When Sen. Patrick Leahy, the ranking member of the Senate Judiciary Committee, and a longtime friend of open government, took the stage at the ASNE convention two months ago, his message was anything but encouraging.
"These have been tough times for the public’s right to know… what our government is up to. Government secrecy is being ratcheted up — sometimes conspicuously, sometimes imperceptibly.”
As disturbing as Leahy’s words were, they are mild in comparison with the warnings being sounded by others.
Former White House chief of staff John Podesta says the current administration has embraced "secrecy as a means of control"; the Center for Public Integrity’s Charles Lewis observes a “zeal for secrecy, an unrelenting push to stem the free flow of information”; and Scott Armstrong, executive director of the Information Trust, speaks of “active denial of information by the government. We’re having more and more opaque layers thrown at us.”
From an open government perspective, writes former White House counsel John Dean, the times we live in are "worse than Watergate."
Library of Congress historian Harold Relyea would agree. He told an FOI Day gathering at the Freedom Forum that this is the “third worst of times” in U.S. history for open government, standing behind only the chilling security and secrecy of World War I when newspapers operated under a censorship code and communications (telegraph and mail) were government controlled, and the Civil War when little information escaped the White House and all communications were brought under strict control of the federal government.
If we had color codes for the level of transparency, the current indicator would be approaching opaque.
What prompts those assessments?
- The Homeland Security Act, which Leahy said provides for "the single greatest rollback of FOIA in history." It holds the prospect of creating a totally uncontrolled fourth level of classification and of spreading a federal cloak of silence to as many as four million state and local officials and contractors under the sanction of nondisclosure agreements.
- The Patriot Act and the secret raids, arrests, court dockets and trials it has spawned. Newsrooms have been raided and journalists' records seized. There have been more than 1,200 presumably terrorist-related arrests and 750 people deported. No one outside the government knows their names. No one outside the government knows how many court docket entries have been erased or never entered. Secret federal court hearings have been held with no public record of when or where or who is being tried. Everyone involved is gagged. The American Civil Liberties Union, challenging some of these provisions, was prohibited from telling anyone about its suit.
- A White House order halting declassification of presidential documents. It was issued shortly before the records of the incumbent president’s father were to be declassified.
- The "Ashcroft Memo" in which the attorney general encouraged agencies to be bolder in withholding documents, and promised legal support.
- The stonewalling by the vice president on his energy task force records.
- The Andrew Card memo through which the current White House chief of staff ordered a review that led to at least 6,000 documents being pulled from government Websites.
- The Department of Defense order banning photos of military caskets being returned to the U.S.
- The Health Insurance Portability and Protection Act. This privacy-based law has shut off the flow of what was once routine patient condition information. Although it governs only health care providers, the restrictions have been adopted by many other sources, such as police, as well. Health and Human Services has been unwilling to publicly clarify its regulations to limit the scope of the information denials.
Add to those overt activities the behind the scenes surge in government classification activity since 9/11. According to a new report by the Information Security Oversight Office, classifications increased 64 percent over the past two years, a surge that prompted ISOO director, William Leonard, to talk about excessive classification and warn that “allowing information that will not cause damage to national security to remain in the classification system, or to enter the system in the first instance, places all classified information at needless increased risk.
“Many senior officials will candidly acknowledge that the government classifies too much information,” he said, while drolly noting it was almost always in the context of agencies other than their own. Many senior officials, he said, “have no real idea how much of the information they generate is classified; whether the overall quantity is increasing or decreasing; what the explanations are for such changes; which elements within their organizations are most responsible for the changes; and, most important, whether … too much or too little information is being classified and whether it is for too long or too short a period of time.”
That secrecy, incidentally, has a hefty price tag. Leonard’s 2002 report put the cost to government at $5.7 billion, with defense contractors and others in industry who maintain classified records spending a billion more dollars.
Then there's the Freedom of Information Act, adopted in 1966 and amended several times since then with a goal of providing citizens — most requests come from business and industry — with information about what their government is doing. As most journalists know from bitter experience, if you want something on or even close to deadline, don’t FOIA (to use the verb form).
In Washington, at least, getting a document is a three-step process: 1) Try a secondary source, preferably one whose political interest it serves. 2) Ask the agency for the document directly and pray. 3) File a FOIA request and do the story, or a follow-up, a month or six later.
The Justice Department reported recently that in 2003 the median time for processing a “simple” FOIA request to the AG’s office was 19 days. An “expedited” request? 80 days. “Complex” requests took almost a year.
Many requesters would consider that speedy.
The National Security Archive FOIAed FOIA, requesting federal agencies to give them documentation on their 10 oldest requests. They didn’t all comply, of course, but the Archive reported last fall that the oldest pending FOIA request dated to Nov. 9, 1987 by San Francisco Chronicle reporter Seth Rosenfeld. Most of the records, involving FBI investigations at the University of California, were turned over, after three lawsuits, in 1996, but at least 17,000 pages have yet to be disclosed.
David Sobel, who has been litigating FOIA cases for two decades, said all of legal battles have involved process, not the content of the documents sought. “Agencies often throw up procedural hurdles before the merits of exemption claims even arise … preliminary obstacles, which often appear to be concocted by agencies that simply don’t want to be bothered with a document search or a substantive response.
Sobel said in accepting the James Madison Award this year from the American Library Association for his efforts in FOIA cases that “The process shouldn’t be that difficult. … Citizens shouldn’t need to find lawyers when they seek to exercise a right as basic and fundamental as the one that FOIA purports to grant.”
The government spends about $300 million a year deciding which unclassified documents to make public through its FOIA offices. There are more than 3,000 people in the departments alone (and more still in the various federal agencies) working on information requests. And FOIA is seldom an agency priority. Some agencies are even outsourcing FOIA request-processing to private contractors.
When the new FOIA officer showed up for work with her three person staff at the Transportation Security Administration, created after 9/11, she found an office with a single long table and a file cabinet. No desks. No computers. No paper or pens. No files or file folders. It took a while to get around to the information requests. Then there’s the question of orientation. She works in the Office of Security.
At the much-maligned Department of Homeland Security there is at least one hopeful sign. The lead FOIA person is called the “Disclosure Officer.” On the other hand, she reports to the Privacy Office.
Two other small indicators of the climate:
Asked by several doctors if it could keep confidential a report showing a conflict of interest in referring patients to health care facilities, Health and Human Services responded with this reassuring language: “To the extent we are obligated to disclose records that we have received … we cannot maintain these records as confidential. However …”
The CIA has added a new question in their standard employee polygraph examination: "Do you have friends in the media?"
All of this is at the federal level. State open government advocates have also seen a trickle down, a steady erosion of open government laws and regulations since 9/11. Some are national security inspired, but many more use security as pretext or simply take advantage of a security and privacy conscious time to respond to special interests seeking records closure.
The tiny south Alabama town of Notasulga decided to allow citizens to see records only one hour a month, claiming the town clerk was overworked. They backed off in the face of criticism but the new policy may be worse: Make a request in writing, make an appointment — and provide a valid reason.
In West Virginia last year, lawmakers doubled the number of exemption categories from 8 to 16. In Florida, a state where individual, single subject exemptions are required and must get a two-thirds vote to breach open-government laws, the Legislature just wrapped up a contentious session at which it considered more than 50 new exemptions to its Sunshine and public records laws. It adopted 14. One new law, passed over the objections of law enforcement officials and FOI advocates, prohibits police from making lists of gun owners and sets a fine of $5 million for violation. Another, exempting the Social Security numbers of all government employees in any document, was approved without a single dissenting vote in either house.
It was this spreading climate of closure and secrecy that prompted ASNE and other journalism organizations to gather in Washington a year ago for an FOI summit. The purpose was to find a way to fully leverage the work of journalists and their organizations on open government issues.
Ultimately seven national journalism groups and the National Freedom of Information Coalition joined to form the Coalition of Journalists for Open Government to coordinate the FOI activities of its member organizations, build some collective strength and hopefully, to generate some synergy.
The coalition, which began operations in January, is housed at the Reporters Committee for Freedom of the Press in Arlington, Va., although it operates independently of RCFP. The coalition’s mission is to coordinate the work of its now-26 member organizations and of other open government advocates working in the public sector. It has identified four areas where at least several of its member organizations have each developed freedom of information programs that might benefit from either coordination or some merging of effort: journalist training, public education, litigation, and response to legislation and regulation.
At April’s convention, ASNE’s Freedom of Information Committee decided to develop or expand programs in several of those areas.
Chair Andy Alexander, Cox Newspapers Washington bureau chief, asked Baltimore Sun Editor Tim Franklin to advise a group of editors in planning for a national Sunshine Sunday. While executive editor of the Orlando Sentinel Franklin guided a similar Florida program, in which the state’s 42 daily newspapers ran news feature stories, op-ed pieces and editorials about freedom of information issues on the same Sunday. The committee’s goal is to launch a similar nationwide FOI blitz early in 2005.
It also plans to create a Speakers Program to make available editors and experts on open government issues to talk to community groups in all states. The committee also said it will update the “stump” FOI speech posted on the ASNE Web site, and add others.
Another leg of the public education effort will be to revitalize the program to generate op-ed pieces on open government subjects. The Knight Ridder/ Tribune News Services distributes the articles, but few have been generated in the past year.
A second initiative will be to expand ASNE’s work with training programs. It will try to expand the distribution of FOI Interactive, a training program developed by Sue Hale and Pam Luecke for ASNE over the past year and distributed at the convention. The scenarios created for the Interactive DVD allow for wide-ranging discussions of basic FOI issues.
The committee also hopes to develop a much broader FOI training curriculum in the coming year, working with journalism training institutes, journalism coalition organizations already offering training programs, and legal counsel and academic exports on First Amendment issues.
The committee will also be spreading the word on its new regional legal team. Former FOI Chair Doug Clifton calls it a “dream team willing to take on worthy cases for the resource starved.”
Raleigh, N.C.-based attorney John Bussian, who organized the group, said, “For years we have said that important access battles have been lost without a fight in small market areas. The dream team’s purpose is to ensure that legal resources are there to make or preserve sound legal precedent on these issues.”
Another area of concern is legislation and regulation. Newly named Charlotte (N.C.) Observer Editor Rick Thames will head a subcommittee working on an ASNE legislative program. He’ll work with Bussian and ASNE counsel Kevin Goldberg, who lobbies on behalf of ASNE when necessary.
A week after the ASNE convention, Alexander hosted a meeting of almost two dozen Washington bureau chiefs. “The Washington press corps sets much of the nation’s news agenda on federal issues,” he said. “For that reason, Washington bureau chiefs have a special obligation to battle against secrecy so that the public can know what its government is doing.”
The Freedom Forum’s Paul McMasters reminded the bureau chiefs of recent administration actions closing records and meetings and said journalists now confront “a government information policy that has a default setting of secrecy, that withholds, soft-pedals, misleads, intimidates, and manages the news.” He wondered if the Washington press corps “has changed quickly enough or dramatically enough” to overcome those new barriers.
Alexander said it’s important that journalists write more often about government secrecy. “These needn’t be stories about the press being denied information. Rather, they should be written from the perspective of our readers — average citizens — who literally are kept in the dark when government closes the door on public information.”
He said, “It’s also important for editors and reporters to engage public officials in a dialogue about why information should be in the public realm.”
The FOI goals of the ASNE committee and those of the Coalition of Journalists for Open Government are ambitious, as they must be given the challenge in Washington and the states. The struggle will not be short term, and it is going to require the combined resources and energies of all of the organizations in the coalition — and more. But there is a precedent for a professionwide, old-fashioned journalistic crusade to strengthen public support and convince public officials that open government is better government.
In the years immediately after World War II, a number of newspaper editors began raising questions about closed meetings and suppression of information at all levels of government. One of the first chairs of ASNE’s FOI committee, Basil L. “Stuffy” Walters of the Chicago Daily News, challenged his colleagues, saying newspapers were defaulting on their obligation to protect the people’s right to information. In 1950, ASNE took the first tentative steps toward what would become a national “Right to Know” campaign that involved ASNE, Associated Press Managing Editors, Society of Professiona Journalists (then Sigma Delta Chi) and other journalism and civic organizations.
It involved editorials, commentary, news stories, and a lot of personal conversations with lawmakers. In Florida in 1953, four legislators from the St. Petersburg area introduced an open meetings bill at the urging of the local Sigma Delta Chi chapter president. Fourteen years later, using as a guide a model law published in Quill that he’d been given by a law professor and editorial writer, a Gainesville legislator introduced a bill that became the state’s Government in The Sunshine Law.
When the Right to Know campaign got underway, only one state had an open meetings law. By 1962, according to a study published in the Harvard Law Review, 26 states had adopted some form of open meetings law. Others had adopted new or more expansive records laws. Congress approved the federal Freedom of Information Act in 1966.
It’s a new century, and the war on everyone’s mind is a new and very different kind of war. But actions at the federal level and in many of the states to shield information and operate behind closed doors are no less intense. Now people talk about transparency, but it’s the same issue — the people’s right to know.
The question for journalists is the one Stuffy Walters asked in 1949 — and the one that Sen. Hillary Clinton posed at the opening session of this year’s ASNE convention — are we going to fight, or shrug and walk away? |
