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Backgrounders

Freedom of Information Act

Still Waiting After All These Years; a New Look at FOIA Delays

Still Waiting After All These Years, a new analysis of Freedom of Information Act performance by the Coalition of Journalists for Open Government, shows that service continues to frustrate requesters, despite a presidential directive ordering agencies to improve agency response. Over the past nine years that agencies have been reporting performance data, the number of FOIA requests processed has fallen 20%, the number of FOIA personnel is down 10%, the backlog has tripled, and the cost of handling a request is up 79%. (8/8/07)


Businesses Account for More than 60 Percent of 3rd Party FOIA Requests

By far the heaviest use of the Freedom of Information Act comes from the nation's businesses, seeking government records on contracts or for a host of other commercial uses, a new study by the Coalition of Journalists for Open Government shows. Often they work through information brokers to mask their own identity. The review of records of 17 departments and agencies showed media use at six percent. (7/3/06)

March 2007 Hearing: Senators Urged to Update FOIA

The Senate Judiciary Committee heard testimony from four witnesses encouraging it to act on legislation to reform and reenergize the Freedom of Information Act. Associated Press President Tom Curley said that agencies too often fail to respond to information requests as the law intended. And Meredith Fuchs, general counsel for the National Security Archive, said agencies often look for ways to deliberately delay controversial requests. Sen. John Cornyn, R-Tx., a co-sponsor of the Senate Open Government bill, said he hoped the legislation would bring about a culture change on access issues. (3/14/07)


CJOG Study: Exemptions Become the Rule in Handling FOIA Requests

A 2005 study by the Coalition of Journalists for Open Government documents that federal agencies are releasing markedly less information through the Freedom of Information Act than they did just five years ago. The CJOG analysis shows the use of FOIA exemptions to withhold information increased 22 percent between 2000 and 2004, despite the fact that federal agencies responded to 13 percent fewer requests for information. The exemptions most frequently used to say "no" to requesters were those recommended by Attorney General John Ashcroft in his 2001 memorandum and by White House Chief of Staff Andrew Card in a directive six months later. (11/22/05)


CJOG Study: Filing a FOIA Lawsuit Rarely Results in Full Victory

A CJOG review of Justice Department reports on litigation results over a six-year period shows that filing a law suit to obtain records withheld under FOIA is a remedy of last resort. Most filers lose – and increasingly those who win records access fail to obtain any financial reimbursement for legal funds spent. The study by CJOG showed government agencies spent more than $18 million in 2004 defending FOIA lawsuits.

FOI Day Speakers Find Dark Clouds and a Silver Lining

One of President Bush’s legacies will be as “the secrecy president,” a panelist at the 2007 National FOI Day conference suggested. And Paul McMasters, the retiring First Amendment Center ombudsman said that the “In fact, the silver lining to increasingly dark clouds of government secrecy is how those very clouds have galvanized and organized” the freedom-of-information community. (3/19/07)

CRS Reviews Statutory Exemptions to FOIA

A Congressional Research Report obtained by Secrecy News details the use statutory exemptions to the Freedom of Information Act to safeguard security-related unclassidied information. It includes a look at Critical Infrastructure Information, a product of the Homeland Security Act, and Sensitive Security Information, used by the Transportation Security Agency. (9/29-06)

FOIA at Forty -- A Sampling of the Stories and Commentary

The Freedom of Information Act turned 40 on July 4. It’s signing was a grudging act by the incumbent President, Lyndon Johnson, and its life since has been troubled as executive branch agencies resisted giving up control of information and open government advocates periodically pressed both the agencies and the Congress for reforms. Here’s a sampling of the stories and commentary acknowledging the anniversary.

Environmental Journalists See FOIA as "A Flawed Tool"

The Society of Environmental Journalists has compiled a new study of the Freedom of Information Act as experienced by some of its reporters. It recounts increasing difficulties in getting government information, much of it routine, including delays of up to a year, heavy-handed redaction of data, and challenges to the waiver of fees as required by law. And the problems continue. Several reporters have run into new problems getting environmental data in New Orleans, prompting SEJ to send a letter of protest to the Environmental Protection Agency.

GAO Update March 2006: FOIA’s Still a Waiting Game

The Government Accountability Office, in a new report to Congress, said agency FOIA backlogs continue to grow and response times range to 100 days, and sometimes much more.

Presstime Takes a Look at FOI Issues As Federal Law Nears 40

Presstime Magazine explores a variety of open government issues as the Freedom of Information Act as it nears its 40th Birthday and talks to journalists who find federal agencies less than helpful despite that law. “You just want to throw stuff across the room,” says Dayton Daily News reporter Russell Carollo, who files more than 100 FOIA requests a year. (9/15/06)

Remembering the 12-Year Fight for the Freedom of Information Act

The Freedom of Information Act became law 41 years ago because of a 12-year battle waged by a stubborn congressman from central California, often taking on the White House, writes Michael R. Lemov for the Neiman Watchdog. Lemov tells the story of Congressman John E. Moss and his frustration with government secrecy. Virtually every federal agency opposed Moss’s bill, saying it would cripple their operations. It’s a story worth reading and remembering as efforts continue to bring FOIA reform legislation (S 849) to a vote in the Senate. (7/3/07)

The Back Story on the Freedom of Information Act at 40

The Freedom of Information Act, which established the public’s right of access to government information, turned 40 on July 4th. It almost didn’t happen, as National Security Archive director Tom Blanton relates in a back story on the grudging approval given the act by President Lyndon Johnson. Johnson refused to hold a signing ceremony and issued a signing statement that put as much emphasis on the need to keep secrets as it did the importance of openness. (7/10/06)


2006 House Testimony on How FOIA Is Working

Members of the subcommittee were looking at how well the current Freedom of Information Act and asked the witnesses repeatedly about the lack of “incentives” or “consequences” to motivate better performance by agencies in response to records requests. There were three witnesses at the May 11 hearing from the requester community and three from government agencies. Sen. Cornyn submitted a letter rebutting Justice Department testimony.


Senate Testimony on the OPEN Government Act, March 2005

The Senate subcommittee hearing was held March 15, the first since 1992 dealing with FOIA. The subcommittee, chaired by Sen. Cornyn, heard from six witnesses, all supporting the legislation.


A Brief History of Access to Information by the Congressional Research Service

There’s no provision for information sharing in the Constitution. And for many years, the executive branch used “artful interpretation” of a 1789 housekeeping statute to limit public and interagency access to records. Historian Harold Relyea, in a Congressional Research Service review, notes that the reform Administrative Procedure Act of 1946 indicated that matters of official record should be available to the public, but then said accesscould be denied for “for good cause found” or “in the public interest.” His report offers a quick review of access laws.


Citizens Guide to Freedom of Information Act

The Citizen’s Guide to the Freedom of Information Act, first published in 1977, was updated by the House Committee on Government Reform and released as House Report 109-226, on Sept. 20, 2005. In its introduction, the committee report states that the FOIA “establishes a presumption that records in the possession of agencies and departments … are accessible to the people.” Agencies, it says, should withhold documents only when it can reasonably foresee harm from disclosure. And it directly contradicts the Oct. 12, 2001 “Ashcroft” memo to agencies, saying: “The standard should not be to allow the withholding of information whenever there is merely a sound legal basis for doing so.”

Using the Freedom of Information Act

The Freedom of Information Act was first adopted in 1966, amended in 1974, and amended again in 1996 to include electronic records. Millions of requests are filed each year and for many, it's a long wait before the documents are produced. For journalists, filing a FOIA request should be a last resort.


Access to Information

HIPAA

On August 24, 2004 the Department of Health and Human Services responded to requests from journalism groups to clarify the privacy provisions of the act. State law prevails, it said.

The Ashcroft Memo

John Ashcroft’s directive, issued a month after 9/11, reversed FOIA policy at federal departments and agencies. In place of a "presumption of openness" standard, it offered support for any legal barrier to disclosure.

The Card Memo

The White House Chief of Staff's directive to agencies and departments to review their "safeguarding" procedures and tighten records controls.

Classification of Information - Top Secret, Secret, Confidential

2006 Report: Classifications Soar to a Record 20.5 Million "Decisions"

Federal government classification activity rose 44 percent in 2006 to a record 20.5 million classification decisions, the Information Security Oversight Office said in a report to the President. The costs of keeping these top secrets also rose to a new record for government and private industry -- $9.5 billion. And once again, the vice president's office failed to provide information on its classification activity. The oversight agency said its auditing of the classification process found a “high percentage of documents with an unknown basis for classification …calling into question the propriety of their classification." (7/18/07)

2005 Report to the President on Information Classification

The classification of government documents fell in 2005 for the first time since 2001, the Information Security Oversight Office said in its annual report to the President. Declassification of documents picked up slightly after a severe drop in 2004 but it still remains well below earlier levels. ISOO said the government made 14.2 million classification decisions in 2005 compared with 15.6 million in 2004, a nine per cent drop. It attributed the decline to “better diligence in the management of their information security programs.” (5/25/06)


2004 Report - Classification Costs Hit $7.2 Billion -- $461 for Each New Secret

The Information Security Oversight Office, the government’s overseer of the information classification process, put the cost of official federal secrecy in 2004 at $7.2 billion, an increase of nearly 10.7 percent for the year. There were 15.6 million “classification decisions,” an 80 percent increase in the rate of classification since the Bush Administration first year in office. The cost total includes both the expense of classifying information and of declassifying old secrets, a process the ISOO annual report says has slowed.


First Amendment Center Reviews Proposed Federal Legislation

The First Amendment Center talked with 11 experts on the Reporter-Source Privilege and concluded that proposed federal legislation would effectively protect reporters who protect their sources.

Fourth Level of Classification

Sensitive But Unclassified Information -- Many Definitions, No Standards

There are at least 28 separate and distinct federal government policies on “sensitive but unclassified” information and its use in withholding information from the public, the National Security Archive reports in an audit of 37 major agencies’ policies. Not one offers effective oversight or monitoring of how many records are marked and withheld, by whom, or for how long. The study found that in at least eight agencies – including the 180,000 employee Department of Homeland Security -- allow almost any employee to stamp a document SBU and effectively prevent its release under FOIA. For a full understanding of how the term is being used in the withholding of information, read the Congressional Research Service report and the other reports linked below.


SHSI – Sensitive Homeland Security Information

This has yet to be publicly defined, although a Department of Homeland Security directive is anticipated any time. It would cover information shared with other departments, state and local governments and first responders, and be enforced through non-disclosure agreements that carry stiff fines and prison terms. DHS recently ask all of its employees to sign such agreements.

SSI – Sensitive Security Information

To survive in our nation’s capital, you need a working knowledge of Acronym, the formal albeit unofficial (FAU) language of bureaucracy. Acronym is what you need to know so you know what you can’t know. SSI, CII, SHSI, SBU and FOUO are all current letter combinations that limit the public’s right to know and therefore your newsgathering. Each of these – and all of them collectively – represent a fourth level of classified information, more or less sanctioned by Congress, and enforced by expansive departmental regulations that have installed secrecy under the mantle of national security. Sensitive Security Information (SSI) is potentially the most expansive because it covers any information deemed to relate to transportation of any kind.


CII – Critical Infrastructure Information

Critical Infrastructure Information is the identifier used by the Department of Homeland Security for information voluntarily submitted to it by owners of the nation’s infrastructure – utilities and chemical plants. Even the fact that some information has been filed is confidential. DHS is debating whether to gather this confidential information through other federal agencies, which collect information that is now public record from the same infrastructure owners.


Government Secrecy

Report Shows Government Secrecy Continues to Increase

A new report from OpenTheGovernment.org says that federal government secrecy is expanding at an unprecedented rate. The report offers a series of data points highlighting the growth of secrecy, noting that classification costs have doubled since 1997 and that the ratio of dollars spent on classification vs. declassification of information is 185 to 1. "The current administration has increasingly refused to be held accountable to the public," said Patrice McDermott, the coalition's director. (9/4/07)


A Historical Look at the Withholding of Information

A Congressional commission took a long look at federal government secrecy in the mid-90s and concluded, 50 years after adoption of the National Security Act, that things had gotten out of hand. It said the best way to protect secrecy was to reduce it. The study led by the last Sen. Daniel Moynihan provides a comprehensive look at the history of federal government secrecy from colonial days through the fall of communism.

A Special Report on Government Secrecy from CQ

CQ Researcher's report that traces the increase in government secrecy in the current administration and provides a handy chronology. In the report, Associate Editor Kenneth Jost also notes that the courts “have generally appeared uninterested in enforcing the federal Freedom of Information Act.” We’ve posted the report here with permission of CQ Press. To distribute this copyrighted report, or to obtain print copies, contact Julie Miller at JMiller@CQPress.com.

Briefing Report on Overclassification

A briefing report for the House Subcommittee on National Security’s March 2 hearing concluded that overclassification ultimately incurs avoidable fiscal costs and compromises national security. …And government officials confronted with dizzyingly complex rules for numerosus categories of classified information often cannot or do not distinguish truly significant security matters from routine material marked secret out of an excess of caution or zeal.”


Minority Critique of the Last Four Years

In September, 2004, a minority report of the House Committee on Government Reform concluded that the past four years have seen “an unprecedented assault on the principle of open government.” The report for Rep. Henry Waxman takes a hard look at the policies and practices of the current administration.

Reporter's Privilege - Shield Laws

First Amendment Center Reviews Proposed Federal Legislation

The First Amendment Center talked with 11 experts on the Reporter-Source Privilege and concluded that proposed federal legislation would effectively protect reporters who protect their sources.

A Primer on the Shield Law from SPJ

The Society of Professional Journalists has published a primer on the Reporter Shield Law written by attorney Robert D. Lystad, who represented SPJ in Washington for a number of years.

Congressional Research Service Report on Reporter's Shield Laws

Congress is considering two bills to create a media shield law which would provide federal statutory recognition of a reporter’s “privilege” to decline to provide testimony identifying a confidential source in legal, administrative, or other governmental proceedings. Thirty-one states and the District of Columbia have recognized the privilege through enactment of “shield laws,” which protect the relationship between reporters, their source, and sometimes, the information that may be communicated in that relationship. A new report by the Congressional Research Service provides an brief overview of trends among the states individual statutes, then sets out the full text of the state shield statutes.

Federal Shield Law Gets Initial Hearing Before Senate Judiciary Committee

Congress is considering legislation (S 1319) sponsored by Sen. Richard Lugar, R-IN, (S 1319) and Rep. Mike Pence, R-IN, (HR 3323), that would create a federal shield law. The companion legislation provides an absolute privilege for reporters except in national security cases. In July, the Senate Judiciary Committee heard testimony from journalists and media lawyers who urged that Congress should clarify a reporter’s legal right to protect confidential sources. The Justice Department submitted a written statement calling the proposed bill “bad public policy.” The headline above links to the bills text. Testimony of the witnesses and related research reports are linked below.


Six Testify at Second Shield Law Hearing, Justice Repeats Opposition

At a second hearing on a Reporters Shield Law before the Senate Judiciary Committee in mid-October, A federal prosecutor from Texas, representing the Justice Department, urged the Senate Judiciary Committee to reject a Reporters Shield proposal because it would impede the government’s ability to fight terrorism and protect national security. But New York Times reporter Judith Miller, who spent 85 days in jail for refusing to reveal a source, argued that “even flawed reporters should not be jailed for protecting even flawed sources.” And other media witnesses argued that the issue is much broader than recent publicized cases.


The Media and Reporting on Sensitive Information

The Debate Over Leaks of Classified Information

“A shameful act” or “a heroic moment?” Disloyalty or public service? Is the media’s aggressive reporting on the administration’s secret, and possibly illegal, anti-terrorism techniques truly damaging national security? Or are we witnessing a not-so-subtle rallying call for even greater governmental secrecy, perhaps an official secrets act, in the name of national security? The escalating debate flows from a series of stories – rendition of terrorist suspects to secret overseas prisons, the National Security Agency’s warrantless surveillance of domestic phone calls, the NSA’s gathering of international banking records of U.S. citizens – all made possible by leaks of sensitive information that the Bush Administration did not want leaked. The reporting prompted a House hearing, a resolution condemning the media, and a Justice Department investigation into the leaking. The Attorney General said he believes journalists could be prosecuted under the 1917 Espionage Act. The political saber-ratting has been matched by a vigorous media rebuttal. The headline above links to an American Journalism overview. Below, we’ve collected articles and commentaries from the debate and organized them for your background reading.