In this “Sunshine Week” — amid revelations that the vow of transparency was not, as George Stephanopoulos famously said about Bill Clinton’s truthiness, one of the campaign promises Barack Obama intended to keep — I have just filed an administrative appeal with NASA challenging its thoroughly puzzling refusal to release ethics-related records for its high-profile global warming activist/advocate, the astronomer Dr. James Hansen.
This request and appeal are on behalf of the American Tradition Institute’s Environmental Law Center, for which I am pursuing a transparency project. Other efforts include seeking the same records from the University of Virginia, under the state’s Freedom of Information Act, that Attorney General Ken Cuccinelli is seeking through a taxpayer protection, anti-fraud statute.
On that front, we have been promised that a rolling production of documents will begin in mere days (which does not mean that we won’t be forced to litigate over claimed exemptions).
NASA rejected our request for records relating to compliance with applicable ethics laws, particularly Hansen’s office, the Goddard Institute for Space Studies (GISS). Hansen is NASA’s highest-profile, most media-present employee and also very entrepreneurial.
Specifically, is he filing applications seeking waivers for outside employment for all of his paying activities like speeches, books (emails obtained already indicated NASA staff worked on this), and other support?
The reasons I ask are not limited to the public record indicating that this file — if it exists — must be quite robust. I ask because I learned as part of another Freedom of Information Act effort, on behalf of the Competitive Enterprise Institute (now in litigation with a reluctant and secretive NASA), about years of non-compliance by Hansen’s protege Gavin Schmidt.
Schmidt has been running a third-party activist website almost since the moment Hansen brought him on board. The site was originally established to assail author Michael Crichton and defend the risible “Hockey Stick” graph showing stable global temperatures until the past 150 years. He did this using taxpayer resources, on taxpayer time. NASA agreed with this when I won my administrative appeal seeking Schmidt’s “RealClimate.org” records on NASA’s server.
But now, in a Washington, D.C., federal court, NASA is arguing that whenever Schmidt does this, at whatever time of day and in whatever office he sits, he’s clearly punching out from his job at NASA, so his daytime moonlighting is none of your business.
We’ll see if that floats. But in the meantime, we learned something about GISS, of which Hansen is currently director: GISS was not requiring Schmidt to comply with ethics rules that direct employees to obtain waivers for such outside employment. He scrambled to do so, and NASA provided us those very records.
That got me thinking: Is it unreasonable to believe the same man allowing this as director is also skirting the law’s requirements? NASA doesn’t want me (or you) to know. It says that to release these records would “clearly be an unwarranted violation” of Hansen’s privacy interests.
That’s untrue, given applicable FOIA precedent, as we explain in our appeal.
But these are the same records NASA provided me regarding Schmidt, which confirmed GISS’s deviation from the law in the first place. Apparently, Mr. Hansen is special. We know this from the way the media has treated him. The press repeated that any president named “George Bush” muzzled Hansen, while being entirely incurious about the possible implications of his various extracurricular activity.
What is even more puzzling is that NASA did not confirm or deny the existence of the records. It spoke generally about how any such records would contain information such as how much of his time Hansen spends on outside projects and for how much money. At least it sees what we’re getting at. And it said NASA would never dream of releasing such information — except when it would, I suppose.
This treatment represents something of a desperate strategy for NASA, indicating that either it knows there is something amiss or, tantalizingly hinted at by the oblique language, it is planning to treat Hansen’s ethics file with a “Glomar” reply.
That gambit was pioneered by the National Security Agency to hide information about a secret plan using Howard Hughes’ Glomar Explorer to raise a sunken Soviet submarine, by which they refuse to either confirm or deny that requested records exist. (See, e.g., here) The request then goes before a judge for a private look at the files.
Will NASA really try to place Hansen’s applications for waivers on a par with national security records? The public record, as we detail, indicates that the files exist — that is, if NASA is following the law, which as we’ve already seen in Mr. Schmidt’s case, it hasn’t always.
Of course, ultimately the records will be released, just as NASA released Schmidt’s, sans the drama and selective guardian of privacy bunting. What we know already confirms there had better be a lot there, if NASA has been keeping up with its statutory obligations. If not, then climate activist, friend of the rich and famous (and left-wing), globe-trotting expert witness in support of civil disobedience and nanny statism James Hansen actually hasn’t been filing the required applications for waivers for outside employment.
Stay tuned. NASA has 20 working days to remove — or deepen — the mystery.
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