A.  Government Information Policies  

     Trouble Right-To-Know Advocates

 

      Stringent new controls on government information during the past two years pose significant threats to speech and press freedoms.  Sustained and severe restrictions on access have alarmed freedom-of-information and right-to-know advocates who suggest that Congress, the public, and the press are losing some of the ground they gained with passage of the Freedom of Information Act (FOIA) 37 years ago.

      The reasons for more restrictions on access: a re-examination of government information policies provoked by the terrorist attacks of Sept. 11, 2001; a sharpened emphasis on secrecy because of the war on terrorism; the military action in Afghanistan; and the buildup to war against Iraq.  The overarching rationale for more control, however, appears to be a belief by many Bush Administration officials that executive powers have been weakened during the past few decades by too much sharing of information -- authorized and unauthorized – with other branches of government, the public, and the press.

      The result has been broad restrictions on access to information.  While the Administration has been most aggressive in initiating new controls on government information, the Legislative and Judicial branches also have sanctioned more restrictions on access.  Polls suggest that many Americans support such policies during times of national crisis.

      Nevertheless, these changes in government information policies have diminished congressional oversight and the First Amendment rights of the public and the press.  The Freedom of Information Act was enacted in 1966 after years of congressional frustration at federal agencies for refusal to disclose information.  During a speech on the floor of the House on June 20, 1966, Rep. John E. Moss (D-Calif.), who sponsored the Act, forged the link between the First Amendment and the FOIA.  The framers of the First Amendment, Rep. Moss said, “could not have intended to give us empty rights. Inherent in the right of free speech and of free press is the right to know.”

 

Executive Branch

      Many of the White House restrictions on government information are traceable to concerns that even routine information might prove useful to terrorists.  As a result, thousands of pages on government Web sites have been removed.  New categories of information deemed harmful to national security have been created.  Administration officials have put pressure on the scientific and academic communities not to publish certain information.  And broad exemptions to the FOIA have been proposed in anti-terrorism measures sent to Congress.

      One of the more dramatic demonstrations of the Administration’s concern for protecting sensitive information was the Justice Department’s refusal to release basic details about the detention of more than 1,000 people in the aftermath of the Sept. 11 attacks.  The DOJ said that it would not release the names of detainees for privacy and security reasons.  After a New Jersey trial court in March 2002 ordered that the names of federal detainees in state jails be made public, the Immigration and Naturalization Service immediately issued interim rules prohibiting release of the information.  Citing those rules, a federal appeals court reversed the decision.  The interim rules became permanent on Jan. 29, 2003.  (See “Courts” below, and Chapter D in this section.)

      However, many of the restrictions on access put in place since late 2001 have not been directly related to the war on terrorism.  On Nov. 1, 2001, President George Bush issued Executive Order 13233, substantially weakening the Presidential Records Act of 1978, which provided for the release of most presidential records after 12 years.  The order extends the time such records could be sealed.  Further, it gives an incumbent or former president veto power over release of presidential records and allows former presidents and their descendants to review and reseal records.

      When the General Accounting Office, the investigative arm of Congress, sought records about Vice President Dick Cheney’s Energy Task Force, the Administration refused to provide them, citing separation-of-powers concerns.   The action resulted in three court cases.  (See “Courts” below.)

      The Bush Administration invoked executive privilege in refusing to release to the House Government Reform Committee records about former attorney general Janet Reno’s decision not to appoint a special counsel to probe campaign finance.  The White House also went to court in August 2002 to extend executive privilege to prevent disclosure of information about presidential pardons.

      In one of the more unusual actions related to access, U.S. Attorney William S. Duffey, Jr. brought charges against Jonathan Randel, a Drug Enforcement Administration analyst, for leaking confidential but unclassified information to the London Times.  In order to prosecute, Mr. Duffey defined e-mail as government property and used a decades-old law that prohibits the theft of public money, property, and records.  In January 2003, Judge Richard W. Story of the U.S. District Court for the Northern District of Georgia sentenced Mr. Randel to one year in prison.  Mr. Duffey said he brought the prosecution as a warning to government employees about unauthorized disclosure of government information.

      One of the most notable changes in government information policy was Attorney General John Ashcroft’s memorandum on implementation of the Freedom of Information Act, issued in October 2001.  The attorney general’s new guidance significantly shifted policy from a presumption of “maximum responsible disclosure of information” to one of defending denial of FOIA requests if there were a “sound legal basis” for doing so.  (See Chapter C in this section .)

      In March 2002, White House Chief of Staff Andrew Card, Jr. sent a memo to federal agencies directing them to withhold sensitive information even if the FOIA’s national security exemption did not apply.  In his memo, Mr. Card resurrected the controversial concept of “sensitive but unclassified” government information.  That is one of several new terms now being used as a rationale for denying access to information.  Others include “classifiable,” “law enforcement-sensitive,” and “homeland security-sensitive.”  On Feb. 20, 2003, the Federal Energy Regulatory Commission issued a new rule establishing another class of information that would no longer be available to the general public: “Critical Energy Infrastructure Information” or CEII.

      The emergence of these broadly defined categories of information, coupled with Attorney General Ashcroft’s memo, has created an environment in which most federal officials and employees may find it wiser or easier to withhold information rather than release it to the public or press -- or to share it with other federal agencies.

 

Congress

      Many of the government’s concerns about sensitive information found expression in the Homeland Security Act, passed late in 2002, which contained sweeping new departures from open-government principles.

      After months of deliberations, the House and Senate passed and President Bush signed into law the Homeland Security Act in less than two weeks during November 2002.  In addition to ordering one of the largest reorganizations of the federal government ever, the Act contained an exemption to the Freedom of Information Act so broad that Sen. Patrick Leahy (D-Vt.) called it “the most severe weakening of the Freedom of Information Act in its 36-year history.”

      The purpose of the exemption, according to proponents, was to encourage private companies in the telecommunications, transportation, financial services, and other sectors to share sensitive critical infrastructure information with the new Homeland Security Department.  The law exempts voluntarily submitted material from disclosure under both federal and state FOI laws.  It criminalizes the intentional disclosure of such information by government employees (penalties include firing, fines, and up to one year in prison).  And it immunizes companies from civil liability in any legal proceedings brought by local authorities or private citizens based on the voluntarily submitted material.

      The Homeland Security Act also exempted the department from requirements of the federal open meetings law, the Federal Advisory Committee Act, meaning that meetings could be closed to the public and press, that notices of meetings might not be filed in the Federal Register, and that minutes and records might not be kept.

      At the end of the 107th Congress in 2002, the FOIA was amended by a little-noticed provision in the Intelligence Authorization Act for Fiscal Year 2003.  The measure prohibits intelligence agencies from disclosing information under the FOIA to any foreign government, international governmental organization, or their surrogate requesters.

      Another FOIA exemption was included in the Agriculture, Conservation, and Rural Enhancement Act, passed and sent to the president by Congress on May 13, 2002.  Section 204(g) of the law exempted from disclosure information about government natural resources programs, farm conservation plans that itemize federal cost-share dollars provided to farmers who implement the plan, and key documents relating to receipt of federal subsidies.

      In February 2003, Congress inserted in the omnibus appropriations bill (Section 644 of H.J. Res. 2) a provision that would block access to certain kinds of gun data under the FOIA.  The measure appears to be in response to a case the U.S. Supreme Court had agreed to hear but then remanded, in which Chicago officials sought Bureau of Alcohol, Tobacco, and Firearms records that would help trace illegally owned guns.  Dept. of Treasury v. City of Chicago, 287 F.3d 628 (7th Cir.), cert. granted, 123 S. Ct. 536 (2002), judgment vacated & case remanded (U.S. Feb. 26, 2003) (No. 02-322).

 

Courts

      Two federal circuits issued conflicting opinions on press challenges to the Administration’s denial of access to detainees’ hearings, signaling a possible Supreme Court ruling.  (See Chapter D in this section .)  The Justice Department had ordered that deportation hearings involving detainees with alleged links to terrorism be conducted as “special interest” cases with no visitors, family, or press present and without “confirming or denying whether such a case is on the docket or scheduled for a hearing.”

      In Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002), the U.S. Court of Appeals for the Sixth Circuit ruled that before all or parts of such hearings could be closed, the Administration must present compelling evidence of national security harm.  However, in North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002), the Third Circuit reversed a May ruling by a federal judge in New Jersey who found the policy in violation of the First Amendment right of the press and public to be present at such hearings.  Judge Edward R. Becker, writing for the 2-to-1 majority on Oct. 8, 2002, agreed with the government’s argument that opening up the hearings could compromise terrorism investigations and provide helpful information to terrorists. 

      The Bush Administration’s decision not to release information about Vice President Cheney’s Energy Task Force generated three lawsuits.

      In a suit against the vice president, the General Accounting Office sought information about the costs of the task force and who attended its meetings.  It was the first lawsuit filed by the GAO since it was established in 1921.  On Dec. 9, 2002, Judge John D. Bates of the U.S. District Court for the District of Columbia ruled that the head of the GAO, Comptroller General David Walker, had no standing to bring the legal action.  Walker v. Cheney, No. 02-0340 (D.D.C. Dec. 9, 2002). 

      Mr. Walker announced his decision not to appeal Judge Bates’s ruling on Feb. 7, 2003.  The Hill newspaper reported a few days later that threats by Republicans in Congress to cut the GAO budget were a factor in Mr. Walker’s decision not to appeal.  After Mr. Walker’s decision, Rep. Henry Waxman (D-Calif.) decried “a fundamental shift in our system of checks and balances.  For all practical purposes, the Bush administration is now immune from effective oversight by the Congress.”

      Two other cases seeking information about the task force, Judicial Watch, Inc. v. National Energy Policy Development Group and Sierra Club v. Cheney, were consolidated under the Judicial Watch caption.  On Oct. 18, 2002, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ordered that the government make available through discovery proceedings the composition and procedures of the task force.  Judicial Watch, Inc. v. National Energy Policy Development Group, 233 F. Supp. 2d 16 (D.D.C. 2002).  Commenting on the Administration’s claim that subjecting the task force to the Federal Advisory Committee Act would impair the president’s ability to receive confidential advice necessary to carry out his duties, Judge Sullivan said: “The implications of the bright-line rule advocated by the government are stunning” and “would eviscerate the understanding of checks and balances between the three branches of government.”  The government has appealed that decision.

      In Electronic Privacy Information Center v. Office of Homeland Security, No. 02-620 (D.D.C. Dec. 26, 2002), the government sought to have the suit dismissed, claiming that the office was not an agency and therefore was not subject to the FOIA.  EPIC went to court after the homeland security office failed to respond to an FOIA request for records on a national driver’s license proposal and biometric identification of airline passengers.  U.S. district court Judge Colleen Kollar-Kotelly ruled in December 2002 that the office must prove it has no authority other than helping and advising the president in order to have the suit dismissed.

      In another case, EPIC filed an FOIA request for information from the Department of Defense about the proposal by Admiral John Poindexter for a Total Information Awareness program.  The department refused to process the request unless EPIC agreed to substantial fees, saying that the nonprofit organization did not qualify for a fee waiver as a “representative of the news media.”  EPIC filed suit and in January 2003 a federal district judge rejected the Defense Department argument and ordered DOD to “expeditiously” process the FOIA request.  EPIC v. Dept. of Defense, No. 02-1233 (D.D.C. Jan. 16, 2003).

 

What’s Next

      The assault on access is not over.  The Center for Public Integrity obtained a Justice Department draft of a “sequel” to the USA Patriot Act and made it public in February 2003.  The 86-page draft entitled “The Domestic Security Enhancement Act of 2003” proposed new restrictions on the release of government information.  For example, Section 201 contains an Exemption 3 provision stating that “the government need not disclose information about individuals detained in investigations of terrorism until disclosure occurs routinely upon the initiation of criminal charges.”  The provision could significantly affect detainees’ cases now making their way through the courts.

      Another provision of the draft proposal would revise the Clean Air Act to limit public access to “worst case scenario” reports from corporations about dangerous chemicals filed with the Environmental Protection Agency.  Some information would be redacted from the reports, and only those who live or work in the geographical area likely to be affected by an accidental or intentional release of hazardous chemicals would have access.  Access would be “read only” and no copies of the reports could be made.  Other provisions would make it clear that security-sensitive material in the agency with OSHA oversight is exempt from disclosure under Exemption 3, and would “provide protection against civil liability for businesses and their personnel who voluntarily provide information to federal law enforcement agencies to assist in the investigation and prevention of terrorist activities.”

      A large group of public interest, civil liberties, environmental, press, and other organizations have formed loose coalitions working on ways to address the restrictions on access that have occurred in the last two years.  More legal challenges to the new policies are expected.  In Congress, Sens. Leahy and Carl Levin (D-Mich.) were planning to introduce an amendment that would ameliorate somewhat the FOIA exemption in the Homeland Security Act.

 

--Paul McMasters