Balancing Openness and Privacy

To disclose or not to disclose, that is Daniel J. Metcalfe's legacy.

Daniel J. Metcalfe was locked out of his Justice Department office for two days in October 1973 after the famous "Saturday Night Massacre." On Oct. 20, President Richard Nixon accepted the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. Richardson and Ruckelshaus resigned after refusing to comply with Nixon's order to fire independent special prosecutor Archibald Cox, who was battling the White House over copies of the Watergate tapes that eventually would lead to Nixon's resignation.

"I remember telling people over the weekend that I wouldn't be able to work on Monday because my office was part of the Attorney General's Office and was sealed," Metcalfe says of the incident. He was 21 at the time. "I was the most junior member of the department's professional staff locked out due to the Saturday Night Massacre," he says. Nixon's attempt to cover up the Watergate scandal did not drive Metcalfe from government service. In fact, he stayed for another 33 years, and became chief of the office charged with writing policies on privacy and disclosure of information. Metcalfe retired Jan. 3. Observers say that while they haven't always agreed with him, Metcalfe will be remembered for his ability to administer the open government policies of both Republican and Democratic presidents.

As director of the Justice Department's Office of Information and Privacy since it was created in November 1981, Metcalfe worked for seven attorneys general, pushed agencies to improve the management of requests for information and had a substantial effect on the law governing agencies' release of information.

Metcalfe believes open government is crucial, but at the same time, he says agencies must ensure that information is disclosed responsibly. "I have seen the types of sensitive information that the government can have," he says. "And I know firsthand the importance of protecting it."

In December 2005, President Bush issued an executive order requiring agencies to improve administration of Freedom of Information Act requests for documents. Metcalfe says his office-and secondarily the Office of Management and Budget-was the driving force for enforcing the changes. According to a Justice report issued in October 2006, agencies for the most part are complying with the order, which outlines a two-year process for improving implementation of the 40-year-old law.

Meredith Fuchs, general counsel for the National Security Archive, which collects and publishes declassified documents, says that while the information and privacy office has done excellent work, Metcalfe was not empowered to make substantial recommendations to improve FOIA processes because Bush's order did not recommend increasing the office's funding or staffing levels. "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 says.

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 then-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 by many as an attempt to rein in release of 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 the same person could have helped craft both Reno's and Ashcroft's memos, Metcalfe says, "Our responsibility is to implement, not to mention shape, the policy of the current administration as best we can."

He denies rumors that he is retiring out of frustration with Bush administration policies on secrecy in government. Metcalfe says he has averaged more than 75 hours on the job per week since the Sept. 11 terrorist attacks, and his wife is thrilled that he can take a break.

In the spring of 1978, as a Justice trial attorney, Metcalfe began establishing 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 argued that releasing certain FOIA-requested information in the files from the investigation of the assassination of the Rev. 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 says. "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 decision to withhold the information eventually was upheld by the District of Columbia 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 photographs of the bloody 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. "Vince Foster's youngest child was still in high school at the time. He could have walked into his classroom and seen his father's death displayed on the television screen there. That's the interest we were protecting," Metcalfe says.

Metcalfe also helped establish the legal principle under which the government can refuse to confirm or deny whether requested records exist because doing so 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 the information from foreign intelligence analysts. "It's vitally important to have openness in government. It's a cornerstone of democracy," he says. "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."

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