AP review finds federal government has been tightening information loop for years

Sunshine Week

For release March 14, 2005

EDITOR'S NOTE -- The week of March 13 has been declared Sunshine Week by media organizations and other groups pressing for government access, contending information is being withheld more often by officials who cite post-Sept. 11 security concerns. This is the last part of a two-part series examining the use of the Freedom of Information Act by U.S. citizens, and the government's willingness to make its records available.

By MARTHA MENDOZA
AP National Writer

Since 1998, many federal departments have been reducing the amount of information they release to the public -- even as the government fields and answers more requests for information than ever, an Associated Press review has found.

The locations of stores and restaurants that have received recalled meat, the names of detainees held by the U.S. overseas and details about Vice President Dick Cheney's 2001 energy policy task force are all among the records that the government isn't sharing with the public.

The tightening began even before the Sept. 11 attacks, and now government defenders say the nation needs protection from its enemies in the war on terror. But open government advocates worry that U.S. citizens' freedom is eroding with every file they can't access.

"This is an immensely troubling clampdown," said Steve Aftergood, director of the Federation of American Scientists' Secrecy Project. "The law itself is unchanged, but it's being interpreted more broadly to withhold more information."

Under the 38-year-old Freedom of Information Act, the so-called "sunshine law," the federal government is supposed to share its records with the public, though it may withhold material for national security reasons or to protect the privacy of individuals or businesses.

iIn a review of about 130 annual FOIA reports submitted to the Justice Department by the 15 executive departments between 1998 and 2004, the AP found that:

-- Requests for public records have been on the rise and jumped by another 1 million after the Sept. 11 attacks, topping 3.2 million in 2003. More than half of this increase was due to an unusually large number of requests received by the Social Security Administration, where requests are ordinarily simple, personal and turned around on the same day they are received. The next largest category consisted of queries to the Veterans Administration about personal records.

-- The total number of requests being granted in full has increased from about 66 percent of all requests in 1998 to 88 percent in 2003. However, a closer look at those figures shows that almost all of the increase came from requests made to the Social Security and Veteran's administrations.

-- The percentage of requested information that is eventually released in full has been declining since 1998 at the Agriculture, Commerce, Defense, Education, Interior, State, Transportation and Treasury departments. The Justice Department began reducing the information it releases in full after the 2001 attacks.

-- At the CIA, just 12 percent of the FOIA requests processed were granted in total in 2004, down from 44 percent in 1998. The FBI gave people asking for records everything they asked for just 1 percent of the time in 2004, compared to 5 percent in 1998.

The AP's review started from 1998 because that's when all federal agencies and departments were required to standardize their annual reports about FOIA requests.

After the Sept. 11 attacks, the Bush administration set a higher threshold for disclosure, advising agencies to make sure the information they released would not jeopardize national security. But Charles Davis, executive director of the Freedom of Information Center at the University of Missouri-Columbia, has said that court decisions before 2001 indicated the momentum already was swinging toward closing off information.

Edward Whelan, president of the Washington-based Ethics and Public Policy Center and a former Justice Department legal adviser, said it was logical for government officials to reevaluate the information they release after the Sept. 11 attacks.

"In the aggregate, there's good reason that there would be an increased recognition on the government's part that information previously thought to be harmless is, in fact, sensitive," he said.

IIn addition to decreasing some types of information released under FOIA, the federal government is increasing the number of documents deemed secret and has pulled thousands of documents and databases off public Web sites.

The federal government -- not including the CIA -- created 14 million new classified documents in fiscal year 2003, a 60 percent increase over 2001, according to the Information Security Oversight Office. At the same time, the agency reports that it cut back on the number of documents that were declassified.

"The Bush administration's attitude is that public information is largely a dangerous thing in the wrong hands. Because there's some people who could use this information improperly, we shouldn't let anybody see it. I just think secrecy of that nature is almost always the exact wrong decision," said Harry Hammitt, who publishes Access Reports, a newsletter on Freedom of Information laws.

But officials involved in national security note that, in a post 9/11 world, disclosure of some material can put the public at risk.

States all have their own public records laws, and have closely followed the federal government's lead.

Since Sept. 11, 2001, at least 20 states have proposed new laws to control public records, according to the National Conference of State Legislatures. These changes mostly try to prevent terrorists from seeing evacuation, emergency and security plans. But in the process, limits are being placed on everything from birth and death records to architectural and engineering drawings of public buildings, said Davis, at the University of Missouri-Columbia.

A new state-by-state study of public records laws by the Better Government Association concluded that the array of legislation is so haphazard that it hampers "the citizenry's ability to examine even the most fundamental actions of government."

Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vermont, introduced a bill in February that would significantly reform federal FOIA laws, requiring agencies to give people seeking documents a tracking number that could be checked online. The bill also aims to reduce the kinds of excuses the government can give for refusing to release material.

The AP found several excuses are being used much more frequently by the security agencies than in past.

For example, the Justice Department has doubled the percentage of rejections because there are "no records" from 10 percent to 20 percent since 1998. At the FBI, a Justice Department agency, about 37 percent of all requests were refused in 1998 for that reason -- but that number bumped up to about 55 percent last year.

FBI officials say this reflects an increase in the percentage of requests they receive for reports they simply don't have, though FOIA does allow agencies in some cases involving criminal law, terrorism and foreign intelligence to say "no records" when they do exist. Some advocates, meanwhile, say that agencies aren't looking hard enough for records or are being disingenuous to the public. The FBI is being sued by a Salt Lake City attorney who claims that he was told no records existed in a case when they were, in fact, being held in the agency's files.

Another reason for rejecting a citizen's FOIA request -- that the documents are internal administrative records that are of no interest to the public or could make it easy to circumvent the agency -- also is on the rise at the State, Justice, Defense and Transportation departments and at the FBI and CIA.

Former Attorney General John Ashcroft had urged departments to consider using this exemption as a way to prevent release of in-house studies that showed weaknesses in various systems such as dams, nuclear power plants and pipelines.

The CIA used this exemption fewer than 10 times a year in 1998, 1999 and 2000. In 2004, the CIA used it 101 times.

Leahy, who is calling for a new FOIA ombudsman, said he's concerned that the law is being weakened.

"The Freedom of Information Act is an invigorating mechanism that helps keep our government more open and effective and closer to the American people," he said. "FOIA has had serious setbacks in recent years that endanger its effectiveness."
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Sunshine Week: http://www.sunshineweek.org/
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AP investigative researcher Randy Herschaft and news researcher Monika Mathur contributed to this report.