Secrecy as Policy

By Charles Lewis, The Center for Public Integrity. Posted January 30, 2004.

The following is an excerpt from the book, The Buying of the President 2004.

George W. Bush's presidency has been characterized by a zeal for secrecy, an unrelenting push to stem the free flow of information.

One particularly notable example has been the Administration's effort to undermine the Freedom of Information Act, the 1966 law that grants citizens access -- although with some exceptions -- to federal agency records. By statute, government FOIA officers may withhold records dealing with classified national security information, trade secrets, personnel or medical issues, and a handful of other matters -- decisions that in each case are left to an official's own discretion (although those denied the requested information may appeal). In October 1993, to better standardize the process and create more openness in government, Attorney General Janet Reno dispatched a memorandum revamping the way the Act would be administered; from now on, the memo directed, FOIA officers should "apply a presumption of disclosure." To drive home the point, Reno decreed that, in the event of FOIA-related litigation, the Justice Department would no longer defend an agency's withholding of information merely because there was a "substantial legal basis" for doing so. "Where an item of information might technically or arguably fall within an exemption," she added, "it ought not to be withheld from a FOIA requester unless it need be."

But eight years later, in the aftermath of the September 11th terrorist attacks, Reno's successor renounced that presumption of disclosure. In a memo to the heads of federal departments and agencies, Attorney General John Ashcroft decreed that a well-informed citizenry may be vital to government oversight, but not at the expense of undermining national security. "Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information," he wrote. And unlike Reno, whose policies engendered more government in the sunshine, Ashcroft promised legal cover for agencies coming down on the side of non-disclosure. "When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records," his memo added. In other words, Justice would bow out of litigation only if its participation might subsequently imperil the government's ability to withhold other information.

While 9/11 was the presumed catalyst for the revamped FOIA guidelines, the policy change was actually in keeping with Bush's historical aversion to the release of government papers. In 1997, for example, Bush successfully championed legislation that allowed the governor of Texas to designate an in-state university or alternate institution, in lieu of the Texas State Library and Archives, as the repository for his or her papers. And he later exploited the law by ordering that his own gubernatorial papers be deposited in the George Bush Presidential Library and Museum, at Texas A&M University, which is home to his father's executive records.

At the time, the shipment of Bush's documents received scant attention. But the relocation effort later generated consternation among reporters, historians, researchers, and others seeking access to the eighteen hundred boxes of not-yet-cataloged papers. The reason: because records at the presidential library are under the jurisdiction of the National Archives and Records Administration, which is a federal agency, there was confusion whether release of the younger Bush's papers was bound by the federal Freedom of Information Act or the Texas Public Information Act, which mandates a much speedier response time for requested records.

Bush's attorney denied that the move reflected a desire to restrict public access to the papers. And in an interview with the Center, Chris LaPlante, the state archivist, also dismissed the conspiratorial claims of open-government activists: He and his colleagues, he said, knew that the governor's papers were destined for an alternate repository, and they assumed that the Bush library staff were equipped to deal with the documents. But Bush's action nonetheless imposed weeks-long, even months-long delays on the release of documents. And it left consumer advocacy organizations such as Public Citizen grumbling that the departed Texas governor lacked the legal authority to give away state records or place them beyond the reach of the state's open-records law. In May 2002, following protracted legal wrangling, Texas Attorney General John Cornyn agreed. He ruled that the disputed papers were indeed state property, and therefore subject to the Texas open-records law.

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