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Making Sense of Government Information Restrictions
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Source: FAS

STEVEN AFTERGOOD

Making Sense of Government Information Restrictions

Panic after September 11 led to bad policy; a more deliberate response can protect security without sacrificing beneficial access to government data.

New moves by the Bush administration to curtail public access to certain types of government information on security grounds have set off alarms among scientists, public interest groups, and concerned citizens, who foresee a veil of indiscriminate secrecy descending around their work and obstructing their activities. Indeed, there has already been a remarkable diversity of new restrictions on access to information, leading to the removal of many thousands of pages from government Web sites and the withdrawal of thousands of government technical reports from public access. In one case, government depository libraries around the country were ordered to destroy their copies of a U.S. Geological Survey CD-ROM on U.S. water resources. A close examination of the administration's emerging information policies reveals a number of defects in their conception and execution but also suggests some options for moving beyond mere controversy toward a resolution of the competing interests at stake.

The new restrictions on public access to government information have been undertaken in a largely ad hoc and sometimes knee-jerk fashion. Although the need to respond quickly to an uncertain security environment by imposing temporary controls on an amorphous body of materials is understandable, this is not a satisfactory approach in the long term. Among other things, it is inconsistent with the body of law and policy that governs information disclosure and lacks the associated safeguards against abuse.

The Freedom of Information Act (FOIA) is the law that gives the public the legal right of access to government information. At the same time, however, it also provides legal authorization for the government to withhold information that fits within one or more of its nine exemptions, including classified national security information, proprietary information, and privacy information.

Several of the new restrictions on information are not congruent with the existing legal framework defined by FOIA or with the executive order that governs national security classification and declassification. For example, the administration makes a distinction between hard copy documents (deemed less sensitive) and Web-based documents (deemed more sensitive) that is not recognized in law. Likewise, some agencies are attempting to impose controls on documents that have been declassified under proper authority and publicly released, which is not permitted under current guidelines, and which is probably futile.

Perhaps the clearest case of bad policy is to be found in a March 19, 2002, White House memorandum to executive branch agencies, urging them to withhold "sensitive but unclassified information related to America's homeland security." This is bad policy because no one knows what it means. The meaning of "unclassified" is clear, of course, but the crucial term "sensitive" is not defined. This is a problem, because agencies may have many reasons for considering information sensitive that have nothing to do with national security. They may, for example, wish to evade congressional oversight, to shield a controversial program from public awareness, or to manipulate the political system through strategic withholding and disclosure of information. The failure to provide a clear definition of "sensitive but unclassified information" points to the need for greater clarity in government information policy that encompasses legitimate security concerns while upholding the virtues of public disclosure.

Start making sense

Crafting a new policy that responds to sometimes competing interests in security and public access should not be an extraordinarily difficult task. In the first place, most government information will be self-evidently subject to disclosure under FOIA or else clearly exempt from disclosure under the provisions of that law. These are easy cases where the proper legal course of action is obvious. But there will be certain types of information that form an ambiguous middle ground, to which the law has not yet caught up. This may be information that was formerly available on Web sites but has now been removed, or records that were officially declassified and released but have now been withdrawn. It is everything that might conceivably be considered "sensitive but unclassified."

In deciding how to treat such information, the administration should enunciate a clear set of guiding principles, as well as an equitable procedure for implementing them and allowing for appeal of adverse decisions. The guiding principles could be formulated as a set of questions, such as these:

Is the information otherwise available in the public domain? Or can it be readily deduced from first principles? If the answer is yes, then there is no valid reason to withhold it, and doing so would undercut the credibility of official information policy.

Is there specific reason to believe the information could be used by terrorists? Are there countervailing considerations that would militate in favor of disclosure; that is, could it be used for beneficial purposes? Documents that describe in detail how anthrax spores could be milled and coated so as to maximize their dissemination presumptively pose a threat to national security and should be withdrawn from the public domain. But not every document that has the word "anthrax" in the title is sensitive. And even documents that are in some ways sensitive might nevertheless serve to inform medical research and emergency planning and might therefore be properly disclosed.

Is there specific reason to believe that the information should be public knowledge? It is in the nature of our political system that it functions in response to public concern and controversy. Environmental hazards, defective products, and risky corporate practices tend to find their solution, if at all, after a thorough public airing. Withholding controversial information from the public means short-circuiting the political process and risking a net loss in security.

Of course, no set of principles will produce an unequivocal result in all cases. There will often be a subjective element to any decision to release or withhold contested information. Someone is always going to be dissatisfied. In order to forestall or correct abuses or mistaken judgments, an appeals process should be established to review disputed decisions to withhold information from the public. Placing such a decision before an appeals panel that is outside of the originating agency and that therefore does not have same bureaucratic interests at stake would significantly enhance the credibility of the deliberative process. The efficacy of such an appeals process has been repeatedly demonstrated by an executive branch body called the Interagency Security Classification Appeals Panel (ISCAP). This panel, which hears appeals of public declassification requests that have been denied by government agencies, has ruled against its own member agencies in an astonishing 80 percent of the cases it has considered.

A good-faith effort to increase the clarity, precision, and transparency of the Bush administration's information policies, along with provisions for the public to challenge a negative result, would go a long way toward rectifying the current policy morass.

Steven Aftergood (saftergood@fas.org) is director of the Project on Government Secrecy at the Federation of American Scientists in Washington, D.C.

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