Groups raise concerns about increased classification of documents

By Gregg Sangillo

October 27, 2004

"The Bush Administration Is Secretive" has become a familiar story line in the press. And since the September 11 attacks, much of the media attention on secrecy has focused on the Justice Department's detainee policy and the murky legal issues involving the administration's labeling of terrorism suspects as "enemy combatants." But some observers believe that the issues surrounding the classification of documents, Freedom of Information requests, and access to basic, everyday information will, in the long run, turn out to be more significant.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, describes it this way: "What I'm most concerned about are not the front-page news scandals. It's the routine, mundane stuff that is increasingly inaccessible." For example, Aftergood says, "Ten years ago, I used to go to the Government Printing Office bookstore and purchase the Pentagon phone book.... My understanding is that that phone book is now for official use only, and cannot be purchased. In a way, it's a small thing. But in another way, it's a wall that has been erected between the public and the government."

Tom Devine, legal director of the Government Accountability Project, says, "In terms of government sunlight, we're in the dark ages now." He puts most of the blame on the Bush administration for implementing the secrecy policy. "There's no other rational explanation than administration policy, for a phenomenon that's springing up like a thousand dead lightbulbs. This can't be a coincidence. It's become the rule," Devine says.

Open-government advocates point to a number of indicators:

OpenTheGovernment.org, a coalition of journalists and government watchdog groups, released a "Secrecy Report Card" in late August declaring, "Government data now confirm what many have suspected: Secrecy has increased dramatically in recent years under policies of the current administration."

The government classified 14 million new documents in fiscal 2003, an increase of 60 percent over the comparable figure for fiscal 2001. The number of documents classified increased steadily in the Clinton administration, the group points out, from 3.6 million in fiscal 1995 to 8.7 million in fiscal 2001 (which ended 19 days after 9/11 and about eight months into Bush's term). But the number of pages declassified by the Bush administration in the past two years, 43 million and 44 million respectively, is much lower than in any year from 1995 to 2001. From 1996 to 1998, the number of pages declassified hovered around 200 million a year.

The cost of securing classified information, which involves safeguarding facilities and personnel, has increased steadily from $3.4 billion in 1997 to $6.5 billion in 2003. And the amount of money spent on declassifying documents in the Bush administration was $113 million in 2002 and $54 million in 2003. By comparison, $231 million was spent in 2000.

More agencies are also reporting a backlog in FOIA requests. A surge in the number of requests is mostly responsible for this backlog, but the OpenTheGovernment.org report complains that spending on resources to work on FOIA requests also has not increased. Contributing to the problem is a Bush executive order in November 2001 restricting FOIA access to documents of earlier administrations.

According to Thomas Blanton, director of the National Security Archive at George Washington University, the delay in FOIA requests from Reagan Library documents has increased from 1.5 years to four years. "The ones that they would have responded to in 2001, they're now responding to in 2004 or 2005. That is a huge difference in the system," says Blanton.

The Bush administration's overall approach to the FOIA has been sharply criticized. On October 12, 2001, Attorney General John Ashcroft issued a memorandum to the heads of all departments and agencies that superseded the Justice Department policy in place since 1993. The memo states, "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." The line was widely seen as a reversal of Clinton policy; where Attorney General Janet Reno's memo said that Justice would defend an FOIA exemption only when the agency "reasonably foresees that disclosure would be harmful to an interest protected by that exemption."

Patrice McDermott of the American Library Association says, "Ashcroft's memo on the Freedom of Information Act essentially said that if agencies could find any plausible statutory reason for withholding information ... then the Justice Department would defend them in court. The standard under the Reno Justice Department was that the default was disclosure."

Justice Department spokesman Mark Corallo, however, defends the Ashcroft memo. "All the attorney general's message said is, 'Look, make sure that you are processing FOIA applications carefully, and that you do take under consideration national security and privacy.' "

Corallo added that the memo was not a unilateral move by the administration. "One thing you have to remember is that Ashcroft's memo was issued in October [2001], but of course the department had started looking at the issue long before that. In talking to the career FOIA officers, they felt that there had been too much emphasis on releasing documents without looking at potential concerns."

An additional FOIA exemption that was written into the Homeland Security Act of 2002 has also drawn the ire of members of Congress and of open-government advocates. Critical Infrastructure Information, which the law declared to be information "not customarily in the public domain," and usually related to food and water distribution systems, transportation, and energy, is not subject to disclosure under FOIA.

Because CII involves private companies, observers fear that the restriction could limit public access to health and environmental information. A company could use the law, for example, as a way to restrict public oversight of the safety of its business practices, something that is of concern for a community near a nuclear power plant or toxic-chemical facility.

Already, citizens have sought information for various reasons, only to have their requests denied by the government on security grounds. In Living Rivers Inc. v. Bureau of Reclamation, a U.S. district court in Utah denied a request by a local environmental group for flood inundation maps that showed the potential consequences if either the Hoover or Glen Canyon dams failed. The court ruled in March 2003 in the government's favor, declaring that the agency's "statements concerning risk assessment by terrorists demonstrate that release of the maps could increase the risk of an attack on the dams."

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says that the Homeland Security Act and other regulations are creating new classification systems that are giving government agencies a much greater ability to hide records. "The situation is pretty darn nasty, and it's percolating down to the states. The states are being told what they have to do and how to manage their own records," she says.

The Bush administration has its defenders. Some believe that Bush has been fairly cautious, and that a post-9/11 world has made change necessary. "I think, on the whole, the Bush administration has taken an understandable course," says Mark Tapscott of the Heritage Foundation. "One can make a very persuasive argument that environmental impact assessments, for nuclear plants for example, ought not to be posted on the Web, when there are people out there who would like to know what the vulnerable points are and take advantage of them."

Tapscott argues that the rising level of classification in government, under both Clinton and Bush, is more a reflection of big government bureaucracy than the practices of any particular administration. "The fundamental problem is bureaucratic inertia. And one administration to the next may affect things on the margins, either positively or negatively. But that doesn't get to the fundamental problem. With big government, you get big secrecy," he says. In a recent paper, Tapscott says that the midlevel federal bureaucrats who handle 99.9 percent of the 2.3 million FOIA requests annually know that they are immune from penalties for mishandling or ignoring these requests.

And institutionalizing new secrecy rules is a complicated process, which requires compliance across a vast spectrum of government agencies. Blanton's National Security Archive conducted a study indicating that Bush's policies haven't had a blanket effect on the executive branch. After the controversial Ashcroft memo, his group asked 33 federal agencies that handle almost all FOIA requests for copies of any changes they made because of the DOJ memo.

The study showed that five agencies made "significant" changes in regulations and that the memo was "widely disseminated." Eight agencies surveyed indicated "implementation activities concerning the Ashcroft memo." Seventeen departments indicated "awareness and dissemination" of the memo, but made few changes as a result. Three departments indicated no changes in procedure, and little or no dissemination of the memo.

Regardless of the increasing concern over access to information, observers foresee few changes on the secrecy front in the near future. Rep. Henry Waxman, D-Calif., ranking member of the House Government Reform Committee, which has jurisdiction over FOIA, has introduced a bill titled the "Restore Open Government Act of 2004." Among other things, it would revoke the Ashcroft memo and Bush's November 2001 executive order, while attempting to curtail excessive classification. But no hearings have been scheduled.


By Gregg Sangillo

October 27, 2004

http://www.govexec.com/defense/2004/10/groups-raise-concerns-about-increased-classification-of-documents/17919/