Sworn to Secrecy “Knowledge will forever govern ignorance, and a people who mean to be their own governors,governors, must arm themselves with the power knowledge gives.”gives.” --James Madison, 1822 The Bush administration has moved to broadly restrict information that might interfere with its political agenda and point to stronger health, safety and environmental protections. Perhaps most signifi cant for its scope, Attorney General John Ashcroft has reversed past policy under the Freedom of Information Act, and in essence instructed federal agencies to withhold information whenever possible. Meanwhile, the administration has cracked down on government whistleblowers and continually thumbed its nose at Congress – for example, refusing to turn over documents related to the corporate-dominated Cheney energy task force. Sept. 11 has also regularly been invoked to advance the cause of secrecy. In particular, the administration has withheld information on “critical infrastructure” and power companies, and removed tens of thousands of documents from the web, including information on chemical facilities. While the specifi c reasons for these restrictions are murky at best, the one clear effect has been to shield the administration and its corporate allies from public scrutiny. Sworn to Secrecy Turning FOIA ‘discretionary disclosure’ of information on its Head to the need to safeguard institutional, On Oct. 12, 2001, Ashcroft issued a commercial, and personal privacy memorandum1 that urges federal agencies interests.”3 In other words, we are moving to exercise greater caution in disclosing from disclosure where possible to secrecy information requested under the Freedom of where possible. Information Act, which is a primary tool for As viewed by EPA’s general counsel office, obtaining health, safety and environmental “[I]n order to justify withholding a record, information, and much more. the agency no longer needs to be able to The memo affirms the Justice articulate a foreseeable harm that will befall Department’s commitment to “full us if the record is released.”4 This means that compliance with the Freedom of Information not only is the agency less likely to disclose, it Act,” but then immediately states it is won’t even provide an explanation for why it “equally committed to protecting other is withholding. fundamental values that are held by our society. Among them are safeguarding Auto Safety our national security, enhancing the In one of the most egregious examples, effectiveness of our law enforcement the Department of Transportation is agencies, protecting sensitive business withholding “early warning” data about information and, not least, preserving auto safety defects, including warranty personal privacy.” claim information, auto dealer reports, This new policy supersedes a 1993 consumer complaints, and data on child memorandum from then-Attorney General restraint systems and tires. Congress Janet Reno that promoted disclosure of required reporting of this information in government information under FOIA unless it response to the 2000 Firestone Tire debacle was “reasonably foreseeable that disclosure (in which faulty tires resulted in 271 deaths), would be harmful.” This standard of potentially creating a powerful tool for “foreseeable harm” is dropped in the Ashcroft the public to hold manufacturers and the memo. Instead, Ashcroft advises, “When you government accountable. carefully consider FOIA requests and decide Unfortunately, in July 2003, DOT to withhold records, in whole or in part, you issued a rule that claimed disclosure could can be assured that the Department of Justice “cause substantial competitive harm” – an will defend your decisions unless they lack a allowable exemption under FOIA – even sound legal basis...” though similar defect information has been In a number of cases, agencies have routinely made public before. expanded on the Ashcroft memo, affirming that the benefit of doubt no longer goes to Fox In the Henhouse disclosure, according to an audit covering Jacqueline Glassman, NHTSA’s chief counsel 33 federal departments and agencies by Glassman spearheaded the decision the National Security Archive,2 which files to withhold early-warning auto safety thousands of FOIA requests annually. information from the public. Prior to her The Department of Interior, for instance, appointment in 2002, Glassman was senior circulated the Ashcroft memo in an email counsel for the DaimlerChrysler Corporation, entitled, “News Flash – Foreseeable Harm where she spent seven years. The Alliance for is Abolished.” Interior later developed Automobile Manufacturers, which represents implementing guidance that stated, “We DaimlerChrysler, as well as eight other wish to emphasize that the shift related manufacturers, strongly opposed disclosure of to release of information under the the early-warning information. FOIA has moved from a presumption of 88 89 Sworn to Secrecy “The DOT is trying to slip a vast The Bush administration appealed the exemption to the Freedom of Information circuit court’s decision to the Supreme Act in the back door,” said Amanda Frost, an Court, which accepted the case. Yet just days attorney with Public Citizen, which filed suit before oral arguments were set to begin, in March 2004 to force the administration to Congress approved an appropriations rider make the information available. “The agency that prohibits the ATF from using any funds has failed to show how disclosure would harm to comply with FOIA requests for the records manufacturers, but this exemption would in question. In response, the Supreme Court surely harm consumers.” vacated the decision and remanded the case, instructing the Seventh Circuit to reconsider in Gun Safety light of Congress’ action. The Bush administration has also fought a legal challenge by the city of Chicago to obtain records on gun purchases under Stonewalling Congress FOIA. Chicago requested these records from the Bureau of Alcohol, Tobacco, The Bush administration clearly does not and Firearms (ATF) to support a civil suit want to answer to Congress. Vice President against several manufacturers, wholesalers Cheney’s showdown with GAO was just the and dealers for allegedly promoting and most high profile case in what’s emerged facilitating the unlawful possession of as a pattern of stonewalling. From “Clear firearms. However, the Justice Department, Skies” to drinking water contamination to backed by the National Rifle Association, Medicare reform, the administration has been argued that such disclosure is exempt unwilling to deal with Congress honestly, and from FOIA because it would interfere with instead has sought to advance its agenda law enforcement proceedings and violate by withholding information that might personal privacy interests. spark open debate. Such secrecy subverts Early in 2003, the Seventh Circuit Court democratic decision-making and undermines of Appeals, based in Chicago, ruled in favor public accountability. of the city and ordered ATF to turn over its gun trace and sales databases, rejecting the The Cheney Energy Task Force administration’s arguments as overly broad. During the early months of the Bush According to the court, ATF can withhold administration, Vice President Cheney particular records that might interfere convened an energy task force whose ultimate with a specific investigation, but cannot recommendations, issued May 18, 2001, claim a blanket disclosure exemption for conspicuously reflected the interests of oil, the entire databases. Likewise, the public gas and coal companies. interest outweighs ATF’s sweeping claim of At the time, President Bush said, “I can personal privacy in concealing the names assure the American people that mine is and addresses of gun purchasers. In fact, an administration that’s not interested in privacy advocates such as the Electronic gathering dust. We’re interested in acting.” Privacy Information Center strongly backed As discussed earlier, this has meant weaker disclosure, arguing for more tailored environmental standards and more extensive privacy protections. drilling and mining on public lands. This information will help identify patterns Given this profound effect on to determine whether firearms used in crimes administration policy, members of Congress are sold by particular retailers or sold to and other interested parties began to raise particular purchasers, while allowing for an questions about the nature and composition evaluation of ATF’s effectiveness in monitoring of the Cheney task force, which took on unlawful sales and tracing crime guns.5 increased urgency following the collapse 88 89 Sworn to Secrecy of energy-giant Enron. Unfortunately, the The Sierra Club and Judicial Watch (best administration refused to provide even known for its numerous lawsuits against the most elementary answers, triggering a Clinton administration officials) were joined number of hard-fought lawsuits. in another lawsuit against the task force Most troubling was the administration’s – officially called the National Energy Policy unwillingness to cooperate with the Development Group – to gain access to White General Accounting Office, the research and House documents, just as GAO was trying investigative arm of Congress. GAO tried for to do. In August of 2002, U.S. District Judge months to obtain access to the names of task Emmet G. Sullivan ordered these documents force participants, including anyone consulted turned over, but the White House failed outside government, as well as basic