"There seems to be a movement among certain parties in positions of power ... to create barriers to American citizens' right to know what their governments are doing." ~ Tom Connors
In 1671, Governor Berkeley of Virginia said: "I thank God that we have no free schools nor printing; and I hope we shall not have these [for a] a hundred years; for learning has brought disobedience and heresy and sects into the world; and printing has divulged them and libels against the government.God keep us from both."
[I suspect that Berkeley's distrust of public knowledge of government activity is still widely shared by governmental managers. There appear to be few rewards for implementing a strong information dissemination program, except for the Agriculture Department where farmers expect it.]
"The Constitution of the United States makes no specific allowance for any one of the co-equal branches to have access to information held by the others and contains no provision expressly establishing a procedure fro, or a right of, public access to government information." ~ Harold C. Relyea
"Conditioned by information restrictions prompted by recent global hostilities, fearful of Cold War spies, intimidated by zealous loyalty investigators within and outside of government, and anxious about various efforts at reducing the executive workforce during the postwar reconversion, the federal bureaucracy generally was not eager to have its activities and operations disclosed to the public, the press, or other governmental entities. Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to government information." ~ Harold C. Relyea
"The availability of government information in digital formats has added a new dimension to long-standing tensions between commercial publishers and public-interest groups. Technology advances, including the Internet, allow agency officials to easily provide information to the public directly and inexpensively." ~ Aliva Sternstein
"The federal government will pay a Texas law school $1 million to do research aimed at rolling back the amount of sensitive data available to the press and public through freedom-of-information requests." ~ USA Today [July 2006]
"The first-ever government-wide audit of the ways that federal agencies mark and protect information that is unclassified but sensitive for security reasons has found 28 different and uncoordinated policies, none of which include effective oversight or monitoring of how many records are marked and withheld, by whom, or for how long." ~ National Security Archive, 2006
GODORT has adopted these principles on government information:
Since Congressional deliberations and proceedings were available to the public via reporting and reasonably detailed records and since Congress needed fuller disclosure from the executive branch in order to fulfill its responsibilities, Congress became more interested in legislative solutions to information access problems. This was particularly so in the 1950s and 1960s when Congressional committees felt that they did not have access to the information they needed.
While there is no single administrative view, there is a natural reluctance to share information. "Need to know" has long been popular in government circles. Not only can government information lead to loss of reputation and embarrassment, but it can be used by enemies of the state. For example, "critical infrastructure programs" could be used by terrorists. Birth and death records could be used for identity theft. There are good reasons why some information should be kept secret. Still, the "when in doubt, keep it secret" approach may be used to hide the historical record, and protect the guilty.
Political parties and presidents have agendas and philosophies that may lead to denial of access to government information. For example, the Bush Administration and some Republican legislators have interfered with government scientists who wished to discuss global warming research [the administration strongly prefers "climate change instead of GW]. NASA and NOAA research has been impacted.
The Smithsonian Institutions, short of funds, entered into an arrangement with Showtime Networks that gives the latter "right of first refusal" over all archival materials. Ken Burns noted that such access limits would have prohibited his documentaries by denying access to source materials. The EPA is closing its Midwest Regional Library in response to budget cuts. The closure will deny staff and public access to a variety of research content. Many government administrators, particularly with the Internet available, do not understand the importance of securing and providing access to hard copy and data collections. Several government agencies have had to cease publishing a valued item because of budgetary problems. For example, the Department of Commerce no longer issues Foreign Trade of the U.S., but Bernan Press now issues a similar title. While the information remains available in an attractive package, access is limited because it is no longer a "free" depository item.
The information industry and its advocates want free and easy access to government information, but reject value-added services by the Weather Bureau or competition by any government agency. For example, the American Chemical Society wants Congress to close the NIH's PubChem, a free database on small organic molecules which ACS argues competes with Chemical Abstracts. The notion is that no one would purchase privately produced information if the government provided it for free. An earlier case involved the SEC and free access to their database.
"There is obviously a great deal of history on the shelves out at the headquarters of the Central Intelligence Agency. Some of it is valiant history, some of it is work-a-day history, and some of it is just plain embarrassing. All of it is American history, however." ~ Representative Porter J. Goss
"Secrecy is the primary weapon of the bureaucracy." ~ Max Weber as quoted by Senator Patrick Moynihan
"It is one thing to keep sensitive information out of the hands of the terrorists, but quite another to use terrorism as an excuse to shield government officials from being accountable for their actions." ~ Bill Chamberlin
"The Bush Administration has an obsession with secrecy. It has repeatedly rewritten laws and changed practices to reduce public and congressional scrutiny of its activities. The cumulative effect is an unprecedented assault on the laws that make our government open and accountable." ~ Representative Henry Waxman
Americans have been historically indifferent "towards records that Americans have had since the early days of the Republic. This has made us vulnerable to panic in times of national duress. We have lurched from one crisis to another and much our our secrecy apparatus has been cobbled together quickly, rather than wisely." ~ Timothly L. Erickson
"Nothing has been able to slow the juggernaut of secrecy that many suspect serves the interests of politics, malfeasance, misdeeds, and potential embarrassment. As one writer recently described it, 'federal, state and local governments are shutting down access to public records in what some experts say is the most expansive assault on open government in the nation's history.'" ~ Timothy L. Erickson.
"This is an immensely troubling clampdown. The law itself is unchanged, but it's being interpreted more broadly to withhold more information." ~ Steve Aftergood
"In a seven-year-old secret program at the National Archives, intelligence agencies have been removing from public access thousands of historical documents that were available for years, including some publish by the Stated Department and other photocopied years ago by private historians [>55,000 pages]. ~ New York Times, February, 2006
"Secrecy in matters of national defense and diplomacy has been part of American government since the beginning." "In November 1907, the U.S. War Department established the first rudimentary official document classification system. The motivation was due, in large part, to the confusion among Army officers concerning the word 'confidential [Erickson].'" "The 1917 legislation that established 'much of the structure of secrecy now in place in the U.S. government' was rushed through Congress in just under eleven weeks." The Sedition Act of 1918 made uttering, printing, writing, or publishing "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States." In the following years, the executive order has been used to strengthen the classification and security system. Orders by Truman and Eisenhower extended classification authority to civilian agencies such as the Department of Agriculture. The Top Secret classification was also added. Only in 1978, was the public's right to know considered in classification decisions.
Information classification is a difficult task. Some critics suggest that as much as 90 percent of classified items need not be classified. It is difficult to know what information might be useful to "enemies" and what information is already available in the public domain. Releasing information that would genuinely threaten national security would be a terrible error. Protecting information that does not threaten national security, but that might threaten the reputation of public figures denies public accountability.
Until recently, federal policy allowed classification of federal information at three levels:
Until 2003, "basic scientific research information not related to the national security" could not be classified. Executive Order 12958 allows classification for "scientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism."
In 2001, the Justice Department changed its rules on FOIA requests to comply only after full and deliberate consideration. This change encourages federal agencies to challenge FOIA requests and to take much more time in that consideration.
In FY 2002, the number of documents classified increased 60 percent over 2001.
Since the government has classified too many items for too long, declassification has become quite a burden, especially today with the ease of document creation via computers and photo duplication. The Information Security Oversight Office is ultimately responsible for classification. The staff of twelve and a small budget are inadequate to the task. The classification "system" is large and complex and does not work well. It would be better to classify fewer items in the beginning, but that has not happened.
The federal government, EXCLUDING the CIA, spent at least $6.5 billion in 2003 keeping secret documents secret to protect against enemies of the state. This is a 60 percent increase since 2001. Typically, less than 1% of this amount is devoted to declassification. There is a substantial, perhaps a billion page, backlog of documents more than 25 years old that are ready for declassification. Critics argue that the CIA, as well as the FBI, has little interest in reclassifying documents, especially if they portray the agency negatively.The less that "they" know, the less sniping and criticism. Who has a need to know?
The terrorist attacks of 11 September encouraged the Bush administration to remove information form government websites that might "help terrorists to identify potential targets." Geospatial information is a particular target. For example, the National Imagery and Mapping Agency removed maps from its website, including the widely used topo maps. The National Geospatial-Intelligence Agency will remove from public access all of its aeronautic and navigational data and publications. Depository libraries were ordered to destroy copies of a public water supply database. The Office of Pipeline Safety deleted the National Pipeline Mapping System from its website. The Nuclear Regulatory Commission removed most of the content from its site. The FCC decided that information about telephone service outages has national security implications and removed that data. Critics argue that government is over reacting and needlessly restricting information, including information useful to the local citizen.
In the quest for improved homeland security, Congress allows Homeland Security agencies to create and implement legally binding regulations [security directives] that cannot be shared with the public who must comply with them, including an open court.
The release of government documents holds some potential for controversy. For example, the State Department attempted to recall the Foreign Relations of the United States volume which documents U.S. support for the anti-Sukarno coup. Similarly, the State Department and the CIA attempted to impound a recent volume (on the period 1964-68) which reveals U.S. involvement in the Greek coup that lead to a military dictatorship.
President Bush issued Executive Order 13233 that allows any sitting President to decide whether or not to release papers of other Presidents even if that President wanted them released. This violates the Presidential Records Act which provides for the "systematic release of presidential records after 12 years." About 68,000 pages of Reagan papers to be released were then withheld. Some of these papers involve members of the present Bush administration.
"When George Bush took over the presidency, he also took possession of the White House web site .... All of the previous content on that site, and its companion searchable document archive ... were completely wiped clean, replaced with a skeleton site for the new administration. The result was a massive example of 'link rot' in one of the most popular sites on the web." A somewhat similar revision was made of the Department of Education website.
Senator Sanatorum has introduced a bill that would prohibit the Weather Bureau from providing consumer weather information that might compete with the Weather Channel or AccuWeather.
The Data Quality Act set standards for the accuracy of scientific information. It was supported by industry-supported interest groups and is being used to challenge scientific data on government websites. For example, the Center for Regulatory Effectiveness used the Act to challenge information about global warming. Similarly, highly qualified scientists have been removed from lead-poisoning, environment, health, and drug abuses panels to be replaced by industry representatives. This has had some impact on panel recommendations and reports.
"Knight Ridder's Jonathan Landay says that the U.S. State Department's decision to stop publishing an annual report on international terrorism came 'after the government's top terrorism center concluded that there were more terrorist attacks in 2004 than in any year since 1985, the first year the publication covered."
After being published by the National Institute of Mental Health since 1969, the Schizophrenia Bulletin has been privatized and is now published by Oxford University Press. It is no longer available to depository libraries.
"The Bush administration, under fire for its handling of the economy, has quietly killed off a Labor Department program that tracked mass layoffs by U.S. companies."
"The Education Department destroyed more than 300,000 copies of Helping Your Child Learn History after complaints by Vice President Cheney's wife.
The leader of the Bureau of Justice Statistics was forced out when he complained that "senior political officials ... were seeking to play down newly complied data on the aggressive police treatment of black and Hispanic drivers."
The ERIC databases and website have been dramatically changed with the information analysis Clearinghouses eliminated and a new contractor hired who will use author provided abstracts and indexing. Less information will be available and the focus will be on best practice.
The Environmental Protection Agency has removed one database from its public website and slightly altered another due to a Data Quality Act challenge submitted by the U.S. Chamber of Commerce. The Chamber alleged that the databases were not "objective."
In November, 2001, President Bush issued an executive order that significantly increased the authority of sitting and former presidents to block public requests for unclassified records from prior administrations. The Bush order "asserted a hereditary right of executive privilege by which the heirs of a deceased or disabled former president could assert the privilege on his behalf."
The National Institutes of Health now require that NIH funded research be available to Pubmed Central within 12 months after publication. This will guarantee free public access.
If Electronic Data Systems (EDS), IBM or Lockheed Martin holds a contract to provide the information technology for a federal or state program, including data entry and analysis, will freedom of information laws apply to "corporate" records"? Will this information be in the public domain? Outsourcing information activities presents several barriers to prompt, public access to public information since these records may no longer be in the public domain.
Major users of government information--defense contractors and drug manufacturers for example--want to prevent access to damaging information about their activities while insuring that they have access to government information that might give them an advantage in the marketplace in securing government orders.
Government secrets became a major political issue in the 1950s with McCarthy and the Internal Security Act. Some believed that enemies of the state were everywhere. However, even without the Communist threat, the federal government is by its nature secretive, wanting to hide errors and problems. In a large organization, there are almost always errors and problems.
The FOIA established in 1967 [strengthened in 1996] a presumptive right of the people to know about the activities of the federal Executive Branch. Legally, the "Need to know" was replaced by the "Right to know". The Act required federal agencies to publish information about their general policies, functions and organization in the Federal Register. Information about more specific policies and procedures must be available in a designated reading room or on the web. Finally, government records were to be disclosed upon request unless disclosure would result in harm. The Congress, the judiciary, and White House offices were exempt. However, few administrator attitudes and values changed.
Most regulations dealing with declassification are found in Executive Orders. Typically, classified information more than 30 years old was to be reviewed by the Archivist of the U.S. and be declassified unless the head of the issuing agency objected.
The National Defense Authorization Act for Fiscal Year 2005 adds a new exemption to the FOIA that restricts public access to unclassified satellite images and related data, such as maps, reports, and analysis. There were no hearings or consultations with the communities affected, including academics. This will have an immediate and dire effect on GIS.
In 2005, the President issued Executive Order 13392 to increase FOIA performance. Each agency must appoint a senior official at the Assistant Secretary level to be the Chief FOIA officer who would lead the effort to improve agency FOIA compliance. Each agency must establish a FOIA Requester Service Center. So far, it is difficult to see any notable improvement in performance.
All federal agency records (identifiable, existing unpublished records) were to be made available promptly to:
The Act was passed over the objections of virtually every Federal agency. Besides concerns about the release of damaging information, agencies were concerned about the cost of compliance. At the same time, critics argued that the Act was not likely to provide needed access. Problems include:
Most departments, such as the Department of State and some agencies, created digital reading rooms on the WWW to provide public access to recently declassified government documents. These reading rooms are usually available from the departmental home page.
Agencies usually receive requests in writing. The process that follows includes:
When the search and evaluation phases are complete, the agency will decide to disclose all records in full, disclose some records or parts of records, or refuse to release because of the statutory exemptions. In some cases, the requested records cannot be found.
The number of requests received by executive branch agencies has increased dramatically in the past few years. There is no statutory deadline for making releasable records available. The ability of agencies to respond in a timely manner has lagged behind. Critics note that "many agencies employ a delaying strategy" and that it works well.The Department of Justice [Office of Information and Privacy] monitors compliance with FOIA and provides policy guidance. OMB issues guidelines for establishing uniform fees. Fees vary notably and may be charged for search, duplication, and review. Requests by educational institutions or news media are exempt from search and review fees.
Access may be provided in three ways:
Agencies may take months or years to respond to a request although the statute says 20 days. In fact, FOIA backlogs have substantially increased in recent years. Reasons include inadequate funding and lack of interest by administrators. Federal courts tend to defer to agency decisions. The time and staff needed to review requests may not be available, especially with reduced budgets. In most agencies, few people are familiar enough with the records to efficiently retrieve desired items. Poor records management systems, including remote storage facilities, make it difficult to find and retrieve items.
In 2004, just 12 percent of the FOIA requests to the CIA were granted. In 1998, it was 44 percent.
Information content that may involve privacy or national security issues will be deleted from the document given the requester. Hand deleted documents give some sense of the amount deleted by looking at the blacked out parts. In some FOIA requests, most of the lines in a document are blacked out. Machine-deleted documents have no blacked out lines so it is difficult to know how much content has been deleted
Attorney General Ashcroft issued a memo on 12 October 2001 urging federal agencies to exercise greater caution in disclosing information requested under the Act. He also indicated that he would support agencies that withhold records.
Federal courts have issued many decisions fleshing out the exempt ions contained in the Act:
Originally, agencies were empowered to make records available to those deemed "directly and properly concerned." They could keep records confidential for "good cause." Both terms provide the reluctant agency with considerable rationale to withhold information.
Many government agencies are anxious, perhaps fearful, about disclosure. This leads to resistance and a self-protective approach. That, coupled with poor records management, often leads to poor service. The failure to send acknowledgment letters to FOIA requests is a continuing problem.
Backlogs in processing requests remain a major problem. In theory, it should be 10 working days for the initial request to be granted or denied and then 20 days for an appeal to be acted upon. When the request is approved, the disclosure of record is to follow promptly but little can be done if it takes much longer. If there is any question about confidential data or information, the item requested is reviewed on a line by line basis with text black outs as needed. Such a review may require the attention of some other than a clerk and may require substantial time.
By law, fees are only allowed to recovery the costs of making the information available. However, there is no standard for creating a fee schedule nor is there a clear indication of exactly which costs are to be recovered.
Fees may vary by user category so that for profit firms, for example, might be charged more than an ordinary users. Fees ordinarily include the cost of duplication, searching, and review. Fees my be waived if disclosure is in the public interest. On one recent request, the federal agency said the the search fees would be about $373, 000. The request was made by a not-for-profit citizen's organization.
While the Act has not been as successful as many had hoped, a considerable amount of formerly classified or unavailable information is now available. There has been an increase in FOIA requests over time.
In 1977, the House Committee on Government Operations issued the first Citizen's Guide on how to request records from federal agencies and the guide was made available in most depository library collections.
Scott Hodes recommends that FOIA requests be:
This is an irony because one of the major justifications for the Act was to provide access for journalists who could use the information requested to keep government honest and provide information and evaluation to citizens. Time lag is a major problem. By the time the request is filled, the story may be cold or there may be so little useful information that there is no story.
About 50 percent of all FOIA requests are to the Veterans Affairs, usually for medical records. Other departments with substantial numbers of requests include Social Security, Health and Human Services, and Homeland Security. Other departments or agencies receive less than ten percent of FOIA requests.
As digital information became more pervasive, the Congress extended FOIA to digital documents. Agencies were required to package information in a digital form because it would be relatively inexpensive and easy to deliver information to the public via websites. Agencies vary notably in their compliance, especially since Congress did not provide additional funding to make this information available. OMB provided minimal guidance. The DOD and FCC were among the first agencies to provide good access. Security concerns and a harsh budgetary situation created some problems.
This Act was also a complement to the FOIA. As more agencies collected detailed information on individuals and placed that information in data bases accessed by SSAN, privacy issues became more acute. In fact, a variety of national and state data bases now exist which can be searched by SSAN and linked.
The Act states that there will be no central index of federal records maintained, used and shared by the federal government. However, this restriction only applies to personal information collected by the executive branch. The Privacy Act was further amended by the Computer Matching and Privacy Protection Act which says that the subject must be notified if adverse action results from matching.
The importance of such an act is seen in the recent uproar over the sale of birth and death data to private firms. Many fear that birth place or mother's maiden name would be used in identity theft. The Privacy Act only applies to the federal government. States have a long history of selling information to gain extra income, automobile registration is a good example.
However, there is no fixed time for response. You may only request information on your self. All CIA records are exempt. Most law enforcement agency records are exempt. All classified material is exempt. Most material used in making personnel decisions is exempt. Material likely to be used in litigation may be withheld.
These act extended access to federal advisory committees serving the executive branch and boards, commissions or councils serving the executive branch. The nine exemptions established with the FOIA legislation also applies here. Disputes over access may be pursued in a federal court.
The Archive has become the world's largest non-governmental library of declassified documents. It is located in George Washington University's Gelman Library in Washington, D.C. Holdings include more than two million pages of accessioned material in over 200 separate collections. A variety of source books or collections have been published based on Archive sources. Examples would include The Cuban Missile Crisis, 1962 and Afghanistan: the Making of U.S. Policy, 1973-1900. Document readers are available for class room use.
A public interest law firm files the FOIA requests on behalf of the Archive {and the American public}.
This is the best and largest archive of declassified documents. NSA indexes and publishes collections [print, microformat, digital] of these documents. A reading room is open to the public without charge. An example of NSA work is the availability of 23 declassified documents about the National Reconnaissance Office established by the Defense Department in 1961. The NRO managed the CIA and Air Force reconnaissance satellite systems. An earlier example would be the declassified portions of the Taylor Commission Report with investigating the Bay of Pigs "incident."
This is a Public Citizen Project with a focus on national security, FOIA, executive privilege and regulatory deception.Project on Government Secrecy by the Federation of American Scientists does a good job of monitoring current news about government secrecy. You may also subscribe to the email newsletter Secrecy News at this site.
Freedom of Information CenterThe OMB Watch has long fought for the public's right to know and for more and better public access to federal government information. For example, they maintain a list of material removed from government websites since 11 September.
A coalition of nineteen organizations including the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, Common Cause, Federation of American Scientists, National Security Archive, and OMB Watch. The "Press Room" and "Spotlight stories" are particularly useful.
Society of Professional Journalists
A genuinely useful section on FOIA, including basics, news, and resources.
"What will it mean for our nation to shift from a tradition of widely dispersed, locally owned and controlled collections of government publications, organized and preserved by dedicated and public-service-oriented librarians, to a system in which the government holds and controls most of our government information?" ~ Karrie Peterson, Elizabeth Cowell, and Jim Jacobs
"Taken as one brand, U.S. government Web sites, which attracted 44.8 million unique visitors ranked forth in overall traffic in February [2003] behind traditional leaders AOL, MSN, and Yahoo." ~
While the digital document or publication may be only a click away, preservation is always a problem. The GPO essentially eliminated print distribution to libraries at the end of 2005. This increases library concerns about preservation. Richard Wiggins identifies the different modes of digital death:
Increasingly, access to government information is via an agency website. This is a problem for those who lack web access or are uncomfortable with computers and the Internet. The GPO will no longer provide tangible format documents and publications to depository libraries except for about 40 essential items. While some agencies do a good job, others do not. A 2004 study found that:
At the same time, government websites provide a wide variety of new and quite useful services. For example, the Department of Labor provides an email newsletter with news about a variety of important labor topics. The IRS GuideWire is an easy way for tax professionals to get copies of needed resources.
Although relatively few in number, more government agencies are making RSS feeds available to provide users with easier access to current information. For example, the Census Bureau offers more than forty feeds including one on economic surveys.
OMB has developed and is implemented an electronic government initiative, E-gov which is designed to improve the delivery of services to citizens.
