Andy Alexander, October 2004
Misadventures in the Land of FOIA
Let me begin tonight by sharing a story from my own Cox Newspapers Washington bureau.
Last year, someone gave us a database for the state of Georgia. It revealed a disturbing secret about illegal immigrants who had been convicted of serious crimes and sent to prison. After serving their time, they were supposed to be turned over to the Immigration and Naturalization Service and deported to their home country.
But the government database showed that in Georgia alone, many of felons - including child molesters, drug dealers and robbers - had simply been released back into the general public because the INS had dropped the ball.
As you might suspect, there was a public outcry. Readers were incensed at the bureaucratic bungling. Many expressed anger when we reported that federal immigration authorities had no idea where these convicted felons had gone.
After the story ran, we got to wondering whether this was a nationwide problem. So we filed a Freedom of Information Act request with the Justice Department, which maintains a national database with this information.
We were astounded when our FOIA request was refused. The reasons? The Justice Department gave two:
* First, it refused to release the database because it involved “matters of internal significance in which the public has no substantial interest.”
* Second, it said disclosure of the names of the convicted felons “would constitute a clearly unwarranted invasion of personal privacy.”
No public interest? I dare say that most people would like to know if a convicted child molester has been set free in their community instead of being deported.
And as for the “invasion of personal privacy?” How could we invade the privacy of someone who was convicted in a public trial?
Justice Department authorities don’t disagree that we could get the information we want if we were willing to send scores of reporters to courts throughout America and spend hundreds of hours sifting through court records. But even though they had all this information at their fingertips on a single database, they refused to make it available.
We’ve sued the government in federal court in Washington, where we’ve already spent thousands of dollars in legal fees for something that clearly should be in the public domain.
Frankly, it makes me frustrated and angry. And you should feel the same way.
This is just one small example of the epidemic of secrecy we face in the country. Today, more information is being withheld than ever before - and the pace of restricting information is growing at an alarming rate.
This isn’t simply a problem for the press. It’s a problem for the public. . .for you.
There’s a great quote from our fourth president, James Madison, author of the Federalist Papers and a moving force for our Constitution. He said:
“A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy - or perhaps both.”
Well, some of you are probably thinking, that was an awful long time ago. How could the Founding Fathers possibly have envisioned an age with television and the Internet and instant communications.
And in the aftermath of 9/11, do we really want all that information available to terrorists?
Well, let me be clear. Some information should be restricted in the name of national security. And some information - like personal medical records - should remain private.
But in our zeal to protect national security and personal privacy, our government is going too far. The current pace of classifying “public information” is absolutely staggering and completely out of control.
Consider this:
By one estimate, the federal government is classifying roughly 40,000 documents every single workday. That’s about 1.2 million documents a month. More than 14 million a year.
Over-classification has always been a problem. But the rate of classification by the Bush administration is roughly twice that of the Clinton administration. As it stands now, virtually any low-to-mid level bureaucrat can stamp something “secret” and suddenly it’s classified – sometimes forever.
Even the head of the government’s agency that monitors classification — something called the Information Security Oversight Office — says the situation is out of control. It’s so bad that there’s concern that so many documents are being made secret that the government doesn’t know where to store them, much less how to even keep track of where they are. And it’s costing the federal government literally billions of dollars to try to file them — .5 billion last year alone, a 14 percent increase over the previous year.
And that’s just at the federal level. Local and state governments are just as bad, shutting off access to all sorts of information that citizens want, and in some cases need, to know.
Let me give you some examples of the types of information that’s being kept from the public:
* If you dine out, you might like to have full access to the health inspection records of local restaurants. Yet some jurisdictions are restricting that information.
* You might want to know the names of convicted sex offenders in your community.
* The Federal Aviation Administration has restricted public access to its records on enforcement actions taken against airlines, pilots and mechanics — something you might want to know the next time you book a flight or hire a charter aircraft.
- The Environmental Protection Agency has restricted public access to its records on chemical accidents, making it hard for citizens to learn about chemical spills in their communities.
- Some states have enacted laws preventing the disclosure of driving records — something you might want to know when hiring a school bus driver or a pizza delivery driver.
- A new category of classification tucked away in the massive Homeland Security Act has created a classification called “critical infrastructure information.” It encourages companies to submit information to the government about their possible vulnerabilities to terrorism. In return, anything the companies report is kept secret from the public. As you might suspect, there are already suspicions that some companies are using this device to secretly confess to environmental violations, for example. If a chemical company spills a toxin into water, that information can be kept secret because they had already reported they had a faulty valve.
- I grew up in a small farm town in Ohio. And like most small towns, we’d have “prayer lists” in our Sunday church program so we’d know who to pray for if friends or neighbors were in the hospital. But now, many hospitals have stopped releasing that information. Instead of asking a patient if they’d like the information to remain private, they simply forbid the release of any basic information.
- Each year, the federal government spends about 0 billion of your tax dollars with contractors in the private sector. The government maintains a database that rates more than 300,000 companies on how they’ve performed on past government contracts. The theory was that anyone — including taxpayers — could consult this database to see how their tax dollars are being spent. But the government has restricted access so that only designated government officials can consult the database. Apparently the government does not trust its own people to have this information about how THEIR money is being spent.
- Ellen Smith, who publishes Mine Safety and Health News, wanted to write a short profile of a new Labor Department undersecretary. She was forced to file a Freedom of Information request for his biography — where he was born, where he went to school, awards he’s won. Her request was denied. The grounds? She was told it would invade his privacy.
- In some states, voter records are being sealed, making it impossible to know if a person has voted — not how they voted, but if they voted. That makes it impossible for watchdog groups to know if dead people have been voting — something I know would never, ever happen in the great state of Louisiana.
- And finally, my favorite. As Dave Barry would say, I’m not making this up. A citizen filed a FOIA request for press releases that had been issued by U.S. attorneys when they announced terrorism-related indictments. The government denied his request on grounds that it would be “an unwarranted invasion of personal privacy.” He was told that the government could “neither confirm nor deny that such records concerning living third parties exist. Further, any release to you of such records, if they exist, would be in violation of the Privacy Act.”
They’re press releases! Of course they exist!
So why is all this happening? Well, I think there are three reasons.
* First, 9/11. It changed everything, of course, and caused a panic in which governments at all levels began closing off public access of vast streams of information — often without more than a moment’s thought to whether it was justified.
* Second, even before 9/11, this particular presidential administration was already moving aggressively to keep the public from seeing executive branch documents. President Bush limited access to presidential papers, including those of his father. And after 9/11, the pace quickened. Attorney General John Ashcroft issued an executive order on Freedom of Information Act requests that turned long-established policy upside down. Previously, information was released to the public unless the government could make a compelling case that it should remain confidential. Ashcroft’s order reversed that. It said that information should remain secret unless citizens could make a compelling case that it should be public. The impact has been devastating. It’s essentially given a green light for government FOI officers to capriciously deny Freedom of information Act requests. And if a citizen wants to object, their only recourse is to go through a lengthy appeals process and, as a last resort, to go to the expense of suing their government.
* Third, we in the press have ourselves to blame for much of the problem. Our standing with the public is very low, and that makes it difficult for us to muster popular support when we seek information that’s in the public interest.
We do a very poor job of articulating why we need access to public information and why it benefits our readers or viewers.
It’s probably pretty clear to you by now that I view this as a dangerous trend that is, in my view, terrible for democracy.
But there are some things we can do.
First, those of us in the press can do what we’re really good at — making a stink. Our most crucial ally in this fight is the American public. When we inform ordinary people of what’s at stake for them — either through editorials or news stories when government officials invoke secrecy — then citizens sit up and take notice. And they start to squawk. And pretty soon public officials listen.
For those of you in the audience who are NOT members of the press, you can help in your own way — by supporting great institutions like the Manship School. Good institutions like this teach their students about core values of freedom and democracy.
They teach them that openness promotes accountability. .
Which breeds trust. . .
Which makes our country even stronger.
Thank you.
