Access to Government Information, pre and post 9/11

[ Speakers Notes ]

Loss of Access to Government information is not a new thing since 9/11. It is very bad now, but not new. This is not a problem caused by terrorism — it is an ongoing problem.

What we face are numerous different reasons for restriciting access to government information, numerous different ways it happens, and numerous excuses. But the results are the same — loss of access to public information.

Since 9/11 a lot has happened quickly and this has produced a fair amount of public exposure of the issues and attention — and controversy.

Loss of access to government information and restrictions on access to government information is not limited to the current president or to a single political party. Retaining access to public information and protecting openness of public information is sysiphean — a constant uphill struggle. Battles once fought for public access and won are only temporary. We will have to fight them again.

Librarians are in an excellent position to know what is happening, know the importance of information and know how information is used. It is our job to defend access. No one else has this as their primary duty — not journalists or environmentalists, or politicians. What information is preserved and what information is lost will depend on what we as librarians do — or fail to do.

I. Two contexts

1. Government information is part of larger information universe.

   Many of the problems with access to government information exist also for non-government information — in some cases more so.

2. Information is the key and control of information is what is important.

   This includes: Control of what, how, when, where information is available; Control of who has access; Control of who knows who has read what. These are critical to our society’s freedoms.

   1. Information is always the key to power and control and those who control information are powerful because of that control.
      1. Think of what guerrillas do when they overthrow a government: The first thing they do is take over the radio and tv stations — to control information.
      2. Think of the destruction of libraries in wars.
      3. Think of the battles we have had to fight in this country over acces to information.
         • The Pentagon Papers
         • Watergate
         • The Iran/Contra Affair
   2. The Declaration of Independence was partly about control of information. One of the grievances listed against King George was “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.”
      • When citizens don’t have easy access to public records, they don’t have real democracy.

II. Two kinds of threats to access to government information

1. Active Control.
   This is the threat of those who have the ability to suppress, repress, alter, destroy, remove, classify, hide, and otherwise actively control what information is available to us

2. Passive — lack of care and attention; failure to record or preserve information.
   
   This category includes any failure to act. When information is not compiled, published, or disseminated, or when published information is not preserved, the information will, inevitably, be lost — just as lost as it would be if it were destroyed.
   1. Producer/Publisher inaction. For example, an agency takes down non-current information such as an annual report from last year (or all annual reports from all previous years).
      
      Action, or lack of action, doesn’t have to be evil or nefarious. It can be understandable — and even rational. Most bureaucrats and politicians are not scholars or historians. And they are not acting as citizens, but as employees. Their mission may not include long-term preservation or long-term access.
   2. Librarian inaction. When librarian abrogate their role of selection, acquisition, and preservation to others because “someone else is doing it” or because they mistake current access long-term preservation and access. Librarians, like producers, have many, seemingly rational, reasons to excuse their inaction, particularly with regard to digital collections:
   • It is too hard
   • Someone else is doing it
   • We don’t know how
   • We don’t have time or money

III. After 9/11 more of same, not something new

1. This is not not cyclical problem but a Sisyphean problem.
   When political or economic conditions make conditions for control easier, it is easier for those with power to control access and easier for others to passively accept that control.

2. Examples of pre 9/11 stifling of information
   
   [This, and the following post-9/11 chronology relies heavily on the Chronology of Disappearing Government Information (May 8, 2002), Compiled by Barbara Miller for ALA/GODORT Education Committee With special assistance of Karrie Peterson.]
   1. The 1980s cutbacks by the Reagan administration in government publishing under the rubric of “paperwork reduction” eliminated thousands of publications and raised the price of many creating what National Journal called “a two-tier system for distributing government information.”
      

      “For corporations, trade associations and professional groups that can afford to pay user fees and higher prices for government publications, life has not changed very much. But for the elderly and other economically disadvantaged groups that depend on free distribution or artificially low prices, information is becoming more difficult and sometimes impossible to obtain.”

      ALA reported that, between 1982 and 1987, one in every four Government publications were eliminated altogether and thousands of others that were once distributed for free became available only for sale.

   2. The 1986 “National Security decision directive 145” signed by National security adviser John Poindexter gave federal departments broad new powers to limit release of government data and creates a new “sensitive” classification to restrict access to national security related information.
   3. On June 8, 1987, a clerk at Columbia University’s Math/ Science Library was approached by two FBI agents who asked for information about “foreigners” using the library. This was, the agents said, part of the Library Awareness Program under which the FBI tried to enlist the assistance of librarians in monitoring the reading habits of “suspicious” individuals, variously defined as people with Eastern European or Russian-sounding names or accents, or coming from countries hostile to the U.S.
   4. Sometimes barriers to information are raised with the banner of private enterprise. In 1993 the SEC planned to make what we know today as the EDGAR database of security filings available to the public only by purchasing the data from a private vendor. Mean Data Central planned to charge $ 138,000 to $183,000 a year for the service.
   5. You’ve probably seen recent stories state laws and regulations that are drafted by private organizations who then claim copyright over the laws and forbid free access to them. This problem dates back to at least 1995 when Mississippi’s contract with a publisher gave the publisher the exclusive right to distribute and sell sets and volumes of the electronic version of the Mississippi code. The contract limits the state to “reasonable, non-profit uses of the tape, disc, or other medium by state departments, agencies, boards, commissions and political subdivisions” for governmental purposes and academic research. The AG opinion makes no mention of any limits set on the price that the publisher charges for the electronic version.
   6. It was in 1995 when the first President Bush attempted to obtain exclusive control in private life over all the electronic records created by the Executive Office of the President during his term, but was prevented from doing so by a court that ruled the agreement was arbitrary, capricious, an abuse of discretion and contrary to law
   7. In 1997 The Federal Aviation Administration announced it would use the Internet to disseminate voluminous airline safety data that previously had been deemed confidential agency information, but that, in doing so, it would not rank the airlines’ safety records in the same way it already ranks airlines’ on-time and luggage-handling performance. Officials said that even an informed reading of the agency data will not offer much help to travelers seeking to determine which airlines are least likely to have crashes. The reason is that serious accidents are so infrequent, safety experts said.
   8. Some losses of access to government information in the digital age are result of technical and financial problems and mistakes. For instance, in 1999, the national archive “lost” at least 43,000 electronic messages, wiped out without a useful trace. They were supposed to have a backup system that could have replaced the missing information, but they said it was not working properly.
   9. In 1985, technicians at NASA’s Jet Propulsion Laboratory in Pasadena Calif. began transferring data recorded from the 1976 Viking probe to Mars to a sturdier type of computer tape. They found errors in 10 per cent of the original recordings because of deterioration.
   10. Language tacked onto the fiscal 2001 Treasury appropriations bill in 2000 ordered agencies to pay attention to the quality, objectivity, utility and integrity of information they disseminate. The rule was written in such a way that anyone who does’t like the latest bit of data from an agency can use the new procedure to challenge any statement, press release, speech or other pronouncement coming from an agency and get data supressed or altered. Scientific groups are up in arms about this because it seems to supercede peer review.
   11. In July of 2001, the New York Times reported that the Pentagon tried to get Theordore Postol to stop distributing, and to surrender copies of, a report debunking crucial tests of missile defense. “The case has raised questions about whether a document can be considered secret if it is widely available to the public,” the Times said.
   12. In the spring of 2001, parts of the National Fish and Wildlife website that deals with environmental impact of oil drilling in national refuges removed and alterated documents and changed the historical record without notice and for overtly political policy reasons. It removed from access information that was considered “published.” The agency said that it removed “anything that would be counter to new policy,” but that in deciding what to keep and what to remove or change, “[t]he line between opinion and science became fuzzy.”
   13. The release of the Reagan presidential papers was delayed in violation of the law began in January 2001 when the papers were due for release.
   14. The controversy over the release of risk management plans with chemical releases worst-case scenario data began in January of 2001 when the Environmental Protection Agency announced its concerns that potential Internet distribution of [portions of these plans] would pose law enforcement and national security risks.” Environmental activists argued that the far greater social benefit of access to data about local environmental hazards outweighed the putative national security issues. In march 2001, citing national security, the EPA rescinded a Clinton administration proposal to increase public access to information about the potential consequences of chemical plant accidents.
   15. In April 2001 the department of agriculture posted new rules that proposed dropping testing for salmonella in ground beef for the federal school-lunch program. When controversy over those rules arose, the department just deleted the proposal.
   16. In July, the government recalled all copies of a State Department history book from hundreds of libraries because it details the U.S. role in Indonesia’s deadly purge of communists in the 1960s. [Another completed FRUS volume whose release has been deferred due to its purported political sensitivity addresses U.S. foreign policy toward Cyprus, Greece, and Turkey during 1964-1968. The Government Printing Office produced 750 copies for sale in its bookstores a year and a half ago, but they’ve been locked up ever since with a label: “Embargo: This Publication Cannot be Released.” Stored away are another 780 copies set aside for shipment to cooperating libraries.]
   17. In august the commerce department issued a Plan To Remove the Patent and Trademark Classified Paper Files From the Public Search Facilities.
   18. Karl Rove had closed-door meetings with Intel executives while he still held more than $100,000 of the company’s stock.
   19. TheWhite House had secret negotiations with the Salvation Army over its “faith-based” initiative.

   20. In the spring, the administration refused to comply with a General Accounting Office demand to turn over information about Vice President Dick Cheney’s energy task force.

IV. Restrictions to and loss of access to government information Post 9/11.

1. In October, attorney general John Ashcroft superseded the Clinton administration FOIA policy of releasing information unless it is “reasonably foreseeable that disclosure would be harmful,” with a new policy that defends nondisclosure of governmental information when there is a “sound legal basis” to do so.
2. In December it was reported that the CIA is attempting to impose new restrictions on release of foreign relations of the U.S. The report said that The CIA is refusing to release to the State Department four sets of documents that have been selected for publication until State historians agree to new CIA conditions governing publication of foreign policy documents. Historian Elizabeth Cobbs Hoffman, “observed that those [document] packages were, in effect, being held hostage.” Historian Elizabeth Cobbs Hoffman, “observed that those [document] packages were, in effect, being held hostage.”
3. The scrubbing of websites for “sensitive” information that was not classified according to established and agreed-upon procedures.
4. Withdrawal of the USGS CD-ROM, which is not classified and had been in public view for quite some time, and the dissension at the USGS about whether the item should have been destroyed or merely pulled from public view.
5. Closure of the Dept. of the Interior web site, which prevented citizens from accessing all kinds of government information unrelated to the court case shutting down the web site.
6. Executive Order 13233 on presidential papers, which “violates both the spirit and the letter” of the 1978 Presidential Records Act. (“The President’s Papers are the People’s Business,” by Steven Hensen. Washington Post Online, Sunday, December 16, 2001; Page B01)
7. Endorsement by some politicians of previously rejected legislation aimed at criminalizing leaks of classified information via a bill which “would permit the executive branch to both define the crime (by unilaterally deciding what is “classified”) and then to prosecute its violation.” (FAS Secrecy News, Jan. 8, 2002).
8. Pentagon refusal to produce an unclassified report on its Nuclear Posture Review (NPR) despite direction from the FY 2001 Defense Authorization Act to submit a report by December 2001 “in unclassified and classified forms as necessary.” (FAS Secrecy News, January 10, 2002)
9. The President’s Dec 28 signing of a statement that will dismiss a provision of the FY 2002 intelligence authorization bill requiring written reports to Congress of “significant anticipated intelligence activities” and “significant intelligence failures.” (FAS Secrecy News, Jan. 2, 2002. See: http://www.fas.org/irp/news/2001/12/wh122901.html).
10. The President’s recent statement rejecting Congressional direction that classified Special Access Programs “should not be initiated until 30 days after Congress is notified of their establishment.” (FAS Secrecy News, Jan. 11, 2002)
11. The routine classification of “status of forces agreements.” These agreements concern the U.S. military forces and bases in various countries. They document issues of decision-making, jurisdiction and authority held by individual countries in agreements with the U.S. As of Sept. 11the United States had formal agreements of this sort with Qatar and 92 other countries. During the Cold War, the agreements were usually public documents. Now classified are those with Kuwait, Oman, and the United Arab Emirates as well as certain supplements for Saudi Arabia.

V. Closing thoughts

1. After 9/11 the restrictions on and loss of public information have increased. One might say that ruthless terrorists are bringing out a ruthlessness in government officials. The terrorists attacks, while posting new challenges to national security, also present an opportunity for politicians to exercise more power, more control, more “cost savings,” more justification of bureacracy, and more influence, on information policy.
2. Jack M Balkin, professor of constitutional law at Yale Law School, said in the Los Angeles Times in November:
   

   Many see the central issue before us as how to balance civil liberties and national interests. This is wrong. The danger we face today is not that government officials will make hasty decisions out of fear or that they will strike the wrong balance between liberty and security. It is that they will use a national crisis as an opportunity to make themselves more powerful and less accountable for what they do-not because they are corrupt and venal but because they are so utterly convinced of their uprightness. (“Using Our Fears to Justify a Power Grab,” Jack M. Balkin, LA Times, November 29, 2001.)

3. Steve Hensen, President of the Society of American Archivists said, in speaking about EO 13233:
   

   This Executive Order potentially threatens to undermine one of the very foundations of our nation. Free and open access to information is the cornerstone to modern democratic societies around the world. For such access to be curtailed or abrogated by an executive process not subject to public or legislative review or scrutiny would violate the principles upon which our nation was founded — all the more troubling at a time when we should be holding the beacon of freedom higher than ever.

   And, writing in the Washington Post, he describes two basic ideas of democracy:

   “that the public has a right to know what its elected officials are doing, and that the records of government are in fact owned by the people.”

   Related

   This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.