|FAS Public Interest Report
The Journal of the Federation of American Scientists
|March / April 2002
Volume 55, Number 2
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Making Sense of Information Restrictions After September 11By Steven Aftergood and Henry Kelly
The Bush Administration introduced a series of new restrictions on public access to government information following the terrorist attacks of last year. Under the new policy, agencies have removed thousands of pages from government web sites and withdrawn thousands of government documents and technical reports from public libraries. In one case, government depository libraries around the country were ordered to destroy their copies of a recently issued USGS CD-ROM on US water resources.
The new restrictions have alarmed scientists, public interest groups, and concerned citizens because they interfere with the conduct of research and limit legitimate access to information needed for public discussion of key policy issues. Continued growth of restrictions without any clear end in sight creates understandable concern that we are watching a veil of indiscriminate security descending on significant portions of the American policy process.
Without debating the merits of any particular case, it is clear that the new information restrictions have been undertaken in a largely ad hoc fashion. While the unprecedented emergency required quick action in the short term, the inconsistent and often arbitrary policies that have emerged are clearly not satisfactory over the long term. While terrorist threats require reshaping some standards, they do not call for wholesale abandonment of existing processes and safeguards. Few of the issues raised are new. The challenge of drawing a line between what should be protected and what should not has been the subject of years of debate that has resulted in a large and useful body of law and policy that governs information disclosure and provide safeguards against abuse.
Recent steps taken by the administration have exceeded the authority provided by existing law and executive orders. This situation must be quickly remedied. The process of building a new system provides an opportunity to address several flaws in the existing system. The following issues deserve careful scrutiny:
"Sensitive but Unclassified"
Several of the new restrictions on information are not congruent with the existing legal framework defined by the Freedom of Information Act (FOIA), or with the executive order that governs national security classification and declassification. FOIA is the primary instrument giving the public the legal right of access to government information. It also provides legal authorization for the government to withhold information that fits within one or more of its nine exemptions (e.g., classified national security information, proprietary information, privacy information, etc.)
Perhaps the most serious example of deviation from existing standards can be found in a March 19 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 wish to evade congressional oversight, to shield a controversial program from public awareness, or otherwise manipulate the political system through strategic withholding and disclosure of information.
The Administration has also moved to make a distinction between hard copy documents (deemed less sensitive) and web-based documents (deemed more sensitive) that is not recognized in law. No guidelines have been issued defining how to make this distinction or the basis for maintaining the distinction, thereby giving thousands of individual government organizations arbitrary authority to remove material from the web. Since there are no procedures for reviewing these decisions, there are no protections from abuse.
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).
Failure to provide a clear definition of "sensitive but unclassified information" points to the need for greater clarity in government information policy-a policy that encompasses legitimate security concerns while upholding the virtues of public disclosure.
Start Making Sense
Crafting a new policy that responds to the 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 the Freedom of Information Act, 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 that has now been removed, or records that were officially declassified and released, but that 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 appealing adverse decisions.
The guiding principles could be formulated as a set of questions, such as:
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 will always 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. This panel, which hears appeals of declassification requests from the public 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 towards rectifying the current policy morass.