State of the Profession: Academic Research and Access to Information

By Martin Snyder

Not everything was intended to be available under the terms of FOIA. A federal agency can refuse to release certain types of information. 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.

FOIA has frequently been the vehicle by which journalists, historians, scientists, and other scholars have gained access to governmental information. They have used such information to reveal waste, abuse, fraud, and other malfeasance, thereby embarrassing federal agencies and the administration in power. However, they have also used FOIA to understand more clearly and more fully how government agencies operate and how decisions are made. FOIA has allowed both journalists and scholars to do a better job of keeping their constituencies informed and educated.

During the Clinton administration, U.S. attorney general Janet Reno took steps to increase substantially the amount of government information available to the public. She applied to FOIA a "presumption of disclosure" approach, that is, it was presumed that information would be released unless it was "reasonably foreseeable that disclosure would be harmful." By memo of October 12, 2001, John Ashcroft, the current attorney general, rescinded Reno’s policy.

According to Ashcroft’s memo to federal agency heads, "Any discretionary decision by your agency to disclose information protected under FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information." Ashcroft instructed agencies to "carefully consider" threats to national security and law enforcement in responding to FOIA requests. The new FOIA philosophy, urging caution in releasing information rather than presumptive disclosure, was certainly affected by the events of September 11, but Ashcroft’s memo was in preparation long before then.

In fact, the Ashcroft memo seems to be part of a strategy to enhance federal secrecy. Both conservative and liberal public interest groups have complained that the administration’s penchant for withholding information has become routine. Vice President Cheney refused last year to release records of his energy task force, and prompted thereby a flurry of lawsuits. Last November, President Bush signed an executive order limiting the disclosure of past presidential records. Presidential historians cried foul, and a coalition of Republican and Democratic members of Congress have introduced legislation to overturn the president’s order.

The full academic impact of the administration’s restrictive FOIA philosophy remains to be felt. What scientists, however, have experienced may be a harbinger of things to come. The government has already adopted measures to keep weapons of mass destruction out of the hands of terrorists. Thousands of documents have been withdrawn from public release. Scientists fear that pressure may be exerted on them to censor their own research reports. In the absence of full and complete publication, peers would no longer be able to evaluate or replicate the work of their colleagues. The implications for the pursuit of the scientific enterprise in particular, and for academic freedom in general, are serious. Researchers have even begun to worry that there may be attempts to impose a general requirement for review of scientific articles prior to publication. (In the United Kingdom, a proposal to that effect has already been introduced in Parliament.)

The Bush-Ashcroft attitude toward public access to information seems likely to chill academic research or, at least, render it more difficult. The administration’s secretive philosophy, however, could have a far more serious and deleterious impact on the civic life of the nation. James Madison said it best: "Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government, without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy—or perhaps both."

Martin Snyder is AAUP director of planning and development.

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