WorkingForChange  [Printer-friendly version]
August 10, 2006

FOIA AT FORTY: PUBLIC SERVICE OR POTENTIAL THREAT?

[Rachel's introduction: The Bush administration has awarded $1
million for a study aimed at limiting information available to the
public via the Freedom of Information Act. Those of us who value
freedom of information had better take steps to defend it.]

By Bill Berkowitz

Although the Air Force Research Laboratory million dollar grant given
to Jeffrey Addicott, a professor at St. Mary's University School of
Law in San Antonio, to devise new ways to limit making information
available to the public via the Freedom of Information Act (FOIA), is
not likely to destroy the act completely, if adopted it could further
weaken the forty year-old act.

According to an early-July report in USA Today, Addicott said he will
use the research grant "to produce a national 'model statute' that
state legislatures and Congress could adopt to ensure that potentially
dangerous information 'stays out of the hands of the bad guys.'"

The grant, the USA Today report acknowledged, is for "research aimed
at rolling back the amount of sensitive data available to the press
and public through freedom-of-information requests."

"There's the public's right to know, but how much?" Addicott, a former
legal adviser in the Army's Special Forces, told the newspaper.
"There's a strong feeling that the law needs to balance that with the
need to protect the well-being of the nation.... There's too much
stuff that's easy to get that shouldn't be," he said.

"It's a little peculiar that Jeffrey Addicott received the grant given
that the Air Force has a wide range of urgent needs," Steven
Aftergood, the Director of the Federation of American Scientists'
Project on Government Secrecy and editor of Secrecy News, told me in a
telephone interview from his Washington D.C. office.

"We are after all at war. I would have thought they it had more
compelling uses for a million dollars than an academic study of how to
limit the FOIA. While I'm interested in the fact that the grant was
made, there's a long distance between someone writing a report and
proposing legislation and actually having that legislation enacted.

The announcement of the Air Force's grant came around the 40th
anniversary -- July 4, 1966 -- of President Lyndon Johnson's signing
the Freedom of Information Act into law.

Documents from that year, discovered at the Lyndon Baines Johnson
Library and Museum in Austin, Texas, by the National Security Archive
at George Washington University -- a group whose researchers make more
than 1,500 requests for government records on U.S. national security
and foreign policy under the FOIA every year -- revealed that
President Johnson had serious doubts about how much and what types of
information should be made available through the FOIA.

According to the AP's Ted Bridis, Johnson "submitted a signing
statement [along with the bill] that some researchers believe was
intended to undercut the measure's purpose of forcing government to
disclose records except in narrow cases. Draft language from Johnson's
statement arguing that 'democracy works best when the people know what
their government is doing,' was changed with a handwritten scrawl to
read: 'Democracy works best when the people have all the info that the
security of the nation will permit.'

"This sentence was eliminated entirely with the same handwritten
markings: 'Government officials should not be able to pull curtains of
secrecy around decisions which can be revealed without injury to the
public interest.'

"Another scratched sentence on the document said the decisions,
policies and mistakes of public officials 'are always subjected to the
scrutiny and judgment of the people.'"

"The law's staunchest advocates think its principles are imperiled,
threatened by what they describe as the Bush administration's penchant
for secrecy and concerns about revealing strategies to terrorists,"
the Associated Press recently pointed out.

"This is the worst of times for the Freedom of Information Act in many
ways," Paul McMasters of the First Amendment Center, which studies
issues of free speech, press and religion, told the AP.

In an op-ed piece for the Baltimore Sun, David O. Stewart, president
of the Freedom to Write Fund of the Washington Independent Writers,
wrote that "The problems with the FOIA could not be more current as
radio talk shows thump The New York Times for having the temerity to
inform Americans about what their government is doing."

Stewart pointed out how difficult it is to "strike" a "balance between
disclosure and secrecy . particularly when more than 4 million FOIA
requests are submitted every year. The Defense Department alone has
500 FOIA offices. Yet there are many symptoms that the current
policies fundamentally skew toward secrecy in a manner that can only
injure the public interest."

According to Stewart, a "secret" federally-run "program... ha[s]
spirited out of the National Archives more than 25,000 previously
disclosed records and reclassified them as 'secret.' These included a
1951 assessment of agrarian reform in Guatemala and a 1948 memo on
balloon drops of leaflets into Communist countries."

In addition, "The CIA has demanded that the National Security
Archive... pay the search costs for more than 40 requests, which would
run into hundreds of thousands of dollars." And, Stewart pointed out,
"The entire government continues to function under former Attorney
General John Ashcroft's 2001 directive that encouraged agencies to
deny information requested under the FOIA, assuring them of Justice
Department support in defending such denials."

"The government ignores almost all FOIA requests coming from activists
such as myself," Scott Silver, the executive director of Wild
Wilderness, an Oregon-based grassroots environmental group, told me in
a recent email. "They do not even acknowledge receipt -- not of the
original request or of follow up requests asking why the first request
was never acted upon. Those who sue the government when it breaks the
law may get a little bit better cooperation --- but even that seems to
be changing."

A new book by Stephen Gidiere entitled "The Federal Information
Manual: How the Federal Government Collects, Manages and Discloses
Information Under FOIA and other statutes," published this spring by
the American Bar Association, documented the up-tick in government
secrecy. According to The Birmingham News, "in 2005 alone, the
executive branch decided 14.2 million times to classify information as
secret, nearly double the number of secrets created in 1998."

Gidiere, an environmental and public records lawyer for Balch &
Bingham, acknowledged that in the post-9/11 climate it is
understandable that the Bush Administration would be more vigilant
about information accessible through the FOIA, but, he told The
Birmingham News, "Good government requires a balance between secrecy
and openness."

"The federal government spent $7.2 billion on designating and
protecting its secrets in 2004, up from $5.6 billion in 2002. In
contrast, the federal government spent only $300 million on issues
related to the FOIA," Gidiere said. "Much of this increase can
understandably be attributed to the Iraq and Afghanistan wars and our
increased military and intelligence operations since 9/11," Gidiere
added. "However, Congress and the federal courts should not give the
president an automatic free pass anytime he mentions national
security."

Gidiere also pointed out that "In 1998, the government classified
information 7.2 million times. By 2005, it was 14.2 million. The war
on terror is about protecting our freedom. But we are giving up some
of our privacy and freedom to win the war -- most notably, the freedom
of information."

"People want information from the federal government, and they want it
fast -- instantaneously, in some cases," said Gidiere, who spent years
researching and 18 months writing his book. "But now, there are more
hurdles to cross that prevent or delay local officials, journalists,
corporations and individuals from getting the information they want.
It's easy to understand why the public and many in Congress are
calling for reforms."

"Overall, the Freedom of Information Act remains a vital tool but a
troubled one: vital because it is not merely a policy, it is a law
that gives individuals access to government information," Secrecy
News' Steven Aftergood pointed out. "It is troubled because backlogs
are growing, secrecy claims are rising, and response times are getting
longer -- when you can get them."

The Air Force grant to Jeffrey Addicott "tells us what we essentially
already knew; that at this time, this administration views the FOIA
not as a public service, but as a potential threat. Those of us who
value freedom of information had better take steps to defend it."

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Bill Berkowitz is a longtime observer of the conservative movement.
His WorkingForChange column Conservative Watch documents the
strategies, players, institutions, victories and defeats of the
American Right.

Copyright 2006 Working Assets.