Assault on Openness
Western democracies are rebuilding official walls
by Ron Chepesiuk
Toward Freedom magazine, February / March 2002
Since Sept. 11, deep concerns have arisen about the threats
to civil liberties and basic rights posed by the US government's
anti-terrorist campaign. Among other things, Uncle Sam has profiled
the Muslim-American community, eavesdropped on conversations between
people held in detention and their lawyers, and required colleges
to provide certain records on foreign students.
Less publicized has been the federal government's bold move
to drastically restrict the right to know what officials are doing.
But this is also part of a trend involving several other Western
countries, not coincidentally some of US's closet allies in the
"war on terrorism."
On Oct. 12, 2001, US Attorney General John Ashcroft quietly
slipped a memo through the government bureaucracy-under the political
radar-strongly urging federal agencies to resist the public's
right to request and scrutinize public records. In effect, the
memo undermined one of the country's greatest democratic reform
measures: the 1974 Freedom of Information Act (FOIA).
Passed in the wake of Watergate and the abuses of the Nixon
administration, FOIA allows anyone to request records from the
US government (excluding Congress and the courts) by sending a
letter to the FOIA offices of the executive branches, departments,
and agencies. On its Website, the National Security Archive in
Washington, DC, describes FOIA's role: "It has promoted transparency
and accountability in government, preventing the creation of secret
law behind bureaucratic walls, and witnessing to Justice Brandeis'
phrase, that 'sunlight is the best disinfectant'."
Over the years, the National Security Archive has become the
world's largest nongovernmental library of declassified government
documents and the most prolific FOIA user, filing approximately
1000 requests each year. The five million pages of declassified
documents that the archive has obtained from the government since
19S5 cover practically every major event in the post-World War
II period and provide a rich resource of primary material for
scholars, journalists, and other researchers. Topics documented
include the Bay of Pigs, Cuban Missile Crisis, US relationship
with Manuel Noriega, apartheid and South Africa, human rights
violations in Central America, Iran-Contra scandal, and US policy
towards China, among others.
Through the years, thousands of journalists, lawyers, historians,
activists, and citizens from all walks of life have used the National
Security Archive collection or FOIA itself to scrutinize public
documents and keep the government on its toes.
But that's all changed now. Ashcroft's memo directs federal
agencies to be aware of "institutional, commercial and personal
privacy issues" when considering any freedom of information
request. His directive makes those who want a government by surreptitious
means the big winners, and those who want sunlight shed on government
activities the big losers. As Martin E. Halstuk, a media law professor
at Pennsylvania State University, pointed out in a Los Angeles
Times editorial, "This added emphasis on privacy to justify
withholding records creates a standard that fosters official secrecy
on matters unrelated to national security and law enforcement."
In the past decade, executive branch agencies have used privacy
concerns to justify rejecting freedom of information requests
on a number of issues of public interest.
The US isn't the only Western democracy that has been hard
at work undermining the public's right to know in the wake of
Sept. 11. The governments of Canada, Australia, and England all
have introduced legislative measures, that, if passed, will ensure
that elected officials and public servants can hide behind a wall
The Canadian governments proposed anti-terrorism legislation
would give the federal attorney the power to issue so called "certificates"
sealing federal files for at least 15 years -and possibly forever-for
"the purpose of protecting international relations, defense
and security." In defending the measure, Canadian Justice
Minister Anne McLellan argued that Canada's allies won't share
sensitive anti-terrorism intelligence without a strong guarantee
that the information won't be released under the country's access
Critics call the Canadian initiative "dangerous"
and "unnecessary." Wesley Park, a professor of international
relations at the University of Toronto and a specialist in intelligence
and security issues, told the Toronto Sun that the government
has "all the powers in the world they need to prevent disclosure
of national security material. I can tell you that people in the
intelligence community do not feel that there are loopholes to
be concerned about."
In England, the government has been moving to implement its
long awaited Freedom of Information Act. But last November the
Lord Chancellor announced that it may not happen until 2005. British
bureaucrats-the keepers of public records-claimed that if the
Act were implemented this year, as originally planned, their agencies
would be inundated with requests. English FOI advocates say this
is a huge setback for the public and sends a disastrous message
to officials: namely, that reforming the country's freedom of
information laws is unimportant.
Meanwhile, in Australia, legislation was introduced last October
that could ensure the public is kept in the dark about government
activities. If passed, it would lead to the imposition of a staggering
$20 per hour fee on individuals and organizations trying to use
FOI laws. The legislation is based on the Commonwealth FOI Act,
but that model has seriously damaged the public's right to know.
In fact, some people requesting information under the act have
been hit with fees as high as $80,000. That's what the Austrian
newspaper, the Herald Sun, had to spend to obtain details about
what Australian officials did when abroad on government business.
But the biggest attack on the right to know is taking place
in the US-and it's not just restricted to the FOIA. For instance,
following Sept. 11, federal agencies began removing information
from their Websites. In doing so, the government claimed that
information such as maps of the nation's transportation infrastructure
and data on the location and the operating standards of nuclear
power plants has become too sensitive for public scrutiny.
A strong case can be made that, at best, the government is
overreacting, and, at worst, using the "war on terrorism"
to throw a cloak of secrecy not only over its own actions but
those of its industry pals. One example: Last October, the US
Environmental Protection Agency said it would consider a request
by the chemical industry to halt public access to sensitive data
that describes the potential consequences of catastrophic plant
In a letter to the EPA, Fred Webber, president of the American
Chemical Council, an industry lobbying group, said that "in
light of recent events, we believe it would be prudent if the
agency reviewed the system by which this information is made available
to ensure that all that can be done to protect it from being misused
is, in fact, being done." While the EPA ponders, it has removed
from its Website the chemical plant risk management plan database
on hazards at 15,000 plants nationwide, and each company's prevention
and emergency response plan.
Such moves raise questions like, isn't the release of that
type of information in the public interest? And, wouldn't revealing
details on potential environmental hazards improve, not jeopardize,
public safety? Apparently, the answers are unimportant, given
the primacy of the "war on terrorism.'
The official attack on the public's right to know doesn't
stop there. Last Nov. 1, President George W. Bush issued an executive
order that will limit public access to presidential records and
undermine the Presidential Records Act, which was meant to shift
power over White House documents from former presidents to government
archivists and, ultimately, the public. As Tom Blanton, director
of the National Security Archive, put it: "The Bush order
attempts to overturn the law, take power back and let presidents
past and present delay public access indefinitely." Fortunately,
the National Security Archive, Public Interest, the American Historical
Association, and several other professional and watchdog groups
have filed a lawsuit to block the order.
Many such battles lie ahead, as the US and its allies use
the current war as an excuse to seal the door on open government.