Key 'open government' official leaves policy mark

After 25 years heading one of the federal government's key privacy and information offices, Daniel J. Metcalfe will retire Jan. 3. Observers say that while they have not always agreed with him, he will be remembered for his ability to administer the open government policies of both Republican and Democratic presidents.

As a founding director of the Justice Department's Office of Information and Privacy since November 1981, Metcalfe has worked for seven attorneys general, pushed agencies to improve the management of requests for information and made a substantial impact on the law governing agencies' responsibilities to release information to the public.

Over that time, Metcalfe has supervised more than 500 Freedom of Information Act and Privacy Act litigation cases. Until last year, he co-directed the Office of Information and Privacy with Richard Huff, who retired after 36 years in the government.

In an interview with Government Executive, Metcalfe said he believes open government is critical. But at the same time, agencies must ensure that government information is disclosed responsibly.

"I'm more supportive of openness than some people might think, but I also recognize and respect the need to protect information," he said. "I have seen the types of sensitive information that the government can have. And I know first-hand the importance of protecting it."

Metcalfe will leave his mark on both the management of requests for information and the policies governing how much is released.

Management of FOIA Requests

President Bush issued an executive order in December 2005 requiring agencies to improve their administration of FOIA requests for government documents. Metcalfe said his office -- and secondarily the Office of Management and Budget -- has been the driving force for enforcing the changes.

According to a Justice report issued in October, agencies are for the most part complying with the executive order, which outlines a two-year process for improving the implementation of the 40-year-old law.

Officials within the privacy community say the executive order staved off legislation that would have imposed stricter enforcement of the existing 20-day deadline for FOIA responses and would have created a system to allow people requesting information to track the status of their queries on the Internet and by telephone.

Meredith Fuchs, general counsel for the National Security Archive, which collects and publishes declassified documents, said while the information and privacy office has done excellent work, Metcalfe was not empowered to make substantial recommendations that would improve the administration of agency FOIA processes. She said the executive order, since it did not contain any recommendations for increasing funding or staffing levels, exposed the weakness of the information and privacy office.

"When you're in the one office that is charged with making recommendations a reality and you can't do anything to make the recommendations a reality, it's a frustrating situation to be in," Fuchs said.

Metcalfe noted there has not yet been time within agency budget cycles to discuss increasing resources. He said he expects agencies to implement their FOIA improvement plans and issue their progress reports on time.

He added that he has personally spearheaded the executive order's implementation, even as he has prepared to leave government service.

"I've been going out 'full throttle,' so to speak, in both guiding and admonishing the chief FOIA officers of all federal agencies to treat their individual agency executive order responsibilities with the care and seriousness they deserve," Metcalfe said. "Now it is up to them to do their part by meeting their implementation and reporting deadlines on Feb. 1."

Legal Impact

In the spring of 1978, before becoming head of the information and privacy office, Metcalfe began establishing, as a Justice trial attorney, the legal concept in FOIA law known as "survivor privacy," whereby the government can hold back personal information about a deceased person out of respect for the privacy interests of surviving family members.

In Lesar v. Department of Justice, Metcalfe decided to argue that releasing certain FOIA-requested information in the files from the investigation of the assassination of Dr. Martin Luther King Jr. would invade the privacy of the civil rights leader's family.

"I was in a unique position. I was able to decide what was quote unquote 'right,'" Metcalfe said. "I was taking a risk, given the state of the case law at the time, but I thought it was the right thing to do."

The government's decision to withhold the information eventually was upheld by the D.C. Circuit Court of Appeals in 1980. But Metcalfe's survivor privacy principle was not firmly established until the Supreme Court ruled 9-0 in 2004 that bloody photographs of the body of Deputy White House Counsel Vincent W. Foster Jr., taken after he committed suicide in 1993 with a handgun in a Virginia park managed by the National Park Service, were exempt from release under FOIA.

"It felt quite good that something that I had conceived in 1978 as a matter of litigation policy was ultimately accepted by the Supreme Court," Metcalfe said. "The court recognized that you can have something so sensitive that when it is disclosed, it could harm the survivors.

"Vince Foster's youngest child was still in high school at the time," Metcalfe said. "He could have walked into his classroom and seen his father's death displayed on the television screen there. Or his aged grandmother could have seen it on the cover of a supermarket tabloid. That's the interest we were protecting."

Metcalfe also helped establish the legal principle known as "Glomarization," whereby the government can refuse to confirm or deny whether requested records even exist because such an action could reveal FOIA-exempted information. He litigated the first such cases to go to judgment in the late 1970s and argued the leading appellate case of Gardels v. CIA, which kept the CIA from having to confirm or deny the existence of covert contacts on particular American campuses, hence protecting them from foreign intelligence analysts.

Policy Conflicts

As a career Senior Executive Service official leading an office with significant political undercurrents for four different presidents, Metcalfe often enforced and helped shape governmentwide policies that seemed opposed to one another.

For instance, an October 1993 FOIA standard established by President Clinton and Attorney General Janet Reno rescinded a 1981 rule that had encouraged agencies to withhold information whenever there was "a substantial legal basis" for doing so. The newer legal standard "strongly encouraged" agencies to disclose information requested under FOIA whenever possible.

But an October 2001 memo from President Bush's attorney general, John Ashcroft, superseded the 1993 memo and was viewed in the FOIA and privacy community as an attempt to hold back government information. The memo urged agencies to disclose information under FOIA only after full consideration of the institutional, commercial and personal privacy implications.

Acknowledging that it might be hard to imagine that a single person could have been involved in crafting the Reno and Ashcroft memos, Metcalfe said it was no secret that he worked on each.

"Our responsibility is to implement, not to mention shape, the policy of the current administration as best we can," Metcalfe said. "We have developed a standard of excellence, and that is a big part of what our office has been known for from the beginning."

He denied rumors that he is retiring out of frustration with the Bush administration's overall policies on secrecy in government. He said he has averaged more than 75 hours on the job per week since the Sept. 11, 2001, terrorist attacks, and his wife is thrilled that he can cut that back to about 40 in "retirement." He added that he wants to take advantage of opportunities such as teaching law.

"This has been an absolutely fantastic position for an attorney interested in governmentwide policy and litigation," Metcalfe said. "It has been a fabulous job more than 98 percent of the time, even lately."

Patrice McDermott, director of OpenTheGovernment.org, a coalition of journalists and good government groups, said that "while it is not clear" whether Metcalfe has "been an advocate for openness in government the way others have been," he has "been a good and faithful government official."

"He followed whatever official party line of whatever administration he was in," McDermott said. "I don't think he's been an advocate for openness in government the way others have been, but he's done a good job doing what his job tells him to do."

International Advocate

Notwithstanding his domestic management and policy achievements, Metcalfe listed his influence on other countries as one of his biggest accomplishments.

When the Justice information and privacy office was created in 1981, Sweden, Norway and the United States were the only countries that had open government policies, he said.

Starting with a group from Japan that same year, several hundred delegations have come to Metcalfe's office for advice on enacting and then implementing open government policies and procedures.

"We have gone all around the world promoting openness in government," Metcalfe said. "When we started, we had only the three. Then the Berlin Wall fell, and many nations realized that government transparency could be used as emblematic building blocks of modern democracy."

Today there are 68 governments with FOIA-like laws, Metcalfe said, nearly all based closely on the American experience with FOIA.

"It's vitally important to have openness in government. It's a cornerstone of democracy," he said. "But at the same time, you have to have the kind of openness that strives for careful, fully responsible disclosure. Sometimes disclosing more information is not responsible. I would have been irresponsible to not try to protect the privacy of Martin Luther King's family, for example."

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