Smithsonian Regents Issue Revised Document Disclosure Policy

The Smithsonian’s Board of Regents recently approved a revised request for information policy, consistent with the principles of the Freedom of Information Act. The policy, titled “Requests for Smithsonian Institution Information,” is an update of one that has been posted on the Institution’s Web site since November 2007. In January 2008, the National Coalition for History joined thirty other organizations in expressing concerns about the original version of Directive 807.

The Smithsonian is not an executive branch agency and therefore is not subject to FOIA, but the Institution’s leadership stated they are committed to openness and accountability. “We believe that our updated policy makes the work of the Smithsonian as open as possible, while retaining confidentiality in a few narrow areas such as donors and investments,” said Smithsonian Secretary Wayne Clough.

Because of the unique nature of the Smithsonian outside the executive branch, its charitable and educational activities and its need to raise funds from the private sector, the Smithsonian must evaluate records not normally kept by regulatory agencies. Federal agencies do not typically engage in fundraising or operate revenue-generating activities, therefore, those issues are not addressed in FOIA legislation.

During the past year, representatives from the Smithsonian met with several FOIA “requester” groups and the staff of key members of Congress, including Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee and a member of the Smithsonian’s Board of Regents.

The Smithsonian has stated that comments and concerns of all groups were considered and incorporated to the extent possible into a revised document that more closely reflects FOIA while, at the same time, preserving the ability of the Smithsonian to withhold certain limited classes of information.

The policy clarifies how the Smithsonian’s Office of General Counsel will respond to requests related to donor information, publication of scientific research and Smithsonian commercial or financial information directly related to the Institution’s revenue-generating activities. In addition, the policy includes a process by which a requester may ask for an external review of a decision to withhold documents.

The primary exemptions for the Smithsonian are:

  • Information about Smithsonian trust (non-federal) investments that are subject to confidentiality provisions contained in agreements with investment firms;
  • Smithsonian commercial or financial information directly related to revenue-generating activities, where the release of the information would likely cause the Institution substantial competitive harm or impair the Institution’s ability to carry out its mission by raising private funds;
  • Data and information concerning collecting localities of species and artifacts, if necessary to protect them from being endangered or commercially traded or to protect cultural or religious sites;
  • Donor files including personal and financial information about donors.

Access to Information

The Smithsonian will expand the section on FOIA on its Web site to include more detailed information on how to request and track information. The Office of General Counsel will continue its practice of notifying requesters within 20 days of receiving a request, with a letter stating whether the Institution can comply and the reasons for its decision.

Requesters have the right to appeal a partial or full denial of their requests by writing to the Office of General Counsel, and, if not satisfied, to the Under Secretary for Finance and Administration. A requester who is still dissatisfied may then request that the Office of Government Information Services (part of the National Archives and Records Administration) provide mediation services.