The Secret Lives of Government Documents: Balancing Public Access and National Security in an Age of Terrorism

THE SECRET LIVES OF GOVERNMENT DOCUMENTS: BALANCING PUBLIC ACCESS AND NATIONAL SECURITY IN AN AGE OF TERRORISM

THOMAS W. BREWER

A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION

UNIVERSITY OF FLORIDA

2004

Thomas W. Brewer

This document is dedicated to Sarah Molinari. Her encouragement and patience helped see this project to completion.

ACKNOWLEDGEMENT

The author would like to thank Dr. Bill Chamberlin for both his guidance on this project, as well as his encouragement and advice throughout graduate school.

TABLE OF CONTENTS

page

ACKNOWLEDGEMENT ...... iv

LIST OF TABLES...... vii

ABSTRACT...... viii

CHAPTER

1 BALANCING SECRECY AND ACCESS...... 1

Introduction...... 1 Purpose and Relevance...... 3 Literature Review ...... 4 Chapter Summaries and Methodology ...... 9

2 AN INTRODUCTION TO AMERICAN SECRECY...... 13

Introduction...... 13 Constitutional Analysis...... 15 Case Discussion...... 21 Conclusion ...... 28

3 THE TREND TOWARD ACCESS...... 31

Introduction...... 31 The Foundations of FOIA...... 33 FOIA Exemption 1 ...... 39 Statutory Investigation...... 39 Case Studies: Early Interpretation of FOIA Exemption 1...... 42 Case Studies: Examples of Exemption 1 Cases ...... 45 Conclusion ...... 50

4 SECRECY AND ACCESS IN THE AGE OF TERRORISM ...... 53

Introduction...... 53 Clinton and the FOIA ...... 54 Bush and the FOIA ...... 57 The Ashcroft Memo ...... 58

The Card Memo...... 60 The Bush Directives ...... 62 The Office of Homeland Security and the Homeland Security Act...... 63 The Patriot Act ...... 67 Criticisms of the Bush Policy ...... 69 Conclusion ...... 74

5 EXAMINATION OF ACCESS TRENDS SINCE 9/11 ...... 77

Introduction...... 77 Quantitative Analysis...... 79 Access Trends Across Agencies...... 81 Access Trends at The Department of Defense ...... 90 Access Trends at The State Department...... 92 Access Trends at the Department of Justice (“DOJ”) ...... 94 Access Trends at the Department of Homeland Security (“DHS”) ...... 95 Beyond the Numbers: Interpreting the GAO Report...... 96 Quantitative Conclusions...... 97 Qualitative Analysis...... 98 Introduction ...... 98 Exploring Withdrawn Internet Information: The Case of the EPA...... 100 Conclusion ...... 105

6 CONCLUSION AND OPPORTUNITIES FOR FUTURE RESEARCH...... 107

LIST OF REFERENCES...... 110

BIOGRAPHICAL SKETCH ...... 119

LIST OF TABLES

Table page

1 Quantity of Requests and Denials for Fiscal Year 2000 ...... 85

2 Quantity of Requests and Denials for Fiscal Year 2002 ...... 87

3 Five Year Statistics for the Department of Defense...... 91

4 Five Year Statistics for the State Department ...... 93

5 Five Year Statistics for the Department of Justice...... 94

6 Department of Homeland Security Statistics for Fiscal Year 2003 ...... 96

vii

Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Mass Communication

THE SECRET LIVES OF GOVERNMENT DOCUMENTS: BALANCING PUBLIC ACCESS AND NATIONAL SECURITY IN AN AGE OF TERRORISM

Thomas W. Brewer

August, 2004

Chair: William F. Chamberlin Major Department: Journalism and Communications

The battle between government secrecy and the public right of access has endured for over 200 years. Despite an early legal tendency towards favoring nondisclosure, the ratification of the Freedom of Information Act (FOIA) has finally given citizens a cause of action against the government. Presumptions of access now initially rest with the people, and the state has the burden of showing that any given record should be withheld from public circulation.

Today, Americans find themselves in an unprecedented state of susceptibility to terrorist attacks. If nothing else, the 9/11 tragedy demonstrated that the United States is not as invulnerable as in past decades. Consequently, the Bush administration has emphasized the need to protect citizens from future terrorist attacks and augment national security. However, critics claim that the Bush administration, while providing these additional security measures, has infringed upon the citizens’ civil liberties. Foremost,

viii

the Bush measures have provided executive agencies with the power to deny an increasing number of public records requests under the Freedom of Information Act.

However, recent figures released by each executive department on FOIA requests indicate that little has changed in either the percentage of requests denied, or the percentage of denied requests on security grounds since the 9/11 attacks. In fact, only two executive departments (Defense and State) referred to the FOIA national security exemption in more than 2% of all cases involving a denied or partially denied request.

Comparatively, the General Accounting Office reported that almost 25% of agency employees felt that the Bush administration’s access policy influenced government handling of record requests under the FOIA.

Moreover, evidence exists to suggest that the government has erased a significant amount of data from agency websites. Critics argue that these website removals are often overbroad and unrelated to national security interests. The question now becomes whether such access restrictions are justified. Certainly, as the Supreme Court has demonstrated, some information may be justifiably removed or withheld when national security concerns necessitate secrecy. Yet, despite the historical and judicial precedent, government must avoid the temptation to simplify and broaden classification procedures in hopes of easily eliminating all suspect materials from public circulation. At the very worst, the Bush administration must not be allowed to promote a general agenda favoring government secrecy behind a façade of national security.

ix CHAPTER 1 BALANCING SECRECY AND ACCESS

Introduction

On the morning of September 11, 2001, American freedom found itself under

attack. For the first time since Pearl Harbor, U.S. territories became subject to an aerial

assault. By the time the dust had settled, over 2,750 people were pronounced dead in

New York City alone.1 In response to these tragic events, the President took immediate

action. The terrorists were identified; the Executive Office promised swift retaliation.2

Al Qaeda and Osama Bin Laden became the targets of American retribution.3

Yet, freedom may have another enemy lurking in the halls of Washington. While

most U.S. citizens recognize that danger dwells overseas, far fewer Americans may

comprehend the vast domestic changes spurred by the 9/11 attacks. During the past two

years, the Bush administration has slowly increased federal department and federal

agency authority. In doing so, the Executive Office has allowed various governmental

1 Phil Hirschkorn, New York Reduces 9/11 Death Toll by 40, CNN ONLINE, Oct. 29, 2003, available at http://www.cnn.com/2003/US/Northeast/10/29/wtc.deaths/ (last visited June 14, 2004). Hirschkorn reports New York City reduced the reported death toll after workers were able to recover any human remains from at least 40 individuals previously thought to be dead.

2 The President’s Comments on Sept. 11, War on Terrorism, REUTERS, Sept. 9, 2003, available at http://www.boston.com/news/nation/washington/articles/2003/09/09/the_presidents_comments_on_sept_1 1_war_on_terrorism/ (last visited July 14, 2003). On September 20th, 2001 President Bush addressed Congress and stated, “Our war on terror begins with al Qaeda.” Id. Four days earlier, while addressing the Security Council at Camp David, Bush commented on America’s plan for retaliation. “We will find those who did it. We will smoke them out of their holes. We’ll get them running, and we’ll bring them to justice.” Id.

3 Id.

1 2

organizations to withhold records.4 Most importantly, the government’s increased

capacity to protect documents from disclosure necessarily reduces the public’s ability to

access those records.

Perhaps the most visual example of such government action concerns the Freedom

of Information Act (FOIA). 5 Under the FOIA, American citizens are granted broad access to federal agency records. However, after considering the United States’ heightened security interests, the Bush administration has designated an increasing number of agency records as matters of national security. As so classified, these records become non-disclosable under Exemption 1 to the FOIA.6 Not surprisingly, public

interest groups, government watchdogs and Bush political opponents claim these new

measures violate the public’s civil right to monitor the government.

Thus, the United States faces a difficult dilemma. On one hand, the government

must protect America’s national security interests and take all precautions to prevent

future terrorist attacks. In some cases, this may force the government to keep secrets

from the general public. Conversely, the government must determine how to preserve the

public’s statutory right to inspect agency records. Thus, this paper will examine the

tenuous balance between the government’s right to secrecy in the wake of a security

crisis and the public’s access rights with respect to the FOIA. In addition, this paper will

4 See, e.g., Seth Porges, Reporters Run Into FOIA Roadblocks; Freedom’s Just Another Word? EDITOR AND PUBLISHER, Dec. 1, 2003. Porges reports that, in addition to unqualified denials, government agencies and departments may employ “roadblocks and bureaucratic red tape” in order to keep public records requests from being fulfilled. Porges cites a study from George Washington University which claims that some requests, like those fielded at the EPA, may take up to 1,113 business days (about 4 years) to process. Id. See also Mark Tapscott, Too Many Secrets, WASH. POST, Nov. 1, 2002.

5 The Freedom of Information Act is codified as 5 U.S.C. §552 (2003).

6 See generally 5 U.S.C. § 552(b)(1) (2003).

3 investigate 9/11’s initial effects on each executive department’s willingness and ability to withdraw previously public information. In total, this research will build a current picture of the battle for access rights after the September 11th tragedy.

Purpose and Relevance

According to the United States Supreme Court, an informed citizenry is “vital to the functioning of a democratic society [and] needed to check against corruption and to hold the governors accountable to the governed.”7 Perhaps today more than ever, the

American people have an increased interest in maintaining this checking power over their elected and appointed representatives in Washington. Recent, well-publicized incidents, such as the Condoleezza Rice 9/11 testimony8 and the Iraqi prisoner scandal,9 have led some Americans to question the effectiveness, leadership and openness of the current administration. In theory, the Freedom of Information Act provides citizens with the tools to monitor government actions. In turn, by opening the lines of communication between the government and the governed, citizens are more able to voice opinions, influence elections and eradicate scandals before they come to fruition. Government remains accountable and the people take full advantage of their role in American democracy.

7 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

8 In May 2004, National Security Advisor Condoleezza Rice testified before the National Commission on Terrorist Attacks Upon the United States about the events leading up to the 9/11 attacks. Among other issues, the Commission was particularly concerned about an memorandum, dated August 6th, 2001, which mentioned possible Al Qaeda attacks within the United States. A complete transcript of Rice’s testimony can be accessed from CNN’s internet site, available online at http://www.cnn.com/2004/ALLPOLITICS/04/08/rice.transcript/.

9 Beginning in October 2003, Iraqi detainees are subjected to various forms of mental and physical abuse by members of the U.S. Military force entrusted to watch the Iraqis. The International Committee of the Red Cross reports that the abuse, in some cases, is “tantamount to torture.” Johnanna McGeary, The Scandal’s Growing Stain, TIME, May 17, 2004, at 29.

Thus, this paper attempts to review both the historical importance of the Freedom of Information Act, as well as FOIA’s current weight in the post 9/11 environment. To do so, this examination will look at three general research questions:

1. In order to frame the current secrecy debate, how have courts balanced (a) the government’s ability to maintain secrecy in the name of national security and (b) the public’s right to access?

2. With concern to access policy, how has the Bush administration balanced (a) and (b) above in light of the tragic events of 9/11?

3. How, if at all, have the Bush FOIA policies changed the way federal departments and agencies handle access requests and information disclosure since 9/11?

By investigating these issues, readers should have a better indication of how much information is actually being withheld either unnecessarily or illegally.

Literature Review

Since the Freedom of Information Act was passed in 1966, a great number of law review and journal articles have been written on FOIA’s characteristics, strengths and weaknesses. However, most predate the September 11th terrorist attacks and thus provide only background information on my topic.10 In addition, the 9/11 tragedy has spurred a multitude of both academic and non-academic texts which offer political commentary on various access and privacy issues. Those texts that have the greatest bearing on this research are listed below.

First of all, a few non-academic texts have alerted this author to issues which were not originally considered for this thesis. Foremost among these texts is It’s a Free

10 An extensive list of those articles can be accessed via Lexis or Westlaw and by shepardizing the statute citation (5 U.S.C. 552). One could also find a similar list by searching for “FOIA” in the Lexis search engine under the “U.S. Law Review and Journals” heading. As of May 30, 2004, such a search would land close to 1,500 articles. These 1,500 articles were not reviewed in any significant depth, thus each article’s reference to FOIA may, in theory, be only cursory. A similar Lexis search, this time using the terms for “national security” and “FOIA,” reported 511 results.

Country: Personal Freedom in America After September 11,11 a compilation of

narratives reflecting various individuals’ reactions to political changes since the terrorist

attacks. The text’s slant is obvious; caricatures of Ashcroft and Bush (complete with

glowing red, satanic eyes) grace the book’s back cover. Nonetheless, the articles have

provided a starting point from which more academic research can be conducted. David

Cole’s book entitled “Terrorism and the Constitution: Sacrificing Civil Liberties in the

name of National Security” offers a similar view on access issues.12

The academic literature on the Freedom of Information Act is extensive. A Lexis

search of all post-9/11 articles citing the FOIA resulted in over 600 hits. These 600

articles investigate a wide range of issues. Some pieces focus on recent adjustments to

individual state’s FOIA laws (such as Rhode Island and Michigan).13 Other articles

discuss the citizens’ right to privacy since the passage of the Patriot Act. Of these

privacy articles, some investigate technological advancements related to internet tracking

and computer cookies;14 others focus on the government’s increasing fondness for data mining and sharing of information.15 However, despite each article’s reference to the

11 DANNY GOLDBERG, VICTOR GOLDBERG AND ROBERT GREENWALD, IT’S A FREE COUNTRY: PERSONAL FREEDOM IN AMERICA AFTER SEPTEMBER 11 (RDV Books/Akashic Books, 2002).

12 DAVID COLE, TERRORISM AND THE CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN THE NAME OF NATIONAL SECURITY (New Press, 2002).

13 See generally Michael W. Field, Rhode Island's Access to Public Records Act: An Application Gone Awry, 8 ROGER WILLIAMS U. L. REV. 293 (2003); Karen Dunne Woodside and Alan Gershe, Criminal Law: The U.S.A. Patriot Act and Michigan’s Anti-terrorism Laws: New Anti-Terrorism Laws Make Sweeping Changes, 82 MI BAR JNL. 20 (2003).

14 See generally Martin E. Halstuk, Shielding Private Lives from Prying Eyes: The Escalating Conflict Between Constitutional Privacy and the Accountability Principle of Democracy, 1 COMMLAW CONSPECTUS 71 (2003); Kimberly A Horn, Privacy Versus Protection: Exploring the Boundaries of Electronic Surveillance in the Internet Age, 29 FORDHAM URB. L.J. 2233 (2002); Peter Young, The Case Against Carnivore: Preventing Law Enforcement from Devouring Privacy, 35 Ind. L. Rev. 303 (2001).

15 See generally R. Brian Black, Legislating U.S. Data Privacy in the Context of National Identification Numbers: Models from South Africa and the United Kingdom, 34 CORNELL INT’L L.J. 397 (2001); Richard

FOIA in the post-9/11 environment, none directly addresses the federal government’s

tendency to keep secrets during times of heightened of national security. Consequently,

the aforementioned articles provide little guidance for this thesis.

In addition, a number of articles focus specifically on the press’ right to access in

the wake of September 11th. For example, Shunta Latrice Vincent, writing in 2004 for

the Alabama Law Review, contrasted the government’s right to protect security interests

and the press’ right to access civil hearings.16 Vincent’s paper is primarily interested in

how the courts might invoke the press’ historical right to access a civil hearing in a case

involving a deportation hearing. In general, those academic articles focusing on the

press’ rights to access rely heavily upon Detroit Free Press v. Ashcroft, a Sixth Circuit

decision which held that the government could not restrict access to those hearings.17

However, while Detroit Free Press focuses on a judicial right of access, this thesis is

concerned only with a requester’s ability to access records under the Freedom of

Information Act.

Sobel, The Demeaning of Identity and Personhood in National Identification Systems, 15 HARV. J.L. LAW & TECH 319 (2002);

16 Shunta Latrice Vincent, An Alternative to the Blanket Closure of "Special Interest" Deportation Hearings: Balancing the Press's Right to Access and the Government's National Security Interests, 55 ALA. L. REV. (2004). See also Jonathan L. Hafetz, The First Amendment and Access to Deportation Proceedings, 40 CAL. W. L. REV. 265 (2004). Like Vincent, Hafetz is concerned exclusively with the media’s right to access a deportation trial. He does not explore the general public’s right to know, nor does he address a number of the most topical, post 9/11 policy documents (including the Ashcroft Memorandum and the Homeland Security Act) currently effecting access abilities. Id. For even another paper on the same topic, see Meaghan E. Ferrell, Balancing the First Amendment and National Security: Can Immigration Hearings Be Closed to Protect the Nation’s Interest? 52 CATH. U. L. REV. 981 (2003).

17 Detroit Free Press v. Ashcroft, 303 F.3rd 681 (2002). The court held that deportation hearings had traditionally been open to the public, and that openness undoubtedly played a significant positive role in the process.

Furthermore, some recent articles, such as Kristin Uhl’s piece in the American

University Law Review,19 focus on the Critical Infrastructure Information Act (“CIIA”)

and the effect of the CIIA’s passage on private industry Like this thesis, Ms. Uhl’s essay

outlines the mechanisms of the FOIA and introduces those post-9/11 policy documents

which have seemingly affected the public’s ability to access. However, Uhl focuses

exclusively on the CIIA and dedicates only one paragraph to exploring the FOIA

exemption on national security.20 This paper will draw a more complete picture of the

national security exemption, scrutinize the language in each policy document Uhl

discussed, and examine the early effects of Bush’s access policy.

Arguing against post-9/11 secrecy, former White House Chief of Staff John

Podesta simultaneously lauds Clinton’s access policies and criticizes Bush’s access

restrictions.21 In general, Podesta presents various arguments favoring increased access to government records. Yet, Podesta’s essay, as it appeared in the University of Illinois

Journal of Law, Technology and Policy, was transcribed from a keynote address given to

Illinois students. As such, the article lacks quality source interpretation. For example, the article fails to explore the FOIA’s general history, and doesn’t investigate the allowable national security exemptions. In effect, Podesta presents a one-sided policy

19 Kristin Elizabeth Uhl, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure, and Homeland Security, 53 AM. U.L. REV. 261 (2003). See also Karen E. Jones, Comment and Casenote: The Effect of the Homeland Security Act on Online Privacy and the Freedom of Information Act, 72 U. CIN. L. REV. 787 (2003). Like Uhl, Jones focuses primarily on the Homeland Security Act’s effect on government disclosures. She does not address the national security exemption (FOIA Exemption 1) as it applies to public documents requesters. Id.

20 Uh. at 291.

21 John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361 (2002). See also Marc Rotenberg, Privacy and Secrecy After 9/11, 86 MIN. L. REV. 1115 (2002). Like Podesta, Rotenberg offered his insights during a keynote address which was later transcribed and reported in the Minnesota Law Review.

argument without discussing the historical roots of the secrecy debate, nor exploring the

judicial precedent.

Finally, a number of articles do, in fact, investigate the clash between public access

rights and government secrecy policies since 9/11.22 Karen Turner offers a historical

perspective of government secrecy yet she fails to investigate any of those policy’s

reported effects.23 Moreover, while she mentions a number of the important policy

documents published under President Bush (such as the Ashcroft memo), her

investigation of such documents is incomplete. For example, Turner fails to discuss the

FOIA exemption for national security, the Andrew Card memo and the Homeland

Security Act, all three of which are analyzed later in this thesis.24 Similar to Turner,

Keith Anderson25 examines both Exemption 1 and Exemption 726 in the post-9/11 environment. Anderson outlines the history of the FOIA’s drafting, as well as the access policies under Reagan, Clinton and George W. Bush. However, like Turner, Anderson relies largely upon theoretical policy arguments and fails to examine the actual effects of

22 See Laura A. White, The Need for Government Secrecy: Why the U.S. Government Must Be Able to Withhold Information in the Interest of National Security, 43 VA. J. INT’L L. 1071, 2003. White’s article takes an argumentative stance and asserts that certain information should be withheld during times of national crisis. See also Patrice McDermott, Withhold and Control: Information in the Bush Administration, 12 KAN. J.L. & PUB. POL’Y 671 (2003).

23 Karen L. Turner, Convergence of the First Amendment and the Withholding of Information for the Security of the Nation: A Historical Perspective and the Effect of September 11th on Constitutional Freedoms, 33 MCGEORGE L. REV. 593 (2002).

24 Id. at 601.

25 Keith Anderson, Is There Still A Sound Legal Basis?: The Freedom of Information Act in the Post-9/11 World, 64 OHIO ST. L.J. 1605 (2003).

26 FOIA Exemption 7 concerns records compiled by and for law enforcement purposes. In explaining Exemption 7, the author presents investigates of Ctr. for Nat’l Sec. Studies v. United States Dep’t of Justice (356 U.S. App. D.C. 333 (2003)). Exemption 1, which is the focus of this thesis, is not examined in that case.

9 access restrictions on records requesters. In contrast, this thesis will look at some of the preliminary effects that the Bush policies have had on agencies fielding access requests.

Among this last group of papers, this thesis has the most in common with a

Matthew Silverman article which appeared in the University of Indiana Law Review.27

Overall, Silverman looks at those general arguments which the state may promote in order to justify withholding information.28 Similar to this thesis, Silverman examines both FOIA’s Exemption 1 and prior restraint doctrine as valid examples of legal government secrecy.29 However, while the author mentions the terrorist attacks,

Silverman looks only at the plight of detainees in the post 9/11 environment and not the access issues facing the public at large. Finally, Silverman does not consider the

Executive Office’s policy directives issued since the terrorist attacks; nor does he examine the effects of those policy directives.

Chapter Summaries and Methodology

To competently investigate the access debate, research must be collected in a variety of methods. As such, this paper focuses on a number of different sources, including case law, federal statutes, executive directives, federal annual reports and policy documents, which come together to outline the current access picture. Choosing the appropriate source is often dependent upon the purpose of each chapter. As such, the methodology is explained below chapter by chapter.

27 Matthew Silverman, National Security and the First Amendment: A Judicial Role in Maximizing Public Access to Information, 78 IND. L.J. 1101 (2003).

28 Id. at 1123.

29 This thesis will address prior restraints doctrine in Chapter 2. FOIA Exemption 1 will be examined in Chapter 3.

Chapter 2 will explore the foundations of the government’s right to secrecy. The research will be divided into two sections. First, the chapter will look at the right to keep secrets from a constitutional perspective. Second, the chapter will track the evolution of secrecy law through current history, relying primarily on Supreme Court interpretations.

Conversely, Chapter 3 will investigate the modern trend towards access. While the right to secrecy has existed within the American system of governance since the

Constitution’s founding, the statutory “right to know” first came to prominence with the

1966 passage of the Freedom of Information Act. Chapter 3 will analyze the foundations of the FOIA, as well as look at the Court’s early interpretations of FOIA. Finally,

Chapter 3 will look at the codified national security exemption written into the Freedom of Information Act.

As Chapters 2 and 3 primarily investigate American legal history, both chapters share a similar methodology. In these chapters, the majority of the presented research is legal research, including case studies, statutory analysis and Constitutional review. The cases used in Chapters 2 and 3 were located exclusively through the Lexis and Westlaw search engines. Relevant cases were found by entering search strings which included various combinations of the following terms: “FOIA,” “Freedom of Information Act,”

“exemption 1,” “security,” “national security,” “secrecy,” and “access.” Other cases were found by shepardizing the Freedom of Information Act itself, as well as shepardizing well-known cases which deal the government’s right to withhold information.

Chapter 4 will examine those policy documents published by the Bush administration relevant to the access debate. In order to provide a comparative

perspective, the chapter will first examine the access directives endorsed by President

Clinton. Consequently, Chapter 4’s sources are composed primarily of policy documents

produced by the last two presidential administrations. Among those documents examined

in Chapter 4 are analyses of various legal memorandums (including those from former

President Clinton, former Attorney General Reno, Attorney General Ashcroft and White

House Chief of Staff Card), as well as relevant Executive Orders signed by both Clinton

and Bush. To a lesser extent, this chapter investigates certain provisions from the

Homeland Security Act. Finally, certain criticisms of the Bush policies will be explained

in order to round out the secrecy debate. These arguments are drawn from newspapers,

academic journals and internet websites. These articles were found using a variety of

internet search engines, including Lexis Universe, LexisNexis Primary Sources, EBSCO

host, ProQuest Historical Newspapers, and Google.

Chapter 5 will present both quantitative and qualitative data explaining the

preliminary effects of the post 9/11 access directives. First, Chapter 5 will examine

trends in the number of access requests, access denials, and references to the national

security exemption as reported by the executive departments. This data was compiled by

referencing request statistics as reported by each executive department in its mandatory

FOIA annual reports.30 These figures are exclusively quantitative and do not explain why

requests have or have not been denied. Consequently, Chapter 5 will also consider some

reported reasons as to why the government may have withheld information from the

30 The statistics had to be collected from each separate department’s annual reports. The statistics were then placed into original tables composed by the author. In addition, the author used the available data to formulate additional figures (percentages) which were not originally calculated or presented by the departments themselves. These calculations were checked by a third party. This process is explained in greater detail in Chapter 5.

12 public. This investigation relies solely upon secondary sources such as newspapers, academic journal articles, and internet websites. These secondary sources were found using the internet search engines listed above in the methodology section for Chapter 4.

In total, the research will help demonstrate both the quantity and types of requests that are actually denied on security grounds.

Finally, Chapter 6 will offer conclusions based upon the information examined in the previous sections. Furthermore, because the clash between access and secrecy rights is a broad and continuously changing area of law, this thesis does not purport to offer a comprehensive conclusion on every question relevant to the access issue. Thus, Chapter

6 will also offer suggestions for further research.

CHAPTER 2 AN INTRODUCTION TO AMERICAN SECRECY

Introduction

On September 24, 2001, White House Press Secretary Ari Fleischer addressed the

media.1 Two weeks had passed since the September 11th tragedy, and the American

people were still trying to comprehend what had happened. During the press conference,

a reporter asked Fleischer whether it was in the nation’s interest for the government to

withhold information concerning the President’s response to the terrorist attacks.2

Fleischer responded: “I think [the American people] understand that as the nation moves

from a peacetime footing to a wartime footing, the government's need to hold certain

pieces of information closer is an important need. And I think the American people are

accepting and understanding of that. And I think you all will be the judge if you believe

the government has gone too far.”3

In all likelihood, Fleischer failed to appreciate the prophetic nature of his comments on the day he made them. Yet, in the two and a half years since September 11th

(hereinafter “9/11”), the debate over government secrecy has become increasingly heated.

On one hand, the Bush administration has augmented the government’s ability to classify

1 Ari Fleischer, Comments from the White House Press Secretary (Sept. 24, 2001), available at http://www.whitehouse.gov/news/releases/2001/09/20010924-13.html (last visited June 17, 2004).

2 Id. According to the press conference’s transcript, the reporter asked. “Ari, it does seem that across the board, on proving that these charitable organizations, non-governmental organizations, banks have links to terror; on proving that bin Laden is behind these acts; on what plans the administration has post whatever movement we make in Afghanistan; the answer is always, that's classified, trust us. Does that really serve the democracy well if all this information on which the government is basing its actions is classified?” Id.

3 Id.

13 14

and withhold formally-public information. The government has claimed that such

secrecy is necessary to protect our nation and ultimately ensure our freedom. In

response, critics argue that the government’s secrecy measures are overly-broad and

excessively applied. In their view, many of the Bush administration’s orders and

enactments directly contravene the purpose of federal Freedom of Information Act

(“FOIA”).4 After all, only by keeping the government accessible can Americans maintain their starring role in a system Abraham Lincoln famously denominated as an organization “for the people, by the people.”5

Thus, one side claims that secrecy is necessary to preserve democracy. The other

side asserts that secrecy, in fact, defeats democracy. In order to understand paint a

complete picture of the debate, both sides of the issue will be explored. This chapter

examines the long history of government secrecy in the United States during eras of

heightened national security (in turn, access rights will be examined in Chapter 3).

Because the current terrorist concerns predominately raise national defense issues, this

chapter will consequently focus exclusively on the balance between the public’s access

rights and the government’s right to secrecy in questions of national security. First, this

chapter will examine secrecy as it existed at the time of the U.S. Constitution’s drafting.

Second, this chapter also will look at modern Supreme Court cases which help explain

4 The Freedom of Information Act is codified as 5 U.S.C. §552 (2003). The FOIA, including its underlying purpose and enumerated limitations, will be discussed in Chapter 3 of this thesis.

5 See Abraham Lincoln, Gettysburg Address, Nov. 19, 1863. See also Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973). According to the Court, the FOIA was intended to “create a judicially enforceable public right to secure [government records] from possibly unwilling official hands.” Id. Five years after that declaration, the Court added that an informed citizenry is “vital to the functioning of a democratic society [and] needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

15 the modern standards of acceptable secrecy. While the chosen cases do not necessarily concern accessing government records, they do exemplify the standards by which a government agent may legally withhold secret materials.6

Constitutional Analysis

Despite recent calls for increased access to government records,7 one could argue that the “right to know”8 is a modern legal invention. In fact, scholars and courts have both explained that, from a historical perspective, the government’s ability to keep secrets substantially predates the public’s ability to access information.9 As with most American legal questions, any investigation of permissible secrecy must begin with an examination

6 At the time of this writing, the Supreme Court has only examined the balance between access and security-necessitated secrecy in the 1973 case of EPA v Mink. See 410 U.S. 80 (1973). Furthermore, after the Court published Mink, the legislature was motivated to revise certain FOIA provisions which favored government withholdings. Thus, because the Supreme Court’s rulings on secrecy in access cases is essentially limited to this one, slightly dubious case, this paper explores the standards and burdens linked to government secrecy developed in other, comparable areas of law. Mink itself will be discussed in detail in Chapter 3.

7 A number of government “watchdog” sites have criticized the Bush administration’s handling of access rules. Among those sites, the Reporter’s Committee for Freedom of the Press (“RCFP”) and OMBwatch are two of the most comprehensive. The RCFP is a “nonprofit organization dedicated to providing free legal assistance to journalists.” See generally www.rcfp.org. OMBWatch professes to be “a nonprofit research and advocacy organization dedicated to promoting government accountability and citizen participation in public policy decisions.” See generally www.ombwatch.com. Major newspapers have also published article criticizing Bush’s access policies. The Washington Post has seemingly provided the most comprehensive coverage of the issue, publishing topical articles since October 4, 2001. See generally www.washingtonpost.com.

8 Thomas Jefferson, along with fellow Founding Fathers such as Hamilton and Jay, helped develop the theory of the public’s “right to know.” As Jefferson stated, “The people are the only censors of their governors; and even their errors will tend to keep those to the true principles of their institution. . . . The way to prevent these irregular interpositions of the people, is to give them full information of their affairs through the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our government being the opinion of the people the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate to prefer the latter.” Letter from Thomas Jefferson to Lieutenant Colonel Edward Carrington (January 16, 1787), reprinted in A JEFFERSON PROFILE AS REVEALED IN HIS LETTERS 44 (S. Padover ed. 1956). However, even though the theoretical “right to know” began to develop during the late 1700’s, the American people were not actually given a statutory cause of action to enforce that right until the FOIA’s enactment in 1966. The FOIA is discussed in-depth in Chapter 3.

9 See supra footnote 23 and the accompanying text.

of the federal Constitution. An overview of existing, scholastic literature helps clarify the

Constitution’s influence on both the government’s ability to keep secrets and the public’s

right to demand access.

These secondary sources, which chronicle both legal theory and political concerns

prior to the establishment of U.S. case law, help illustrate which priorities dominated

legal thought during the era of our nation’s birth. For example, Daniel Hoffman’s book

“Governmental Secrecy and the Founding Fathers” describes the environment

surrounding the U.S. Constitutions’ drafting and enactment.10 Relying primarily on

memoirs compiled by the Founding Fathers themselves, Hoffman paints the

Constitutional Congress as a discreet body bent on maintaining absolute secrecy in their

deliberations.11 With regards to the proceedings surrounding the Constitution’s first draft, the author quotes George Washington as stating:

I am sorry to find that some one Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House a copy of their proceedings. . . . I must entreat Gentlemen to be more careful, least our transactions get into the News Papers, and disturb the public repose by premature speculations.12

Washington was not the only delegate concerned with maintaining the secrecy of

the discussions. Alexander Hamilton, writing in 1792, noted “that if the ratification

deliberations had been open, ‘the clamours of faction would have prevented any

10 See DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS (Westport, CT: Greenwood, 1981). At the time of his book’s publication, Daniel Hoffman was an assistant professor at the University of Vermont. He has coauthored two other books, entitled Top Secret and Freedom VS. National Security, which also address secrecy issues within the government.

11 Id. at 20. As Hoffman explains, “[a]t the very outset the framers agreed to reveal nothing of their doings while the convention was in progress. The chamber would be guarded by sentries, and the debates would not be officially recorded.” Id.

12 Id. at 21 (quoting RECORDS OF THE FEDERAL CONVENTION (Farrand ed.), Vol. 3 at 86 (1966)).

satisfactory result.’”13 Thus, the Founding Fathers believed secrecy was a necessary

operation. The government could not function effectively, nor efficiently, without first

blocking disruptive outside interferences and distractions. Otherwise stated, the United

States government, which now demands secrecy in order to preserve security, was itself

born in secret.

Furthermore, secrecy not only played a role at the Constitutional Convention, but

also became a factor in the Constitution itself. According to Hoffman, the Federalist

Papers “made it clear that the Constitution had a place for secrecy, specifically with

respect to the national security functions of the executive branch.”14 John Jay wrote that

“[i]t seldom happened in the negotiation of treaties . . . but that perfect secrecy and immediate dispatch are sometimes requisite.”15 Thus, the executive branch was granted

limited abilities to work independently of the other branches of government in order to

best carry out its purpose.16 However, the framers were careful not to vest too much

power in single branch. Thus, while the President preserved his right to conduct foreign

13 Martin Halstuk, Policy of Secrecy--Pattern of Deception: What Federalist Leaders Thought About a Public Right to Know, 1794-98, 7 COMM. L. & POL'Y 51, 59 (2002) (quoting Alexander Hamilton, Reply to Anonymous Charges, RECORDS OF THE FEDERAL CONVENTION (Farrand ed.), Vol. 3 at 368 (1966)).

14 DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS 34 (Westport, CT: Greenwood, 1981).

15 Id. (quoting THE FEDERALIST, No. 64 (Rossiter ed., New American Library 1961)).

16 Article II, Section 3 reports that the executive “shall from time to time give to the Congress Information of the State of the Union.” U.S. CONST. art. II, § 3. That section’s phrasing required the President to speak “but did not make clear the extent of his right, if any, to be silent.” DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS 40 (Westport, CT: Greenwood, 1981). It also should be noted that unlike Congress (which was governed by Article I, Section 5, Clause 3), the President was not required by law to keep a journal of the Executive Office’s activities, nor was he required to publish any account of his activities.

18 negotiations, only Congress could declare war, call up the militia or “make laws regulating the armed forces.”17

In addition, Congress, like the President, was granted some Constitutional authority to operate in secret. Within the U.S. court system, Louis Henkin18 wrote one of the most persuasive law review article reviewing the history of Constitutional secrecy rights. 19

The article, entitled “The Right to Know and the Duty to Withhold: The Case of the

Pentagon Papers,” appeared in the University of Pennsylvania Law Review in late

1971.20 While the paper may seem dated, Henkin’s analysis still provides valuable insight into the Constitutional debate over public access.

17 DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS, 32 (1981).

18 At the time of this writing, Professor Henkin is the University Professor Emeritus at Columbia University Law School in New York. He has taught at Columbia Law School for over 40 years and, during his distinguished career, has published a multitude of works on international law, human rights and the U.S. Constitution. More information on Professor Henkin can be found at the Columbia University Law School’s internet site. See http://www.law.columbia.edu/null?&layout=profpopup&main.ctrl=contactmgr.detail&main.view=profiles. detail&global.id=545 (last visited June 14, 2004).

19 See Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271 (1971). Henkin’s article and argument has been adopted by a number of federal courts, including the U.S. Supreme Court in Gravel v. United States, 408 U.S. 606, 642 (1972). In Gravel, the Court held that “the Speech or Debate Clause prohibits inquiry into things done by a Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.” Id. at 616. In reaching its decision, the Court noted that Henkin rightly observed that “many deliberations in Government are kept confidential, such as the proceedings of grand juries or our own Conferences, despite the fact that the breadth of public knowledge is thereby diminished.” Id. at 642, fn 10. See also U.S. v. Marchetti, 466 F.2d 1309, 1312 (4th Cir., 1972). In Marchetti, the U.S. Court of Appeals for the 4th Circuit ruled that the government could enforce a secrecy agreement signed between the CIA and a former employee. After citing Henkin’s article, the court ruled that “the Government . . . has the right and the duty to strive for internal secrecy about the conduct of governmental affairs in areas in which disclosure may reasonably be thought to be inconsistent with the national interest.” Id. at 1315.

20 Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271 (1971). This author recognizes that the cited work was published over three decades ago. However, for the purposes of this article, Henkin’s piece is used only to explain the Constitutional history of American history.

Foremost, Henkin’s article examines the tenuous balance between the government’s capability to maintain secrecy and the public’s ability to access information. As in all American legal matters, the U.S. Constitution reigns supreme.

Thus, in a government designed to maximize public participation, the right to access government affairs would seemingly be granted somewhere within the Constitution. Yet, like Hoffman’s book, Henkin’s article reports a very different scenario. Instead of granting access rights to the people, the Founding Fathers had, “from the beginning . . . asserted the right to conceal and, therefore, in practical effect not to let the people know.”21 Most importantly, Henkin references Article I, Section 5, Clause 3 of the

Constitution. According to that clause:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.22

On its face, this language grants Congress broad discretion to protect information from disclosure. Thus, secrecy, in this specific instance, was actually written into the

Constitution. In comparison, the right to know, a privilege which many U.S. citizens now claim as fundamental, was never explicitly granted by the Founding Fathers.23

21 Id. at 273.

22 U.S. CONST. art. I, § 5, cl. 3. Hoffman also discusses the weight of this clause. While describing the debate which surrounded the clause’s ratification, Hoffman notes that certain delegates, such as George Mason and Patrick Henry, were especially wary of including such “loose language” in the final document. DANIEL N. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS, 35 (1981). Mason provided this warning: “In matters relative to military operations, and foreign negotiations, secrecy was necessary sometimes. But he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. . . . Under this veil [Congress] may conceal any thing and every thing.” Id. (quoting RECORDS OF THE FEDERAL CONVENTION (Farrand ed.), Vol. 3 at 326, 404 (1966)).

23 Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271, 273 (1971). When discussing the Pentagon Papers case, Henkin writes, in part, that “Both before the courts and in the Press there was much talk of ‘the right of the people to know’ what government was up to. That phrase might have appealed to the authors of the Declaration of Independence and even to Constitutional Fathers whose political theory and rhetoric asserted that sovereignty was in ‘the people’. . . [but] the Constitution, of course, expressed no such right . . .” Id. See also PHILIP H. MELANSON, SECRECY

In his analysis, Henkin explains that the lack of Constitutionally-granted access

may have been due more to the framers’ aversion to government, instead of their desire to

maintain secrecy. As the author states, our American forefathers “were committed to a

minimal, ‘watch dog’ government.”24 Thus, some rights may have been implicitly

bestowed upon the populace, even if those rights were not specifically written into the

Constitution.25 Nonetheless, Henkin asserts that early Americans were willing to curb

their “right to know” if such sacrifice was beneficial to the public interest.26

In actuality, the post-9/11 environment is highly comparable to the political

atmosphere immediately following the American Revolution. As in 1776, modern

Americans face unfamiliar futures, largely due to national insecurity and threats against

their personal safety. And, as in 1776, the people have recently turned to the government

for protection, support and guidance. It is within this setting that Americans must now

review the balance between access rights and national security. The cases which follow

will examine the basic arguments for favoring secrecy over disclosure.

WARS, 12 (2001). Melanson referred to the passage of the FOIA as “a revolutionary event.” According to the author, the FOIA gave the people, for the first time, a cause of action against the government in matters of secrecy. As he states, “[i]n the nearly two centuries that proceeded [the FOIA], there was no effective legal right for citizens to obtain information from their government.” Id.

24 Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271, 273 (1971).

25 Id. Henkin argues that while the right to know may “have been a principal rational for the freedom of the Press, . . . the people’s right to know was derivative.” Id.

26 Id. In Henkin’s opinion, “it was assumed, no doubt, that the people agreed it should not know what could not be told it without damage to the public interest.” Id.

Case Discussion

Towards the end of his analysis, Professor Henkin lists the government’s most

common justifications for restricting the release of information.27 Among those reasons, the need to protect “military secrecy in time of war . . and defense security in time of peace” is among those government justifications most likely to be bought by the courts.28

Because issues of national security are most relevant to this paper’s discussion of secrecy in the post 9/11 world, only security justifications are looked at below.

Foremost, the Supreme Court decided New York Times v. United States (commonly referred to as “the Pentagon Papers” case) in 1971.29 Although the Court looked

specifically at prior restraints issues (and not a citizen’s ability to access government

records via an access request), Pentagon Papers sheds light upon the various burdens the

government may need to overcome in order to Constitutionally assert a security interest.

In the case itself, the government attempted to enjoin the New York Times and

Washington Post from publishing a classified study entitled the “History of U.S.

Decision-Making Process on Viet Nam Policy.”30 The study was a 47-volume

government report commissioned by Defense Secretary Robert McNamara.31 The

government argued that publication of the report might prolong the war in Vietnam and

27 Id. at 274. For example, Henkin states that information concerning unimplemented policies may be restricted. He states that releasing policy information prior to enactment may lead to an unfair advantage to those who gain that knowledge (i.e. somebody might gain an unfair economic advantage if they learn of an upcoming interest rate adjustment before the general public). Alternatively, communication between officials may be restricted. Otherwise, “government would become impossible.” Id.

28 Id.

29 New York Times v. United States, 403 U.S. 713 (1971).

30 Id.

31 MIDDLETON, LEE & CHAMBERLIN, 70 THE LAW OF PUBLIC COMMUNICATION (6th ed., Pearson Education, Inc., 2004).

interfere with the United States’ foreign diplomacy.32 After hearing the arguments, the

Court remained deeply divided on the issues and published nine separate opinions.33

Nonetheless, six of the Justices signed onto a per curium opinion which held, generally, that the government had failed to meet its high burden of proving that, in this case, secrecy trumped the free flow of information.34

The publishers eventually prevailed, although the Justices themselves could not

agree which reasoning to follow. Overall, six of the nine Justices found that the First

Amendment did not permit the government to issue an injunction under the present

facts.35 Two of the six—Justices Douglas and Black—argued that the government would

never be able to meet the high burden placed upon it, no matter which situation arose.36

Justice Black argued that the public’s right to check the government could not be

outweighed by an asserted security interest. In his opinion:

The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security by providing that freedom of speech, religion, and assembly should not be abridged.37

32 Id.

33 See generally New York Times v. United States, 403 U.S. 713 (1971).

34 Justices Black, Brennan, Douglas, Marshall, Stewart and White signed onto the per curium opinion. Chief Justice Berger, Justice Blackman and Justice Harlan each offered a separate dissent.

35 Id.

36 New York Times v. United States, 403 U.S. 713, 720 (1971) (Douglas, J., concurring). Justice Douglas argues that, “It should be noted at the outset that the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ That leaves, in my view, no room for governmental restraint on the press.” Id.

37 New York Times v. United States, 403 U.S. 719 (1971) (Black, J., concurring).

Thus, Justices Douglas and Black believed that prior restraints should always, without question, be found unconstitutional.38

In comparison, Justice Brennan suggested a two-prong test which, if met, would constitutionally justify the implementation of any prior restraint. First, Brennan indicated that the nation would have to be “at war.”39 Second, the government would need to show that, during wartime, publication of the suspect material would “inevitably, directly and immediately” endanger the state.40 Furthermore, due to the heightened constitutional protection given speech, adherence to this stringent test is absolutely necessary. In fact,

Brennan argues that the First Amendment may not be compromised in the face of mere conjecture or speculation.41 Thus, speech that “may,” “could,” or “might” prejudice any security interest continues to receive absolute protection.42 In order to uphold a prior restraint, the government would need to demonstrate that publication “would cause” the alleged harm.43

Finally, Justices Stewart, White and Marshall issued a separate standard. Justice

Stewart, arguing for White and Marshall, argued that the government might uphold an injunction if the state could show that publication would result in “direct, immediate, and

38 Id.

39 New York Times v. United States, 403 U.S. 713, 726 (1971) (Brennan, J., concurring). Brennan argued that “there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation ‘is at war.’ Id. (quoting Near v. Minnesota, 283 U.S. 697 (1931)).

40 Id.

41 Id. at 726 (Brennon, J., concurring).

42 Id. at 725 (Brennon, J., concurring).

43 Id. at 726 (Brennon, J., concurring).

24 irreparable damage.”44 In his view, Stewart believed that the Constitution had given the executive branch some limited authority to protect national security interests.45 Thus, certain instances might arise which permitted executive privilege.46 Furthermore, unlike

Justice Brennan, Justice Stewart did not require that the state be at an active state of war in order to pass constitutional review.

The United States Supreme Court further examined the government’s right to protect secrets in Snepp v. United States.47 In Snepp, the defendant signed a secrecy

agreement with the CIA, professing that he would not disclose any information relating to

his employment while at the agency.48 Yet, contrary to the terms of the signed secrecy agreement, Snepp published a book describing his experiences as a CIA agent in South

Vietnam.49 Consequently, the U.S. government demanded a court-ordered injunction to

44 New York Times v. United States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring).

45 Id.

46 Id. Justice Stewart’s interpretation of the issue is contrary to that of Justices Black and Douglas. While Black and Douglas blatantly denied the existence of any situation in which a prior restraint could be upheld, Stewart leaves the possibility of a valid prior restraint open for future review.

47 Snepp v. United States, 444 U.S. 507 (1980). See also U.S. v. Marchetti, 466 F.2d 1309 (4th Cir. 1972). Marchetti, a federal appeals court case which contains facts similar to Snepp, also found that the government had met its burden and consequently allowed the state to deny access. Of interest, the court stated that “the Government also has the right and the duty to strive for internal secrecy about the conduct of governmental affairs in areas in which disclosure may reasonably be thought to be inconsistent with the national interest.” Id. at 1315. Marchetti therefore asserts that, even in the face of cherished rights such as free speech, state interests may necessitate and justify government secrecy.

48 Snepp v. United States, 444 U.S. 508 (1980). The language of the secrecy agreement stated, in part, that Snepp would not “publish . . . any information or relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment, without specific prior approval of the Agency.” Id.

49 Id.

halt future sales of Snepp’s book.50 In addition, the government requested a constructive trust granting the state all of Snepp’s profits from earlier printings.51

After reviewing the facts the Court asserted that the government may withhold

information that it deems to be of national importance. According to the Court’s opinion,

the government has “a compelling interest in protecting both the secrecy of information

important to our national security and the appearance of confidentiality so essential to the

effective operation of our foreign intelligence service.”52 Yet, defendant Snepp had no

intention of publishing any classified materials.53 Nonetheless, the Court held that the secrecy agreement was valid. In this case, the security interest was not in restricting access to sensitive documents, but instead in preserving sources of information.54 As the

Court explained, “the CIA obtains information from the intelligence services of friendly

nations and from agents operating in foreign countries. The continued availability of

these foreign sources depends upon the CIA's ability to guarantee the security of

information that might compromise them and even endanger the personal safety of

foreign agents.”55 Thus, the preservation of information sources, as applied in Snepp,

was a sufficient reason for the government to demand secrecy over speech rights.

In addition to the findings in Pentagon Papers and Snepp, the Supreme Court has

also recognized that the press, and by inference the public, does not always have

50 Id.

51 Id.

52 Id. at 510.

53 Id. at note 4

54 Id. at 512.

55 Id.

26 unfettered access to government facilities and information. In Pell v. Procunier,56

California prison officials wished to restrict reporter access to certain inmates. The officials had claimed that a prior policy, which allowed reporters unrestricted access to interview prisoners, had led to a breakdown in prison discipline.57 In contrast, the reporters contesting the access restriction argued that the prison rule significantly interfered with their Constitutional right to a freely report and, as such, was a blatant violation of the First Amendment.58 After reviewing both arguments, the Court ruled in favor of the prison, noting that the Constitution does not guarantee the right to access.59

As in the prior restraint cases explored above, the Court balanced the value of public access against the government’s need to keep secrets. In this case, the access restrictions were not so egregious as to outweigh the prison’s need to maintain order.60

56 Pell v. Procunier, 417 U.S. 817 (1974). See also Saxbe v. Washington Post, 417 U.S. 843 (1074).

57 Pell v. Procunier, 417 U.S. 817, 831 (1974). According to the prison officials, reporters had focused previous interviews on a small number of inmates within the general prison population. Those few inmates who were interviewed became modest celebrities within the prison and consequently gained a “disproportionate degree of notoriety and influence.” Id. Moreover, some of these inmates had used their new-found influence to encourage disobedience among their fellow prisoners. The prison officials claimed that this disorderly conduct culminated with a botched escape attempt that left three guards and two prisoners dead. Id.

58 Id. at 821.

59 See generally id. Despite the Court’s general finding that the Constitution does not guarantee a right of access to government affairs, this rule must be qualified. In 1980, six years after the Pell decision was published, the Supreme Court asserted that both the public and press do have a Constitutional right to access trials. See generally Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). According to the Court, “the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.” Id. at 576. However, the Court also limits the Richmond Newspapers holding to trial situations. By asserting that “it is not crucial whether we (the Court) describe this right to attend criminal trials . . . as a ‘right of access,’” the Court acknowledges the unique history and standing of trials and thus distinguishes courtrooms from other government facilities. Id.

60 See Pell v. Procunier, 417 U.S. 817, 826-835 (1974). According to the Court, the prison had left open ample alternatives for the press to effectively report the news. Furthermore, the prison had based the contested access restrictions upon policy concerns (safety and order) and not upon a particular message being expressed by the prisoners. Thus, the restriction was considered a content-neutral policy regulation and not an attack on speech.

Furthermore, and perhaps more important to this study, the Court argued that the press’ First Amendment right to report on government affairs did not exceed the public’s right to access. As Justice Potter stated, “it has generally been held that the First

Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”61 Otherwise stated, the Court inferred that the public and press have equal rights to access government facilities and affairs.62

Thus, in dicta, the Court asserted that the public does not have unlimited access to all government information.

In conclusion, the court cases examined above demonstrate, first, that the government may keep secrets when security concerns justify nondisclosure and, second, that the people’s right to access is not unconditional. Foremost, while both Pentagon

Papers and Snepp deal specifically with prior restraints, and not access rights, the cases

still provide valuable insight into the judicial burdens facing an agency claiming the

national security privilege. For example, each of the Pentagon Papers opinions severely

limits the government’s ability to justify keeping secrets, even in the face of national

61 Pell v. Procunier, 417 U.S. 817, 833 (1974). Justice Potter, while citing a previous Court holding in Branzburg v. Hayes, listed a variety of instances in which the government could legally deny reporter’s access rights. According to Potter, “‘[t]he press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.’ Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.” Id. It should also be noted that Chief Justice Berger echoed the Pell holding in Houchins v. KQED. See 438 U.S. 1 (1978). In Houchins, a Supreme Court case decided 4 years after Pell, television reporters were legally denied access to a jail cell where a inmate had committed suicide. According to Chief Justice Berger, “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. . . the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.” Id. at 15.

62 As the previous footnote suggests, the development of the Pell Court’s logic can be traced back to Branzburg v. Hayes. See 408 U.S. 665 (1972). In Branzburg, the Court first asserted that the press’ Constitutional right of access did not exceed the general public’s right of access. Id. at 685.

28 security interests. Even the most lenient of the nine concurrences requires the government to demonstrate an immediate harm.63 Nonetheless, both Pentagon Papers and Snepp attest that an agency which meets these high standards of review may withhold

information from the public.64 Finally, the Court has asserted that the First Amendment

does not guarantee the public, nor the press, an unconditional right to access government

affairs.65

Conclusion

Overall, the cited research exemplifies a number of important revelations. First, and most importantly, the government does have a legal right to keep documents out of the public’s hand. In fact, that right dates back to the Founding Fathers and the enactment of the U.S. Constitution. Furthermore, modern judicial history has demonstrated that the courts have continued to allow government agents to withhold information or restrict access when national security concerns, or even lesser social issues

(such as maintaining prison order), mandate such actions. As the courts have indicated,

63 Because the Pentagon Papers Court issued nine separate opinions, the standard for review of secrecy issues in national security cases remains somewhat muddled. However, while the Supreme Court itself has not effectively clarified the standard for reviewing secrecy cases since Pentagon Papers, a number of lower courts have reviewed cases involving prior restraints. United States. v. The Progressive, Inc. is, arguably, the most influential of these lower court cases. See 467 F. Supp. 990 (W.D. Wis. 1979). In Progressive, the court allowed the government to halt publication of an article describing how to construct a hydrogen bomb. The court held that the presented an “immediate, direct, irreparable, harm to the interests of the United States.” Id. at 996. As the court openly noted, this was the standard established by “two Justices in the New York Times case.” Id. However, because Progressive is not a Supreme Court case, one must view it only as a singular interpretation of the Pentagon Papers holding and not an overriding statement of current access law.

64 See, e.g., New York Times v. United States, 403 U.S. 719 (1971).

65 See, e.g., Pell v. Procunier, 417 U.S. 817 (1974).

the right to access government affairs is not unconditionally granted by the

Constitution.66

However, the research also reveals that these modern courts are more wary of

allowing the government to hide too much information away from the public. The

standards and burdens that government officials must meet are often stringent and

uncompromising.67 Nonetheless, as Pentagon Papers demonstrated, the Justices are not

always in agreement as to what standard should be applied when reviewing a secrecy

case. In general, the government must demonstrate some sort of immediate and serious

threat to a national interest. Such security interests generally fall into one of two

categories. First, in accordance with Pentagon Papers, the government may restrict the

flow of information if the substantive data is, in itself, dangerous to security interests.68

Alternatively, as in Snepp, the government may suppress information in order to protect

confidential sources.

As the next chapter will reveal, the Freedom of Information Act creates a

presumption of disclosure which favors public records requesters. Thus, one might argue

that much of the judicial ambiguity surrounding secrecy standards has been resolved with

the FOIA’s enactment. Now, unless the government can claim one of the nine

enumerated exceptions written into the legislation, the contested record must be released.

However, one of the exemptions does allow for access denials when national security

66 Id.

67 In generally, courts have been especially tough on those government parties demanding secrecy since the enactment of the 1974 FOIA amendments. These changes to the FOIA are discussed in more detail in Chapter 3.

68 While the government did not prevail in Pentagon Papers, the government has won similar suits in lower courts. For an example, see infra note 55.

30 concerns are raised. It is this exemption, which is explored in detail in Chapter 3, which now creates much of the controversy.

CHAPTER 3 THE TREND TOWARD ACCESS

Introduction

Chapter 2 establishes that, in certain instances, secrecy may be justified in cases

involving national security. In fact, both Hoffman and Henkin suggest that the

government’s ability to legally maintain secrets predates the public’s statutory right to

access. However, the previously-discussed materials do not examine the federal Freedom

of Information Act (hereinafter “FOIA”), and that legislation’s corresponding effect on

the government’s ability to keep secrets.1

As this chapter will explain, the FOIA was adopted “as a bipartisan effort to

increase public access to federal documents.”2 After all, access allows the citizenry to

gain the knowledge necessary to critique and shape their government. In the words of

James Madison:

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.3

1 See generally 5 U.S.C. §552 (2003).

2 See Environmental Protection Agency v. Mink, 410 U.S. 73, 79 (1973). The FOIA was passed as a revision to Section 3 of the 1946 Administrative Procedure Act. Generally, the 1946 Act “limited access to federal agency records to persons who could show they were ‘properly and directly concerned,’ and allowed access only if no other legislation had required secrecy for that record.” James T. O’Reilly, Information Disclosures by Government: “Access to Records” vs. “Access to Evil”, 12 Kan. J.L. & Pub. Pol’y 559, 560 (2003). In effect, the 1946 law “allowed the agency to keep records ‘confidential for good cause found’ but did not provide a mechanism to enforce this discretionary option against an unwilling bureaucrat.” Id. at 561. See also PHILIP H. MELANSON, SECRECY WARS, 12 (2001).

3 Bd. Of Educ. V. Pico, 457 U.S. 853, 867 (1982) (citing 9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910)). While debating the rights of schoolchildren to read certain books, the Supreme Court additionally

31 32

Thus, from a practical standpoint, the FOIA would theoretically provide a “vital . . . check against corruption and … hold the governors accountable to governed.”4 Attorney

General Ashcroft, who himself is often the target of the access advocates, echoed these sentiments only days after the 9/11 attacks. As Ashcroft asserted, “It is only through a well-informed citizenry that the leaders of our nation remain accountable to the governed and the American people can be assured that neither fraud nor government waste is concealed.”5

However, despite the FOIA’s presumption of openness, the act also allows federal

agencies to withhold government records in specific situations.6 As the Supreme Court has held, government bodies “must disclose agency records unless [those records] may be withheld pursuant to one of the nine enumerated exemptions.”7 The nine exemptions reference a multitude of diverse issues, ranging from trade secrets to geophysical

asserted that “the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom.” Id. Penn State Professor Martin Halstuk argues that both the House and Senate often quoted Madison during the debates leading up to FOIA’s eventual passage. Martin Halstuk, Policy of Secrecy—Pattern of Deception: What Federalist Leaders Thought About the Right to Know, 1794-98, 7 Comm. L. & Pol’y 51, 56 (2002). However, note also that other scholars have questioned the true meaning of Madison’s quote. See Paul H. Gates and Bill F. Chamberlin, Madison Misinterpreted: Historical Presentism Skews Scholarship, 13 AMERICAN JOURNALISM 38 (1996). According to the authors, while Madison may have agreed with the idea of an open government, “he almost certainly did not have it in mind . . . when he wrote [his now famous quote] . . . to the Lieutenant Governor of Kentucky.” Id. at 38. In fact, Madison’s quote was not extracted from a speech on public access, but rather from a letter concerning scholastic education. Id.

4 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (holding that the National Labor Relations Board could withhold witness statements from record requesters based upon an FOIA Exemption). Robbins Tire adds that one of the FOIA’s basis purposes “is to ensure an informed citizenry.” Id.

5 See Memorandum from Attorney General Ashcroft on The Freedom of Information Act, to Heads of All Federal Departments and Agencies (Oct. 12, 2001), available at www.usdoj.gov/oip/foiapost19.htm (last visited June 18, 2004).

6 See generally 5 U.S.C. §552(b) (2003).

7 United States DOJ v. Julian, 486 U.S. 1, 8 (1988) (finding that prison inmates had a right to access their pre-sentencing investigation reports).

information.8 Of these nine exemptions, FOIA Exemption 1 specifically allows the

government to withhold documents when disclosure concerns national security issues.9

Because this paper is concerned exclusively with keeping secrets during security crises,

only Exemption 1 is discussed below.

This chapter will, foremost, analyze both the underlying principles and statutory

structure of the Freedom of Information Act. The research herein will also examine the

FOIA’s various limitations. These limitations can be found in both the act’s legal

applicability, as well as within the nine specified exceptions to access. After examining

the FOIA’s language, this chapter will investigate the legislation’s standing in the judicial

system. Both Supreme Court cases and federal appellate cases will be analyzed.

The Foundations of FOIA

Historically, Congress passed the Freedom of Information Act in 1966.10 In

general, the FOIA allows United States citizens access to select government records.11

After its ratification, the U.S. Supreme Court labeled the FOIA timely legislation

granting sweeping "access to official information shielded unnecessarily from public

8 5 U.S.C. §552(b) (2003). The nine exemptions to the Freedom of Information Act are summarized as follows: 1) matters of national security; 2) internal personnel rules and information relating to agency practices; 3) information specifically exempt from disclosure by statute; 4) trade secrets and privileged commercial information; 5) inter-agency or intra-agency memorandums or letters; 6) personnel or medical files; 7) specified records compiled by for law enforcement purposes; 8) matters related to the examination, operation or supervision of financial institutions; and 9) geological or geophysical information and data. Id.

9 See 5 U.S.C. §552(b) (2003). Exemption 1 allows agencies to withhold documents which could compromise national security and are properly classified in accordance with an existing executive order. See supra note 47 and the accompanying text.

10 5 U.S.C. §552 (2003). President Lyndon Johnson signed the Freedom of Information Act on July 4, 1966. Seth Porges, Reporters Run Into FOIA Roadblocks; Freedom’s Just Another Word? EDITOR AND PUBLISHER, Dec. 1, 2003.

11 5 U.S.C. §552 (2003). The FOIA is subject to certain limitations. See infra note 8 and the accompanying text.

34 view."12 Statistics reveal that the public has taken advantage of this bestowed freedom.

In 2002, federal agencies handled almost 2.4 million record requests under the FOIA.13

The Department of Veterans Affairs alone received close to 1.5 million demands for records, the most requests fielded by any federal agency.14

The motivations underlying the Freedom of Information Act are well documented.

In 1973, the U.S. Supreme Court reported that the FOIA was to intended to “create a

judicially enforceable public right to secure [government records] from possibly

unwilling official hands."15 Five years later the Court further expressed that “the basic purpose of the FOIA is to ensure an informed citizenry.”16 According to the Court, this informed citizenry is “vital to the functioning of a democratic society [and] needed to check against corruption and to hold the governors accountable to the governed.”17

In effect, the Freedom of Information Act imposes two different disclosure requirements.18 The first, and perhaps more familiar, requires federal bodies under its

12 Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973) (holding that the EPA must show reasons as to why agency documents were withheld from requesters).

13 See http://www.citizen.org/litigation/free_info/foic_rep/statistics/articles.cfm?ID=9333. The 2002 requests for all federal agencies have been totaled by Public Citizen, a “national non-profit public interest organization” founded by Ralph Nader. Id.

14 See DEP’T VETERAN AFF., FREEDOM OF INFORMATION ACT FISCAL REP. (2002). In total, the VA fielded 1,4496,191 total FOIA requests 2002. Id. In comparison, the Department of Justice received 182,079 record requests during that same year. See DEP’T JUST., FREEDOM OF INFORMATION ACT FISCAL REPORT (2002).

15 Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973).

16 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

17 Id.

18 See Kristin Elizabeth Uhl, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure, and Homeland Security, 53 AM. U.L. REV. 261 (2003). Uhl reports that FOIA “provides public access to agency records through two methods: affirmative agency disclosure and public request for disclosure. Affirmative agency disclosure takes place through the Federal Register publication of information ("the FOIA publication requirement") and the availability of certain records for

35 influence to allow citizens to request records held in government custody.19 The second provision, which is less well known, requires the government to voluntarily release designated information.20 Among other disclosures, government agencies are required to voluntarily release selected policy statements, staff manuals, case opinions and records which have been previously released to a record requester and are likely to be requested again.21

When applying the FOIA, burdens of proof become significant. During the act’s formation, Congress wished to “establish a ‘general philosophy of full agency disclosure unless information is under clearly delineated statutory language.’”22 In other words, the

FOIA presumes that agencies should release information; government withholdings of documents, in turn, should be the exception. As a result, all federal agency records are

public inspection and copying ("the FOIA reading room requirement"). Public request for disclosure, FOIA's most well-known component, allows any member of the public to request access to information held by federal agencies without showing a need or reason for seeking the information.” Id.

19 5 U.S.C. § 552(1)(a) (2003). The statute states in part that, “[e]ach agency shall separately state and currently publish in the Federal Register for the guidance of the public . . .descriptions of its central and field organization and the established places at which, the employees … from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions.” Id.

20 5 U.S.C. § 552(2) (2003). The statute requires that “[e]ach agency … shall make available for public inspection and copying -- (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person … and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D).” Id.

21 Id.

22 Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Sen. Rep. No. 813, 89 Cong. 1st Sess., 3 (1965)) (holding that U.S. Air Force Academy records were not exempt under FOIA exception 2 because those records had public value).

36 considered “prima facie disclosable” to any requester who demands access.23 However, in practice, the courts have not set a clear nor universal standard determining an agency’s requirements for successfully withholding a record. 24 Nonetheless, the FOIA openly

“puts the burden upon [the] agency” to justify that agency’s classification decisions.25

Thus, a court may not deny a records request, or uphold an agency’s decision to withhold that record, unless the agency has acted in clear compliance with one of the FOIA’s nine asserted exemptions.26

However, before exploring these nine exemptions, one must also understand that

the statutory construction of the FOIA itself limits the Act’s general application.

Otherwise stated, the FOIA does not apply to all documents in all situations, regardless of

whether an exemption applies. Foremost, according to the Supreme Court, “nothing in

the [FOIA’s composition] or its legislative history gives any intimation that all

23 See supra note 63. In this case, the term “prima facie disclosable” can be interpreted to mean the records are, on their face, disclosable. Thus, it becomes the federal agency’s responsibility to prove in a court of law that the records are, in fact, not disclosable. Kent Corp. v. NLRB, 530 F.2d 612, 617 (5th Cir. 1976), cert. denied 429 U.S. 920 (1976) (holding that the National Labor Review Board’s documents were protected from disclosure under the work product doctrine).

24 Because each FOIA exemption deals with a unique subject matter, standards of proof for properly withholding documents will vary according to the FOIA exemption invoked. However, on a more general level, the courts have failed to determine exactly what burden a government entity must meet to show that the chosen exemption was properly applied. As a federal circuit court noted in 1979, “[n]o clear and concise standard has been developed under that [FOIA], if one is in fact feasible, to determine whether an agency has adequately made a case for nondisclosure. No formula will likely be of value but the FOIA itself puts the burden upon the agency to justify its classification of the documents. . . Further a Court generally may not deny disclosure of documents under that Act unless they are clearly covered by one of its exemptions.” American Civil Liberties Union v. Brown, 609 F.2d 277, 280 (7th Cir. 1979) (holding that the debated government records were protected from disclosure under the FOIA exception dealing with matters of national security). Thus, in this case, the court suggests that withheld documents must be “clearly covered” under one of the nine exemptions. However, this standard has not been adopted by the United States Supreme Court and is, therefore, merely influential.

25 Id.

26 Id. See also United States DOJ v. Julian, 486 U.S. 1, 8 (1988) (finding that prison inmates had a right to access their pre-sentencing investigation reports). For a listing of the nine exemptions see infra note 8 and the accompanying text.

information in all agencies and in all circumstances is to be open to public inspection”27

Instead, Congress intended that the act permit access to certain government information,

while still allowing the government to function as an efficient and effective body.28 It is therefore in accordance with this purpose of balance that Congress wrote the nine exemptions into the FOIA.29 In theory, the inclusion of these exemptions allows the

public access to agency documents, while still protecting “certain information where

confidentiality is necessary to protect legitimate governmental functions that would be

impaired by disclosure.30

Second, the FOIA applies only to “agencies.”31 For FOIA purposes, an “agency”

includes “any executive department, military department, Government corporation,

Government controlled corporation, or other establishment in the executive branch of the

Government (including the Executive Office of the President), or any independent

regulatory agency.”32 Thus, as the statutory language suggests, the FOIA is limited in its applicability. For example, the FOIA does not apply to Congress, the courts, military tribunals or the government of the District of Columbia.33

27 Administrator, Federal Aviation Admin. v. Robertson, 422 U.S. 255, 262 (1975) (allowing the FAA to withhold documents under the 1958 Federal Aviation Act).

28 See generally id. See also Pell v. Procunier, 417 U.S. 817 (1974). Pell, which was discussed in Chapter 2, holds that the public does not have an unconditional right to access government affairs. See infra Chapter 2, note 56 and the accompanying text.

29 See infra note 8.

30 Administrator, Federal Aviation Admin. v. Robertson, 422 U.S. 255, 262 (1975).

31 See 5 U.S.C. §552 (2003).

32 5 U.S.C. §552 (f)(1) (2003). When defining “agency,” the FOIA defers to 5 U.S.C. §551(1) (2003).

33 5 U.S.C. §551(1) (2003).

Third, the FOIA discussed herein is a federal act. Therefore, the FOIA applies only to federal bodies meeting the previously referenced definition of “agency.” The FOIA does not apply directly to the individual states, nor to any state agency.34 Instead, the states themselves will often adopt their own public records law and incorporate those regulations into the state statutes.35

Finally, requesters may find that a great variety of information is contained in a

single document. Some of that information may be properly withheld under one of the

FOIA exemptions. Yet, other information within the same document may be deemed

accessible to the public. In these cases, the FOIA requires the public agency to redact

exempt material while still disclosing other material in the same record.36 Thus, a public records requester may eventually gain access to a contested record. However, parts of that requested record may in-fact be redacted, blacked-out or withheld. 37

34 Mamarella v. County of Westchester. 898 F.Supp. 236, 237 (Southern District NY, 1995). The court referred back to 5 U.S.C. §551(1) and stated that the federal FOIA only applied to federal agencies. Thus, as the court asserted, “the plain language of the FOIA precludes its application to state or local agencies.” Id. See also Washington v. Police Dep’t, 1994 U.S. Dist. LEXIS 11717 (1994) (holding that FOIA does not apply to the New York City police department); St. Michael’s Convalescent Hospital v. California, 643 F.2d 1369 (9th Circuit Appeals, 1981) (holding that FOIA does not apply to a state agency, even if that agency receives federal funding).

35 See VA. CODE ANN. § 2.2-3704 (2003) for an example of a state FOIA provision.

36 5 U.S.C. §552 (b) (2003). The pertinent statute reads “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.” Id.

37 Id.

FOIA Exemption 1

Statutory Investigation

According to the Supreme Court, all federal agencies “must disclose agency records unless [those records] may be withheld pursuant to one of the nine enumerated exemptions” established in the FOIA.38 These nine exemptions cover a wide spectrum of issues.39 As asserted previously, the FOIA’s main text is granted broad interpretation by the courts.40 However, the FOIA exemptions must be narrowly construed.41 The denying agency must prove that any of the nine stated FOIA exemptions apply to a given record.42

Nonetheless, despite these seemingly strict standards, the agencies have been somewhat successful in proving applicable exemptions in court.43 After all, the FOIA was not intended to open all agency records to public viewing without qualification. As the

Court asserted, the existence of the FOIA exemptions alone illustrates that Congress believed that “the Executive Branch must have the option to keep confidential, if it so

38 United States Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988) (finding that prison inmates had a right to access their pre-sentencing investigation reports).

39 5 U.S.C. § 552(b) (2003). See infra note 8 and the accompanying text.

40 In other words, the FOIA is interpreted to broadly presume that agency records are disclosable. See infra note 23 and the accompanying text.

41 United States Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7 (2001) (finding water documents were not protected under the FOIA and must be disclosed to the requesting Native American group). See also United States Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988); United States Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976); United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (directing DOJ to allow reasonable access to court records compiled by the tax department); FBI v. Abramson, 456 U.S. 615, 630 (1982) (holding that, if released, FBI documents could lead to potential harm and were thus properly withheld from public viewing).

42 Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973).

43 During the first eight years immediately following the FOIA’s enactment, executive agencies could more easily withhold information while still adhering to the nine exemptions. However, after 1974, Congress passed several amendments to the FOIA which, theoretically, made it more difficult for agencies to withhold documents. See supra note 70 and the accompanying text.

chooses.” 44 Thus, according to a Senate report, the FOIA’s value lies in the successful

balancing of public access and government interests.45 However, these nine exemptions

“do not obscure the basic policy that disclosure, not secrecy, is the dominant objective”

of the FOIA. 46

As indicated earlier, only the first of the nine listed FOIA exemptions (hereinafter

“Exemption 1”) will be examined. In general, Exemption 1 addresses an agency’s ability

to withhold a requested record on the grounds that releasing the record could compromise

national security interests.47 A careful reading of the statutory language reveals that

Exemption 1 actually outlines a two-pronged test.48 If an agency wishes to withhold a

record under Exemption 1, that agency must first demonstrate that the withheld

information is “specifically authorized under criteria established by an executive order to

be kept secret in the interest of national defense or foreign policy.”49 Furthermore, the

agency must also show that the withheld records “are in fact properly classified pursuant

to such Executive order.”50 Therefore, before any agency claims that Exemption 1 applies, that agency must first cite to an existing, pertinent executive order.

44 Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973).

45 Id (citing S. Rep. No. 813, p. 3. n6). According to the Senate report, the FOIA and competing exemptions aim to provide “a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure." Id.

46 Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

47 5 U.S.C. §552(b)(1) (2003).

48 Id. See also Sims v. CIA, 471 U.S. 159 (1985) (holding that the Director of the CIA was given broad power to withhold classified information under the 1947 National Security Act).

49 5 U.S.C. §552(b)(1)(A) (2003).

50 5 U.S.C. §552(b)(1)(B) (2003).

However, the federal courts do grant agencies limited concessions whenever a record requester contests an agency access decision. For example, when addressing every FOIA Exemption 1 claim, each reviewing court must take into account the special expertise of the agency.51 Prior to 1974, the mere classification of a document in

accordance with Exemption 1 was usually enough for the agency to pass an FOIA

challenge.52 Yet, since the enactment of the 1974 FOIA amendments, the courts have

begun to demand more stringent forms of proof from the agencies, even going as far as to

conduct in camera reviews of the contested documents.53 If such a review does occur,

courts must still give “substantial weight” to agency affidavits when determining whether

a disclosed document would, in fact, harm a security interest.54 Nonetheless, the agency

51 See generally Environmental Protection Agency v. Mink, 410 U.S. (1973). For an example at the trial court level, see also Bevis v. Dep’t of State, 575 F. Supp. 1253 (D.C. Dist., 1983), remanded, 801 F.2d 1386 (D.C. Cir. 1986).

52 See generally Environmental Protection Agency v. Mink, 410 U.S. 73 (1973).

53 In general, the trial court will conduct an in camera inspection of the contested document if the agency (a) fails to describe either the document’s content or the reasons for withholding within the agency affidavit, or (b) acts in bad faith. See King v. United States Dept. of Justice 586 F.Supp. 286 (D.D.C., 1983). For another example, see Fitzgibbon v CIA, 578 F. Supp. 704 (D.D.C., 1983). In Fitzgibbon, the court concluded that the CIA would have to honor a received public records request only after conducting an in camera review. See also Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552 (S.D.N.Y. 1989). On appeal, the Lawyers Comm. court upheld an Exemption 1 withholding after receiving additional agency affidavits and examining the contested documents in camera.

54 S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9, 12 (1974). As the Senate Report remarked, “the conferees recognize that the Executive departments responsible [sic] for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making De novo determinations in section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.” See also Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974); Weissmann v. Central Intelligence Agency, 565 F.2d 692 (D.C. Cir. 1977). For various trial applications of the “substantial weight” standard, see generally Hoch v. C.I.A., 593 F. Supp. 675 (D.D.C. 1984); Marrera v. United States Dept. of Justice, 622 F. Supp. 51 (D.D.C. 1985).

is generally not required to show that the alleged harm will actually occur, but only that

“predicted danger” is reasonably expected.55

Case Studies: Early Interpretation of FOIA Exemption 1

The first Supreme Court case to interpret the FOIA security exemption was

Environmental Protection Agency v. Mink.56 In Mink, Congresswoman Patsy Mink asked

President Nixon to release certain, identified recommendations and reports concerning

some upcoming nuclear tests.57 Upon receipt of Mink’s request, the government denied access and claimed that the requested documents were exempt from disclosure under

FOIA Exemptions 1 and 5.58 The Congresswoman, joined by 32 members of the House,

consequently filed a law suit asserting that the government had violated the FOIA.59

While the state’s exemption 5 defense is not discussed in this paper,60 the Court found

that the government had met its burden under Exemption 1.61 Thus the desired

documents remained classified and Mink’s request for access was denied.62

55 Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980). See also Bevis v. Dep’t of State, 575 F. Supp. 1253 (D.D.C. 1983).

56 See generally Environmental Protection Agency v. Mink, 410 U.S. 73 (1973).

57 Id. at 75. Congresswoman Mink requested the recommendations and records only after conflicting stories concerning the advisability of the nuclear tests had surfaced. The controversy surrounding the nuclear tests had been reported by the Washington Post in July 1971. Id.

58 Id. For the purposes of this study, only the government’s Exemption 1 defense will be considered.

59 Id.

60 FOIA Exemption 5, which falls beyond the scope of this thesis, asserts that "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency" are free from disclosure. 5 U.S.C. §552(b)(5)(2003).

61 Environmental Protection Agency v. Mink, 410 U.S. 73, 84 (1973).

62 Id.

The Mink opinion begins by acknowledging that the FOIA emphasizes the need for government disclosure.63 Yet, despite this presumption of accessibility, the Court also

recognized that Exemption 1 carried considerable weight. As the Court explained, the

FOIA “exempts from its mandate certain specified categories of information, including

matters that are ‘specifically required by Executive order to be kept secret in the interest

of the national defense or foreign policy’.”64 In the instant case, the Court found that

Exemption 1 applied.65 In fact, by simply designating the requested materials

“classified” in accordance with a valid executive order, the agency had met both requirements set forth by FOIA Exemption 1’s two-prong test.66 The burden of proof consequently shifted, and the plaintiff was now forced to show why the documents were not classified.67

Overall, the Mink decision highlights two important issues facing the FOIA during the act’s formative years. First, the President’s executive orders are given significant weight when reviewing an exemption 1 case.68 In other words, the President, if he

63 The Court concluded its introductory discussion of the FOIA by asserting that the Act “is broadly conceived.” Id. at 80. Though Mink fails to define this terminology, a later federal appellate decision would hold that “broadly conceived” means that all federal agency records are considered “prima facie disclosable” to any requester who demands access. See Kent Corp. v. NLRB, 530 F.2d 612, 617 (5th Cir. 1976), cert. denied 429 U.S. 920 (1976). See also infra note 23 and the accompanying text.

64 Environmental Protection Agency v. Mink, 410 U.S. 73, 74 (1973).

65 Id. at 84.

66 Id. In the Court’s view, “the Act [never] intended to subject the soundness of executive security classifications to judicial review at the insistence of any objecting citizen.” Id. Furthermore, during this era, properly classified documents could not be subject to in camera inspection at the citizen’s request. Id. Thus, the agency won because 1) the agency demonstrated the existence of a valid executive order and 2) the suspect material was classified in accordance with that executive order. However, note that courts after Mink have allowed in camera inspection. See supra note 71 and the accompanying text.

67 Environmental Protection Agency v. Mink, 410 U.S. 73, 84 (1973).

68 See id.

44 chooses, may designate any materials he wishes “classified” so long as he issues an appropriate executive order. Second, Mink recognizes the continued legality of government secrecy, even in the face of the FOIA’s enactment.69 Thus, the FOIA, although promoting access over secrecy, does not extinguish the government’s ability to withhold information from the public. Instead, the government can still resist disclosure so long as it can prove the applicability of any of the nine exceptions.

While Mink was the first Supreme Court case to interpret Exemption 1, its ultimate authority must be questioned today. Just one year after the Mink decision, the legislators decided to edit the FOIA. The corresponding FOIA amendments, which cited only to exemptions 1 and 7, were passed into law in late 1974 despite President Ford’s attempted veto.70 From a practical standpoint, the amendments altered the presumptions which courts were required to give agency affidavits. While these affidavits were given exceptional weight under Mink, the 1974 amendments gave courts an increased role in determining FOIA compliance. Now, for the first time, courts were given the ability to review contested information “de novo” and consider the substantive nature of each document in chambers.71 Furthermore, legislators openly expressed their motivations for mandating these FOIA adjustments following the sweeping decision in Mink. According to the legislative history, the amendments were necessary to prevent FOIA trials “from

69 Id.

70 120 Cong. Rec. H10,875 (Nov. 20, 1974); 120 Cong. Rec. S19, 823 (Nov. 21, 1974). The 1974 amendments, which narrowed the scope of FOIA exemptions 1 and 7, are generally seen as a legislative responsive to Mink’s sweeping decision. Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. App. 1976). According to Phillippi, the Supreme Court’s broad interpretation of Exemption 1 in Mink led Congress to act “promptly to overrule the decision and limit the exemption.” Id.

71 Essentially, the courts are now allowed to look at the substantive content of the documents. Judges may now decide for themselves whether or not the agencies had classified the documents according to the FOIA provisions. This type of review, often called “de novo” review, gives the courts an increased voice in the classification process. See infra note 53 and the corresponding text.

45 becoming meaningless judicial sanctioning of agency discretion.”72 By ensuring that judges played an active role in access contests, the legislators intended that “the ultimate decision as to the propriety of the agency's action” would be made by the courts.73

Case Studies: Examples of Exemption 1 Cases

Since Mink, the Supreme Court has ruled only once on the applicability of

Exemption 1. In 1981, eight years after Mink and seven years after the FOIA amendments, the Court decided Weinberger v. Catholic Action of Hawaii.74 In

Weinberger, the Navy had decided to build a storage facility for nuclear weapons at its

West Loch base in Hawaii. Upon learning of the Navy’s plans, a number of public

interest groups demanded that construction be halted until the Navy composed and

released an Environmental Impact Statement (“EIS”) relating to the project.75 After reviewing the facts, the Court first concluded that the Navy was not required to create a public document at the demand of a requester.76 Furthermore, even if the Navy had

72 Ray v. Turner, 587 F.2d 1187, 1190 (D.C. App. 1978). See also S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974). As the Senate Report remarked, “However, the conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making De novo determinations in section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record. Id.

73 Id.

74 Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139 (1981).

75 Id. at 142.

76 Id. at 143. The appellate court ruled that the Navy should produce a “Hypothetical Environmental Impact Statement” which would “assess the impact of the storage of nuclear weapons at West Loch without revealing specific information regarding the number and type of nuclear weapons stored at the facility.” Id. In reversing the appellate court, the Supreme Court cited an earlier decision. According to the Court, “FOIA ‘does not compel agencies to write opinions in cases in which they would not otherwise be required to do so. It only requires disclosure of certain documents which the law requires the agency to prepare or which the agency has decided for its own reasons to create.’” Id. at 145 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162 (1975)).

46 created an EIS, the information concerning the nuclear weapon storage facility could be properly withheld under the national security exemption.77 The Court concluded by proclaiming that “virtually all information relating to the storage of nuclear weapons is classified.”78

The Weinberger ruling demonstrates Exemption 1’s applicability in a very narrow class of cases.79 However, while the Supreme Court has had limited encounters with

Exemption 1, a number of appellate and trial courts have interpreted the FOIA’s national security exception in a variety of situations. For example, lower courts have been particularly keen to withhold documents which could endanger or reveal intelligence sources.80 The rational for withholding such information parallels the Court’s reasoning

77 Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 144 (1981). The Court found that any information concerning the storage facility could be properly classified in accordance with the then-existing Executive Order No. 12065.

78 Id. In this particular case, the Court explained that the Environmental Impact Statement concerning “a proposal to store nuclear weapons at West Lock need not be disclosed. . . [w]hether or not nuclear weapons are stored at West Lock is classified information exempt from disclosure to the public under Exemption 1.” Id. at 145.

79 Weinberger asserts that nearly all documents concerning nuclear weapons are exempt from disclosure under FOIA Exemption 1. Both the federal appellate and trial courts have followed Weinberger’s lead, thus making it difficult for records requesters to gain access to information on nuclear materials. At the appellate level, see, e.g., Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414 (2nd Cir. 1989). At the trial level, see, e.g., Lawyers Alliance for Nuclear Arms Control v. Dep’t of Energy, 766 F. Supp. 318 (E.D. Pa. 1991).

80 See, e.g., Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981). In Casey, the appellate court found that the government could withhold information which, if released, would reveal names and pseudonyms of CIA operatives, locations of classified CIA installations, dates on which the CIA would conduct operations, and technical information related to a CIA project. For additional examples of similar appellate court rulings, see Fitzgibbon v. Central Intelligence Agency, 911 F.2d 755 (D.C. Cir. 1990); Hunt v. Central Intelligence Agency, 981 F.2d 1116 (9th Cir. 1992). For examples at the trial level, see, e.g., Marks v. Central Intelligence Agency, 426 F. Supp. 708 (D.D.C. 1976); Southam News v. U.S. Immigration & Naturalization Service, 674 F. Supp. 881 (D.D.C. 1987); Earth Pledge Found. v. Central Intelligence Agency, 988 F. Supp. 623 (S.D.N.Y. 1996). In each of these three trial cases, the government was allowed to withhold requested information which, if released, would have named intelligence operatives or foreign sources of information.

47 in Snepp (see Chapter 2).81 In addition, lower courts have allowed government agencies to maintain secrecy when disclosure would disrupt foreign relations.82 In one such case, a D.C. trial court found that releasing certain documents “would damage the national security of the United States by straining relations” with governments which had provided the U.S. with intelligence information.83 As a final example, courts have actually allowed the FBI to withhold an agency file that they had compiled on a 6th grade student.84

While the government wins the majority of Exemption 1 cases which reach the

courtroom, the records requesters have had a few victories.85 For example, in Donovan v.

Federal Bureau of Investigation, a federal appellate court ordered the FBI to release certain documents pertaining to that agency’s investigation of a murder occurring in El

81 In Snepp, the Supreme Court upheld a prior restraint which restricted publication of a former CIA operative’s book. See 444 U.S. 508 (1980). The Court argued that publication would reveal the identities of foreign sources and, consequently, compromise intelligence gathering. Id. at 512.

82 As noted earlier, FOIA Exemption 1 allows the government to withhold information in the interest of “national defense or foreign policy.” 5 U.S.C. §552(b)(1)(A) (2003) (emphasis added). See infra note 47 and the accompanying text.

83 Republic of New Afrika v. Federal Bureau of Investigation, 656 F. Supp. 7 (D.D.C. 1985). See also Bonner v. United States Dep’t of State, 724 F. Supp. 1028 (D.D.C. 1992). In Bonner, the State Department was allowed to withhold documents relating to U.S. foreign policy in the Philippines.

84 See, e.g., Patterson v. Federal Bureau of Investigation, 893 F.2d 595 (11th Cir. 1990). In Patterson, a 6th grade student sent a number of letters to 169 foreign countries in order to complete a school project. In response to his letters, the student received an overwhelming number of responses. The FBI became aware of these foreign correspondences and began to compile a file on the 6th grader. In turn, the student asked to see that file about himself. While some of the documents was turned over, the FBI claimed that the national security exemption applied to other information. The appellate court, after conducting an in camera review, found that the FBI had justified the withholding. Not surprisingly, the court did not reveal what was in the documents which merited non-disclosure. Id.

85 The LEXIS notes which follow the FOIA statute list about 50 appellate and trial cases which were decided, at least in part, on the national security exemption. Of those 50 cases, less than 5 granted requesters access to any of the contested records. Furthermore, none of those 5 cases granted the requesters access to all the requested records. See 5 U.S.C. §552, available at www.lexis.com (last checked for accuracy on June 18).

Salvador.86 Prior to reaching the appellate court, the trial judge in Donovan conducted a de novo review of the questioned documents and concluded that some of the guarded information was improperly withheld and had no bearing on national security.87 In other instances, both appellate and trial courts have ruled that even documents with a potential bearing on national security must be released if the contained information has already been voluntarily disclosed in another setting.88

Thus, as the above examples suggest, Exemption 1 contests are often decided on a

case-by-case basis. That being stated, one case best exemplifies the courts’ handling of

the national security exemption in the post-9/11 FOIA cases.89 Under the 2001 Patriot

Act, the FBI was granted increased authority to employ specified surveillance measures.90 Soon thereafter, the American Civil Liberties Union’s (“ACLU”) requested

86 Donovan v. Federal Bureau of Investigation, 806 F.2d 55 (2nd Cir. 1986).

87 Id. at 57. In fact, Donovan marks only a partial victory for requesters. After completing its investigation, the trial court ordered that eight of the fifteen contested documents be turned over. On appeal, the circuit court found that the trial court had erred and only five of the documents should have been originally released. Id. at 61.

88 See Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983); Students Against Genocide v. Dep’t of State, 50 F. Supp. 2d 20 (D.D.C. 1999); Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981). The Casey court did assert, however, that the FOIA plaintiff must show that the exact information he or she seeks is already in the public domain. See Id.

89 Of those appellate and trial court opinions concerning Exemption 1, ACLU v. United States Dep’t of Justice has the greatest ties to the 9/11 attacks. First, the case was decided after 9/11 during an era of heightened awareness of national security vulnerabilities. Second, the case deals with interpretation of the U.S. Patriot Act which, in itself, was a legislative response to the 9/11 tragedy. See 265 F. Supp. 2d 20 (D.D.C. 2003).

90 Id. at 21. Specifically, the Patriot Act expanded the surveillance provisions of the 1978 Foreign Intelligence Surveillance Act (“FISA”). In theory, Section 214 of the Patriot Act dropped FISA’s prior restrictions on the use of pen registers and trap and trace devices against U.S. citizens and lawful permanent aliens. Now, under Section 214, pen registers and trap and trace devices may be used against U.S. citizens and permanent aliens, “provided that the information sought is certified as being relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.” Id. at 22. “Pen registers” are mechanical devices which record the numbers dialed on a telephone. Pen registers do no record oral communication, nor can they conclude whether or not a call was even completed. A “trap and trace” device, in comparison, are used to record the telephone numbers of incoming calls. The Patriot Act is explored in more detail in Chapter 4.

information from the Department of Justice concerning the DOJ’s use of these increased

abilities.91 Among other things, the ACLU wanted records documenting “aggregate statistical information revealing how often DOJ had used the [Patriot] Act’s new surveillance and search provisions.”92 From those statistics, the ACLU hoped to discover

both the number of tracing devices used and the number of sneak and peak warrants

issued since the Patriot Act’s ratification.93

The trial court ultimately upheld the government’s decisions to deny access.

Foremost, the presiding judge cited to the court’s “long-recognized deference to the

executive on national security issues.” Furthermore, although an in camera review was

conducted, the judge accorded “substantial weight” to the DOJ affidavits, as required by

statute.94 In this case, the court relied upon declarations made by David M. Hardy, the

Section Chief of the FBI’s Record/Information Dissemination Section. After examining

the totality of the evidence, the court found that “disclosing the number of FISA

applications made for the production of tangible things could enable adversaries to

discern whether and to what extent business records and other items in the possession of

third parties offered safe harbor from the FBI.”95 In other words, the court believed that

releasing the requested information would provide targeted subjects with a warning of

how DOJ investigations were conducted. The targets could then better avoid DOJ

91 See Id..

92 Id at 30. The ACLU also asked the DOJ to declassify policy documents and guidance materials regarding department use of those surveillance mechanisms cited in the Patriot Act.

93 Id. at 25.

94 Id. at 30.

95 Id. at 28.

50 surveillance and, consequently, more effectively carry out their potential dangerous activities.96 Thus, in this instance, national security concerns trumped the ACLU’s access request.

Conclusion

Since 1966, the Freedom of Information Act has given citizens a judicially enforceable right to sue federal agencies for access to government documents. The

FOIA, designed to help Americans increase their knowledge of state actions, intentionally checks the executive branch by keeping governors accountable to the governed. As the Senate expressed during the legislation’s drafting, “[s]uccess lies in providing a workable formula which encompasses, balances, and protects all interests, yet places the highest emphasis on disclosure.”97

However, the federal government may withhold documents if the effected agency can meet the requirements of any of the FOIA’s nine expressed exemptions. Among those nine, the government may claim Exemption 1, which allows the state to withhold documents for reasons of national security. When claiming Exemption 1, the agency has the initial burden of proving that the contested document has been properly classified in accordance with an executive order.98 During the FOIA’s early existence, executive agencies were given great deference when it came to classifying documents. In fact, the mere existence of an agency affidavit claiming that the exemption applied was usually sufficient to withhold the document. 99 Yet, after Congress passed the 1974 FOIA

96 See generally Id.

97 S. Rep. No. 813, p. 3 n.6.

98 See infra note 48 and the accompanying text.

99 See generally Environmental Protection Agency v. Mink, 410 U.S. 73 (1973).

51 amendments, the courts began to take a more active role in making access determinations. While agency affidavits were still respected, courts now had the opportunity to inspect the contested documents de novo and determine on their own if a national security concern truly existed.100

In actual application, the appellate and trial cases listed above demonstrate that

FOIA contests are generally reviewed in line with speech-related cases. 101 As in the prior restraint cases examined in Chapter 2, FOIA courts usually require some showing of a serious threat to national security before disrupting the free flow of information. Proof of such a threat may be offered through an agency affidavit or via in camera inspection.102 Further, like courts investigating prior restraint cases, courts applying

FOIA provisions will force disclosure if the requested information has, at one time, already been released into the public realm.103 However, while courts applying prior restraint doctrine have been extremely wary of facilitating government secrecy,104 FOIA

100 See infra note 64 and the accompanying text.

101 At their core, both “prior restraint” theory and the “right to know” doctrine can be tied to Milton’s th “marketplace of ideas” metaphor. See generally John Milton, Areopagitica, OF EDUCATION (4 ed., J.M. Dent 1952). Under marketplace theory, all ideas should be allowed to circulate freely in an unrestricted market. “Buyers” in the market will then consider all information available to them. Theoretically, false ideas will be exposed as unworthy, and the truth will win out. Id. As in Milton’s marketplace, both prior restraint theory and access doctrine assume that knowledge is gained through the free exchange of ideas and information. Courts have ruled on secrecy cases while considering these notions. First, prior restraint cases, such as Pentagon Papers and Snepp, are decided by examining free speech issues. In each case, the court is asked to balance the right to free speech (one example of the free flow of information) against the government’s right to keep secrets. In comparison, FOIA cases force the court to balance the right to access (another example of the free flow of information) against, again, the government’s right to keep secrets.

102 See infra note 71 and the accompanying text.

103 Compare United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), dismissed, 610 F.2d 819 (7th Cir. 1979), with Fitzgibbon v. CIA, 578 F. Supp. 704 (D.C. Dist., 1983), and Afshar v. Dep't of State, 702 F.2d 1125 (D.C. Cir. 1983).

52 courts have been more willing to uphold an agency determination not to disclose. Such holdings further demonstrate that the “right to know” is not parallel, nor as fundamental, as the Constitutional rights to free speech.

104 The Court has asserted that”[p]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

CHAPTER 4 SECRECY AND ACCESS IN THE AGE OF TERRORISM

Introduction

As the preceding chapters demonstrated, the quest for government documents is

essentially a battle of competing interests. On one hand, the government has the power to

protect sensitive information which, if released, would weaken the state’s security

interests. This ability to keep secrets dates back to the Founding Fathers and even

shrouded the Constitutional Congress whereupon Americans were first granted their

fundamental freedoms. Conversely, United States citizens have, more recently, acquired

the statutory right to access government records. With the passage of the Freedom of

Information Act in 1966, the legislature acknowledged that the people should have an

enforceable right to investigate and check their leaders.

In the wake of the 9/11 tragedy, the battle between access and secrecy has become

increasingly heated. While the Constitution, the Supreme Court and the Freedom of

Information Act set the binding legal precedent for access law interpretation, each

presidential administration has considerable influence when deciding how federal

agencies and departments should interpret the FOIA. For example, each presidential

administration traditionally issues a statement interpreting the current state of FOIA

policy.1 While these statements, which are typically released by the Attorney General, do

1 The Attorney General has a specific statutory responsibility "to encourage agency compliance” with the Freedom of Information Act. 5 U.S.C. §552(e)(5) (2000). The Attorney General meets this responsibility in several ways, including through statements of FOIA policy. According to the Department of Justice’s website, “[a] new FOIA policy statement traditionally has been issued by the Attorney General at the beginning of a new Administration. Such statements were issued in May 1977 by Attorney General Griffin

53 54

not by themselves have the full force of law backing them, they are used to clarify

suspect standards contained within the FOIA itself. In theory, this practice allows the

sitting president to influence whether the FOIA should be interpreted either strictly or

leniently.

Following 9/11, the Bush administration has seemingly taken advantage of this

ability to influence access standards.2 While the Bush policies have ostensibly hindered

the public’s ability to access government records, the administration claims that such

measures are essential to preserving national security in an era of terrorism. Conversely,

access advocates claim that the Bush policies restrict more civil liberties than national

security currently dictates and, consequently, infringe upon fundamental Constitutional

freedoms. This chapter will therefore examine both the government policy documents

and third-party criticisms which have come to frame the access battle in the post-9/11

environment. However, before examining Bush’s policy towards secrecy, this chapter

will first explore those FOIA directives established under President Clinton.

Clinton and the FOIA

In order to competently understand the weight of the post 9/11 FOIA declarations,

one must first investigate the FOIA proclamations issued by the Clinton administration.

On October 4, 1993, both President Clinton3 and Attorney General Janet Reno4 published

B. Bell, in May 1981 by Attorney General William French Smith, and in October 1993 by Attorney General Janet Reno.” See Department of Justice notes pertaining to the Attorney General Ashcroft Memorandum on FOIA policy, available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (last visited June 21, 2004).

2 A number of the administration’s published documents regarding access policy, including memoranda issued by Attorney General John Ashcroft and White House Chief of Staff Andrew Card, are discussed later in this chapter.

3 See Memorandum from President Clinton on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 4, 1993), available at www.fas.org/sgp/clinton/reno.html (last visited on June 21, 2004) (hereinafter Clinton Memo).

policy memorandums discussing the future of the FOIA.5 In generally, both memos

express a commitment towards agency disclosure.6

Foremost, President Clinton’s memorandum asserts that the FOIA “is a vital part of

the participatory system of government.”7 According to Clinton, the FOIA plays a

number of important roles in strengthening American government. First, the FOIA has

effectively created a more inquisitive and informed public body.8 In turn, this educated citizenry has forced government agencies to remain accountable to the American people.9

Finally, a responsible government is, by necessity, a more able and efficient

administrator.10 The Clinton memo concludes by stating that each executive agency must

“distribute information on its own initiative, and to enhance public access through the use

of electronic information systems.”11 Clinton thus places the onus upon the executive

agencies, and not the record requesters, to ensure that the FOIA’s spirit is upheld.

Attorney General Reno’s October 1993 memorandum addresses Clinton’s FOIA

policy in more detail.12 According to Reno, the Department of Justice is “fully

4 See Memorandum from Attorney General Reno on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 4, 1993), available at www.fas.org/sgp/clinton/reno.html (last visited June 21, 2004) (hereinafter Reno Memo).

5 Under the language of 5 U.S.C. §551(e)(2) each Attorney General has a specific statutory responsibility “to encourage compliance with [the FOIA].” 5 U.S.C. §551(e)(2) (2003). According to the DOJ’s website, this statutory responsibility is discharged in several ways. See infra note 1 and the accompanying text.

6 See generally Clinton Memo (Oct. 4, 1993); Reno Memo (Oct. 4, 1993).

7 Clinton Memo (Oct. 4, 1993).

8 Id.

9 Id.

10 Id

11 Id.

12 See Reno Memo (Oct. 4, 1993).

committed” to complying with the FOIA.13 In order to meet these compliance

aspirations, the DOJ must follow a “presumption of disclosure” whenever a public

records request is made.14 Otherwise stated, executive agencies must assume that a

record will be found disclosable under law unless they can prove otherwise. From a

practical standpoint, Reno states that records should be released unless they would lead to

“reasonably foreseeable harm.”15 Thus, the public citizen, and not the executive agency,

gets the benefit of the doubt in any agency request contest.

John Podesta, a former Senior Policy Advisor under Clinton, explained the net

effect of the Clinton access policies. According to Podesta:

In 1994, President Clinton issued an executive order that declassified in one fell swoop approximately forty-five million pages of World War II and Vietnam War era documents - that is nearly 15% of the National Archives' classified materials. Two years later, the National Security Agency released extensive information about the Venona project, ending a fifty-year silence on one of cryptography's most successful efforts on the Soviet attempts to infiltrate the U.S. government. Perhaps most significantly, President Clinton signed an executive order setting tough standards for classifying and declassifying documents. 16

Podesta continues to state that Clinton’s “unprecedented effort” led to the

declassification of nearly 800 million pages. From a comparative standpoint, that total is

about “five times the number of records declassified in the previous 15 years.”17

13 Id.

14 Id.

15 Id. The Attorney General states that “it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.” Id.

16 John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361, 371 (2002).

17 Id.

Bush and the FOIA

Prior to the FOIA’s enactment in 1966, the U.S. legislature had failed to provide the public with legal standing to bring suit against the government for the release of a document.18 However, after the passage of the Freedom of Information Act, the government may, if challenged under the FOIA, now be required to justify any reason for withholding information from the people.19 In September 2002, President George W.

Bush summarized the changing political environment which might merit withholding information. In his outline on the United State’s National Security Strategy, Bush explained:

Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government. Today, that task has changed dramatically. Enemies in the past needed great armies and great industrial capabilities to endanger America. Now, shadowy networks of individuals can bring great chaos and suffering to our shores for less than it costs to purchase a single tank. Terrorists are organized to penetrate open societies and to turn the power of modern technologies against us. To defeat this threat we must make use of every tool in our arsenal—military power, better homeland defenses, law enforcement, intelligence, and vigorous efforts to cut off terrorist financing. The war against terrorists of global reach is a global enterprise of uncertain duration.20

According to this passage, the federal government faces unique security challenges in the wake of 9/11. Tracking down terrorists and protecting domestic targets from future terrorist attacks presumably warrants improved surveillance techniques and increased

18 See generally Chapter 3 discussing the Freedom of Information Act.

19 According to Congress, the Freedom of Information Act establishes a “general philosophy of full agency disclosure unless information is under clearly delineated statutory language.” Sen. Rep. No. 813, 89 Cong. 1st Sess., 3 (1965). In effect, the FOIA openly puts the burden upon the agency to justify that agency’s classification decisions. See American Civil Liberties v. Brown, 609 F.2d 277 (7th Cir. 1979).

20 The National Security Strategy of the United States at 3, (Sept. 17, 2002), available at http://www.whitehouse.gov/nsc/nssintro.html (last visited June 21, 2004).

intelligence investigations.21 The following paragraphs examine the Bush

administrations’ attempts to address the new terrorist threat.

The Ashcroft Memo

On October 12, 2001, just one month after the September 11 attacks, John Ashcroft

released the traditional Attorney General memorandum22 concerning the Freedom of

Information Act.23 Ashcroft’s memo, which supersedes Janet Reno’s 1993 FOIA

declaration,24 encourages agencies to use caution when considering FOIA requests. In

truth, Ashcroft initially acknowledges the governmental need to maintain a “well-

informed citizenry.”25 Like Clinton and Reno, Ashcroft asserts that the government will

be held accountable only if it remains properly checked by the American public.26 Yet,

Ashcroft’s attention quickly turns towards the protection of government information. Of the memorandum’s five full paragraphs, four caution agencies to carefully consider all

FOIA requests. 27 The Attorney General asserts that, aside from complying with the

FOIA, the Department of Justice must also safeguard national security, enhance law

enforcement effectiveness, protect sensitive business information, and preserve personal

21 See generally Id.

22 As the Department of Justice recognizes, each Attorney General “traditionally” releases a statement on FOIA policy once a new administration takes office. See infra note 1 and the accompanying text.

23 See Memorandum from Attorney General Ashcroft on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 12, 2001), available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (last visited June 21, 2004) (hereinafter Ashcroft Memo).

24 Ashcroft Memo (Oct. 12, 2001). The memo states, in part, that “this memorandum supersedes the Department of Justice’s FOIA Memorandum of October 4, 1993.” Id.

25 Id.

26 Id.

27 Id.

59 privacy.28 In concluding his memo, Ashcroft specifically cites to FOIA Exemption 5, the exemption which deals specifically with Attorney-Client privilege and inter-office memorandum. 29 Despite the memo’s publication immediately after 9/11, Ashcroft fails

to cite to FOIA Exemption 1.30

In addition, the Department of Justice (DOJ) explains Ashcroft’s FOIA memo on

the DOJ website.31 Most importantly, the DOJ explains the new standard of review for handling FOIA conflicts. Under the 1993 Reno policy, the DOJ would defend an agency’s claim for an FOIA exemption, but only if the contested information’s disclosure would cause foreseeable harm to that agency.32 In comparison, Ashcroft stressed a

“sound legal basis” standard.33 Under this standard, the DOJ agrees to defend any agency which claims an FOIA exemption unless that agency’s claim lacks a sound legal basis.34

In juxtaposing the two standards, Reno’s criterion places a higher burden of proof on the

28 Id.

29 Id. Exemption 5 to the FOIA states that “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” are not subject to the FOIA. 5 U.S.C. §552 (b)(5) (2003).

30 See Ashcroft Memo (Oct. 12, 2001).

31 See generally Department of Justice notes pertaining to the Attorney General Ashcroft Memorandum on FOIA policy, available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (last visited June 21, 2004).

32 Reno Memo (Oct. 4, 1993). The memo asserts that “it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.” Id.

33 Ashcroft Memo (Oct. 12, 2001). When discussing burdens of proof, Ashcroft asserts that the agencies can be assured that the DOJ “will defend [that agency’s] decisions unless they lack a sound legal basis.” Id. See also Department of Justice notes pertaining to the Attorney General Ashcroft Memorandum on FOIA policy, available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (last visited June 21, 2004).

34 Ashcroft Memo (Oct. 12, 2001).

government agency to prove an exemption’s applicability. Comparatively, Ashcroft’s

standard allows the agency more opportunities to legally classify documents as secret.35

The Card Memo

In March 2002, about six months after the Ashcroft memo was published, White

House Chief of Staff Andrew Card issued a memorandum to all executive department

and agency heads.36 The memo specifically describes standards for reviewing access

requests which involve weapons of mass destruction. Attached to his own memo, Card

included an additional, instructive memorandum directing employees on how to

safeguard information.37 While the Card memo is not legally binding in a court of law, it,

like the Ashcroft memorandum, provides agencies with guidance as to how to properly

classify suspect information.

Card begins the memo by asserting that the department heads “have an obligation

to safeguard government records regarding weapons of mass destruction.”38 Thus, the memo immediately sets a tone favoring protection and withholding, as opposed to openness and disclosure. In addition, Card encourages departments and agencies to

35 Ashcroft’s “sound legal basis” standard is, in fact, very similar to the agency burden prior to Reno’s 1993 memorandum. Before Reno took office, the law required agencies to show only that their claimed exemptions were based on a “substantial legal basis.” Reno consequently abandoned this policy. As stated in her 1993 memo, the DOJ “will no longer defend an agency’s withholding of information merely because there is a ‘substantial legal basis’ for doing so.” Reno Memo (Oct. 4, 1993).

36 See Memorandum from White House Chief of Staff Andrew H. Card, Jr. on “Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security,” to the Heads of Executive Departments and Agencies (March 19, 2002), available at http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm (last visited June 21, 2004) (hereinafter Card Memo).

37 See Card Memo (March 19, 2002).

38 Id.

61 immediately reexamine their current measures “for identifying and safeguarding” all government information which “could reasonably be expected to assist in the development or use of weapons of mass destruction.”39 Again, the language, such as the word “safeguarding,” emphases protection and nondisclosure.

In addition, the Card memo discusses applying the FOIA exemptions to “sensitive but unclassified” documents which may interfere with security interests.40 This language, which reappears in the Homeland Security Act,41 was left undefined in the memo.42 As such, critics have asserted that the vague nature of the “sensitive but unclassified” designation could act as “a catch-all for whatever information the increasingly secretive executive branch does not want to release.”43 According to another source, the “sensitive

but unclassified” standard becomes problematic because “most information (even the

phone book, for instance) at least carries the potential to be used for harm.”44

Furthermore, “sensitive but unclassified” information is not automatically exempt under

39 Id.

40 Id.

41 6 U.S.C. § 482(a)(1) (2004). Under the Homeland Security Act’s provision on information sharing, the President “shall prescribe and implement procedures under which relevant Federal agencies . . . identify and safeguard homeland security information that is sensitive but unclassified; and . . . to the extent such information is in classified form, determine whether, how, and to what extent to remove classified information, as appropriate, and with which such personnel it may be shared after such information is removed.” Id. (emphasis added).

42 The term “sensitive but unclassified” was left equally undefined in the Homeland Security Act. See 6 U.S.C. § 482(a)(1) (2004).

43 OMB Tackles Sensitive But Unclassified Information, SECRECY NEWS, Sept. 3, 2002, at http://www.fas.org/sgp/news/secrecy/2002/09/090302.html (last visited June 21, 2004).

44 Administration Gains New Power to Withold 'Sensitive' Information, OMBWATCH ON-LINE, Sept. 10. 2003, at http://www.ombwatch.org/article/articleview/1799/ (last visited June 21, 2004). According to its mission statement, OMBWatch is a “nonprofit research and advocacy organization dedicated to promoting government accountability and citizen participation in public policy decisions.” See OMBWATCH ON- LINE, at http://www.ombwatch.org/article/articlestatic/6/1/7/ (last visited June 21, 2004).

62 the Freedom of Information Act and seemingly falls outside one of the nine enumerated

FOIA exceptions.45

Finally, the memo attached to the Card directive, co-authored by the Information

Security Oversight Office and the Office of Information and Privacy (hereafter “OIP memo”), continues to encourage agencies to review access requests with caution. While

Card explains that these heightened security standards should be applied only to government information concerning weapons of mass destruction, the OIP memo expands these measures to all information which could be “misused to harm the security of our nation or threaten public safety.”46 The OIP memo also reminds federal employees to review all submitted FOIA requests in accordance with the Ashcroft memo described above.

From an analytical perspective, one could argue that the tone of the Card memo seems to directly contradict the principles of the Freedom of Information Act. While the

FOIA presumes that information is prima facie disclosable, the Card language encourages agencies and departments to seek second opinions on access decisions, revise access standards and proceed only with extreme caution.47

The Bush Directives

While the Ashcroft and Card memoranda set the tone for FOIA interpretation under the Bush administration, the memos themselves create “no substantive or procedural right

45 See generally 5 §U.S.C. 552 (2003).

46 Card Memo (March 19, 2002).

47 Id.

enforceable law.”48 However, the President himself has, in fact, signed bills which have

bestowed the federal government with increased potential to keep secrets from the public.

Of those Presidential acts which Bush has undertaken it the wake of the terrorist attacks,

a few are significant to the secrecy issue. First, Bush signed the Homeland Security Act

which, among other things, increased classification authority and created a disclosure

exemption under the “Critical Infrastructure Information Act.” Second, Bush’s use of

executive orders and directives enlarged the pool of individuals with original

classification authority and amended standards for classifying dubious government

documents. Finally, Bush signed the Patriot Act which both increased the government’s

ability to monitor individuals and augmented the agencies’ ability to exchange secrets

and privacy information. Each of these three enactments is examined in more detail

below.

The Office of Homeland Security and the Homeland Security Act

First, on October 8th, 2001, Bush created the Office of Homeland Security (OHS).49

As expressed by executive order, the OHS’ intended mission “shall be to develop and coordinate the implementation of a comprehensive national strategy to secure the United

States from terrorist threats or attacks.”50 Furthermore, under the provisions of the

executive order, the Assistant to the President for Homeland Security was authorized to

48 Ashcroft Memo (Oct. 12, 2001). As asserted earlier, the Ashcroft and Card memos merely direct agencies on how those agencies should be processing FOIA requests. The Ashcroft memo, in particular, promises agencies support in request contests if the sued federal body has followed the “sound legal basis” standard. See infra note 1 and the accompanying text.

49 Exec. Order 13,228, 66 Fed. Reg. 51,812 (Oct. 8, 2001).

50 Id.

64 classify, and essentially, withhold documents from public circulation.51 The creation of the OHS predated the Homeland Security Act and the eventual creation of the

Department of Homeland Security.

In November 2002, essentially a year after the creation of the OHS, the Homeland

Security Act was passed.52 Above all, the Homeland Security Act established the

Department of Homeland Security (“DHS”), a federal department designed to “provide

the unifying core for the vast national network of organizations and institutions involved

in efforts to secure our nation.”53 Perhaps most important to this thesis, the Homeland

Security Act contains a provision which allows private companies to withhold any records from the public which might concern those companies’ work on nationwide infrastructure projects. This stipulation, commonly known as the Critical Infrastructure

Information Act (or “CIIA”) gives the government the authority to impose “a fine, up to a year of imprisonment, or both, as well as removal from employment, upon any government offender who discloses this protected infrastructure information.”54 In effect, the CIIA allows those companies that voluntarily provide information to the government

51 Exec. Order 13,228, 66 Fed. Reg. 51,812 (Oct. 8, 2001). Sec. 6 grants the Assistant to the President for Homeland Security “Original Classification Authority” to designate documents as “top secret.” Id.

52 The House of Representatives actually passed the Homeland Security Act in July of 2002. However, the proposal initially stalled in the Senate. The Act did not pass through the Senate until after the 2002 midterm elections. See Kristin Elizabeth Uhl, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure, and Homeland Security, 53 AM. U.L. REV. 261, 277 (2003).

53 See The Department of Homeland Security On-Line, at http://www.dhs.gov/dhspublic/theme_home1.jsp (last visited June 21, 2004). Note that the Department of Homeland Security did not engulf the Office of Homeland Security. Instead, the Department was intended to “work alongside the existing OHS to coordinate national security measures that fall outside the scope of the functions transferred to the new Department by the HSA.” Jonathan Thessen, Recent Development: The Department of Homeland Security, 40 HARV. J. ON LEGIS. 513, 513 (2003).

54 See 6 U.S.C. § 133(a)(1) and 214(a)(1). See also Kristin Elizabeth Uhl, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure, and Homeland Security, 53 AM. U.L. REV. 261, 277 (2003).

to shield their disclosed corporate information from public records requests. Thus, the

CIIA provides a tool by which private corporations may withhold secrets from the public.

Executive Orders under Bush.

As indicated previously, FOIA exemption 1 only takes effect if an executive order

specifically authorizes certain information to be withheld.55 For almost two years

following the 9/11 attacks, Bush relied upon a preexisting executive classification order

leftover from Clinton’s administration.56 That executive order, entitled “Classified

National Security Information,” initially mirrored Clinton’s FOIA policy as expressed in

his October 1993 memorandum.57 It was not until March 2003, about 18 months after the

September 11th attacks and 17 months after the Ashcroft memo, that President Bush

ultimately amended Clinton’s original executive order.58

For the purposes of this thesis, three sections of the “Classified National Security

Information” order deserve particular attention. First, Clinton’s order asserted that

“[i]nformation may not be reclassified after it has been declassified.”59 In addition, both

sections 1.1(b) and 1.2(c) set procedures for classifying information which agencies

considered “borderline.”60 Under Clinton, section 1.1(b) asserted that, if any significant

doubt existed as to a document’s proper classification, that document should not be

55 See 5 USCS § 552(b)(1) (2003).

56 Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995).

57 Compare Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995) with Clinton Memo (Oct. 4, 1993).

58 Exec. Order 12,958, 68 Fed. Reg. 15,315 (Mar. 25, 2003).

59 Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995).

60 Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995). The term “borderline” indicates that a particular document is not, on its face, disclosable or secret. Alternatively, a document may be “borderline” if it falls among levels of classification.

classified.61 Moreover, section 1.2(c) of the Clinton order stated that all documents

which straddled levels of classification must be classified at the lower level.62 Both provisions mirror Clinton’s FOIA memorandum on access policy.63

Bush amended the Clinton order in March 2003.64 First, under Section 1.7(c),

Bush changed the phrase “[i]nformation may not be reclassified after it has been declassified” to read “[i]nformation may be reclassified after declassification” in accordance with certain conditions.65 Second, and perhaps more importantly, Bush

redacted Sections 1.1(b) and 1.2(c).66 As indicated previously, under Clinton both

provisions called for classifying information at the lowest possible level or declassifying

information altogether.67 By redacting these provisions, Bush allows government

agencies increased leeway in classifying suspect documents.

In addition to the executive order on document classification, Bush signed two

directives bestowing original classification authority to heads of executive agencies.

First, Bush granted classification authority to the head of the Environmental Protection

61 Id. A classified document is one which is withheld from public viewing. See id.

62 Id.

63 Compare Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995) with Clinton Memo (Oct. 4, 2001).

64 Exec. Order 12,958, 68 Fed. Reg. 15,315 (Mar. 25, 2003). Approximately 35 changes were made to the document. However, the great number of those changes could be seen as “word swaps.” For example, the term “information” was often replaced with the word “record.” Id.

65 Id. According to the document, information could become reclassified after declassification if the information is reasonably recoverable and reclassification is initiated by the agency head in the interest of national security. Id.

66 Id.

67 See infra note 60 and the accompanying text.

Agency (EPA).68 In effect, this designation allows the head of the EPA to originally classify documents as “secret.”69 In addition, Bush granted similar authority to the

director of the Office of Science and Technology Policy (OSTP).70 These combined

actions effectively delegated the executive office’s right to classify information outside

the office of the President. Furthermore, when considering FOIA Exemption 1, these

presidential designations fulfill the statutory requirement that withholdings must be

classified in accordance with an existing executive order.71 Thus, from a practical

standpoint, the President has consequently allowed individuals other than himself to

classify records and thus withhold information from the public.

The Patriot Act

Finally, one might argue that the President has also promoted government secrecy

by endorsing the U.S. Patriot Act. The Patriot Act was a hurried response to the terrorist

attacks. In fact, Congress passed the final draft on October 25, 2001, merely six weeks

after the 9/11 tragedy.72 In application, the Patriot Act grants the federal government

increased access to private information.73 The provisions of the Act allow government

agencies increased ability to employ clandestine surveillance techniques and share

68 Designation Under Exec. Order 12,958, 67 Fed. Reg. 31,109 (May 9, 2002).

69 Id.

70 Designation Under Exec. Order 12,958 (Sept. 17, 2003).

71 5 U.S.C. §552(b) (2003).

72 Adam Clymer, A Nation Challenged: U.S. Gets Expanded Powers, N.Y. TIMES, Oct. 26, 2001, at A1.

73 See, e.g., John W. Whitehead and Steven H. Aden, Forfeiting “Enduring Freedom” for “Homeland Security:” A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives, 51 AM. U.L. REV. 1081 (2002). See also Seth Rosenfeld, Looking Back, Looking Ahead, S.F. CHRONICLE, Sept. 8, 2002, at A1.

68 information about individuals.74 While the Bush administration claims that such augmented surveillance measures are necessary to protect citizens from future terrorist activity, critics counter that the Patriot Act may infringe upon Constitutionally-protected privacy rights.75 For example, Seth Rosenfeld, a reporter for the San Francisco

Chronicle, commented on the extent of the executive departments’ new powers.

According to Rosenfeld, the Patriot Act arms federal agents “with sweeping powers . . . giving them greater access to information – including library records, book store receipts, subscription lists, credit and banking records, e-mails, phone conversations and student files.”76

That being stated, the Patriot Act itself states little about the government’s ability to classify information or those procedures that the public might employ for accessing government records. Instead, as indicated above, the Patriot Act dwells more on what the government can access from the individual.77 For example, while data sharing among

agencies was previously illegal, the Patriot Act now permits government entities to share

74 See generally John W. Whitehead and Steven H. Aden, Forfeiting “Enduring Freedom” for “Homeland Security:” A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives, 51 AM. U.L. REV. 1081 (2002). As indicated in Chapter 3, the Patriot Act amends several provisions included in the 1978 Foreign Intelligence Surveillance Act (“FISA”). Foremost, Section 214 of the Patriot Act allows government agents to use pen registers and trap and trace devices in investigations which may concern citizens and legal aliens (under the 1978 Act, such surveillance devices could not be employed against such individuals). ACLU v. United States Dep’t of Justice, 265 F. Supp. 2d 20, 21 (D.D.C. 2003).

75 Seth Rosenfeld, Looking Back, Looking Ahead, S.F. CHRONICLE, Sept. 8, 2002, at A1. As an example, Rosenfeld tells the story of a Pakistani native who purchased technology books on EBay. The FBI, which monitored the purchase, paid a visit to the book buyer and ask him if he planned to build any bombs. The buyer turned out to be a Stanford graduate and American citizen who had lived in the U.S. for over 20 years. Id.

76 Id.

77 See infra note 73 and the accompanying text.

certain information compiled on individuals.78 In addition, the Patriot Act now affords

increased secrecy protection to those agencies conducting surveillance of individuals.79

Overall, while it does not directly influence the FOIA, the Patriot Act still exemplifies the

increased government demands for secrecy since 9/11.

Criticisms of the Bush Policy

On October 18, 2001, Governor Tom Ridge, a Bush appointee, addressed the press

for the first time since being named Director of Homeland Security.80 Ridge immediately

reported that, “This briefing will be the first of many opportunities that we will have to

discuss homeland security and our government's response efforts. The President has

made it very clear that he wants to provide the American people as much accurate

information as we can, as soon as we can.”81

However, despite Ridge’s assertions, access proponents may construe the former

governor’s statement as a false promise. Instead of providing the people with “as much

accurate information” as possible, critics of the Bush administration claim that the post

9/11 directives often stop or hinder the flow of information between the government and

its citizenry. As discussed below, many of these measures have been criticized as being

overbroad, ill-defined or too lenient on government agencies.

78 See generally John W. Whitehead and Steven H. Aden, Forfeiting “Enduring Freedom” for “Homeland Security:” A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives, 51 AM. U.L. REV. 1081 (2002). For instance, the Patriot Act “has given the CIA the central authority to gather and use intelligence information garnered from domestic sources, including intelligence on United States citizens and residents.” Id. at 1091.

79 Id. at 1083, fn 4. The authors state that the Patriot Act amended FISA “to allow more expansive protection of secrecy for those carrying out electronic surveillance.” Id.

80 Tom Ridge, Press Briefing on Homeland Security (Oct. 18. 2001), available at http://www.whitehouse.gov/news/releases/2001/10/20011018-1.html (last visited June 21, 2004). Governor Ridge’s remarks were made during his first press briefing as Director of Homeland Security.

81 Id.

Many members of the mainstream press and civil liberties groups have found the

Bush access policies deeply disturbing. Marc Rotenberg, the Executive Director of the

Electronic Privacy Information Center and former counsel to Senator Patrick Leahy,

asserts that “[t]he new standard for litigating FOIA cases is a clear indication that the

Department of Justice is less committed to open government since September 11.”82 The

Washington Post reported that the administration’s handling of access issues relies upon

“vague language that invites abuse” and often fails to “address legitimate national

security needs in the war against terrorism.”83 In effect, critics claim that the aforementioned Bush policies have led to a reduction in both the number of records requests processed and the amount of information available.84 As the Post explained,

while “the years before 9/11 saw a sharp increase in the amount of public information

available” that trend has “now collided with security concerns.”85

Access proponents have found the future of the Bush secrecy policy even more

disconcerting. During the early months of 2003, rumors of a “Patriot Act II” began to

circulate throughout some major media outlets, and journalists asserted that the

Department of Justice had in fact been seeking Congressional support for the proposed

82 Marc Rotenberg, Privacy and Secrecy After 9/11, 86 MIN. L. REV. 1115, 1124 (2002). Rotenberg adds that “[o]n several occasions the Attorney General has expressed his opinion that the U.S. federal government cannot make information publicly available that may be a threat to the country. This policy has extended to decisions to severely limit the availably of public information that was previously available over the Internet prior to September 11.” Id.

83 Mark Tapscott, Too Many Secrets, WASH. POST, Nov. 20, 2002.

84 Seth Porges, Reporters Run Into FOIA Roadblocks; Freedom’s Just Another Word?, EDITOR & PUBLISHER, Dec. 1, 2003 at 4.

85 Gary S. Guzy, Are We Protecting Secrets or Removing Safeguards?, WASH. POST, Nov. 24, 2002, at B1. John Podesta, a former policy advisor to President Clinton, confirmed the Washington Post’s conclusion that the years leading up to 9/11 “saw a sharp increase in the amount of public information available.” See infra note 16 and the accompanying text.

71 act.86 Copies of the “Patriot Act II,” also known as the “Domestic Security Act of 2003,” had been obtained and discussed by such mainstream news sources as the Atlanta

Journal-Constitution,87 the San Francisco Chronicle,88 and the International Herald

Tribune.89 Moreover, while the Baltimore Sun once reported that the proposed “Patriot

Act II” was dead,90 portions of the once written-off act begun to appear in various other pieces of legislation.91 According to OMBWatch, a government watchdog organization charged with “promoting government accountability,” the Patriot Act II would have further infringed upon privacy rights and given the government a stronger hand in withholding agency information. 92 OMBWatch, citing an obtained copy of the proposed legislation, additionally asserted that the Patriot Act II would provide civil immunity for

86 Carolyn Lochhead, Democrats Seek Rollback of Patriot Act, S.F. CHRON., Sept. 25, 2003 at A4.

87 Eunice Moscoso and Nora Achrati, Patriot 2: The Eyes Have It; Unusual Coalition of Left and Right Says Civil Liberties Under Attack, THE ATLANTA JOURNAL-CONSTITUTION, May 11, 2003, at 1E.

88 Carolyn Lochhead, Democrats Seek Rollback of Patriot Act, S.F. CHRON., Sept. 25, 2003 at A4.

89 A Threat to Freedom, INT’L HERALD TRIB., Sept. 23, 2003, p. 8.

90 Michael Hill, Life, Liberty and the Pursuit of Terrorists, BALT. SUN , Nov. 2, 2003, at 1C. Hill claims that criticism of the original Patriot Act “essentially sank” the proposed Patriot Act II. Id.

91 For example, Wired News reported in August 2003 that the proposed VICTORY (Vital Interdiction of Criminal Terrorist Organizations) Act contained “significant portions” of provisions once written into the Patriot Act II. See Ryan Singel, Patriot Act II Resurected?, WIRED NEWS ON-LINE (Aug. 21, 2003) avaliable at http://www.wired.com/news/politics/0,1283,60129,00.html (last visited June 21, 2004). In addition, the New York Post reported that the proposed VICTORY Act would allow agencies to 1) “get business records without a court order in terrorism probes;” 2) “track wireless communications with a roving warrant;” and 3) “increase sentences for drug kingpins to 40 years in prison and $4 million in fines.” James Gordon Meek, Ashcroft Tour to Plug Terror Bill, N.Y. DAILY NEWS, Aug. 6, 2003, available at http://www.nydailynews.com/08-06-2003/news/wn_report/story/106872p-96686c.html (last visited June 21, 2004).

92 Patriot Act II Also Limits the Public’s Right to Know, THE WATCHER, Vol. 4, No. 3 (Feb. 2, 2003), available at http://www.ombwatch.org/article/articleview/1324/1/163/ (last visited June 21, 2004). OMB Watch describes itself as a “nonprofit research and advocacy organization dedicated to promoting government accountability and citizen participation in public policy decisions.” See generally www.ombwatch.org.

72 corporations which assisted the government in fact-finding investigations. 93 Such actions that further intrude upon the public’s privacy rights, as well as allow commercial records protection under the government’s sweeping claim of security maintenance.94

Conversely, The White House and the Department of Justice have never admitted the existence of any potential brethren to the original Patriot Act.95

Alternatively, John Podesta, a Senior Policy Advisor under President Clinton,

argues that the Bush administration’s stance on open government has nothing to do with

9/11 at all. Now a law professor at Georgetown University, Podesta claims that

“[a]lthough the administration justifies this broad expansion of government secrecy as a

response to new security threats, the administration's preference for secrecy predates the

events of September 11.”96 To exemplify his theory, the former White House advisor first refers to Bush’s handling of presidential records.97 According to Podesta, after Bush

93 Id.

94 Id.

95 See Eunice Moscoso and Nora Achrati, Patriot 2: The Eyes Have It; Unusual Coalition of Left and Right Says Civil Liberties Under Attack, THE ATLANTA JOURNAL-CONSTITUTION, May 11, 2003, at 1E. According to the authors, “Ashcroft contends that [the so-called Patriot Act II] is not a formal legislative proposal… [but] merely a set of ideas being kicked around within the Justice Department.” Id.

96 John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361, 369 (2002). Prior to accepting his professorship at Georgetown, Podesta was a Senior Policy Advisor to President Clinton in the fields of government information, privacy and telecommunications. In making his assertion, Podesta’s relies upon an article from the Washington Post. See George Lardner Jr., Release of Reagan Documents Put on Hold, WASH. POST, June 10, 2001, at A5. According to Lardner’s article, as cited by Podesta, George W. Bush blocked the release of 68,000 documents concerning Ronald Regan’s administration by signing an executive order which allowed either the White House or former presidents to veto the release of presidential papers. John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361, 369 at fn 53 (2002).

97 Podesta mentions the Presidential Records Act only as an example of the Bush administration’s pre-9/11 tendency towards keeping secrets. By referencing Bush’s handling of the Presidential Records Act in this chapter, this author merely intends to alert the reader that the Bush administration may have already begun to restrict public access to previously available materials before the terrorist attacks even occurred. For the purposes of this thesis, the Presidential Records Act is not linked to this thesis’ investigation of the FOIA and the national security exemption. Nonetheless, for an in-depth investigation into the Presidential Records Act, see Marcy Lynn Karin, Out of Sight, but Not Out of Mind: How Executive Order 13,233

73 was sworn in, the President immediately demanded that the White House staff review the acting policy on disclosing former presidents’ records.98 After that investigation was complete, Bush signed an executive order “allowing any current or former president to block the release of any presidential record” and then blocked “the release of potentially controversial Reagan administration documents.”99 In Podesta’s opinion, this executive order “violated the spirit, if not the letter, of a 1978 law that affirmed that presidential records belong to the public.”100

As a second example of pre-9/11 secrecy, Podesta notes that Vice President Dick

Cheney had “spent nearly a year-and-a-half stonewalling the efforts of Congress and the

Government Accounting Office (“GAO”) to acquire information about his energy

taskforce.101 In fact, after failing to get Cheney’s cooperation, the GAO eventually brought the Vice President to court in hopes of having the requested information released.102 Eventually the suit proved unsuccessful, and the contested data was

Expands Executive Privilege While Simultaneously Preventing Access to Presidential Records, 55 STAN. L. REV. 529 (2002).

98 See John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361 (2002).

99 Id. at 369, fn 53.

100 Id. at 369. The prior directive on presidential records required that all such records be released within 12 years of the date that the president leaves office. The requirement was subject only to narrow limitations, including an exception which permitted nondisclosure if national security concerns would be implicated by the record’s release. The law was originally passed in the wake of the Watergate Scandal. President Nixon claimed that he personally owned all records of his presidency. Id.

101 Id.

102 Dana Milbank, GAO Drops Cheney Energy Suit, Unable to Force Vice President to give up Administration Data, WASH. POST, Feb. 8, 2003, available at http://www.post- gazette.com/nation/20030208cheneynat7p7.asp (last visited June 21, 2004). Essentially, the GAO wanted to know who was on Cheney’s interagency task force which was responsible for the development of Bush’s energy policy. Democrats feared that “Big Business” was having too great an effect on the task force’s proceedings and asked that the identities of each task force member be revealed. When Cheney declined to cooperate, the GAO initiated a lawsuit against the Vice President – the first such suit in the GAO’s 81 year

withheld.103 Thus, instead of making information available, Podesta asserts that Cheney

made concentrated efforts to restrict access to documents and, consequently, hinder open

government in Washington.104 According to Podesta, each of these two examples shows

that the Bush administration's “approach to secrecy serves to undermine, not enhance,

national security.”105

Conclusion

While President Clinton is often lauded as a champion of access, President George

W.Bush’s access policies have often come under attack. According to access proponents,

Bush has taken a number of actions which have restricted a disproportionate amount of

information from public disclosure. Of course, the Bush administration has molded its

access policy in a unique political environment. While Clinton reigned in an era of

relative domestic tranquility, Bush has had to craft policy in the wake of the September

11th tragedy. If nothing else, 9/11 demonstrated to all Americans that the United States is

not as invulnerable as initially thought. Perhaps security was too lackadaisical and new

measures needed to be implemented. However, the call for more security often leads to

an increasing reduction in civil liberties.106 Thus, Bush has faced the difficult task of

balancing access rights and national security in an era of political and social uncertainty.

history. Cheney ultimately prevailed. Id. According to Milbank, the court’s eventual decision to deny the GAO’s request for information was “decried by Democrats and advocates of open government.” Id.

103 Id.

104 John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361, 369 (2002).

105 Id.

106 See, e.g., Carolyn Lochhead, Democrats Seek Rollback of Patriot Act, S.F. CHRON., Sept. 25, 2003 at A4.

Unquestionably, the Bush administration has taken a number of steps which

enhance the government’s ability to legally withhold documents under FOIA’s national

security exemption. For example, the Ashcroft and Card memos encourage federal

employees to favor caution over disclosure.107 The Ashcroft memo, in particular,

promises to lend each executive department legal support should any sound request

decision become contested in court.108 Finally, the Bush executive order on document

classification no longer requires agencies to classify borderline documents along the least

restrictive designation.109 In effect, each of these post-9/11 documents provides agencies

with the ability, should the agency desire, to withhold an increased number of documents

in the name of national security.

In response to the Bush policy, access proponents have been quick to jump on the

aforementioned actions as contravening the intent of the Freedom of Information Act.

While some critics suggest that these recent policy directives are unintentionally

overbroad, others imply that the Bush administration has merely taken advantage of an

unfortunate situation to promote a pre-existing agenda.110 In either case, most access advocates claim that the recent measures have led to an increase in government secrecy and a decrease in available public knowledge.111

107 See generally Ashcroft Memo (Oct. 12, 2001); Card Memo (March 19, 2002).

108 See generally Ashcroft Memo (Oct. 12, 2001).

109 See infra note 64 and the accompanying text.

110 See infra note 95 and the accompanying text.

111 See generally Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001 at A29; Laura Parker, Kevin Johnson & Toni Locy, Secure Often Means Secret Post-9/11, Government Stingy With Information. USA TODAY, May 16, 2002; Ariana Eunjung Cha, Risks Prompt U.S. to Limit Access to Data: Security Rights Advocates Clash Over Need to Know, WASH. POST, Feb. 24, 2002, at A1; Information Restriction Policies, OMBWATCH

Now that the relevant legal documents and general policy arguments have been presented, this thesis will look at how the Bush administration’s actions have impacted information requests in the wake of 9/11. As noted previously, the Bush administration has provided the tools for withholding information. The question now becomes whether the executive departments and agencies have actually exploited those tools. The next chapter will examine just how willing agencies and departments have been to withhold records in the face of these more lenient standard.

ON-LINE (May 3, 2002), available at http://www.ombwatch.org/article/articlestatic/213/1/14/.(last visited June 21, 2004).

CHAPTER 5 EXAMINATION OF ACCESS TRENDS SINCE 9/11

Introduction

As Chapter 4 demonstrated, the Bush administration’s recent national security

measures have made it easier for federal agencies to withhold government documents

from records requesters.1 Yet, one must also ask if the federal agencies have, in fact,

exploited these new standards to withhold an increasing number of documents from the

public. Government watchdog groups, such as the OMBWatch and the Reporters

Committee for the Free Press (“RCFP”),2 have been quick to document instances when

records have been withheld under Bush’s guidance. In addition, evidence exists that

executive agencies have utilized their increased classification authority to recall records

which, at one time, were previously available to the public at large. This phenomenon

seems to ring particularly true with regard to website information.3 According to one media source, “[h]undreds of thousands of public documents” have been removed from government websites alone since 9/11.4

1 See generally Ashcroft Memo (Oct. 12, 2001); see generally Card Memo (March 19, 2002).

2 The RCFP, is a “nonprofit organization dedicated to providing free legal assistance to journalists.” See generally www.rcfp.org. OMBWatch, an organization dedicated to promoting government accountability, was introduced in Chapter 4. See generally www.ombwatch.com.

3 See Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001 at A29.

4 Laura Parker, Kevin Johnson & Toni Locy, Secure Often Means Secret Post-9/11, Government Stingy With Information. USA TODAY, May 16, 2002, available at http://usatoday.com/usatonline/20020516/4116384s.htm (last visited June 21, 2004). See also www.ombwatch.org; www.rcfp.org.

77 78

Yet, despite increased cries of government secrecy, the fact remains that some of the withheld information may concern issues of national security.5 These documents, describing such things as chemical weapons production and nuclear storage facilities, would be validly held exempt under FOIA exemption 1.6 Thus, even some access advocates recognize that information may validly be withheld from the public when security issues arise.7 However, FOIA proponents would counter that Bush’s security measures are often overbroad, unnecessary or, worst of all, purposefully discourage public records requesters.8 Even Louis Henkin, who chronicled the long history of government secrecy, asserted that “without any doubt . . Government frequently withholds more and for longer than it has to.”9

The remainder of this chapter will examine and analyze the current effect of the

Bush policies on actual records requests. Foremost, this chapter will present and explain

5 See, e.g., Keith Anderson, Is There Still A Sound Legal Basis?: The Freedom of Information Act in the Post-9/11 World, 64 OHIO ST. L.J. 1605 (2003). According to Anderson, “There is a very real threat of terrorism that is now undeniable . . . The executive branch has the very difficult task of attempting to prevent future terrorist tragedies and if it concludes that concepts of open government must be narrowed, it is deserves that discretion. While the standard terrorist organizations may not get all of their plans and schemes by using FOIA, the executive branch is justified in tightening the reins on information which could be put to a destructive use.” Id. at 1648-1649.

6 See, e.g. ,Laura A. White, The Need for Government Secrecy: Why the U.S. Government Must Be Able to Withhold Information in the Interest of National Security, 43 VA. J. INT’L L. 1071, 2003.

7 Id. at 1649. Keith Anderson asserts that “[e]ven open-government advocates respect the fact that the homeland security situation necessitates prudence.” Id. See also DANIEL MOYNIHAN, SECRECY, 221 (1998). Moynihan writes that “We are not going to put an end to secrecy, nor should we. It is at times legitimate and necessary.” Id. See also Floyd Abrams, The First Amendment and the War Against Terrorism, 5 U. PA. J. CONST. L. 1 (2002). Abrams claims that the enduring nature of the current terrorist situation has forced the United States to make “painful compromises between the claims of security and freedom.” Id. at 3.

8 See, e.g., John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361 (2002); Patrice McDermott, Withhold and Control: Information in the Bush Administration, 12 KAN. J.L. & PUB. POL’Y 671 (2003).

9 Louis Henkin, “The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers.” 120 U. Pa. L. Rev. 271, 275 (1971).

79 statistical data which has tracked the number of record requests fielded by the executive agencies over the last five years. The majority of this data, which is exclusively quantitative, comes from the annual reports of the executive departments themselves.

Tables 1 and 2, found hereafter, will examine and compare access trends across the 14 executive departments. Tables 3, 4, 5 and 6, also found below, will take a more in-depth look at those departments which rely most heavily on the national security exemption when making access decisions.10 In addition, the United States General Accounting

Office (hereinafter “GAO”) published a 2003 study which offers qualitative insight into the motivations underlying the statistical data. By looking at the agencies’ annual reports and the GAO’s qualitative findings, one can better understand the number of requests being denied and the motivations behind those denials.

Moreover, this chapter will also take a closer look at some of the specific information being withdrawn from government websites or withheld from requesters.

The majority of this research will be drawn from secondary sources such as newspaper articles and website postings. The goal of this section will not be to provide a comprehensive examination of each denied record request, but rather present some examples of the type of information being withheld from the public.

Quantitative Analysis

In theory, the Bush administration’s post 9/11 actions have made it more difficult for public citizens to access records under the FOIA. The respective executive orders and

10 The four departments to be examined in more detail are the Department of Defense, the State Department, the Department of Justice and the Department of Homeland Security.

80 policy directives facilitate the agencies’ ability to withhold records.11 Agencies know that now, in comparison to the years prior to 9/11, they are more likely to receive support from the DOJ should an FOIA conflict arise.12 However, while the Bush administration has provided the tools for agencies to increasingly restrict access to government documents, one must still ask whether agencies have exploited these tools to deny FOIA requests. The data cited below track a number of statistics indicating both the total number of FOIA requests denied over the last five years, as well as the number of those denied requests which cite directly to the national security exemption (“Exemption 1”).

These numbers should consequently show 1) whether or not access denials have, in fact, increased since 9/11; and 2) whether or not executive agencies have increasingly relied upon the national security exemption when denying FOIA requests.

11 See, e.g,, Memorandum from Attorney General Ashcroft on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 12, 2001), available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (last visited June 21, 2004) (hereinafter Ashcroft Memo); Memorandum from White House Chief of Staff Andrew H. Card, Jr. on “Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security,” to the Heads of Executive Departments and Agencies (March 19, 2002), available at http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm (last visited June 21, 2004) (hereinafter Card Memo); Exec. Order 12,958, 68 Fed. Reg. 15,315 (Mar. 25, 2003). Each of these three documents altered the standards by which agencies should review FOIA requests. The Ashcroft Memo, in particular, has been criticized as contravening the purposes of the FOIA and restricting open-government. See, e.g., Karen L. Turner, Convergence of the First Amendment and the Withholding of Information for the Security of the Nation: A Historical Perspective and the Effect of September 11th on Constitutional Freedoms, 33 MCGEORGE L. REV. 593 (2002). On March 7, 2002, “the House committee with FOI oversight edited its

guidebook for FOI users to specifically reject the Ashcroft memorandum.” REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, HOW THE WAR ON TERRORISM AFFECTS ACCESS TO INFORMATION AND THE PUBLIC’S RIGHT TO KNOW (4th ed. 2003). The guide now states that “[c]ontrary to the instructions issued by the Department of Justice on October 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a ‘sound legal basis’ for doing so.” Id.

12 Compare Ashcroft Memo (Oct. 12, 2001) with Memorandum from Attorney General Reno on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 4, 1993), available at www.fas.org/sgp/clinton/reno.html (last visited June 21, 2004) (hereinafter Reno Memo). While the Ashcroft memo protects agencies who make FOIA decisions based upon a “sound, legal basis,” the Reno standard required agencies to show that “reasonably foreseeable harm” would occur if a document were, in fact, released. Id.

Access Trends Across Agencies

Under the Freedom of Information Act, 15 Federal Departments13 and 62 Federal

Agencies14 are required to release annual statistical information regarding their handling of records requests.15 Within these annual reports, each executive body must reveal the number of requests received during the fiscal year, the number of requests either denied or partially denied, and the underlying FOIA exemption behind the denial.16

Furthermore, under the 1996 Electronic FOIA amendment, the Attorney General has a legal responsibility to make all the Department and Agency reports available from a single, electronic access point.17 At the time of this writing, all these FOIA annual reports are accessible from the Department of Justice’s website in compliance with the statute.18

13 The 15 executive departments include the Departments of Agriculture; Commerce; Defense; Education; Energy; Health and Human Sciences; Homeland Security; Housing and Urban Development; Interior; Justice; Labor; State; Transportation; Treasury; and Veteran Affairs. The Department of Homeland Security was created on January 24, 2003 and, consequently, no annual report data exists for the DHS prior to 2003.

14 For a list of the 62 Federal Agencies which report their annual FOIA statistics, see the Department of Justice’s website at http://www.usdoj.gov/04foia/fy99.html.

15 5 U.S.C. §552(e) (2003). The text of the statute asserts, in part, that “. . . [E]ach year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include--(A) the number of determinations made by the agency not to comply with requests for records made to such agency . . . and the reasons for each such determination.” Id.

16 Id.

17 5 U.S.C. § 552 (e)(1)(3) (2003). The Electronic Freedom of Information Act Amendments were passed into law on October 2, 1996. For more information, see the Department of Justice’s website, available online at http://www.usdoj.gov/04foia/fy99.html.

18 Id.

In total, six separate sets of data, as reported by the executive departments in their

FOIA reports, are listed below.19 The purpose of examining these figures is to help identify trends in both agency denials, and agency reliance upon the FOIA national security exemption (also referred to as “FOIA Exemption 1”) when making those denials.

The first two tables, labeled appropriately “Table 1” and “Table 2,” chart the FOIA request data as reported by the executive departments in 2000 and 2002. These dates were not chosen haphazardly. Since George W. Bush took office in early 2001, the year

2000 was the last year the departments would have fielded records requests under

President Clinton. As such, 2000 would have been the last year that requests would have been examined under the review standards explained in the Reno FOIA memorandum.20

In comparison, 2002 would be the first full year that FOIA requests were processed after the Ashcroft amended the review standard in October 2001.21 As noted previously,

Ashcroft seemingly facilitated each executive entity’s ability to legally withhold information. Thus, if the various executive departments have, in fact, used these new tools to withhold information (as critics have suggested), the overall number of denials,

19 Note that these six sets of data are not the only statistics reported in the FOIA annual reports, but are the six sets of data which are most relevant to this study of the FOIA’s national security exemption. Four of the tracked statistics – “Total Requests Fielded,” “Total Requests Processed,” “Total Requests Denied or Partially Denied,” and “Denials Based Upon FOIA Exemption 1” – were pulled directly from each department’s annual report. The two additional figures listed on the tables below – “Percentage of Requests Denied or Partially Denied,” and “Percentage of Denials Based Upon FOIA Exemption 1” – were calculated by the author for the purposes of this thesis. “Percentage of Requests Denied or Partially Denied” was calculated by dividing “Total Requests Denied or Partially Denied” by the “Total Requests Processed” for each agency for each year. Furthermore, “Percentage of Denials Based Upon FOIA Exemption 1” was calculated by dividing “Denials Based Upon FOIA Exemption 1” by “Total Requests Denied or Partially Denied.” All calculations were checked by a third party.

20 See Chapter 4 for a comparison of the Reno and Ashcroft expressed standards for request review as outlined in each Attorney General’s respective memorandum on FOIA implementation.

21 See generally Ashcroft Memo (Oct. 12, 2001).

as well as the percentage of requests denied, should hypothetically be greater as reported

in the 2002 annual reports.22

Before exploring the data itself, certain limitations in the statistical information

must be explained. First, and most importantly, each department’s annual report only

tracks actual requests made to that department. The reports do not, in any shape or form,

address information which has been offered voluntarily (i.e. made available to the public

on the department’s own volition, without a specific request coming from an individual)

via department reading rooms or government websites. Thus, the annual reports do not

track information that may have been previously made available to the public but has

since been withdrawn from government reading rooms or deleted from internet sites.

Second, the annual reports strictly track quantitative data. They demonstrate trends in the

number of requests and denials made, as well as the number of exemptions cited. They

do not offer qualitative information into why individual records were either released or

withheld. Finally, the tables track only initial requests and do not account for requester

appeals, nor how departments handle those appeals.

As indicated above, the following two tables track the number of processed public

records requests and the number of department denials made in 2000 and 2002. For the

purposes of this study, a “denial” is any instance in which the department cited the FOIA

as a reason for refusing to disclose any part of a record. Thus, a denial can be either a

22 Even if the quantity and/or percentage of denials has increased since 2001, the figures do not tell us whether or not the Ashcroft memorandum and corresponding FOIA standard directly effected those changes. Instead, the figures will only show whether or not a change occurred. One might assume, however, that if the FOIA request and denial figures have decreased, or remained steady, during the five year period, the Ashcroft memorandum has not produced the overwhelming changes on access requests which Bush critics have claimed. See, e.g., REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, HOW THE WAR ON TERRORISM AFFECTS ACCESS TO INFORMATION AND THE PUBLIC’S RIGHT TO KNOW (4th ed. 2003).

84 complete or partial refusal to release information. It also must be noted that partial denials are usually referenced as “partial grants” in the actual annual reports. 23 A partial grant, as defined by the Department of Homeland Security’s 2003 annual report, is “an agency decision to disclose a record in part in response to an FOIA request, deleting information determined to be exempt under one or more of the FOIA’s exemptions; or a decision to disclose some records in their entireties, but to withhold others in whole or in part.”24 Denials, as included in the tables below, include only requests which were denied upon a legal basis.25 The tables do not consider requests that were denied for administrative reasons.26

In addition, the tables indicate how many times the department referenced FOIA

Exemption 1 when making a denial. The total number of exemptions was then tallied to provide a comparative picture of just how often “national security” is officially claimed as a reason for denying access. Note that a department may cite a number of exemptions

23 Partial denials are usually referenced as “partial grants” in each department’s annual report. It can be inferred that a “partial grant” must, by definition, also be partially denied. Furthermore, some early annual reports actually lumped full and partial denials together as the tables do here. For example, the Department of Housing and Urban Development’s Annual FOIA Report for 2000 lists such decisions as “partial/full denials.” See http://www.hud.gov/offices/ogc/foia/foia2000ar.cfm. By 2002, that language had changed. The Department of Housing and Urban Development’s Annual Report for 2002 calls these entries “partial grants.” See http://www.hud.gov/offices/ogc/foia/foia2002ar.cfm. The Annual Reports do not explain the reasons for the change.

24 DEPARTMENT OF HOMELAND SECURITY, FREEDOM OF INFORMATION ACT ANNUAL REPORT FOR FISCAL YEAR 2003 (2004).

25 A denial made upon a “legal basis” includes any denial based upon one of the FOIA’s nine exemptions.

26 An administrative reason for disallowing disclosure, as reported by each department’s annual FOIA report, could be one or more of the following: the record did not exist; the record was not reasonably described; the request was a duplicate; the request was sent to the wrong executive body; the request was withdrawn; the required fees were not paid; the requester failed to provide contact information; the requester lacked consent from a required 3rd party; or the document requested was not an agency record. See DEPARTMENT OF DEFENSE, FREEDOM OF INFORMATION ACT PROGRAM REPORT FOR FISCAL YEAR 2003 (2004), available at http://www.defenselink.mil/pubs/foi/ (last visited June 22, 2004).

85 when denying access to a requested record. Thus, the total quantity of cited FOIA exemptions often outnumbers the quantity of actual denials.

Table 1: Quantity of Requests and Denials for Fiscal Year 200027 Total Total Total Requests Percentage Denials Percentage Requests Requests Denied or of Requests Based of Denials Fielded Processed Partially Denied or Upon Based Denied (Non- Partially “FOIA Upon administrative) Denied Exemption “FOIA 1” Exemption 1” Agriculture 140,239 139,503 3,729 2.67% 0 0.00% Commerce 2,035 2,026 415 20.48% 10 2.41% Defense 97,266 96,479 13,981 14.49% 1,251 8.95% Education 1,633 1,695 365 21.53% 0 0.00% Energy 2,935 2,649 362 13.67% 6 1.66% Health/Human 61,971 60,060 2,055 3.42% 0 0.00% Science Housing/Urban 3,408 2,878 473 16.44% 0 0.00% Development Interior 5,161 4,966 938 18.89% 0 0.00% Justice 235,042 235,090 35,034 14.90% 1,098 3.13% Labor 22,469 22,505 13,972 62.08% 0 0.00% State 3,611 3,070 915 29.80% 349 38.14% Transportation 19,750 19,280 2,780 14.42% 28 1.01% Treasury 1,641 1,597 307 19.22% 3 0.98% Veteran Affairs 1,239,844 1,230,544 20,388 1.66% 2 0.01%

The 2000 figures, as displayed in Table 1, illustrate the various responses each executive department had to FOIA requests during the final year of the Clinton administration.28 While a few departments (Agriculture, Justice and Veteran Affairs) processed over 100,000 FOIA requests during the fiscal year, half of the executive bodies listed above processed less than 5,000 total requests. In addition, the data show how the departments handled those requests. Nine of the 14 departments either denied or partially

27 The request and denial statistics are taken from each executive department’s 2000 Freedom of Information Act annual report. All 14 reports can be accessed from the Department of Justice’s internet site, at http://www.usdoj.gov/04foia/fy00.html (last visited June 21, 2004).

28 Note that in some cases the quantity of requests processed will outnumber the total requests received in a given year. This is statistically possible because the department may have processed requests which were leftover from the previous fiscal year.

denied between 13% and 23% of the total requests processed.29 Three departments

(Agriculture, Health and Human Science, and Veteran Affairs) denied or partially denied less than 4% of the total requests processed. In comparison, the State Department denied or partially denied close to 30% of the processed requests, and the Department of Labor referenced the FOIA in over 60% of their request rulings for 2000.

In addition, and perhaps more important to this study, the data demonstrate how each department relied upon FOIA Exemption 1 when choosing to deny a records request. Foremost, only three departments (Defense, Justice and State) invoked the national security exemption more than 30 times during the entire fiscal year.

Furthermore, only the State Department and the Department of Defense relied upon

FOIA Exemption 1 in a significant number of their request decisions. As the statistics show, when denying any request upon a legal basis, the State Department referenced the national security exemption about 38% of the time. The Department of Defense invoked the national security exemption in almost 9% of the all denials. Comparatively, 11 of the

14 departments relied upon FOIA Exemption 1 in less than 2.5% of their cases involving a denial of access. Six of the 14 departments failed to use the national security exemption at all.

29 As stated previously, these figures only track denials based upon legal exceptions. The Department of Justice, for example, failed to fulfill close to 60,000 of the processed requests for administrative reasons. For a partial list of “administrative reasons, see infra note 26. In effect, after the administrative denials are factored in, only 92,134 of the total 235,090 requests processed in 2000 were granted without reservation. Thus, statistically speaking, the Department of Justice granted only 39.19% of all processed requests in 2000. See UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORTS FOR FISCAL YEAR 2000 (2001), available at http://www.usdoj.gov/04foia/04_6.html (last visited June 22, 2004).

About eight months after the 2000 statistics were released, the terrorist attacks of

9/11 occurred.30 Six weeks after that, Attorney General Ashcroft released his memorandum interpreting the FOIA. Table 2, found below, tracks each department’s handling of FOIA requests in the year following both 9/11 and the issuance of the

Ashcroft memo.

Table 2: Quantity of Requests and Denials for Fiscal Year 200231 Total Total Total Requests Percentage Denials Based Percentage of Requests Requests Denied or of Requests Upon “FOIA Denials Based Fielded Processed Partially Denied or Exemption 1” Upon “FOIA Denied (Non- Partially Exemption 1” administrative) Denied Agriculture 78,293 78,062 4,404 5.64% 0 0.00% Commerce 2,142 2,063 545 26.42% 4 0.73% Defense 76,579 76,943 13,532 17.59% 1,179 8.71%

Education 1,744 1,718 389 22.64% 0 0.00% Energy 2,900 3,319 327 9.85% 6 1.83% Health/Human 105,068 103,163 2,217 2.15% 0 0.00% Science Housing/Urban 3,210 4,171 665 15.94% 0 0.00% Development Interior 4,396 4,378 957 21.86% 0 0.00% Justice 182,079 184,928 42,758 23.12% 508 1.19%

Labor 17,722 18,201 8,300 45.60% 0 0.00%

State 3,134 4,636 922 19.89% 496 53.80% Transportation 17,910 17,540 2,690 15.34% 4 0.15% Treasury 46,879 46,812 5,452 11.65% 2 0.04% Veteran Affairs 1,496,191 1,489,724 12,046 0.81% 0 0.00%

Theoretically, if agencies actually followed Ashcroft’s guidance when reviewing access requests, the number and percentage of request denials should increase.32

Furthermore, because 2000 was a year defined by heightened national security and

30 5 U.S.C. § 552 (2003). The FOIA annual reports are released each February 1st.

31 The request and denial statistics are taken from each executive department’s 2002 Freedom of Information Act annual report. All 14 reports can be accessed from the Department of Justice’s internet site, at http://www.usdoj.gov/04foia/fy02.html (last visited June 22, 2004).

32 See infra note 22.

security awareness, one might hypothesize that the departments should show increased

reliance upon FOIA Exemption 1.

First of all, Table 2 demonstrates that, for the majority of the executive

departments, the number of requests processed decreased from the year 2000. However,

this does not necessarily mean that the departments were more inefficient in 2002. For

some bodies, they simply had fewer requests to process. For example, annual public

records requests dropped at the Department of Agriculture from 140,239 in 200033 to only 78,293 in 2002.34 The Department of Justice received 52,963 fewer requests over

that same time period.35

Table 2 also details the percentage of requests denied by each department during

the 2002 fiscal year. One might expect that each executive department would deny a

larger percentage of requests during 2002 than they did in 2000. However, the statistics

reveal that this figure varies largely among department. Nine of the 14 departments did,

in fact, deny a larger proportion of public records requests in 2002 than they had in 2000.

Yet, of those nine, only three (Commerce, Justice and Treasury) saw the percentage of

denials increase by more than 4 percentage points. Ashcroft’s own Department of Justice

saw the biggest rise in the rate of request denials. In 2000, the DOJ denied or partially

denied 14.9% of all processed public records requests; in 2002 that figure had increased

to 23.12%. In comparison, four of the 14 departments denied a lower percentage of

33 UNITED STATES DEPARTMENT OF AGRICULTURE, FREEDOM OF INFORMATION ACT ANNUAL REPORT FY 2000 (2001).

34 UNITED STATES DEPARTMENT OF AGRICULTURE, FREEDOM OF INFORMATION ACT ANNUAL REPORT FY 2002 (2003).

35 Compare UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORTS FOR FISCAL YEAR 2000 (2001), with UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORTS FOR FISCAL YEAR 2002 (2003).

89 requests in 2002. For two of those four (State and Labor) the decrease was significant.

The State Department denied 19.89% of the processed requests in 2002 (down from

29.8%), while the Department of Labor denied 45.6% of their 2002 processed requests

(down from 62.08% in 2000). However, even after considering these changes, the

Department of Labor still denied or partially denied the largest request percentage of any department.

In addition, Table 2 shows how departments relied upon the FOIA national security exemption when denying record requests. As in 2000, only three departments (Defense,

Justice and State) employed FOIA Exemption 1 more than 30 times during the fiscal year. In fact, only one (Energy) of the other 11 departments referred to FOIA Exemption

1 more than 5 times. Seven departments failed to claim any national security exemptions altogether (up from 6 in the year 2000). In addition, only the State Department increased its proportional reliance upon the national security exemption. The State Department, which referenced the national security exemption in 38.14% of its 2000 cases, used FOIA

Exemption 1 close to 54% of the time in 2002. The Department of Justice, though still relying upon the national security exemption in 508 actual cases, saw its proportional reliance upon the exemption drop from 3.13% to 1.19%. The Department of Defense’s reliance upon FOIA Exemption 1 remained steady.

Overall, a number of conclusions can be drawn from Tables 1 and 2. First, despite dramatic changes to both the global landscape and the executive branch’s makeup during the two years studied, the percentage of overall denied requests has been largely unaffected. With a few notable exceptions, such as the State Department’s choice to deny an increasing proportion of records requests, most departments have remained

90 steady in the number of granted access requests. As noted above, only 5 of the 11 departments saw their percentage of total denied requests change by more than 4 percentage points (of those, 3 denied a greater percentage of requests; 2 denied a lower percentage).

Second, the statistics show that very few departments actually claim the national security exemption when denying a records request. The year 2000 data demonstrates that, prior to the terrorist attacks, 8 of the 14 executive departments either failed to use

FOIA Exemption 1 at all or, if they did, used it in less than 1% of all denials.

Furthermore, these numbers did not change, despite the calls for increased national security, following the 9/11 tragedy. In 2002, 10 of the 14 departments referenced the national security exemption in fewer than 1% of the cases involving a denial or partial denial; an eleventh (the Department of Energy) used FOIA Exemption to justify just

1.83% of their its total denials. If anything, 2002 saw a decreased reliance upon the national security exemption for most agencies.

However, as noted previously, three departments remained steady in their use of

FIOA Exemption 1. The Departments of Defense, Justice and State each relied upon the national security exemption at least 450 times in 2002. During that year, the Department of Defense alone employed the national security exemption a total of 1,179 times. That amounts to over three times a day, including weekends and federal holidays. Because these three stand out from their department brethren, each will be examined in more depth in hopes of better understanding each department’s access trends.

Access Trends at The Department of Defense

Compared to the State and Justice Departments, the Department of Defense has been the most consistent in its handling of records requests. As Table 3 illustrates, the

Department of Defense has routinely denied between 14% and 18% of the total request processed each year between 1999 and 2003:

Table 3: Five Year Statistics for the Department of Defense36 Total Total Total Requests Percentage of Denials Based Percentage of Requests Requests Denied or Requests Denied or Upon FOIA Denials Based Fielded Processed Partially Denied Partially Denied Exemption 1 Upon FOIA Exemption 1 1999 98,338 97,171 13,889 14.29% 1,423 10.25%

2000 97,266 96,479 13,981 14.49% 1,251 8.95%

2001 81,682 80,357 13,543 16.85% 1,184 8.74%

2002 76,579 76,943 13,532 17.59% 1,179 8.71%

2003 74,814 73,814 12,449 16.87% 1,477 11.86%

While the percentage of denials has remained consistent, it must be noted that the department’s reliance upon the national security exemption has increased in the past year.

In 2003, the Defense Department not only fielded the fewest records requests in the five years studied, but also denied the most requests for national security reasons in that same time period. The net effect led to an increased reliance upon FOIA Exemption 1. The percentage of overall requests denied for national security reasons, which had remained relatively constant between 2000 and 2002 (checking in around 8.7% and 8.9% each year) jumped to 11.86% in 2003. Thus, while the denial figures were not immediately effected following 9/11, an increased use of FOIA Exemption 1 did occur in 2003. One should also note that, in each of the five years listed above, the Department of Defense fielded a smaller quantity of requests than it had the year before.37

36 Statistics taken from “Department of Defense, Freedom of Information Act Program Reports,” published annually from 2000 to 2004. The yearly reports can be accessed through the Department of Defense’s Freedom of Information Act website, at http://www.defenselink.mil/pubs/foi/ (last visited June 22, 2004).

37 The data does not explain why the Department of Defense fielded fewer requests in each of the five years studied.

Access Trends at The State Department

The State Department has the honor (or dishonor, depending upon one’s point of

view) of placing the greatest reliance upon the national security exemption. Above all,

the State Department attempts to “create a more secure, democratic and prosperous world

for the benefit of the American people and the international community.”38 According to

the department’s mission statement, the State Department must protect the United States,

American allies and American friends from “transnational dangers and enduring threats

arising from tyranny, poverty and disease.”39 Among the many objectives cited in the mission statement, the State Department seeks to promote a “stable and democratic Iraq,” encourage “democracy and economic freedom in the Muslim world,” and “strengthen alliances and partnerships.”40

All of the goals referenced above have strong international components. Most

specifically, the State Department plays a primary role in resolving the crises in Iraq and

Afghanistan.41 As these dilemmas in the Middle East unquestionably involve the U.S.

military and undercover intelligence gathering, one may safely assume that the State

Department deals in national security issues. That being stated, one must investigate to

what extent the State Department has claimed the security privilege when dealing with

public records requests. The State Department’s FOIA figures, as reported in the

department’s FOIA annual reports, appear below:

38 See UNITED STATES DEPARTMENT OF STATE, MISSION STATEMENT, at http://www.state.gov/m/rm/rls/dosstrat/2004/23503.htm. (last visited June 22, 2004).

39 Id.

40 Id.

41 See generally Id.

Table 4: Five Year Statistics for the State Department42 Total Total Total Requests Percentage of Denials Based Percentage of Requests Requests Denied or Requests Denied or Upon FOIA Denials Based Fielded Processed Partially Denied Partially Denied Exemption 1 Upon FOIA Exemption 1 1999 3,716 3,824 937 24.50% 418 44.61%

2000 3,611 3,070 915 29.80% 349 38.14%

2001 3,761 3,329 859 25.80% 383 44.59%

2002 3,134 4,636 922 19.89% 496 53.80%

2003 3,352 5,773 1,801 31.20% 736 40.87%

The Department’s reliance upon the national security exemption immediately jumps out. While no other department relied upon FOIA Exemption 1 in more than 12% of their total denied cases, the State Department has never relied upon the national security exemption in less than 38% of denied requests. In most years, the State

Department claimed a national security privilege in almost 50% of all requests ending in denial. As hypothesized, the State Department relied most heavily upon FOIA

Exemption 1 during 2002, the fiscal year immediately following the terrorist attacks.

Yet, unlike the Defense Department, the State Department’s reliance upon the national security exemption actually decreased proportionally during 2003. Of course, one must also note that the State Department denied over 31% of all requests in 2003, up substantially from the 20% denial rate of 2002. Thus, although the State Department cited national security concerns in a smaller proportion of denied requests, the actual number of FOIA Exemption 1’s claimed increased from 496 in 2002 to 736 in 2003.

42 Statistics taken from “United States Department of State, Freedom of Information Act Annual Reports,” published annually from 2000 to 2004. The yearly reports can be accessed through the Department of State’s Freedom of Information Act website, at http://foia.state.gov/refer.asp (last visited June 22, 2004).

Access Trends at the Department of Justice (“DOJ”)

According to the Department of Justice’s mission statement, the DOJ must

“enforce the law and defend the interests of the United States according to the law,” as

well as “ensure public safety against threats foreign and domestic.”43 The Federal Bureau of Investigation, which lists its foremost priority as protecting the United States from future terrorist attacks,44 reports to the Department of Justice. The following figures

reflect the DOJ’s handling of records requests between 1999 and 2003:

Table 5: Five Year Statistics for the Department of Justice45 Total Total Total Requests Percentage of Denials Based Percentage of Requests Requests Denied or Requests Denied or Upon FOIA Denials Based Fielded Processed Partially Denied Partially Denied Exemption 1 Upon FOIA Exemption 1 1999 230,492 223,644 34,101 15.25% 1,081 3.17%

2000 235,042 235,090 35,034 14.90% 1,098 3.13%

2001 196,917 194,612 34,752 17.86% 913 2.63%

2002 182,079 184,928 42,758 23.12% 508 1.19%

2003 53,904 54,583 10,068 18.45% 515 5.12%

The number of requests fielded each year at the DOJ decreased steadily between

1999 and 2002, with a sharp drop-off occurring in 2003. Looking beyond the numbers,

the recent reshuffling of agencies into new departments has accounted for some of the

loss. For example, the Department of Justice’s FOIA report for 2002 included figures

reported from the INS. In 2002, the INS accounted for 133,368 total processed

43 See UNITED STATES DEPARTMENT OF JUSTICE, MISSION STATEMENT, at http://www.usdoj.gov/02organizations/index.html (last visited June 22, 2004).

44 See The Federal Bureau of Investigation’s website, at http://www.fbi.gov/priorities/priorities.htm (last visited June 22, 2004).

45 Statistics taken from “U.S. Department of Justice, Freedom of Information Act (FOIA) Reports,” published annually from 2000 to 2004. The yearly reports can be accessed through the Department of Justice’s Freedom of Information Act website, at http://www.usdoj.gov/04foia/04_6.html (last visited June 22, 2004).

requests.46 In comparison, the DOJ’s 2003 report does not reference the INS.47

Nonetheless, even though the number of processed requests dropped dramatically, the number of actual references to the national security exemption actually increased slightly between 2002 and 2003. Thus, like the Department of Defense, the DOJ saw an increased reliance upon FOIA Exemption 1 in 2003, and not, as expected, 2002.

Finally, as hypothesized, the percentage of requests denied or partially denied by the DOJ jumped immediately following the issuance of the Ashcroft memo. In 2002, the

DOJ denied or partially denied 23.12% of all processed FOIA requests, up from 17.86% the previous year. However, by 2003, that percentage had somewhat returned to the 2001 level. In 2003, the DOJ denied or partially 18.45% of all processed requests.

Access Trends at the Department of Homeland Security (“DHS”)

Finally, Table 6 charts the Department of Homeland Security’s handling of public records requests during its first year of existence. Hypothetically, one might expect the

DHS to rely quite heavily upon the national security exemption. Yet, the numbers show a different story:

46 UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORT FOR FISCAL YEAR 2002 (2003), available at http://www.usdoj.gov/oip/annual_report/2002/02foiapg5.htm (last visited June 22, 2004).

47 UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORT FOR FISCAL YEAR 2003 (2004), available at http://www.usdoj.gov/oip/annual_report/2003/03foiapg5.htm (last visited June 22, 2004).

Table 6: Department of Homeland Security Statistics for Fiscal Year 200348 Total Total Requests Total Requests Percentage of Denials Based Percentage of Requests Processed Denied or Partially Requests Denied Upon FOIA Denials Based Fielded Denied or Partially Exemption 1 Upon FOIA Denied Exemption 1 2003 161,117 160,902 53,733 33.39% 44 0.08%

The limited information available shows that, although the DHS denied or partially

denied about one third of all processed requests, the Department placed little reliance

upon the national security exemption. In fact, the Department invoked FOIA Exemption

1 in only 0.08% of all denied requests. Instead, the most common FOIA exemptions

listed by the DHS for not releasing a record included, in order, Exemption 6 (personnel or

medical records); Exemption 7 (records compiled for law enforcement purposes); and

Exemption 5 (records were inter-agency memorandum or letters).49 When examined

together, the Department of Homeland Security claimed Exemption 6 in a total of 35,516

instances while citing national security interests a meager 44 times.50

Beyond the Numbers: Interpreting the GAO Report

While the above figures are useful in acknowledging trends, they are ineffective at

explaining the direct effect of the Bush access policy. After all, while the annual reports

indicate that a few departments have increased their reliance upon the national security

exemption, or others have begun to deny an increasing number of overall requests, the

quantitative statistics do not explain why these trends are occurring. Thus, these trends

48 DEPARTMENT OF HOMELAND SECURITY, FREEDOM OF INFORMATION ACT ANNUAL REPORT FOR FISCAL YEAR 2003 (2004), available at http://www.dhs.gov/interweb/assetlibrary/FOIADHSFY2003AnnualReport.pdf (last visited June 22, 2004).

49 Id.

50 Id.

could be linked directly to the fear-ridden post-9/11 environment, the Ashcroft policy on

FOIA disclosure, a combination of the two, or something completely arbitrary.

A report released by the United States General Accounting Office (hereinafter

“GAO”) may help begin to unravel the reasons underlying the access trends. The report,

released in September 2003, describes agency responses to FOIA requests in the wake of

the Ashcroft memo.51 The GAO polled officers at 25 agencies and asked them how their handling of record disclosures changed under the Bush administration.52 About 48% of

those officers surveyed claimed that they “did not notice changes in their agencies’

responses to FOIA requests compared to previous years.”53 However, over 31% of

agency officers stated that they were less likely to disclose a record than in previous

years.54 Of that segment, 75% cited the Ashcroft policy “as a top factor influencing the

change.”55

Quantitative Conclusions

Overall, the quantitative statistics reveal several trends. First, most departments

denied the same percentage of records requests under President Clinton as they do under

President Bush. Furthermore, the data shows that few departments employ the national

security exemption while making access decisions. Of those that do, only the

Department of State uses FOIA Exemption 1 with any proportional significance. In

51 GENERAL ACCOUNTING OFFICE REPORT TO THE RANKING MINORITY MEMBER, COMMITTEE ON THE JUDICIARY, U.S. SENATE, Agency Views on Changes Resulting from New Administrative Policy, # GAO- 03-981, Sept. 2003. Generally, the GAO wanted to determine “to what extent, if any, Department of Justice guidance for agencies on FOIA implementation has changed as a result of the new policy.” Id.

52 Id.

53 Id.

54 Id.

55 Id.

98 addition, of those departments fond of the national security exemption, two (Defense and

Justice) became increasingly reliant upon FOIA Exemption 1, not immediately after the terrorist attacks and Ashcroft memo, but only one year later in 2003. Finally, the GAO report demonstrates that half of agency officers saw no change in their agency’s handling of record requests following the Ashcroft memo. Conversely, almost a quarter of those polled officers cited the Ashcroft policy as a factor effecting their access decisions.

Qualitative Analysis

Introduction

Yet, some would argue that the numbers alone don’t tell the whole story.

Journalists have reported that the Bush administration has resorted to secrecy to an unprecedented degree. In fact, many claim that the government secrets reach far beyond the realm of FOIA access.56 Foremost, the Bush administration has been accused of withholding information vital to the 9-11 Commission’s investigation into terrorist attacks.57 In addition, Bush has withheld the names of hundreds of detainees who have been withheld by federal authorities since 9/11.58 Most recently, Attorney General

56 See infra Chapter 4, notes 94-105. Chapter 4 investigates two scenarios, both outside the scope of public access, where the President Bush administration has resorted to keeping secrets. First, Bush amended the Presidential Records Act, thus restricting from public circulation a number of documents which were set to be released. Second, Vice President Cheney refused to cooperate with a GAO investigation on Cheney’s energy taskforce. The Vice President’s unwillingness to release the requested data forced the GAO to file a lawsuit. The GAO lost the lawsuit. Dana Milbank, GAO Drops Cheney Energy Suit, Unable to Force Vice President to give up Administration Data, WASH. POST, Feb. 8, 2003. See also John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.Ill. J.L. Tech & Pol’y 361 (2002).

57 Ceci Connolly, Senators Call on White House to Share Records With 9/11 Panel, WASH. POST, Oct. 27, 2003 at A3. Following the 9/11 attacks, an independent commission was assigned to investigate the government’s handling of the terrorist attacks. However, instead of cooperating with the commission, Senator Joe Lieberman claimed that “the Bush administration has resorted to secrecy, stonewalling and foot dragging. . . They have resisted this [commission] at every turn.” Id.

58 Jerry Seper, Justices Refuse Challenge on Secrecy over Detainees, WASH. TIMES, Jan. 13, 2004. According to the source, the Bush administration withheld the names of at least 763 persons who had been detained in relation to the September 11th investigation. However, Bush apparently has the ability to keep

Ashcroft has refused to release a DOJ policy memo which apparently details the amount of pain and suffering permitted during an enemy interrogation.59 According to reporters, these examples merely reveal the tip of the iceberg.60

Within concern to access policy, critics often claim that much of the withheld or

withdrawn information had seemingly little use to a terrorist organization. Journalist

groups, who tend to use the FOIA more than the average citizen, have provided a unified

front in calling for an end to the access limitations.61 Fundamentally, the journalists claim that these increased restrictions on access to information “pose dangers to

American democracy and prevent American citizens from obtaining the information they need.”62 Some U.S. Senators have joined the fight, stating that government bodies are exploiting the political environment to their advantage.63 Senator Charles E. Grassley (R-

Iowa), after being denied a record request under the FOIA, stated that “Bureaucrats may

such secrets. In January, a federal court ruled that neither federal common law nor the First Amendment required Bush to release the list of names. The Supreme Court refused to hear the case on appeal. Id.

59 Susan Schmidt, Ashcroft Refuses to Release ’02 Memo: Document Details Suffering Allowed in Interrogations, WASH. POST, June 9, 2004 at A1.

60 See infra note 56.

61 Margaret Kriz, Agencies Pull Sensitive Information from Web Sites, NATIONAL JOURNAL, Oct. 19, 2001, available at http://www.govexec.com/dailyfed/1001/101901nj3.htm (last visited June 22, 2004). According to the author, 21 journalist groups, “including the Society of Professional Journalists, the Poynter Institute, and the Radio-Television News Directors Association,” released a joint statement condemning the access restrictions. The statement was published on October 13, 2001, about one month after the terrorist attacks. Id.

62 Id.

63 James V. Grimaldi, At Justice, Freedom Not to Release Information, WASH. POST, Dec. 2, 2002, at E1. Grimaldi’s article references Sen. Charles Grassley (R-Iowa) and Sen. Patrick Leahy (D-Vermont) and their investigation into the Justice Department’s refusal to turn over requested information. Id.

100

not like being held accountable for their actions, but that doesn’t mean they can withhold

information to cover up what they’re doing or not doing.”64

One can infer from the Senator’s comments that he believes that the withheld

records aren’t always classified in accordance with the FOIA. Instead, politicians and

bureaucrats may be guilty of exploiting the current environment to hide documents which

don’t always meet the national security requirement.65 A number of newspaper reporters,

focusing on the reasons for access denials, seemingly endorse Grassley’s theory.66

Indeed, it is difficult to see why a United Nations analyst was denied his request to view some 30-year-old maps of Africa which he intended to use in planning a relief mission.67

Nonetheless, while disputable FOIA denials no doubt exist, the most documented instances of recent government secrecy do not concern access requests, but rather the government’s removal of information from agency websites. The example below provides an examination into one such instance.

Exploring Withdrawn Internet Information: The Case of the EPA

By October 4, 2001, just three weeks after the 9/11 tragedy, newspapers began reporting that “federal agencies have been removing documents from Internet sites to keep them away from terrorists.68 As indicated in Chapter 3, the FOIA governs both

64 Id.

65 See John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.Ill. J.L. Tech & Pol’y 361, 369 at fn 53 (2002). Podesta’s article and accusations are discussed in more detail in Chapter 4.

66 See, e.g., James V. Grimaldi, At Justice, Freedom Not to Release Information, WASH. POST, Dec. 2, 2002, at E1; Laura Parker and Kevin Johnson, Secure Often Means Secret Post-9/11, Government Stingy with Information, USA TODAY, May 16, 2002, at 1A.

67 Id.

68 Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001 at A29.

101

submitted records requests and voluntary government disclosures.69 Yet, the FOIA annual reports released by the various U.S. departments do not track statistics concerning voluntary website disclosures made by the government. Nonetheless, when exploring the tenuous balance between government secrecy and public access, the government’s tendencies to retract website information from the public sphere must also be considered.

To help citizens better understand this dilemma, certain mass media publications and political watchdogs have compiled various lists citing the information allegedly removed from government websites.

For example, the Washington Post contended that certain agencies, including the

Environmental Protection Agency (“EPA”), were withholding information on the locations of hazardous materials.70 Former Clinton Policy Advisor John Podesta reported that the EPA had restricted public access to their environfacts database and various EPA

Risk Management Plans.71 Both of these services had previously provided the public

with important information about chemical dangers associated with waste sites. Podesta

claims that the internet information was removed “even after the FBI admitted there was

no unique terrorist threat.”72

69 See generally Kristin Elizabeth Uhl, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure, and Homeland Security, 53 AM. U.L. REV. 261 (2003).

70 Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001 at A29. See also EPA Turns Over Documents on Information Removal, Yet Questions Remain, OMBWATCH, May 15, 2002, available at http://www.ombwatch.org/article/articleview/738/1/104/ (last visited June 22, 2004).

71 John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361 (2002).

72 Id. Podesta draws most of his conclusions from data released from the OMBWatch’s website. See Id. at fn 25.

102

The EPA examples have received in-depth media coverage because the website

removals are particularly problematic and potentially hazardous. In effect, by removing

certain information from the websites, the EPA may effectively be placing citizens at an

increased health risk. For example, the dismantled risk management website once

contained information about over 15,000 chemical plants nationwide.73 Most

importantly, some of the removed information referenced the chemical plants’ evacuation

procedures for the surrounding communities should an accident occur.74 Thus, by

removing the internet information, American citizens, now without accessible knowledge

of the hazardous materials’ locations, are at a greater risk of unintentionally coming into

contact with the toxins.75 And its not as if the EPA websites were never visited. In 1994,

the EPA internet sites received approximately 100,000 hits; by 2002 those same sites

were receiving 123 million hits per month.76 Not surprisingly, access proponents argue

that the EPA must increase their consideration of the rights of American citizens. As one

journalist reported, the removal of the EPA records raises the “delicate question about

how much people ought to know about the safety of hazardous chemicals in their

communities before knowledge begins to compromise national security.”77

73 Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001, at A29.

74 Margaret Kriz, Agencies Pull Sensitive Information from Web Sites, NATIONAL JOURNAL. Oct. 19, 2001, available at http://www.govexec.com/dailyfed/1001/101901nj3.htm (last visited June 22, 2004).

75 Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001 at A29.

76 Gary S. Guzy, Are We Protecting Secrets or Removing Safeguards?, The Washington Post, Nov. 24, 2002 at B1.

77 Guy Gugliotta, Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001 at A29.

103

Of course, the Senate Environment and Public Works Committee, which approved

and encouraged the EPA’s web editing, argued that, in providing the internet documents,

the U.S. government was giving terrorists information about potential targets.78 In fact,

the Committee would have a seemingly strong argument under the FOIA. As the case

analysis in Chapter 3 demonstrates, the courts have found that security concerns may

override environmental reporting requirements.79 Foremost, the Supreme Court generally

asserted that, so long as a document was classified in accordance with a valid executive

order, that document was exempt from the disclosure requirements of the National

Environmental Policy Act (“NEPA”).80 A New York district court expressed a similar

view in Hudson River Sloop Clearwater v. Dep’t of the Navy (1989). In Hudson River

Sloop, a plaintiff “sought a full public discussion of the risks and effects of a nuclear

weapons accident and the long-term effects of radiation from the storage of nuclear

weapons in a populated area.”81 Yet, despite the seemingly transparent value of releasing the requested information, the district court denied the plaintiff access. As the court explained, the Navy had properly classified the relevant information according to an executive order.82 In both of the above cases, FOIA Exemption 1 concerns superceded

any otherwise existing environmental concerns.

78 Id. According to the article, a Committee source stated that “[the Committee] agreed that putting the stuff on the Web was not the best idea.” Id.

79 See Nuclear Control Institute v. United States Nuclear Regulatory Commission, 563 F. Supp. 768 (D.C. Dist. 1983); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 659 F. Supp. 674 (E.D. N.Y. 1987); Laine v. Weinberger, 541 F. Supp. 599 (C.D. Cal. 1982).

80 Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 144 (1981).

81 Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 659 F. Supp. 674, 680 (E.D. N.Y. 1987).

82 See Id.

104

Despite the fact that the EPA has received a majority of the attention, the website editing apparently is not limited to environmental issues.83 The Washington Post reported that the Department of Energy (DOE) “removed over 9000 documents from the

Information Bridge Web source . . . [including those] research papers containing words nuclear or chemical and storage.”84 The New York Times asserted that the Defense

Technical Information Center and the National Technical Information Service withdrew over 6,000 previously accessible records concerning the production of germ and chemical weapons.85 OMB Watch, a non-profit public interest group, claims that the Federal

Energy Regulatory Commission (FERC) has “removed documents that detail the specification for energy facilities.” 86 According to OMB Watch’s website, the FERC

withdrew the aforementioned records after considering the security implications of the

previously posted material.87

83 John D. Podesta, Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361 (2002). Podesta attests that “[t]he breadth and the scope of the redaction of government information is astounding: the National Imagery and Mapping Agency has stopped selling large-scale digital maps; the Federal Aviation Administration has removed data from its Web site on enforcement actions against air carriers; the Bureau of Transportation Statistics has removed transportation spatial data from its Web site; the Department of Transportation has removed pipeline mapping information from the Web; the Agency for Toxic Substances and Disease Registry has dropped its report on chemical site security; the Nuclear Regulatory Commission's Web site was completely down for six months and now has extremely limited information;; the Department of Energy Web site for national transportation of radioactive materials was taken down; and Federal Depository Libraries have been asked to destroy CD-ROMs of U.S. Geological water supplies.” Id.

84 Ariana Eunjung Cha, Risks Prompt U.S. to Limit Access to Data: Security Rights Advocates Clash Over Need to Know, WASH. POST, Feb. 24, 2002, at A1.

85 William J. Broad, A Nation Challenged: Domestic Security; U.S. Is Tightening Rules On Keeping Scientific Secrets, N.Y. TIMES, Feb. 17, 2002, at A1.

86 Information Restriction Policies, OMB Watch, (May 3, 2002), available at http://www.ombwatch.org/article/articlestatic/213/1/14/ (last visited June 22, 2004).

87 Id. OMB Watch cites the FERC’s website and the asserted reasons as to why withholding documents has become necessary. According to the FERC, "the September 11, 2001 terrorist attacks on America have prompted the Commission to reconsider its treatment of certain documents that have previously been made available to the public through the Commission's Internet site... The Commission does not know how long this process will stay in place, and directs staff to report on its impact on agency business in 90 days. In the

105

Conclusion

As indicated above, the quantitative and qualitative data tell two different stories.

On the one hand, the number of public records requests processed and granted over the last five years has remained relatively stable. Furthermore, despite the increased concerns over national security, the executive departments have not increased their reliance upon FOIA Exemption 1. Thus, the generalized claims that the government is denying more access requests then ever seems incorrect.

However, the government has, in fact, edited some of its websites in response to the

9/11 attacks. Sometimes this internet editing is extensive and, other times, seemingly arbitrary.88 In other instances, the removals may be even justified under the Freedom of

Information Act. Yet, from a research perspective, it is difficult to quantify the exact extent and damage of the removed website materials. This is largely because it is difficult to retroactively conduct any primarily research on the number of website postings removed since 9/11. Instead, researchers must rely upon third party sources who tracked the internet editing as the edits were being made. In many cases, these third party sources may be pushing agendas which influence their reporting. Thus, one might conclude that the qualitative information is less reliable, or at least more incomplete, than the statistical data.

In total, when drawing conclusions as to the Bush administration’s effect on information withholdings, a thorough analysis of Exemption 1 may provide the key.

After all, Exemption 1 is “the only Freedom of Information Act exemption that allows meantime, staff is also directed to make every effort to respond timely to legitimate requests for documents that have been made available to the public previously but that are no longer available through the means noted above." Id.

88 See infra note 79 and the accompanying text.

106

the executive branch, rather than Congress, to determine the criteria for disclosing

information.”89 Thus, Exemption 1 is the lone FIOA exception which the President can directly effect via the drafting of executive orders. If the Bush administration had made a conscious effort to restrict access to information, one would therefore expect the

President to draft any number of executive orders which would allow all agencies to claim the FOIA exemption for national security. As of this writing, that expected jump has not occurred, at least with concern to record requests (as indicated, statistical data on website removals is largely unreliable).90 Under both Clinton and Bush, only three departments relied upon the national security exemption when denying requests. That being stated, the State and Defense Departments, which have relied heavily upon FOIA

Exemption 1 when denying FOIA requests, may prove to be interesting subjects for future access investigations. This could be particularly true if the U.S. is still waiting to understand the full effect of Bush’s 2003 executive order on security classification.91

89 Martin E. Halstuk, The Persistence of Precedent: How CIA v. Sims has Freed the CIA from Disclosure Requirements Under the Freedom of Information Act (1997) (unpublished thesis, University of Florida) (on file with the University of Florida library).

90 The author emphasizes that the statistics contained herein report only on short-run data. A more complete understanding of the access picture may be obtained once Bush leaves office. After that, the Bush administration’s access policy can be examined in its totality.

91 See infra Chapter 4, fn 45 and the accompanying text.

CHAPTER 6 CONCLUSION AND OPPORTUNITIES FOR FUTURE RESEARCH

The battle between government secrecy and the public right of access has endured for over 200 years. Despite an early legal tendency towards favoring nondisclosure, the ratification of the FOIA has finally given citizens a cause of action against the government. Presumptions of access now initially rest with the people, and the state has the burden of showing that any given record should be withheld from public circulation.1

Nonetheless, if one believes the GAO’s 2003 report, the Bush administration’s handling

1 See generally 5 U.S.C. §552 (2003).

107 108

Nonetheless, if one believes the GAO’s 2003 report, the Bush administration’s handling

of access rules has, in fact, changed the way agencies deal with FOIA requests.2 Almost

25% of those polled indicated that the Bush administration’s access policy influenced

their handling of record requests under the FOIA.3

Moreover, evidence exists to suggest that the government has erased a significant

amount of data from agency websites. Critics argue that these website removals are often

overbroad and unrelated to national security interests.4 The question now becomes whether such access restrictions are justified. Certainly, as the Supreme Court has demonstrated, some information may be justifiably removed or withheld when national security concerns necessitate secrecy.5 Yet, despite the historical and judicial precedent,

government must avoid the temptation to simplify and broaden classification procedures

in hopes of easily eliminating all suspect materials from public circulation. At the very

worst, the Bush administration must not be allowed to promote a general agenda favoring

government secrecy behind a façade of national security.

This thesis leaves open a number of questions of potential value for future research.

First, as noted in Chapter 5, the full force of Bush’s executive order on document

2 GENERAL ACCOUNTING OFFICE REPORT TO THE RANKING MINORITY MEMBER, COMMITTEE ON THE JUDICIARY, U.S. SENATE, Agency Views on Changes Resulting from New Administrative Policy, # GAO- 03-981, Sept. 2003.

3 Id.

4 See, e.g., James V. Grimaldi, At Justice, Freedom Not to Release Information, WASH. POST, Dec. 2, 2002, at E1; Laura Parker and Kevin Johnson, Secure Often Means Secret Post-9/11, Government Stingy with Information, USA TODAY, May 16, 2002, at 1A.

5 See, e.g., New York Times v. United States, 403 U.S. 713 (1971); Snepp v. United States, 444 U.S. 508 (1980); Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). See also Gary S. Guzy. Are We Protecting or Removing Safeguards? WASH. POST, Nov. 24, 2002, at B1. Guzy reports that, prior to 9/11, the Nuclear Regulatory Commission had allowed access to a study “showing the potential catastrophic consequences if an airplane were to crash into a nuclear power plant and damage the plant’s spend fuel storage facility.” Id.

109 classification may be yet to come.6 Researchers may want to determine how the Bush access policies compare to future administrations after President Bush leaves office.

Second, this thesis does not consider the classification of national security documents under any legal authority save FOIA’s national security exemption.7 The enactment of the Critical Infrastructure Information Act, for example, may lead some private companies to protect information from public hands in a security context other than

Exemption 1.8 Third, this paper does not explain many of the reasons underlying the access trends. For example, Chapter 5 indicated that the number of requests received each year by the Defense Department was in steady decline since 1999. Future researchers may try to explain why that decline has occurred.9 Finally, this paper would lay valuable background information for any researcher wishing to conduct a content analysis study involving either record request denials or removed website information.

6 Chapter 5 only tracks access data as reported by executive departments over a five year span. Furthermore, the statistics only reveal access trends during the first two years of the Bush administration. Future researchers may want to reexamine that data after Bush has left office and formulate more comprehensive theory as to Bush’s effect on open government.

7 This thesis deals only with FOIA Exemption 1. However, as noted previously, the FOIA allows for eight other exemptions, each of which permits government secrecy in a specific context. That being stated, future researchers may be inclined to explore these other eight exemptions and determine what kind of information is being withheld in accordance with those exceptions. For example, the Ashcroft memo, which cites directly to FOIA Exemption 5, might have a significant bearing on the amount of information withheld based upon the FOIA’s exemption for inter-agency documents. See Memorandum from Attorney General Ashcroft on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 12, 2001), available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (last visited June 21, 2004) (hereinafter Ashcroft Memo).

8 For example, Critical Infrastructure documents may be withheld under FOIA Exemption 3. Under Exemption 3, agencies may withhold information specifically exempt from disclosure by statute (such as the Patriot Act or Homeland Security Act), even if those documents do not have any bearing on national security. Future researchers may be interested to explore exactly what types of documents are withheld under Exemption 3.

9 Researchers may be similarly interested in exploring why the State Department has received and processed an increasing number of requests each year since 1999.

LIST OF REFERENCES

Constitutional Provisions

U.S. CONST. art. I, § 5, cl. 3.

U.S. CONST. art. II, § 3.

Statutory Materials

5 U.S.C. §551 (2003).

5 U.S.C. §552 (2003).

6 U.S.C. § 133 (2003).

6 U.S.C. § 482 (2004).

S. Rep. No. 813, 89 Cong. 1st Sess., 3 (1965).

S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974).

Va. Code Ann. § 2.2-3704 (2003).

Cases

ACLU v. United States Dep’t of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003).

Administrator, Federal Aviation Admin. v. Robertson, 422 U.S. 255 (1975).

American Civil Liberties Union v. Brown, 609 F.2d 277 (7th Cir. 1979).

Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983).

Bd. Of Educ. V. Pico, 457 U.S. 853 (1982).

Bevis v. Dep’t of State, 575 F. Supp. 1253 (D.C. Dist., 1983).

Bonner v. United States Dep’t of State, 724 F. Supp. 1028 (D.D.C. 1992).

Branzburg v. Hayes, 408 U.S. 665 (1972).

Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976).

110 111

Detroit Free Press v. Ashcroft, 303 F.3rd 681 (2002).

Donovan v. Federal Bureau of Investigation, 806 F.2d 55 (2nd Cir. 1986).

Earth Pledge Found. v. Central Intelligence Agency, 988 F. Supp. 623 (S.D.N.Y. 1996).

Environmental Protection Agency v. Mink, 410 U.S. 73 (1973).

FBI v. Abramson, 456 U.S. 615 (1982).

Fitzgibbon v. Central Intelligence Agency, 911 F.2d 755 (D.C. Cir. 1990).

Gravel v. United States, 408 U.S. 606 (1972).

Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980).

Hoch v. C.I.A., 593 F. Supp. 675 (D.D.C. 1984).

Houchins v. KQED., 438 U.S. 1 (1978).

Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414 (2nd Cir. 1989).

Hunt v. Central Intelligence Agency, 981 F.2d 1116 (9th Cir. 1992).

Kent Corp. v. NLRB, 530 F.2d 612 (5th Cir. 1976).

King v. United States Dept. of Justice 586 F.Supp. 286 (D.D.C., 1983).

Laine v. Weinberger, 541 F. Supp. 599 (C.D. Cal. 1982).

Lawyers Alliance for Nuclear Arms Control v. Dep’t of Energy, 766 F. Supp. 318 (E.D. Pa. 1991).

Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552 (S.D.N.Y. 1989).

Mamarella v. County of Westchester. 898 F.Supp. 236 (Southern District NY, 1995).

Marks v. Central Intelligence Agency, 426 F. Supp. 708 (D.D.C. 1976).

Marrera v. United States Dept. of Justice, 622 F. Supp. 51 (D.D.C. 1985).

Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981).

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

New York Times v. United States, 403 U.S. 713 (1971).

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978).

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Nuclear Control Institute v. United States Nuclear Regulatory Commission, 563 F. Supp. 768 (D.C. Dist. 1983).

Patterson v. Federal Bureau of Investigation, 893 F.2d 595 (11th Cir. 1990).

Pell v. Procunier, 417 U.S. 817 (1974).

Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. App. 1976).

Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978).

Republic of New Afrika v. Federal Bureau of Investigation, 656 F. Supp. 7 (D.D.C. 1985).

Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

Saxbe v. Washington Post, 417 U.S. 843 (1074).

Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974).

Sims v. CIA, 471 U.S. 159 (1985).

Snepp v. United States, 444 U.S. 508 (1980).

Southam News v. U.S. Immigration & Naturalization Service, 674 F. Supp. 881 (D.D.C. 1987).

St. Michael’s Convalescent Hospital v. California, 643 F.2d 1369 (9th Circuit Appeals, 1981).

Students Against Genocide v. Dep’t of State, 50 F. Supp. 2d 20 (D.D.C. 1999).

United States v. Marchetti, 466 F.2d 1309 (4th Cir., 1972).

United States. v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979).

United States Dep’t of Justice v. Julian, 486 U.S. 1 (1988).

United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989).

United States Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976).

United States Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).

Washington v. Police Dep’t, 1994 U.S. Dist. LEXIS 11717 (1994).

Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139 (1981).

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Weissmann v. Central Intelligence Agency, 565 F.2d 692 (D.C. Cir. 1977).

Executive Office Materials

Agency Views on Changes Resulting from New Administrative Policy, General Accounting Office report to the Ranking Minority Member, Committee on the Judiciary, U.S. Senate, # GAO-03-981, Sept. 2003.

Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995).

Exec. Order 12,958, 68 Fed. Reg. 15,315 (Mar. 25, 2003).

Exec. Order 13,228, 66 Fed. Reg. 51,812 (Oct. 8, 2001).

Designation Under Exec. Order 12,958, 67 Fed. Reg. 31,109 (May 9, 2002).

Designation Under Exec. Order 12,958 (Sept. 17, 2003).

Fleischer, A. Comments from the White House Press Secretary (Sept. 24, 2001), available at http://www.whitehouse.gov/news/releases/2001/09/20010924-13.html (last visited June 17, 2004).

Jefferson, T. Letter to Lieutenant Colonel Edward Carrington (January 16, 1787), reprinted in A JEFFERSON PROFILE AS REVEALED IN HIS LETTERS 44 (S. Padover ed. 1956).

Lincoln, A. Gettysburg Address, Nov. 19, 1863.

Memorandum from Attorney General Ashcroft on The Freedom of Information Act, to Heads of All Federal Departments and Agencies (Oct. 12, 2001), available at www.usdoj.gov/oip/foiapost19.htm (last visited June 18, 2004).

Memorandum from Attorney General Reno on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 4, 1993), available at www.fas.org/sgp/clinton/reno.html (last visited June 21, 2004).

Memorandum from President Clinton on The Freedom of Information Act, to the Heads of Departments and Agencies (Oct. 4, 1993), available at www.fas.org/sgp/clinton/reno.html (last visited on June 21, 2004).

Memorandum from White House Chief of Staff Andrew H. Card, Jr. on “Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security,” to the Heads of Executive Departments and Agencies (March 19, 2002), available at http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm (last visited June 21, 2004).

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Ridge, T. Press Briefing on Homeland Security (Oct. 18. 2001), available at http://www.whitehouse.gov/news/releases/2001/10/20011018-1.html (last visited June 21, 2004).

UNITED STATES DEPARTMENT OF AGRICULTURE, FREEDOM OF INFORMATION ACT ANNUAL REPORT FY 2000 (2001).

UNITED STATES DEPARTMENT OF AGRICULTURE, FREEDOM OF INFORMATION ACT ANNUAL REPORT FY 2002 (2003).

UNITED STATES DEPARTMENT OF DEFENSE, FREEDOM OF INFORMATION ACT PROGRAM REPORT FOR FISCAL YEAR 2003 (2004).

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, FREEDOM OF INFORMATION ACT ANNUAL REPORT FOR FISCAL YEAR 2003 (2004).

UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORT FOR FISCAL YEAR 2000 (2001).

UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORT FOR FISCAL YEAR 2002 (2003).

UNITED STATES DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORT FOR FISCAL YEAR 2003 (2004).

UNITED STATES DEPARTMENT OF VETERAN AFF., FREEDOM OF INFORMATION ACT FISCAL REP. (2002).

Books

Cole, D. TERRORISM AND THE CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN THE NAME OF NATIONAL SECURITY (New York: New Press, 2002).

Goldberg, D., Goldberg, V. and Greenwald, R. IT’S A FREE COUNTRY: PERSONAL FREEDOM IN AMERICA AFTER SEPTEMBER 11 (New York: RDV Books/Akashic Books, 2002).

Hoffman, D. GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS (Westport, CT: Greenwood, 1981).

Melanson, P. SECRECY WARS (Washington, D.C.: Brassey’s UK Ltd., 2001).

Middleton, K., Lee, W. & Chamberlin, B. THE LAW OF PUBLIC COMMUNICATION (Boston: Pearson Education, Inc., 2004).

Moynihan, D. SECRECY (New Haven: Yale University Press, 1998).

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Articles

A Threat to Freedom, INT’L HERALD TRIB., Sept. 23, 2003.

Abrams, F. The First Amendment and the War Against Terrorism, 5 U. PA. J. CONST. L. 1 (2002).

Administration Gains New Power to Withold 'Sensitive' Information, OMBWATCH, Sept. 10. 2003, at http://www.ombwatch.org/article/articleview/1799/ (last visited June 21, 2004).

Anderson, K. Is There Still A Sound Legal Basis?: The Freedom of Information Act in the Post-9/11 World, 64 OHIO ST. L.J. 1605 (2003).

Black, B. Legislating U.S. Data Privacy in the Context of National Identification Numbers: Models from South Africa and the United Kingdom CORNELL INT’L L.J. 397 (2001).

Broad, W. A Nation Challenged: Domestic Security; U.S. Is Tightening Rules On Keeping Scientific Secrets, N.Y. Times, Feb. 17, 2002.

Cha, A. Risks Prompt U.S. to Limit Access to Data: Security Rights Advocates Clash Over Need to Know, WASH. POST, Feb. 24, 2002.

Clymer, A. A Nation Challenged: U.S. Gets Expanded Powers, N.Y. TIMES, Oct. 26, 2001.

Connolly, C. Senators Call on White House to Share Records With 9/11 Panel, WASH. POST, Oct. 27, 2003.

EPA Turns Over Documents on Information Removal, Yet Questions Remain, OMBWATCH, May 15, 2002, available at http://www.ombwatch.org/article/articleview/738/1/104/ (last visited June 22, 2004).

Ferrell, M. Balancing the First Amendment and National Security: Can Immigration Hearings Be Closed to Protect the Nation’s Interest? 52 CATH. U. L. REV. 981 (2003).

Field, M. Rhode Island's Access to Public Records Act: An Application Gone Awry, 8 ROGER WILLIAMS U. L. REV. 293 (2003).

Gates, P. and Chamberlin, W. Madison Misinterpreted: Historical Presentism Skews Scholarship, 13 AMERICAN JOURNALISM 38 (1996).

Grimaldi, J. At Justice, Freedom Not to Release Information, WASH. POST, Dec. 2, 2002.

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Gugliotta, G. Agencies Scrub Websites of Sensitive Chemical Data: Government Debates Safety Verses Security, WASH. POST, Oct. 4, 2001.

Guzy, G. Are We Protecting or Removing Safeguards? WASH. POST, Nov. 24, 2002.

Hafetz, J. The First Amendment and Access to Deportation Proceedings, 40 CAL. W. L. REV. 265 (2004).

Halstuk, M. Policy of Secrecy--Pattern of Deception: What Federalist Leaders Thought About a Public Right to Know, 1794-98, 7 COMM. L. & POL'Y 51 (2002).

Halstuk, M. Shielding Private Lives from Prying Eyes: The Escalating Conflict Between Constitutional Privacy and the Accountability Principle of Democracy, 1 COMMLAW CONSPECTUS 71 (2003).

Halstuk, M. The Persistence of Precedent: How CIA v. Sims has Freed the CIA from Disclosure Requirements Under the Freedom of Information Act (1997) (unpublished thesis, University of Florida) (on file with the University of Florida library).

Henkin, L. The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271 (1971).

Hill, M. Life, Liberty and the Pursuit of Terrorists, BALT. SUN , Nov. 2, 2003.

Hirschkorn, P. New York Reduces 9/11 Death Toll by 40, CNN ONLINE, Oct. 29, 2003, available at http://www.cnn.com/2003/US/Northeast/10/29/wtc.deaths/ (last visited June 14, 2004).

Horn, K. Privacy Versus Protection: Exploring the Boundaries of Electronic Surveillance in the Internet Age, 29 FORDHAM URB. L.J. 2233 (2002).

How the War on Terrorism Affects Access to Information and the Public’s Right to Know, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, (4th ed. 2003).

Information Restriction Policies, OMB WATCH, (May 3, 2002), available at http://www.ombwatch.org/article/articlestatic/213/1/14/ (last visited June 22, 2004).

Jones, K. Comment and Casenote: The Effect of the Homeland Security Act on Online Privacy and the Freedom of Information Act, 72 U. CIN. L. REV. 787 (2003).

Karin, M. Out of Sight, but Not Out of Mind: How Executive Order 13,233 Expands Executive Privilege While Simultaneously Preventing Access to Presidential Records, 55 STAN. L. REV. 529 (2002).

Kriz, M. Agencies Pull Sensitive Information from Web Sites, NATIONAL JOURNAL, Oct. 19, 2001.

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Lochhead, C. Democrats Seek Rollback of Patriot Act, S.F. CHRON., Sept. 25, 2003.

McDermott, P. Withhold and Control: Information in the Bush Administration, 12 KAN. J.L. & PUB. POL’Y 671 (2003).

McGeary, J. The Scandal’s Growing Stain, TIME, May 17, 2004.

Meek, J. Ashcroft Tour to Plug Terror Bill, N.Y. DAILY NEWS, Aug. 6, 2003.

Milbank, D. GAO Drops Cheney Energy Suit, Unable to Force Vice President to give up Administration Data, WASH. POST, Feb. 8, 2003.

th Milton, J. Areopagitica, OF EDUCATION (4 ed., J.M. Dent 1952).

Moscoso, E. and Achrati, N. Patriot 2: The Eyes Have It; Unusual Coalition of Left and Right Says Civil Liberties Under Attack, THE ATLANTA JOURNAL-CONSTITUTION, May 11, 2003.

OMB Tackles Sensitive But Unclassified Information, SECRECY NEWS, Sept. 3, 2002, at http://www.fas.org/sgp/news/secrecy/2002/09/090302.html (last visited June 21, 2004).

O’Reilly, J. Information Disclosures by Government: “Access to Records” vs. “Access to Evil”, 12 KAN. J.L. & PUB. POL’Y 559 (2003).

Parker, L. and Kevin Johnson, K. Secure Often Means Secret Post-9/11, Government Stingy with Information, USA TODAY, May 16, 2002.

Patriot Act II Also Limits the Public’s Right to Know, THE WATCHER, Vol. 4, No. 3 (Feb. 2, 2003), available at http://www.ombwatch.org/article/articleview/1324/1/163/ (last visited June 21, 2004).

Podesta, J. Shadow Creep: Government Secrecy After 9/11, U.ILL. J.L. TECH & POL’Y 361 (2002).

Porges, S. Reporters Run Into FOIA Roadblocks; Freedom’s Just Another Word? EDITOR AND PUBLISHER, Dec. 1, 2003.

Rosenfeld, S. Looking Back, Looking Ahead, S.F. CHRONICLE, Sept. 8, 2002.

Rotenberg, M. Privacy and Secrecy After 9/11, 86 MIN. L. REV. 1115 (2002).

Schmidt, S. Ashcroft Refuses to Release ’02 Memo: Document Details Suffering Allowed in Interrogations, WASH. POST, June 9, 2004.

Seper, J. Justices Refuse Challenge on Secrecy over Detainees, WASH. TIMES, Jan. 13, 2004.

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Silverman, M. National Security and the First Amendment: A Judicial Role in Maximizing Public Access to Information, 78 IND. L.J. 1101 (2003).

Singel, R. Patriot Act II Resurected?, WIRED NEWS ON-LINE (Aug. 21, 2003) avaliable at http://www.wired.com/news/politics/0,1283,60129,00.html (last visited June 21, 2004).

Sobel, R. The Demeaning of Identity and Personhood in National Identification Systems, 15 HARV. J.L. LAW & TECH 319 (2002).

Tapscott, M. Too Many Secrets, WASH. POST, Nov. 1, 2002.

The President’s Comments on Sept. 11, War on Terrorism, REUTERS, Sept. 9, 2003, available at http://www.boston.com/news/nation/washington/articles/2003/09/09/the_presidents _comments_on_sept_11_war_on_terrorism/ (last visited July 14, 2003).

Thessen, J. Recent Development: The Department of Homeland Security, 40 HARV. J. ON LEGIS. 513, 513 (2003).

Turner, K. Convergence of the First Amendment and the Withholding of Information for the Security of the Nation: A Historical Perspective and the Effect of September 11th on Constitutional Freedoms, 33 MCGEORGE L. REV. 593 (2002).

Uhl, K. The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure, and Homeland Security, 53 AM. U.L. REV. 261 (2003).

Vincent, S. An Alternative to the Blanket Closure of "Special Interest" Deportation Hearings: Balancing the Press's Right to Access and the Government's National Security Interests, 55 ALA. L. REV. (2004).

White, L. The Need for Government Secrecy: Why the U.S. Government Must Be Able to Withhold Information in the Interest of National Security, 43 VA. J. INT’L L. 1071, 2003.

Whitehead, J. and Steven H. Aden, S. Forfeiting “Enduring Freedom” for “Homeland Security:” A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives, 51 AM. U.L. REV. 1081 (2002).

Woodside, K. and Gershe, A. Criminal Law: The U.S.A. Patriot Act and Michigan’s Anti-terrorism Laws: New Anti-Terrorism Laws Make Sweeping Changes, 82 MI BAR JNL. 20 (2003).

Young, P. The Case Against Carnivore: Preventing Law Enforcement from Devouring Privacy, 35 Ind. L. Rev. 303 (2001).

BIOGRAPHICAL SKETCH

Thomas Brewer completed his undergraduate education at the University of

Pennsylvania while majoring in both international relations and French. After spending a year in the working world, Thomas returned to school at the University of Florida where he enrolled in the JD/MAMC joint degree program. Upon finishing graduate school,

Thomas plans to return home to Philadelphia.

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