Current Threats to Open Government/Freedom of Information

Many commentators have remarked that the Bush Administration is the most secretive administration in history. Especially since September 11th, the Executive Branch has withheld large amounts of information from the public.

Freedom of Information Act

One of the principal laws giving citizens a check against unnecessary government secrecy is the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Under FOIA, all federal agencies are generally required to disclose records requested in writing by any person. However, agencies may withhold information pursuant to nine exemptions and three exclusions contained in the statute.

Exemption #1

The FOIA exemption most relevant to counterterrorism policies is exemption #1. This exemption allows the government to keep secret information "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy." Although there is a right of judicial review to determine if the agency properly acted within the scope of this exception, courts have historically been deferential to the agency's determination of what national security information needs to be protected. For instance, in May 2003, a federal District Court judge held that the Department of Justice did not have to provide statistics regarding the use of USA PATRIOT Act information gathering techniques. ACLU v. US DOJ, 265 F.Supp.2d 20. The court remarked that "in the national security context, the reviewing court must give 'substantial weight' to [agency] affidavits" describing why the information is being kept secret. Thus, the standard of review is very low. Nevertheless, occasionally a court will rule that the agency overstepped its authority. In June 2004, a federal District Court judge held that the FBI and the TSA improperly withheld information that had been requested under FOIA regarding "no fly" lists that restrict airline travel by certain persons. The judge said that the agencies had made "frivolous claims" on why their information was exempt from disclosure.

Executive Order 13292

The Executive Order (EO) mentioned in FOIA exemption #1 is Executive Order 13292 on Classified National Security Information. With this EO of March 25, 2003, Bush amended President Clinton's EO on Classified Security Information, making some important changes. For resources on how the EO affects the availability of information to the public, see Public Citizen's analysis.

AG Ashcroft Memo of October 12, 2001

Additionally, on October 12, 2001, Attorney General John Ashcroft issued a memorandum to heads of federal agencies telling them that DOJ will defend their decision to withhold information requested under FOIA unless the decision "lacks sound legal basis or present[s] an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." The aim of the memo seemed to be to encourage agencies to increase the denial rate of FOIA requests, reversing Clinton administration policy that encouraged agencies to take a broad view of their obligations under FOIA. For information on the impact of the memo, see Public Citizen's analysis.

White House Memo of March 19, 2002

The Ashcroft memo was followed by a March 19, 2002 White House memo to all agency heads, reiterating the Administration's desire for agencies to keep more information secret. The memo encourages agencies to use other FOIA exemptions to find ways to withhold "sensitive but nonclassified" information that is not protected under exemption #1.

For more information on FOIA and the Privacy Act, see the Committee on Government Reform and Oversight's 2003 Report. It also includes sample FOIA and Privacy Act request letters and the full text of both Acts.