Loevy & Loevy’s FOIA practice, is currently representing Buzzfeed News in a Freedom of Information Act lawsuit against HHS, FEMA and the Homeland Security Department for communications related to the coronavirus based on concerns that the government isn’t being transparent about its response process. It’s too soon to tell if the administration’s release of records falls outside previous norms, he said, noting it often takes months or longer to receive documents requested under FOIA.

One former senior U.S. Agency for International Development official told Government Executive that stronger oversight is vital as the agencies grapple with largely unprecedented issues surrounding the COVID-10 pandemic. “They’re going to have to try a lot of things and they’re big and they’re expensive and they’re complicated and not everything is going to work.” What’s more, “during this time of turmoil people are going to misbehave.”