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President Obama at South by Southwest Interactive Festival
President Obama at South by Southwest Interactive Festival Gary Miller—Getty Images

How Apple and Walmart Show the Two Very Different Sides of the Federal Government

Mar 22, 2016

Who says the U.S. federal government plays fair? While the Department of Justice has recently backed off on what was a steady, forceful push for Apple to unlock its iPhones to assist an investigation in the San Bernardino terrorist attacks, the DOJ successfully fought back an attempt by citizens to gain access to government information in a case involving Walmart.

Fortune reported that Bruce Sewell, Apple’s general counsel said, "In 30 years of practice, I don’t think I’ve ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo." Apple’s refusal has been deemed almost “un-American,” he told the New York Times. Related to cases like the one involving Apple, President Obama told a gathering at the SXSW conference in Austin, Texas: “I would just caution against taking an absolutist perspective on this.”

The complaints Apple has communicated about recent DOJ filings are not unique. Similar views on the dismissive attitude of the DOJ were expressed last year in a Walmart-related matter concerning a freedom of information act (FOIA) request. Last week, in that case, a federal court in Tennessee upheld the government’s right to withhold information from Robbins Geller, a law firm that often represents investors in cases against companies. Robbins Geller had requested information from the Securities and Exchange Commission (SEC) related to its multi-year investigation of bribery corruption at Walmart.

Robbins Geller partner Jason Forge told me he was disappointed but respects the court’s decision in the Walmart FOIA case. The judge followed the law, he says, but the law is biased in the government’s favor. The SEC has failed to bring its investigation to a conclusion and they are protecting Walmart at the same time, he told me.

Walmart spokesperson Randy Hargrove says the foreign corrupt practices act (FCPA) investigation is still ongoing and that Walmart is fully cooperating. He could not comment beyond that, he told me, and said it would be inappropriate for him to comment on the Geller case as Walmart was not a direct party in the suit.

The SEC declined to comment on the status of its Walmart investigation for this article. And the DOJ did not respond to requests for comment on either the Apple or the Walmart cases.

Government officials' reluctance to be forthcoming is, of course, exactly why FOIA exists in the first place. In an article published last week discussing how Hillary Clinton's private email server effectively shielded documents from public view, USA Today's editorial board made a powerful argument in support of FOIA: "the law is designed to encourage public servants to act with integrity. That’s especially worth remembering this Sunshine Week, an annual news industry initiative that promotes openness in government."

At SXSW, meanwhile, President Obama spoke broadly about the importance of cooperation between citizens and government. “Look, we are at a moment in history where technology, globalization, our economy is changing so fast…. So the reason I’m here really is to recruit all of you … the most important office in a democracy is the office of citizen.”

He went on to say that “part of my challenge since I’ve been President is trying to find ways in which our government can be a part of the positive change that’s taking place and can help convene and catalyze folks in the private sector and the non-profit sector to be part of the broader civic community in tackling some of our biggest challenges.”

As citizens, we are constantly asked to place our trust in the government and large corporations. If President Obama hopes the civic community will cooperate in solving security challenges like the one involving Apple, the DOJ must change its tune on cases like the one concerning Walmart.

Eleanor Bloxham is CEO of The Value Alliance and Corporate Governance Alliance (http://www.thevaluealliance.com), an independent board education and advisory firm she founded in 1999. She has been a regular contributor to Fortune since April 2010 and is the author of two books on corporate governance and valuation.

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