Assault on Openness

Western democracies are rebuilding official walls of secrecy

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 of secrecy.

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 laws.

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 accidents.

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.

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