July-August 2002

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The End of Access? The Government’s New Information Policy

A new "information lockdown" threatens public and scholarly scrutiny of government records and documents

By Thomas James Connors

When President George W. Bush issued Executive Order (EO) 13233 in November 2001, historians, archivists, journalists, civil libertarians, and others decried it and called on Congress and the courts to rescind it. The executive order takes responsibility for approving or denying access to presidential records out of the hands of the archivist of the United States and gives it to the president. It permits the sitting president to deny access to the records of a past president, even if a living past president approves access to his own materials. Vice presidential records also fall under the aegis of EO13233.

By itself, EO13233 would disturb those who believe in and rely on open access to government information. But even before the issuance of EO13233, other actions limiting access had already caused concern. On October 12, 2001, for example, U.S. attorney general John Ashcroft issued a memo to heads of federal agencies informing them of his support should they decide to deny requests for information under the Freedom of Information Act (FOIA). In August 2001, an administration subcommittee was formed to revise former president Bill Clinton’s executive order instructing agencies to automatically declassify national security records that are not currently sensitive after twenty-five years have elapsed.

This article takes a closer look at these and other examples of "information lockdown," as it has come to be called. It considers the underlying rationale for the lockdown, its policy implications for academics and others who seek regular access to public-sector information, and its threat to democratic society.

The Order

Much has been written about EO 13233, which is perhaps the most notorious information initiative of the Bush administration to date. Oddly titled "Further Implementation of the Presidential Records Act," the order rests its claim to legitimacy on constitutionally based privileges, namely, the state secrets privilege; the presidential communications privilege; the attorney-client, or attorney work product, privilege; and the deliberative process privilege.

Those who have publicly opposed EO 13233 cite its overturning of the Presidential Records Act of 1978 as their primary point of disagreement. The Presidential Records Act was drafted in the wake of Watergate and in response to congressional fears that former president Richard Nixon would never open his papers to the public. The law makes presidential and vice presidential records public property, and it contains a section on restrictions to access that takes into consideration the privileged areas mentioned above. Bush’s executive order is seen as an edict that violates the spirit of the law and substitutes one man’s desire for information control for a legislative process that represents the will of the nation.

Led by the public-interest watchdog organization Public Citizen, a group of scholars, historical associations, and public policy activists filed suit in November 2001 in the U.S. District Court for the District of Columbia to overturn EO 13233. One of the plaintiffs, historian Hugh Davis Graham, who died several months after the lawsuit was filed, had been repeatedly denied access to materials from Ronald Reagan’s presidency, which had been due to open in January 2001. Speaking at the Lyndon Johnson Presidential Library, Graham said, "It [EO 13233] attempts to change a public law, not by persuading Congress to revise it, but by executive decree. It is disingenuous, turning the statute on its head, displacing a premise of eventual openness with a license for permanent closure." In a separate but related response, Representative Stephen Horn of California introduced a bill in the House of Representatives titled "The Presidential Records Act Amendments of 2002," which seeks to strengthen the Presidential Records Act by establishing a process for considering executive privilege claims and limiting the amount of time the former and incumbent president can take to review records and claim privilege, thus rendering the Bush order unnecessary.

Restrictions

The October 2001 Ashcroft memorandum to the heads of all federal departments and agencies noted the administration’s commitment to full compliance with FOIA, while emphasizing the importance of protecting sensitive institutional, commercial, and personal information that may be included in government records. The memo read: "When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

Ashcroft’s memo revoked one issued by former attorney general Janet Renoon October 4, 1993. That memo stated: "The American public’s understanding of the workings of its government is a cornerstone of our democracy. The Department of Justice stands prepared to assist all federal agencies as we make government throughout the executive branch more open, more responsive, and more accountable." The 1993 Reno memo strongly encouraged agencies to allow discretionary disclosure of exempt information whenever possible. There are nine legal categories that are exempted from FOIA: internal government memos, business information, information governed by other statutes, and information about national security, regulation of financial institutions, private matters, law enforcement investigations, internal agency rules, and oil wells.

Reno’s memo rescinded a Reagan-era ruling that encouraged federal agencies to withhold information whenever there was a "substantial legal basis" for doing so. With its "presumption of disclosure," the 1993 instruction leaned toward the principle of openness in government. The Ashcroft memo seeks to overturn that approach. In February 2002, Senator Patrick Leahy of Vermont called on the General Accounting Office (GAO) to look into how federal agencies are enforcing the FOIA in the wake of the Ashcroft memo.

National Security

On April 17, 1995, Bill Clinton signed EO12958, which revoked an executive order issued by former president Ronald Reagan in 1982 to keep national security information classified indefinitely. The Clinton administration felt that the Reagan policy had resulted in the unnecessary classification of many historically significant records, rendering them inaccessible for public scrutiny for no good reason. Specifically, the Clinton order required government agencies to automatically declassify, by 2000, all permanently valuable records containing information about national security that were twenty-five years old or older and that did not contain information exempt from declassification under one of the nine legal categories of sensitive information. In August 2001 a subcommittee was established and charged with exploring whether EO12958 should be revised. At a meeting held on August 9, eight agencies proposed changes to twenty-four of the thirty-four sections of the executive order, most of which affected automatic declassification. Although EO12958 remains in force, more stringent guidelines are being applied to declassification of twenty-five-year-old documents.

A private firm has been hired to make classification adjustments to truckloads of documents transferred to its offices from the federal records center in Suitland, Maryland. The company hires entry-level analysts to do this job, requiring only that they have completed coursework in history or political science or have had military experience. The job description does not mention archival training or experience. Archivists interested in strengthening their profession may find this situation disturbing.

Several other information-related initiatives by government agencies are worth mentioning. Shortly after September 11, 2001, the Nuclear Regulatory Commission removed its entire Web site from public view in response to a Department of Defense request. (A truncated version was reinstated in March 2002.) In January 2002 about 6,600 technical reports, some dating from the 1950s and 1960s, were withdrawn from the Defense Technical Information Center. These documents, dealing with germ and chemical warfare, were once sold openly to the public.

OMB Watch, a public-interest group that monitors the information resources of government agencies, has reported that information has been removed from the Web sites of twelve federal agencies: the Department of Energy, the Department of Interior’s Geological Survey, the Federal Energy Regulatory Commission, the Environmental Protection Agency, the Federal Aviation Administration, the Department of Transportation’s Office of Pipeline Safety, the National Archives and Records Administration, the NASA Glenn Research Center, the International Nuclear Safety Center, the Los Alamos National Laboratory, the Bureau of Transportation Statistics Geographic Information Service, and the National Imagery and Mapping Agency. Notices on some of these Web sites say that information was removed because of its potential usefulness to terrorists.

In December 2001 President Bush granted new secrecy powers to his secretary of health and human services (HHS). HHS information whose disclosure would cause "serious damage to the national security" is to be classified as secret. Presumably, documents dealing with bioterrorism and the government’s ability to respond to it will be affected. Still, a real ambiguity remains as to the quantity of such documents and how they will be identified. This is the first instance of a domestic agency being drawn into the national security apparatus.

That some government information may aid and abet terror is certainly true, and the argument that sensitive reports or technical papers should be carefully screened before being made available to the public is defensible. Yet some observers argue that it makes little sense to remove information that in some cases has been available for forty or fifty years. Is this a useful measure, they ask, or is it overreaction? Does it thwart terrorists, or those who have a legitimate right to access to the withdrawn information?

One access issue affected more by political concerns than national security worries is Vice President Richard Cheney’s refusal to share with Congress information relating to his Energy Policy Task Force. The task force was convened in early 2001 to develop a national energy policy report. In February 2002 the GAO sued Cheney to force the White House to reveal the identities of top energy industry officials who helped the Bush administration develop its national energy policy. The White House claims that the GAO does not have the authority to carry out such an investigation. The suit is still pending as of this writing. Congressional Democrats want to know the names of some four hundred representatives of corporations, trade associations, and unions who met with Cheney and his task force between February and May 2001. Some Energy Department documents relating to the work of the task force have been released as a result of a lawsuit filed by the organization Judicial Watch.

Implications of Policy

It is true that in Armstrong v. Executive Office of the President (known familiarly as the "PROFS case" after the name of the e-mail system the National Security Council used), the Clinton administration sided with its predecessor in claiming that the e-mail messages of the National Security Council were "nonrecords" and could therefore be deleted. Yet the Clinton administration was noted for its policy of information openness. What accounts for the contrast between Clinton’s policies and those of the current Bush administration?

An obvious answer is the ongoing war on terrorism. There are plenty of government leaders who believe that in a time of war, even undeclared war, government information must be strictly shielded from the eyes of the enemy. If draconian measures are necessary to do that, so be it, they say. Obviously, many civil liberties activists and information professionals would view this approach as extreme. Another potential answer is that Republican administrations may be less open with government information than Democratic administrations.

A different explanation was offered for last fall’s executive order giving the sitting president control over all presidential records. After claiming that the order was crafted to provide as much information as possible to the public, White House counsel Alberto Gonzales told the Washington Post on December 20: "At times, certain documents may still be so sensitive that they must remain confidential. In some cases, release of documents could jeopardize our national security, and while the pursuit of history is invaluable to our society, it should not endanger American lives. Nor should it deprive a president of candid advice while making crucial decisions." Linking the pursuit of history with endangering American lives is, of course, ludicrous.

A noted presidential scholar offered another explanation. "They’re fearful of what they don’t know and of things that may come out in the future," American University history professor Anna Nelson told Salon magazine. (See the excerpt from Nelson’s testimony to Congress) "In the short run, they’re thinking about Bush Sr. and people in the current Bush administration, but they’re not thinking ahead to the long-term problems." Historian Richard Reeves agrees with Nelson, although he recognizes a long-term element to Bush’s thinking. "There may be Reagan-era records that could be embarrassing to some men and women back in power with the second Bush administration," Reeves speculated in the New York Times on November 16. "Perhaps even more pertinent, they may not want to spend their retirements, twelve years after George W. Bush leaves office, defending the wartime decisions they are making now."

Whatever the specific reasons behind the executive order on presidential records and the other information policy initiatives of the Bush administration, there is a larger issue at stake. Steven L. Henson, president of the Society of American Archivists, links open access to public information, current or archival, to democracy itself. "Access to the vital historical records of this nation should not be governed by executive will; this is exactly the situation the existing law [the Presidential Records Act of 1978] was created to prevent," he noted in the December 16 issue of the Washington Post. "Furthermore, for such access to be curtailed or nullified by an executive process not subject to public or legislative review or scrutiny violates the principles upon which our nation was founded."

As of this writing, it is too early to report the fate of Public Citizen’s lawsuit to overturn the executive order on presidential records, or to know how Representative Horn’s bill to amend the Presidential Records Act will fare in Congress. It is safe to say, however, that given the track record of the Bush administration thus far, it will probably continue to seek ways to control the information to which scholars and journalists will have open access.

To help protect their rights, academic users of government information need to publicize when, where, and how access has been denied to them. OMB Watch and the Federation of American Scientists are two groups that actively monitor open access, the right to know, and government secrecy. Keeping an eye on the Bush administration’s "information lockdown" is well worth the effort. Government information—in the form of presidential records, agency archives, government reports, and other forms of public-sector information—is too important to leave in the hands of government officials who prefer secrecy to open access.

Perhaps the most useful step that academics can take is to research and write about the relationship between information and democracy. Although we frequently make statements such as, "Democracy requires an informed citizenry," or "An informed public is crucial to a free society," the literature supporting these ideas is scant. For example, Thomas Jefferson is often cited as viewing an informed and educated public as key to the success of a self-governing society. Yet, to my knowledge, there is no scholarly work that examines Jefferson’s views on public information, a topic he frequently commented on in his voluminous correspondence. Fresh scholarly elucidation, studies with some historical heft, about the link between the public’s access to information and democracy would help restore open government and halt the current administration’s steps toward ever-greater information control.

Thomas James Connors is the curator of the National Public Broadcasting Archives at the University of Maryland and an adjunct professor in the university’s College of Information Studies. He is also a member of the national governing council of the Society of American Archivists.