Gainesville (Fla.) Sun: Shrouded in secrecy
The Gainesville Sun
www.GainesvilleSun.com
http://www.gainesvillesun.com/apps/pbcs.dll/article?AID=/20080316/NEWS/803160302/1082&template=printart
Mar 16, 2008
Shrouded in secrecy
By KIRSTEN B. MITCHELL
Sun Washington Bureau
Government information as wide-ranging as the names of people who grow watermelons or olives, tax returns, and the location of endangered plants and large caves is shielded from Americans under at least 140 provisions scattered throughout federal law.
Their use by federal departments to deny access to government information more than doubled between 1999 and 2006, according to data compiled from each department.
The provisions' oft-buried fine print carves out exemptions to the Freedom of Information Act, a 42-year-old law that presumes public access to information from government agencies and lays out nine categories of information that the government may keep secret.
One of those nine is a catch-all exemption that requires shielding government records that are specifically exempt from FOIA by federal law. Critics contend that the exemptions erode government transparency.
The exemptions "just have a tendency to chip away at the presumption that information is supposed to be public,'' said Meredith Fuchs, general counsel of the National Security Archive, an independent nongovernmental research institute at George Washington University in Washington.
Dozens more of the catch-all exemptions are being proposed in Congress, tucked into legislation that would do everything from bolstering the safety of the nation's food supply to buttressing security at wastewater treatment plants.
Often, the provisions are slipped into mammoth must-pass spending bills that few, if any, lawmakers read, much less debate. And it's common for the provisions not to even mention FOIA by name.
"It creates a temptation to adopt FOIA exemptions surreptitiously,'' said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists and a frequent FOIA user who encounters such exemptions "constantly.''
"In principle, I think there is a place for such exemptions and they can serve the public interest, but what is missing is an effective way to regulate their use. ... Congress has not created a mechanism for oversight,'' he said.
Fourteen federal departments used such exemptions 3,811 times to deny information under FOIA in the year ending Sept. 30, 1999, according to data federal agencies report yearly to the Department of Justice. By 2006, the last year for which complete figures are available, federal agencies cited such exemptions 10,844 times, the data show.
Even when removing the Department of Homeland Security's use of the exemptions 366 times in 2006 - the department did not exist in 1999 - the data still show a more than two-fold increase.
Congress had a chance last fall to change the system by requiring legislation proposing such an exemption to state its intent clearly and explicitly.
But the idea slipped from a FOIA reform bill during last-minute negotiating. President George W. Bush signed the bill into law late last year.
The bill's sponsors, Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, reintroduced the proposed fix last week.
"Neither Sen. Cornyn and I would quibble with the notion that some government information is appropriately kept from the public view,'' Leahy said in the Congressional Record. "But in recent years, we have witnessed an alarming number of special FOIA exemptions being offered in legislation - often in very ambiguous terms - to the detriment of the American people's right to know.''
When Congress passed FOIA in 1966, it recognized that the government could keep secret certain records dealing with national defense, trade secrets, law enforcement, and personnel and medical issues, among other topics.
To avoid contradicting existing laws shrouding information, Congress created the special exemptions that play "an important â€ňsafety valve' role,'' but "hold much potential for abuse,'' said Daniel J. Metcalfe, who retired last year as director of the Justice Department's Office of Information and Privacy, which oversees the government's FOIA use. He now directs the Collaboration on Government Secrecy, a nonpartisan project devoted to government openness, at American University in Washington.
The story of how a redundant exemption began as a narrow provision for the Department of Defense and exploded into a tool that 12 of 14 federal departments used last year to withhold information about government contract bids offers a glimpse into the world of government secrecy.
Although government contracts remain available under FOIA, proposals do not, even years after a bid is awarded. Twelve years ago, when Rep. Floyd Spence, R-S.C., introduced the Defense Authorization Act of 1997, there was no mention of FOIA or even its citation in U.S. law.
Three weeks later, the measure emerged from committee with a FOIA exemption for contractor proposals "in possession or control of the Department of Defense.''
Within seven days, the exemption swelled to cover contract proposals "in possession or control of an executive agency.''
Much of the information the provision sought to shroud was already exempt from FOIA under other exemptions, but it was easier for government agencies to cloak an entire bid proposal - even after a winning contract was chosen - rather than redact specific FOIA-exempt information, according to a House report on the bill.
The Senate ratcheted down the provision to apply only to the Department of Defense, and proposed a five-year sunset after which contractor proposals would be subject to FOIA. The idea lost out in negotiations.
Within three months of President Bill Clinton signing the bill into law, four federal departments and agencies used the exemption to deny FOIA requests, including the Department of Energy, which cited it five times, according to Department of Justice records.
The records of those requests and the agency's responses no longer exist, according to the Department of Energy. Bill sponsor Spence died in 2001.
The National Defense Authorization Act of 1997 was used in 2006 to shield information from a Wyoming investigator who sought to learn who bid on a propane furnace used to heat a Forest Service dormitory that caught fire. The law was cited in denying information on who had bid on contracts for wild horse capture in Oregon, and information on bidders in coordinated federal, state and local government shooting of native California carnivores.
At least two dozen bills contain proposed special exemptions to FOIA. No one has an exact count because they are difficult to track. Sometimes the proposals reference FOIA by citing "section 552 of title 5'' of the U.S. Code. Other times, the language is more ambiguous, deeming that information shall be confidential or shall not be disclosed to the public.
The current proposals include exempting from FOIA a congressional advisory commission on world trade disputes, the identities of people who report illegal immigration, and records related to railroad carrier plans to make the nation's rails safer.
An increasing number of such proposed exemptions seek to enhance safety by increasing secrecy, particularly since Sept. 11, 2001, said Fuchs.
"They tend to be the knee-jerk reaction that secrecy equals safety, and they are rarely thought through,'' she said.
One proposed exemption, originally sponsored by Rep. Steve King, R-Iowa, is buried in the Senate version of the farm bill, but not the House version.
It would exempt information submitted to the government by ranches and other businesses under a proposed mandated national livestock identification system to track animals from birth to slaughter.
"They are trying to exempt everything including a name or a phone number or a street address, so-called phone book information,' said Joe Davis of the Society of Environmental Journalists. "A lot of this stuff is already out there in the public in various forms.''
He noted that corporations don't have privacy rights the way people do.
But the National Cattlemen's Beef Association, which supports the proposed FOIA exemption, said the information should be veiled.
"At issue with cattle producers and ranchers who raise all kinds of livestock is that the information, especially sale information, age of animals and when animals might be ready for market is proprietary,'' said Karen Batra, director of public affairs for the association.
"That information could be used for purposes other than it was intended. My neighbor could use that information to see when I am going to market and he could take his animals to market before me and get better prices and have a competitive advantage.''
Even names and addresses should be exempt from FOIA, she said, because "there's an awful lot of anti-agriculture activists out there. You are fearful of people coming onto your property and sabotaging your operation.''
Similar privacy arguments convinced Congress several years ago to give the U.S. Department of Agriculture the power to keep secret the names and addresses of growers and handlers of watermelons and olives.
Not all FOIA-related provisions seek to shroud information.
Rep. Randy Kuhl, R-N.Y., and Sen. Charles E. Schumer, D-N.Y., want the Department of Energy to remove nuclear waste from the Western New York Nuclear Service Center in Ashford, N.Y.
Their bill specifically mentions FOIA and calls for documents related to the project's environmental impact statement be made "available to any member of the public at a public reading room at the Center, for inspection, upon reasonable notice, at reasonable hours and without payment of a fee or charge.''
Rep. Tim Holden, D-Pa., and Sen. Joseph Lieberman, I-Conn., want private prisons and other correctional facilities holding federal prisoners under federal contract to be subject to FOIA.
"The whole idea is to make private prisons as accountable to the public as public prisons,'' said Leslie Phillips, spokesman for the Senate Homeland Security Committee.
About 25,000 federal prisoners are jailed in private facilities at any given time.
Copyright © The Gainesville Sun
www.GainesvilleSun.com
http://www.gainesvillesun.com/apps/pbcs.dll/article?AID=/20080316/NEWS/803160302/1082&template=printart
Mar 16, 2008
Shrouded in secrecy
By KIRSTEN B. MITCHELL
Sun Washington Bureau
Government information as wide-ranging as the names of people who grow watermelons or olives, tax returns, and the location of endangered plants and large caves is shielded from Americans under at least 140 provisions scattered throughout federal law.
Their use by federal departments to deny access to government information more than doubled between 1999 and 2006, according to data compiled from each department.
The provisions' oft-buried fine print carves out exemptions to the Freedom of Information Act, a 42-year-old law that presumes public access to information from government agencies and lays out nine categories of information that the government may keep secret.
One of those nine is a catch-all exemption that requires shielding government records that are specifically exempt from FOIA by federal law. Critics contend that the exemptions erode government transparency.
The exemptions "just have a tendency to chip away at the presumption that information is supposed to be public,'' said Meredith Fuchs, general counsel of the National Security Archive, an independent nongovernmental research institute at George Washington University in Washington.
Dozens more of the catch-all exemptions are being proposed in Congress, tucked into legislation that would do everything from bolstering the safety of the nation's food supply to buttressing security at wastewater treatment plants.
Often, the provisions are slipped into mammoth must-pass spending bills that few, if any, lawmakers read, much less debate. And it's common for the provisions not to even mention FOIA by name.
"It creates a temptation to adopt FOIA exemptions surreptitiously,'' said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists and a frequent FOIA user who encounters such exemptions "constantly.''
"In principle, I think there is a place for such exemptions and they can serve the public interest, but what is missing is an effective way to regulate their use. ... Congress has not created a mechanism for oversight,'' he said.
Fourteen federal departments used such exemptions 3,811 times to deny information under FOIA in the year ending Sept. 30, 1999, according to data federal agencies report yearly to the Department of Justice. By 2006, the last year for which complete figures are available, federal agencies cited such exemptions 10,844 times, the data show.
Even when removing the Department of Homeland Security's use of the exemptions 366 times in 2006 - the department did not exist in 1999 - the data still show a more than two-fold increase.
Congress had a chance last fall to change the system by requiring legislation proposing such an exemption to state its intent clearly and explicitly.
But the idea slipped from a FOIA reform bill during last-minute negotiating. President George W. Bush signed the bill into law late last year.
The bill's sponsors, Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, reintroduced the proposed fix last week.
"Neither Sen. Cornyn and I would quibble with the notion that some government information is appropriately kept from the public view,'' Leahy said in the Congressional Record. "But in recent years, we have witnessed an alarming number of special FOIA exemptions being offered in legislation - often in very ambiguous terms - to the detriment of the American people's right to know.''
When Congress passed FOIA in 1966, it recognized that the government could keep secret certain records dealing with national defense, trade secrets, law enforcement, and personnel and medical issues, among other topics.
To avoid contradicting existing laws shrouding information, Congress created the special exemptions that play "an important â€ňsafety valve' role,'' but "hold much potential for abuse,'' said Daniel J. Metcalfe, who retired last year as director of the Justice Department's Office of Information and Privacy, which oversees the government's FOIA use. He now directs the Collaboration on Government Secrecy, a nonpartisan project devoted to government openness, at American University in Washington.
The story of how a redundant exemption began as a narrow provision for the Department of Defense and exploded into a tool that 12 of 14 federal departments used last year to withhold information about government contract bids offers a glimpse into the world of government secrecy.
Although government contracts remain available under FOIA, proposals do not, even years after a bid is awarded. Twelve years ago, when Rep. Floyd Spence, R-S.C., introduced the Defense Authorization Act of 1997, there was no mention of FOIA or even its citation in U.S. law.
Three weeks later, the measure emerged from committee with a FOIA exemption for contractor proposals "in possession or control of the Department of Defense.''
Within seven days, the exemption swelled to cover contract proposals "in possession or control of an executive agency.''
Much of the information the provision sought to shroud was already exempt from FOIA under other exemptions, but it was easier for government agencies to cloak an entire bid proposal - even after a winning contract was chosen - rather than redact specific FOIA-exempt information, according to a House report on the bill.
The Senate ratcheted down the provision to apply only to the Department of Defense, and proposed a five-year sunset after which contractor proposals would be subject to FOIA. The idea lost out in negotiations.
Within three months of President Bill Clinton signing the bill into law, four federal departments and agencies used the exemption to deny FOIA requests, including the Department of Energy, which cited it five times, according to Department of Justice records.
The records of those requests and the agency's responses no longer exist, according to the Department of Energy. Bill sponsor Spence died in 2001.
The National Defense Authorization Act of 1997 was used in 2006 to shield information from a Wyoming investigator who sought to learn who bid on a propane furnace used to heat a Forest Service dormitory that caught fire. The law was cited in denying information on who had bid on contracts for wild horse capture in Oregon, and information on bidders in coordinated federal, state and local government shooting of native California carnivores.
At least two dozen bills contain proposed special exemptions to FOIA. No one has an exact count because they are difficult to track. Sometimes the proposals reference FOIA by citing "section 552 of title 5'' of the U.S. Code. Other times, the language is more ambiguous, deeming that information shall be confidential or shall not be disclosed to the public.
The current proposals include exempting from FOIA a congressional advisory commission on world trade disputes, the identities of people who report illegal immigration, and records related to railroad carrier plans to make the nation's rails safer.
An increasing number of such proposed exemptions seek to enhance safety by increasing secrecy, particularly since Sept. 11, 2001, said Fuchs.
"They tend to be the knee-jerk reaction that secrecy equals safety, and they are rarely thought through,'' she said.
One proposed exemption, originally sponsored by Rep. Steve King, R-Iowa, is buried in the Senate version of the farm bill, but not the House version.
It would exempt information submitted to the government by ranches and other businesses under a proposed mandated national livestock identification system to track animals from birth to slaughter.
"They are trying to exempt everything including a name or a phone number or a street address, so-called phone book information,' said Joe Davis of the Society of Environmental Journalists. "A lot of this stuff is already out there in the public in various forms.''
He noted that corporations don't have privacy rights the way people do.
But the National Cattlemen's Beef Association, which supports the proposed FOIA exemption, said the information should be veiled.
"At issue with cattle producers and ranchers who raise all kinds of livestock is that the information, especially sale information, age of animals and when animals might be ready for market is proprietary,'' said Karen Batra, director of public affairs for the association.
"That information could be used for purposes other than it was intended. My neighbor could use that information to see when I am going to market and he could take his animals to market before me and get better prices and have a competitive advantage.''
Even names and addresses should be exempt from FOIA, she said, because "there's an awful lot of anti-agriculture activists out there. You are fearful of people coming onto your property and sabotaging your operation.''
Similar privacy arguments convinced Congress several years ago to give the U.S. Department of Agriculture the power to keep secret the names and addresses of growers and handlers of watermelons and olives.
Not all FOIA-related provisions seek to shroud information.
Rep. Randy Kuhl, R-N.Y., and Sen. Charles E. Schumer, D-N.Y., want the Department of Energy to remove nuclear waste from the Western New York Nuclear Service Center in Ashford, N.Y.
Their bill specifically mentions FOIA and calls for documents related to the project's environmental impact statement be made "available to any member of the public at a public reading room at the Center, for inspection, upon reasonable notice, at reasonable hours and without payment of a fee or charge.''
Rep. Tim Holden, D-Pa., and Sen. Joseph Lieberman, I-Conn., want private prisons and other correctional facilities holding federal prisoners under federal contract to be subject to FOIA.
"The whole idea is to make private prisons as accountable to the public as public prisons,'' said Leslie Phillips, spokesman for the Senate Homeland Security Committee.
About 25,000 federal prisoners are jailed in private facilities at any given time.
Copyright © The Gainesville Sun
