Following up on Daniel's post this week (Using FOIA in book writing), here is a rather comprehensive review of the state information access: FOIA and beyond. The article is from a symposium on "Harnessing The Power Of Information For The Next Generation Of Environmental Law."

• Information Access—Surveying the Current Legal Landscape of Federal Right-to-Know Laws, by David C. Vladeck, Texas Law Review Volume 86, Number 7, June 2008 (reprinted at redOrbit).

In practice ... this net of government-information statutes provides what is at best a piecemeal and not entirely satisfactory pathway to needed environmental information and is at worst the illusion of a right of access where none exists.

I recently finished the book:



Theoharis, A. G. (2004). The FBI and American democracy: a brief critical history. Lawrence, Kan: University Press of Kansas.



While I won't offer a full book review here, this is a well-documented, must-read book for anyone who still believes that needless governmental surveillance of innocent citizens unconnected to criminal activities is either non-existent, an aberration of the 1960s or a creation of the Bush Administration. This sort of clearly illegal activity has been documented as going on since the 1910s, through Presidents of both parties and up to the current day. The justifications have changed. But secrecy combined with a view of dissent as treason is a solid, bipartisan tradition. It's just more obvious now.



The reason I'm highlighting this book on FGI and not my personal blog is three-fold. First, Mr. Theoharis makes note of another book he wrote that should be valuable to people researching the FBI. It is called The FBI: A Comprehensive Reference Guide ed Athan Theoharis with Tony G. Poveda, Susan Rosenfield, and Richard Gid Powers (Phoenix: Oryx, 1999). An annotated bibliography on pages 385-396 of that book lists articles, congressional hearings, books and microfilmed collections. Second, on pages 176-178 of "FBI and American Democracy", Theoharis has provided brief biographies of all the directors of the FBI through the present.



Thirdly, in his "Note on Sources" Theoharis offers extensive notes on his use of the Freedom of Information Act to obtain materials for his history. Here is an excerpt that shows both the power and limitations of FOIA (p. 179-180):

First, researchers seeking FBI files must pay processing fees of ten cents per page. Given the volume of records created since the bureau's establishment in 1908, these costs effectively preclude any individual from being able to fund the acquisition of the millions of pages of relevant FBI records. Researching the history of the FBI requires a strategy of identifying the most important and representative files.



Second, while the FBI must release all records relating to a specific FOIA request, to make such records requests a researcher must know how FBI officials created and then maintained records. A requestor can identify the files of a named individual or organization but might not know the names of special code-named programs (COMPIC, COMRAP, ABSCAM). Furthermore all records pertaining to an identified individual or organization were not all filed and indexed under that individual's or organization's name. Some were maintained in the secret office files of senior FBI officials (and most of these office files have been destroyed). Others were maintained in other files, not all of which are cross-referenced in the FBI's index to its central file system. For example, the FBI's file on the House Committee on Un-American Activities (HUAC) does not contain all records relating to the FBI-HUAC relationship. Some are extant in the FBI's files on Alger Hiss, others in the code-named COMPIC file -- and conceivably still others are included in the FBI's files on Richard Nixon, Robert Stripling, or other unknown code-named programs. Furthermore, in my effort to understand the relationship between the FBI and the Justice Department, I requested all FBI files on named attorney's general, but the released files offer limited insights. Conceivably this relationship can be understood by researching the files on both proposed and rejected prosecutions of major cases or otherwise unidentifiable files in the FBI's 66 (Administrative Matters) classification.

Another challenge identified by Theoharis is the apparent capriciousness in releasing materials:

"Having filed multiple FOIA requests, I have been struck by the variances in processing of the same report included in different files -- having information withheld in one case but not in another."

It seems like it shouldn't be this difficult and expensive for citizens to learn about their government's activities. But at least we're able to chip away at government abuses with FOIA.

Anthony Clark, an independent researcher writing a book on the politics and history of presidential libraries, has written a provocative piece on access to National Archives and Records Administration (NARA) records about administration of Presidential Libraries:

• Why Is It So Hard to Get Documents from the National Archives About the National Archives?, By Anthony Clark, History News Network, July 21, 2008.

Clark claims that NARA is "improperly withholding its own records." He says that as part of NARA's job of overseeing the twelve presidential libraries, it has records that detail the development of the libraries through 1964, when NARA created the Office of Presidential Libraries (NL), but none of NL's records are available. NARA is calling these records "operational," which makes them available only through Freedom of Information Act (FOIA) requests.

Clark quotes Patrice McDermott, Director of OpenTheGovernment.org, as saying, "It is hard to understand how records that are old enough to have been destroyed if the records schedule had been followed can be considered 'operational.' Presidential libraries are an area of keen congressional and public interest and information about them held by NARA should be affirmatively disclosed to the greatest extent possible."

Clark's article has produced an extensive discussion and Comments, including the NARA Response by Gary M. Stern on July 24, 2008.

Kate at ArchivesNext has posted a thoughtful response after talking off the record to archives staff: Access to records of the National Archives, July 24th, 2008.

One of my favorite web sites is The Memory Hole, which exists "to preserve and spread material that is in danger of being lost, is hard to find, or is not widely known." It has been offline for a while, but is back with a new URL. This is a project of one person, the dedicated Russ Kick, winner of the Project on Government Oversight’s “Beyond the Headlines” Award 2005. Check out his first new post.

We have updated the FGI blogroll with the new addresses and items from the Memory Hole feed appear again in the FGI aggregator of feeds and in the category of Blogs from organizations of interest to FGI.

It isn't often you see a discussion FOIA, FBI, NARA, and Records Retention Plan and Disposition Schedules in the popular press. This article describes the frustrations of one researcher when he discovered that records had been destroyed by the FBI.

• The Department of Forgetting: How an obscure FBI rule is ensuring the destruction of irreplaceable historical records, By Alex Heard, Slate, June 24, 2008.

The system's fundamentals make sense, I guess--very complicated sense--but to me the disturbing part comes at the end of the line. At some point 25 years after a case closes, a file that isn't marked "permanent" gets pulled and looked at by one or two people inside the FBI. There are no "knowledgeable representatives of the NARA" monitoring this crucial moment. If it's decided internally that the file isn't important, it's gone.

Michael Ravnitzky, an FOIA researcher based in the Washington, D.C., area, is no fan of the Records Retention Plan and likens it to an open-ended manual for strip-mining a priceless public record. "The FBI got a list of exceptional files given to them by historians, and they said, 'We'll keep that,' " he says. "We'll keep large files. Smaller files, we'll keep a sampling. Everything else gets tossed. That's what the plan is." Based on documents Ivan Greenberg obtained from the FBI, he estimates that 250 million pages were destroyed between 1986 and 1995.

National Archives Reticent About Broadening Mission, by Dan Friedman, CongressDaily, Jun. 2, 2008. [subscription required].
Update: NOW AVAILABLE from NextGov WITHOUT SUBSCRIPTION: http://www.nextgov.com/nextgov/ng_20080602_6498.php

The National Archives (NARA) is being put in an awkward position. Viewed as nonpartisan and professional, it is being tasked by Congress with new enforcement duties. Late last year, a new law passed that set up an "Office of Government Information Services" within the NARA to help set federal Freedom of Information Act policy. Another bill that is expected to pass the House would give NARA a new role requiring NARA to monitor White House e-mail archiving. This would change NARA's role from that of passively receiving records to actively monitoring and enforcing rules. National Archives Inspector General Paul Brachfeld said that "NARA traditionally has not viewed itself as an enforcement entity but rather one that focuses upon collegiality and relationships."

From the article:

Chafing at Bush administration secrecy, congressional Democrats are handing the National Archives and Records Administration new jobs promoting government transparency. Officials at the records agency appear to be balking at taking on unfunded mandates beyond their traditional role. If Congress wants the Archives to become open-government cops, archivists may prefer to remain librarians. "They have always had a narrow view of their mandate and have never been particularly inclined to seek any expansion," said Patrice McDermott of OpentheGovernment.org, a coalition of groups urging government transparency. "They see their mission as providing access to historical records. They see [overseeing] contemporaneous records as a shift."

A tweet from John Wonderlich (from the fabulously cool Open House Project!) yesterday got me thinking. He posted about submitting his first Freedom of Information Act (FOIA) request. I'm not sure what the request entails, but my thought was that it'd be cool if there was somewhere on the net that folks who got documents via a FOIA request could submit copies of both the request and the documents.

Now maybe there already is, although I don't think the Memory Hole does this (hey Russ Kick, is MH defunct? I don't see any new content since Oct 2006!). My library is already gobbling up and preserving the FOIA reading rooms, but I don't have any sense about how many FOIA request documents make it into those agency sites. Does anyone have an answer to that?

So, if you've got any FOIA documents laying around your hard drive, send them over to FGI at admin AT freegovinfo DOT info. We'll post them on this site and on the Internet Archive's US Government Documents collection. We'll make sure they get on the 'net and get preserved for long-term access!

In an investigation on how the Bush administration uses retired military officers to promote its message on the Iraq war, the New York Times successfully sued the Defense Department to gain access to 8,000 pages of e-mail messages, transcripts and records describing years of private briefings, trips to Iraq and Guantanamo and an extensive Pentagon talking points operation.

The story based on these documents (Behind Military Analysts, the Pentagon's Hidden Hand By David Barstow, New York Times, April 20, 2008) is supplemented online by "Audio, video and documents that show how the military’s talking points were disseminated" (How the Pentagon Spread Its Message and a "Document Archive," which allows users to read and download documents and parts of documents. Of the 8000 pages, only a few are available online, but these include emails, a "Talking Points Memo," excerpts from a Transcript of meeting with Mr. Rumsfeld, and a Pentagon document that reports "Monitoring of Analysts."

Together, the audio-visual presentation and the documents are a small model for how newspapers could be using the power of the web to enhance their coverage and utility. I would certainly like to see all 8000 pages online!

The story itself is a fascinating glimpse behind the scenes of the daily news.

Internal Pentagon documents repeatedly refer to the military analysts as "message force multipliers" or "surrogates" who could be counted on to deliver administration "themes and messages" to millions of Americans "in the form of their own opinions."

...Analysts have been wooed in hundreds of private briefings with senior military leaders, including officials with significant influence over contracting and budget matters, records show. They have been taken on tours of Iraq and given access to classified intelligence. They have been briefed by officials from the White House, State Department and Justice Department, including Mr. Cheney, Alberto R. Gonzales and Stephen J. Hadley.

According to an article in today's Los Angeles Times, the Department of Health and Human Services and the Department of Justice have appealed a ruling from the U.S. District Court for the District of Columbia that would give consumers more access to Medicare healthcare data.

Specifically, the August 2007 ruling, based on a FOIA request and then a subsequent lawsuit by the advocacy group Consumers' Checkbook/Center for the Study of Services, would have allowed disclosure of a subset of Medicare billing records for four states (Illinois, Maryland, Virginia, and Washington) and the District of Columbia. The information requested would not have contained any patient identifying information, but could have potentially allowed consumers to get more understanding of the operations of Medicare and the Center for Medicare and Medicaid Services (CMS), as well as make decisions about physician expertise and efficiency, according to the Times. As the judge's decision put it, "The public interest at stake is the interest in obtaining information that would help the public make more informed Medicare decisions and the interest in more information of how government funds are spent."

However, the American Medical Association opposed the ruling, and has also petitioned to join the appeal. The HHS appeal is based on a 1979 federal court ruling that blocked release of Medicare physician reimbursement data. HHS states that it shares the goals of Consumers' Checkbook in providing a transparent health care marketplace for consumers, but says that the 1979 ruling conflicts with the 2007 ruling. Observers quoted in the Times article said that the HHS was under pressure from the AMA to keep the data from being released and that it wasn't just a matter of conflicting legal opinions.

The HHS news release announcing its decision to join the DOJ appeal against release of Medicare data is here.

Last summer's ruling on the release of the data is here.

A bill, the OPEN FOIA Act of 2008 (S.2746), was introduced in March by Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX). It would add an important provision to last year's OPEN Government Act (PUBLIC LAW 110-175--DEC. 31, 2007) and attempt to make it harder for Congress to slip into bills language that would preclude the release of information to the public under FOIA.

More about the bill here:

• S. 2746 at GovTrack.us
• S. 2746 at Thomas
• Congress Needs to Learn a Little Openness Itself, Project on Government Oversight (POGO), March 13, 2008. Excperpt: "The new bill requires that when Congress provides for any statutory exemption to FOIA, it must state its intention to do so clearly and explicitly. It seems unobjectionable, right? Nevertheless, last year the Administration did object, and offered so many changes that the language got watered down until it ultimately was dropped from the OPEN Government bill."
• Congress Is Pushed To Make More Information Public, by Michael Posner, CongressDaily, March 31, 2008 PM edition [subscription required]. Excerpt: "Often the congressional-written exemptions are tucked into fine print in the middle of complex bill language. An example cited by the Senate Judiciary Committee staff is an exemption in a consumer protection bill banning lead in toys that allows keeping some product information confidential if a foreign government requests it.

Senator Mary Landrieu wrote an article at poynter.org, "letting the sunshine in" to illuminate delayed FEMA response to FOIA requests in regards to Hurricanes Katrina and Rita. For example, Mark Schleifstein of the New Orleans Times-Picayune filed a FOIA request with FEMA regarding its disaster response operations and planning. After two years (and asking him twice if he was "still interested"), FEMA has yet to act.

But it's this part of the article that really hits a nerve:

"Baton Rouge Advocate reported this week that it had filed a FOIA request in 2006 seeking documentation on FEMA’s contracting procedures and the decisions behind deploying travel trailers across the Gulf Coast. FEMA says they will release the information -- for a fee. The going price for the truth is apparently $209,990, principally to defray copying costs. The agency said the documents are not available electronically and that the only hard copies are stored in its New Orleans field office. Meanwhile, on its Website, FEMA itself advises that, 'If you plan ahead and copy what you have onto compact disks, you can be secure in knowing that they will not be lost in the future.' "

I just don't know what to say after reading that...

The National Security Archive published Mixed Signals, Mixed Results: How President Bush's Executive Order on FOIA Failed to Deliver. The briefing claims that two years later, the FOI Executive Order still hasn't produced all that is promised. The FOI system did improve customer service at federal agencies, but has failed to make progress on backlogs and improved compliance with electronic FOIA requirements.

"Many of the same old scofflaw agencies are still shirking their responsibilities to the public," said Tom Blanton, director of the Archive. "I'm reminded of how many psychiatrists it takes to change a light bulb — only one, but the light bulb has to really want to change."

Monday, March 17: American University's Washington College of Law's Collaboration on Government Secrecy hosted its first Freedom of Information Day, featuring panels and speakers addressing new FOIA legislation, the state secrets privilege, and transparency. They also presented the first "Robert Vaughn FOIA Legend Award" to Thomas M. Susman, a government openness advocate and initial drafter of the 1974 FOIA Amendments.

Tuesday, March 18: Associated Press President and CEO Tom Curley discussed Freedom of Information and other open government issues during a Sunshine Week dinner event at The National Press Club. The speech looked ahead to priorities in the new administration, an update to Curley's 2004 Hays-Enterprise Lecture, which many view as a defining moment in moving forward efforts to preserve and protect access to information. The full text of Curley's speech can be found at the Sunshine Week website.

Wednesday, March 19: OpenTheGovernment.org, among others, sponsored the 3rd annual Sunshine Week National Dialogue on Open Government and Secrecy. This year's panel discussions focused on "Government Secrecy: Censoring Your Right to Know". The webcast is archived and will also be available soon at OpenTheGovernment.org and the event will be on a DVD available for purchase. They also compiled a list of legislation and resources about government secrecy and related issues.

The First Amendment Center posted the full-text of the 2008 National FOI Day Conference's keynote speech, "A New Balancing Test: How Excessive Classification Undermines National Security" by J. William Leonard, former chief of the Information Security Oversight Office.

Leonard quipped that his remarks on government secrecy would be his most candid, "a sort of ‘Leonard Unplugged’ if you will for those of you into the MTV scene". He discussed instances of excessive secrecy that produced serious consequences, including the decision to go to war in Iraq, stating, "Secrecy comes at a price - sometimes a deadly price - often through its impact upon the decision-making process".

He also proposed a new way for government officials to determine whether information needs to be classified in the interest of national security; what he calls the "New Balancing Test":

"We are long familiar with what many regard as the “traditional” balancing test of national security versus openness – of secrecy versus transparency. Instead, the balancing test of which I talk is more along the lines of national security versus national security; i.e. what will cause greater damage to national security, the disclosing or withholding of specific information".

The Sunshine Week blog announced that Senator Patrick Leahy and Senator John Cornyn introduced the OPEN FOIA Act, which would add new transparency and accountability standards when Congress considers adding new FOIA exemptions to the law.

According to Leahy's press release, "The exemptions to FOIA addressed in the OPEN FOIA Act, known as (b)(3) statutory exemptions, are typically buried in complex and lengthy legislative proposals, making it difficult for requestors to determine whether access to information is subject to FOIA. The OPEN FOIA Act would provide more transparency when Congress includes such exemptions in legislation".

This new act follows the passage of the Leahy-Cornyn OPEN Government Act, which the President signed into law in December 2007.