SouthCarolinaLA Oct04

Access to Information in Today's Political Climate: 

Access to Information in Today's Political Climate Mary Alice Baish American Association of Law Libraries South Carolina Library Association October 29, 2004

Open Government Is Vital to Our Democracy: 

Open Government Is Vital to Our Democracy  Citizen participation in government.  Public accountability.  Public trust and confidence in our government.

Open Government Laws: 

Open Government Laws Freedom of Information Act (1966) Federal Advisory Committee Act (1972) Presidential Records Act (1978)

Government Secrecy Not New: 

Government Secrecy Not New Reagan’s “mania” for secrecy is well-documented (Iran-Contra scandal, increased classification). Clinton Administration gets good marks for openness (exception: Hillary Clinton’s “secret” health care task force). e-Government is huge success, but “born digital” government information is easier to “control.” Challenge of preserving and providing PPA to “born digital” government information.

Overview : 

Overview Bush Administration, pre-9/11. Bush Administration, post-9/11. Cheney v. United States District Court. Congress, Open Government & FOIA.  Our Allies for a More Open Government.  Advocacy and the Power of Grassroots.

Bush Administration—pre-9/11: 

Bush Administration—pre-9/11 Memorandum from COS Andrew Card on January 20, 2001 freezing 300+ pending regulations, no public comment. Memorandum on the Freedom of Information Act issued by Attorney General John Ashcroft on October 12, 2001. Agencies remove information from web sites (HHS, Dept. of Ed) in effort to promote Administration views. Efforts to eliminate production of agency reports (OMB, Dept. of Ed, DOD).

Who Owns Presidential Records?: 

Who Owns Presidential Records? E.O. 13233 strengthens ability of former presidents (and their families) to exert executive privilege to withhold records.  Presidential Records Act Amendments in 107th  Further Implementation of the Presidential Records Act (H.R. 1493) in 108th Need to revoke E.O. because it limits public access and violates not only the spirit but also the letter of the Presidential Records Act.

Bush Administration—post-9/11 Access v. Security: 

Bush Administration—post-9/11 Access v. Security Untold amounts of information removed from agency web sites. Nuclear Regulatory Commission shut down its web site temporarily to review documents. EPA removed database containing facilities' risk management plans from its web site. FAA removed information about airline safety for security purposes. U.S. Army censored information about Aberdeen, MD, Proving Ground and its contaminants.

Bush Administration—post-9/11 Access v. Security: 

Bush Administration—post-9/11 Access v. Security Card Memorandum on "Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security" (March 19, 2002). Homeland Security Act (P.L. 107-296): New FOIA exemption for CII (§ 214). “Sensitive but unclassified” information (§ 892)—rulemaking by DHS. Three years later, still no guidelines on “sensitive but unclassified” information.

Bush Administration—post-9/11 Access v. Security: 

Bush Administration—post-9/11 Access v. Security New surveillance powers of USA Patriot Act. Secret deportation of immigrants. Refusal to name detainees at Guantanamo Bay. GAO sues Cheney to disclose records of his secret Energy Task Force. “State secrets privilege” invoked to keep court proceedings secret for national security. E.O. 12958 on classified materials favors secrecy. Lack of accountability to Congress.

Access v. Secrecy at NRC: 

Access v. Secrecy at NRC Oct. 29, 2001—NRC web site shut down and more than 1,000 documents that contained sensitive information were removed. More documents have been withheld if deemed “sensitive.” Oct. 25, 2004—NRC web site shut down for review of “sensitive” information that could “conceivably” be used by terrorists—as a result of CNN news story.

Access v. Secrecy at DOT: 

Access v. Secrecy at DOT Proposed legislation would allow TSA to keep secret “sensitive security information” (H.R. 3550). Vague, broad language would make it hard to hold TSA accountable and could keep secret health information important to citizens. Would preempt state/local sunshine laws to mandate secrecy about public safety problems.  Recent CA ruling that FBI and TSA improperly categorized “innocuous” information as “sensitive security information.”

Overclassification Problems : 

Overclassification Problems CIA blacked out roughly one half of Senate Intelligence Committee report on pre-war intelligence in Iraq. A 28-page section of Congress’s joint inquiry on 9/11 was kept from the public. The Abu Ghraib prisoner abuse scandal unveiled previously classified documents that showed the military knew about the abuse months before the public.

 The Solution—Moynihan Commission Reforms Needed : 

 The Solution—Moynihan Commission Reforms Needed Establish a bipartisan national declassification review board with statutory authority to overrule federal agency classification decisions; and, Establish a national classification center located at NARA to coordinate, implement and oversee the declassification policies and practices of the federal government.

  Cheney v. U.S. District Court: 

 Cheney v. U.S. District Court Judicial Watch and Sierra Club sued in 2001 over FOIA request for disclosure of who participated in meetings of VP Cheney’s energy task force. Key question: is Cheney’s Energy Task Force subject to FACA? U.S. District Court granted motions to proceed with discovery about membership. U.S. Court of Appeals for DC Circuit refused to overturn that ruling. Supreme Court grants cert.

Public Interest Groups File Joint Amicus Brief : 

Public Interest Groups File Joint Amicus Brief We asked the Supreme Court to reject the government’s claim that it can conduct its work in secret. http://www.ll.georgetown.edu/aallwash/br03112004.pdf Public participation and accountability demand an open government. U.S. Supreme Court remanded case to appeals court but did not embrace principle of openness.

  Congress, Open Government & FOIA—the Good: 

 Congress, Open Government & FOIA—the Good  S. Res. 54 to provide Internet access to CRS reports and more committee documents.  H.R. 5073, the Restore Open Government Act to revoke EO on PRA, Card and Ashcroft memos, and to presume disclosure over secrecy.  Sen. Cornyn (R-TX) and former Texas AG, will introduce bill next year to strengthen FOIA & extend it to Congress and the courts.

Congress, Open Government & FOIA—the Ugly: 

Congress, Open Government & FOIA—the Ugly New blanket exemption to FOIA in S. 2845 (9/11 intelligence bill) “to protect intelligence sources and methods.” Language in H.R. 4200 was changed from a prohibition of disclosure of certain commercial satellite imagery to more narrow FOIA exemption.

 OpenTheGovernment.org: 

 OpenTheGovernment.org Post-9/11 effort to develop national and state coalition to promote open government and protect the right to know (RTK). Plans for a rapid response system, advancing the RTK, and media efforts. 34 organizations and hundreds of individuals. Join by affirming our Statement of Values. Help us monitor state efforts to narrow public access laws or increase secrecy.

OTG.org 10 Most Wanted: 

OTG.org 10 Most Wanted #1: 28 secret pages of Congressional Joint Inquiry into 9/11 Intelligence Failures. #2: Type of crime investigated each time a Patriot Act power was invoked. #3: A list of the contaminants found in sources of our drinking water. #4: Number of court cases partially or totally closed to the public and an explanation of each case's need for secrecy.

OTG.org 10 Most Wanted: 

OTG.org 10 Most Wanted #5: Industry-written reports on chemical plants' risks to communities. #6: Treatment and identities of those detained after 9/11 on immigration charges or as material witnesses. #7: Gifts from lobbyists to Senators & staff. #8: Federal contracts, grants and other agreements, their total value (in dollars), records documenting violations, and fines and other federal enforcement actions.

OTG.org 10 Most Wanted: 

OTG.org 10 Most Wanted #9: All changes made to publicly available versions of congressional legislation before a committee vote (the "chairman's mark"). #10: Congressional Research Service Reports. People’s Choice (Write-in): Documents from the 2001 National Energy Policy Development Group (Cheney Energy Policy Task Force).

 ACLU Lawsuit re: Detainees: 

 ACLU Lawsuit re: Detainees FOIA lawsuit filed in 2003 after DOD refused to release documents on treatment of detainees in military bases. "No one is above the law: not the executive, not the Congress, not the judiciary." Nearly 6,000 pages of documents related to the abuse of prisoners released by DOD this week. Documents are “heavily redacted,” raising even more questions—ACLU back to court.

 OTG.org Report Card: 

 OTG.org Report Card 14 million new documents stamped secret in 2003 (a 60% increase from 2001). Federal government spent $6.5 billion to secure classified information in FY 2003. For every $1 spent releasing old secrets in FY 2003, it spent $120 maintaining secrets already on the books.  Number of pages declassified in FY 2003 dropped to nearly one-fifth (43,093,233) the number declassified in 1997.

Public Wants More Openness: 

Public Wants More Openness Public made over 3 million FOIA requests in FY 2003. But only 7 agencies kept up with public requests for information through FOIA in FY 2003. Backlog for FOIA requests is now 4 years (up from 1.5 years in FY 2001). DOJ reports that whistleblowers helped taxpayers recover $1.5 billion in FY 2003.

Our Allies for A MoreOpen Government : 

Our Allies for A More Open Government Center for Democracy and Technology. http://www.cdt.org/ Electronic Privacy Information Center. http://www.epic.org/ Federation of American Scientists’ Project on Government Secrecy & “Secrecy News.” http://www.fas.org/ OpenTheGovernment.org. http://openthegovernment.org/ Reporters Committee for Freedom of the Press. http://www.rcfp.org/

 Other New Reports on Secrecy in Government : 

 Other New Reports on Secrecy in Government Secrecy in the Bush Administration, prepared for Rep. Henry A. Waxman (D-CA). http://democrats.reform.house.gov/features/secrecy_report/index.asp Homefront Confidential—How the War on Terrorism Affects Public Access to Information and the Public’s Right to Know (RCFP White Paper, 5th Edition). http://www.rcfp.org/homefrontconfidential/

 The Power of Your Advocacy!: 

 The Power of Your Advocacy! Commitment to open government and permanent public access to government information. Belief that government information should not be politicized. Communicate your concerns with your representatives and respond to action alerts. Join OTG.org! Thanks!