The Steady March of Government Secrecy

Government secrecy is a big and expensive business—and it’s getting bigger and more costly. Last year, the federal government spent more than $6.5 billion classifying and declassifying federal records. It marked 14.2 million documents as “Top Secret,” “Secret” or “Classified,” putting them under lock and key for a minimum of 10 years. The rate of classification—up 26 percent in 2003 and more than 40 percent since 9/11—is almost double that during the last several years of the Clinton presidency.

By one estimate, during the past 25 years the U.S. government has classified between 7.5 and 8 billion pages of information—enough to replace all 18 million books in the Library of Congress with shelf space to spare. This revelation prompted the Intelligence Security Oversight Office to suggest the secret keeping is excessive and call for restraint. It warns the federal government is classifying so much that it is putting the very secrecy it prizes at risk. Even some members of Congress said “whoa” when the Central Intelligence Agency (CIA) censors blacked more than half of the 500-page Senate report on pre-Iraq war intelligence. Four senators, including former Majority Leader Trent Lott, filed a bill to create an independent panel to review similar classification decisions. Lott called the CIA’s censorship “absolutely an insult.”

There’s no estimate of the number of documents exempted entirely or in part from discretionary disclosure under the Freedom of Information Act (FOIA). This act became law in 1967 and provided the first statutory right of access to federal government records. In 2003, there were 3.2 million requests for federal government records, a 36 percent increase in one year. About half of these were granted. The information “grants” frequently come with heavy and inconsistent redaction and only after long delay. (Indeed, the government’s use of the term “grant” might be a warning; it suggests officials regard release of information to be a gift or favor rather than something that citizens have a right to.) Last year, it took the attorney general’s office an average of 361 days to handle a “complex” request and 80 days to handle one given expedited processing.

The always-slow FOIA process became even more difficult shortly after John Ashcroft settled in as attorney general. He sent federal agencies a new directive on FOIA that reversed the policy of his predecessor Janet Reno, who was the daughter of journalists. In 1993, Reno advised government departments to be proactive on behalf of the public in handling FOIA requests. Treat government information as inherently public, she advised, and do not invoke discretionary exemptions unless there is evidence of “foreseeable harm” as a result of making information public.

Conversely, Ashcroft advised that the federal government should be at least as committed to protecting national security, the effectiveness of law enforcement agencies, sensitive business information, and personal privacy. Under Ashcroft’s directive, these interests are to be given “full and deliberate consideration” when an FOIA request is made. He told federal agencies to look for a “sound legal basis” to withhold information and let them know they’d find support in this approach from his department. Perhaps it’s coincidental, but FOIA requests to the Justice Department fell by 70 percent the following year. It may also be coincidental that the classification of documents by justice—which makes them exempt from FOIA—increased by 80 percent in 2003.

The Spread of Informal Secrecy

The examination of classification and FOIA records provides only a partial picture of government secrecy. There is nothing to hint at how many records are now off the books and hidden behind new or newly defined designations that comprise an informal but very real fourth level of classification. The culture of closure that dug its roots in the nation’s capital after 9/11 is being imposed across the nation through federal funding mandates and nondisclosure agreements. By one estimate, as many as four million local and state officials could be effectively gagged by requiring them to sign don’t show, don’t tell agreements. Secrecy is trickling down to many state and local lawmakers as well as with efforts to close records and meetings. And audits conducted by news organizations in several states this past year showed that only half of state and local officials complied with existing open records laws.

Much of this new federal secrecy was authorized by Congress in an orgy of “national security” legislation after the attacks on the World Trade Center and the Pentagon. Only now are many of the details of this secrecy legislation being discovered as federal agencies, most prominently the Department of Homeland Security, draft new rules to implement those laws and in doing so reveal some of the regulatory details.

Perhaps most troubling to emerge is a new Transportation Security Administration (TSA) regulation that gives muscle and reach to a three-decades-old term: Sensitive Security Information (SSI). The evolution is instructive. It shows how a shroud of secrecy can be subtly laid over government.

SSI dates to 1974 and a wave of airline hijackings, when Congress gave the Federal Aviation Administration (FAA) authority to gather information on people who booked airline passage. Congress said the FAA could withhold this and other SSI it gathered, if its release would be “detrimental to safety of airline passengers.” By this summer, SSI had morphed into something far different—and for open government advocates and working reporters, something far more ominous.

SSI now includes not just information on passenger screening and policing but also information related to infrastructure, which could, of course, apply to records about environmental threats. It might also apply to operations information. The language seems to also empower TSA and the Department of Transportation to extend security oversight—and its ability to seal sensitive information, however loosely defined—to local transit systems and to the transport of hazardous wastes on the nation’s highways, and also to pipelines.

Translated into an “Interim Final Rule,” legislative changes provide the new and larger Transportation Security Administration (TSA) and related departments with the authority to designate as SSI any information—whether they create it or collect it—about any form of transportation they regard as being in any way related to security. This includes state, regional and local records as well as federal documents. Certain agencies are empowered to execute nondisclosure agreements with state and local officials and private contractors to make sure they don’t disclose the information. These nondisclosure agreements are a relatively new tool in the secrecy game, and they work because any breach carries a stiff fine and possible prison time.

The TSA regulations did not make news in Washington. Nor was much attention paid to an earlier set of regulations allowing the Department of Homeland Security to gather and seal vast amounts of information on the nation’s infrastructure or a recent directive on instructing DHS employees to mark sensitive but unclassified information as being for official use only.

Indeed, one reason the shroud of secrecy that covers Washington today is so frightening is because it’s become so routine. Secrecy is the standard, not the exception. Any presumption of transparency has been lost.

Failing to Get Information

The Freedom of Information Act was passed by Congress as an amendment to the 1946 Administrative Procedure Act (APA). This earlier act had required federal agencies to keep the public informed about rules and procedures and said members of the public should be able to participate in the rulemaking process. At the same time, APA suggested there were exceptions to openness: Information might be withheld on “any function … requiring secrecy in the public interest.”

FOIA became law after a 16-year campaign by journalism organizations and others to promote the citizen’s “right to know.” It was strengthened in 1974 and expanded to include electronic records in 1995. But FOIA was never an easy process. Procedural delays are built in; for example, an agency doesn’t even have to respond for 20 days. And there is a cumbersome review process: Information can be withheld if it falls within any one of nine broad categories of exemption.

Under the Bush administration, there has been progressive closure with the spread and speed of secrecy increasing after 9/11 through legislation, presidential orders, department directives, and broad administrative legal interpretations. The Ashcroft memo set the tone, rewriting the rules of engagement to give bureaucrats who wish to play hardball the encouragement to do so.

Some examples of how the secrecy game is now being played:

• The Justice Department earlier this year turned down an FOIA request for a list of terrorism-related indictments, then rejected a follow-up request for copies of all of the press releases issued on those individual indictments. The reason: invasion of privacy.
• Justice also turned down a request for information on registered foreign government lobbyists. The reason: The database is so old, the department said, that if we try to run it the system will crash.
• The Labor Department’s Mine Health and Safety Administration refused a reporter’s request for biographical information on a new deputy secretary. The reason: privacy.
• TSA turned down a request for information about its “no fly” list of those automatically pulled from airport security lines for a more thorough screening. It cited both privacy and SSI as reasons for their withholding documents. A federal judge in a suit brought by the American Civil Liberties Union (ACLU) ruled that the names withheld had appeared in newspaper articles and other information was “innocuous” and in some instances had been used in public slide presentations. The judge ordered the information to be released.
• The TSA refused the request of a Minneapolis reporter who thought it would be a public service to let people know what items commonly carried by airline passengers frequently set off airport screening machines. The reason: SSI.
• After White House Chief of Staff Andrew Card sent a memo ordering a review of Web postings in 2002, at least 6,000 documents were being pulled from government Web sites. There was no way of knowing the nature or extent of information withheld from government Web sites since then, but one recent incident hints at the new creativity of closure. The Center for Army Lessons Learned posted a book-length critique of Operation Iraqi Freedom with this disclaimer: “This document has security functions enabled to prevent printing, downloading, cutting and pasting.”
• The Environmental Protection Agency took another approach: eliminate the evidence. Its annual Toxics Release Inventory, typically a 400-page report containing data and analysis of the nation’s chemical plants and potential dangers, was reduced to six summary pages this year as a result of industry lobbying. That left environmental writers who regularly use the inventory in computer-assisted reporting without a byte to chew on.
• The Pentagon classified the army’s report on abuses at Abu Ghraib prison as “secret” and kept the marking even after photos taken by service personnel became public. The Information Security Oversight Office (ISOO) challenged both the legality and the wisdom of the Pentagon’s action. ISOO Director William Leonard noted that information that reveals violations of the law cannot be classified. He questioned the “bureaucratic impulse” to mark as “secret” one passage discussing the potential political fallout of releasing the report. “It’s difficult to see how that information (could) … damage national security,” Leonard observed.

Frequently during the past two years Leonard has said that over-classification hurts the entire system by making secrets less secure because it inevitably invites leakage from “the highest levels of our government.” Within a month of Leonard sending this memo to the Pentagon, U.S. News & World Report reported that it had obtained all 106 classified annexes to the army’s Abu Ghraib report.

The Patriot Act, which became law just six weeks after the terrorist attacks, expands the FBI’s investigatory powers. Among these powers is the ability to obtain secret court orders to seize personal and private business records and to eavesdrop on telephone and e-mail conversations. It permits secret court hearings of alleged terrorists. Little is known—not even the names—of more than 1,200 presumably terrorist-related arrests and the deportation of at least 750 people. Nor does anyone outside the government know how many court docket entries have been erased or simply not entered. Secret federal court hearings have been held with no public record of when or where or who is being tried. Everyone involved is gagged. The Supreme Court even allowed the Justice Department to file a sealed brief in one case. Such is the level of paranoia about secrecy in the government that when the ACLU filed a suit challenging Patriot Act provisions, it was prohibited from going public with the details of the suit. Its press release announcing the in-court protest was censored.

The Reporters Committee for Freedom of the Press is trying to track down information on reports of at least 50 secret federal court cases across the country. Does this attempt to get information encourage similar closure in other courts? In July, public defenders in Washington, D.C. filed a petition listing 200 superior court cases that had been closed and records sealed.

Earlier this year, the Congressional Research Service observed that one consequence of the Homeland Security Act—creating a huge new government department to oversee the nation’s internal protection from terrorism—is that vast amounts of data are now being marked “sensitive” as they are being created or gathered, and thus they are “born protected.” Yet no criteria have been established for this marking, nor is there any provision for review of the decision to “safeguard” this information from public view.

Journalists’ Responses to Secrecy

News reporting on all of this has been limited and tepid. Instead, the ground wars in Afghanistan and then Iraq, the broader war on terrorism, and inside-the-beltway obsession with partisan politics dominate the news. The war on terrorism seems to have put a damper on aggressive reporting and watchdog writing about efforts by government to “safeguard information.”

There have been a few high-profile exceptions. Vice President Dick Cheney’s refusal to make public information on his energy task force has been widely reported, as has the ban on photographing of coffins of military personnel and the stamping of “Top Secret” on the already public photos of prisoner abuse at Abu Ghraib. Lawsuits challenging secret court proceedings have also been widely reported.

A reporter from the (Miami) Daily Business Review, Dan Christensen, had begun a year-long reporting assignment on secret hearings being held in federal courts, when he saw an unusual entry on a docket sheet, asked a few questions, and got stonewalled. Later, the U.S. Supreme Court sanctioned the approach of secret dockets and hearings, even to the point of allowing the Solicitor General to file a sealed brief. And few newspapers carried the first day story from The Associated Press (AP) when U.S. marshals seized and destroyed reporters’ tape recordings of a speech given by Justice Antonin Scalia. The Washington Post did not mention it. The New York Times carried a single paragraph.

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“Journalists Act to Combat Government Secrecy”
– Pete WeitzelParadoxically, many of the nation’s journalism-related foundations and organizations have taken notice of this issue. During the past four years, the John S. and James L. Knight Foundation and the McCormick Tribune Foundation have given grants of more than $7.6 million for freedom of information projects in the United States. One of those projects is the Coalition of Journalists for Open Government, which began with Knight support this past January. Its mission is to coordinate the freedom of information efforts of its member organizations, now numbering 27. I was hired as its coordinator. Members of the coalition include the American Society of Newspaper Editors (ASNE), Radio-Television News Directors Association (RTNDA), Society of Professional Journalists (SPJ), the Newspaper Association of America (NAA), and Reporters Committee for Freedom of the Press.

In April, the president of the AP, Tom Curley, called for a new assault on government secrecy. It was time, Curley said, for journalists to “push back” at all levels against government efforts to close records and meetings. The AP, he pledged, would start more aggressively reporting on open government issues and would support FOI audits in every state.  In the months since then, there has been a marked increase in AP reports on secrecy and closure. Curley also said AP would help to establish a governmental affairs office in Washington, D.C. to monitor and lobby on these issues. No details of that initiative have been announced, but AP officials are meeting with representatives of journalism organizations, FOIA attorneys, and open government advocates as part of their planning.

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“The Associated Press Responds to Increased Government Secrecy”
– Excerpt from a lecture by Tom CurleyASNE, SPJ and RTNDA have legal counsel in Washington, but their employment is part-time and some of the lawyers’ time must be devoted to nonlegislative matters. The most consistent and concerted lobbying by media organizations is done by the National Association of Broadcasters and the NAA, the respective ownership organizations for television and newspapers. However, their focus is on business issues. NAA does some lobbying on FOIA issues and recently was able to get the House to  nudge  Health and Human Services for a much-needed clarification of its regulations implementing the Health Insurance Portability and Accountability Act (HIPAA). Those regulations effectively close off reporter access to critical information on victims of crime, accidents and disasters.

There has been no coordinated information gathering or strategic planning about secrecy and reporters’ access to information within the journalism community or among its organizations. No one looks at upcoming federal legislation or monitors departmental policies and regulations to identify such access issues. While the individual organizations sometimes send letters of protest or submit comments urging changes in regulations, no concerted legislative strategy or proactive plan is in place to attempt to reverse the pattern of increasing closure. Media organizations tend to go their separate ways. When they do come together, it has usually been out of common frustration and to fight for a common cause, such as freedom of information.

What is starting to happen today has a parallel a half century ago. In the late 1940’s, Basil L. Walters, executive editor of the Chicago Daily News and chair of ASNE’s World Freedom of Information Committee, said that in their own communities U.S. newspapers were “permitting the people’s right to information to go by default.” The first step he proposed: Drop the word “World” from the committee name and focus on problems in their hometowns.

At this time, there were few if any legal experts on government access, and editors across the country were increasingly frustrated and unsure how to respond when local government officials closed meetings or denied access to records. ASNE hired attorney and legal scholar Harold L. Cross to analyze the laws across the country and make recommendations. His book, “The People’s Right to Know,” set the stage for a national campaign by ASNE and other journalism organizations that would continue into the 1960’s.

The predecessor to the Society of Professional Journalists, Sigma Delta Chi (SDX), developed a model open meetings law and pushed for its adoption. At the time, only one state had such a law. The campaign slowly built support, and change came, a piece at a time. For example, the first open meeting bill in Florida was introduced in 1953 by a delegation from the St. Petersburg area that had been lobbied by their local SDX chapter. The bill won initial support in the house but never budged in the senate. Similar bills were introduced in every session from 1957 to 1965 and met the same fate. In 1967, using a model law clipped from the SDX magazine, Quill, a senator from Gainesville, with the support of a reap-portioned, reform-minded legislature, managed to get Florida’s much-admired “Government in the Sunshine” law passed. The political culture and climate for openness also evolved in many other states during those years. By 1967, at least 35 had adopted some form of open government legislation, and the federal government had approved the Freedom of Information Act.

It’s worth considering another historic parallel. When victory in World War II was in sight, if still a long way off, President Franklin D. Roosevelt challenged the nation in his 11th State of the Union address to think beyond the war to issues of “economic security, social security, and moral security.” Only when we establish each of these, he said, will we have gained true national security. Today the federal government treats security as having only one dimension and demands that we, as a people, sacrifice other freedoms to achieve freedom from fear. If we as journalists allow this to happen, we will not only have forsaken our mission but our country. The strength of our nation is protection of its many free-doms—the first of which must be the freedom to have access to information about the decisions our government leaders make. Without that, all other freedoms are less secure.

Pete Weitzel is the freedom of information coordinator for the newly formed Coalition of Journalists for Open Government (CJOG), based in Washington, D.C. He is a former managing editor of The Miami Herald. He helped found the Florida First Amendment Foundation, serving as its president from 1985 to 1995, and the National Freedom of Information Coalition, serving as its second president. In recent years, he taught at the Poynter Institute for Media Studies, the University of North Carolina journalism school and Duke Law School, and served as executive director of the North Carolina Center on Actual Innocence, an organization that investigates cases of possible wrongful conviction. He became CJOG coordinator in January.