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CURRENTS: IN REVIEW
The
Threat to
Freedom of Information
BY
MARTIN E. HALSTUK
 Some
journalists and open-government advocates fear that Attorney General
John Ashcroft's new Justice Department policy on Freedom of Information
Act requests may usher in a new era of governmental secrecy under
the guise of protecting privacy. Changes in FOIA policy are typical
whenever a president from the other party is elected, but this
latest shift has been "more creepy than expected," says
Lucy Dalglish, executive director of the Reporters Committee for
Freedom of the Press. The mere mention of a name in a record now,
she says, can be used to deny an FOIA request on the ground that
it would violate someone's privacy.
Ashcroft's broad edict, issued in October in the wake of the terrorist
attacks, encourages government officials to find reasons to withhold
information, and signals that the Justice Department will back
them up. This is a significant departure from the general policy
of openness adopted by former Attorney General Janet Reno, who
advised officials to release records unless disclosure would result
in foreseeable harm. While Ashcroft frames the issue as one of
national security in a time of war, his memo also directs officials
to be mindful of "institutional, commercial, and personal
privacy interests" when considering FOIA requests. "These
steps are contrary to the spirit of the FOIA," says Patrick
Leahy, Democratic senator from Vermont and one of the staunchest
FOIA advocates on Capitol Hill. The Freedom of Information Act,
he says, "is intended to give Americans answers to questions
they believe are important, not just the information the government
wants them to believe."
Rose Ciotta, an investigative reporter at The Philadelphia Inquirer,
worries that federal agencies such as the FBI, the FDA, the FAA,
and the SEC will use the broad new language to keep secret the
kind of information that in the past has been available. "What
struck me is that privacy is already an exemption," says
Ciotta, whose specialty is analyzing government databases. "Emphasizing
it sends a heavy message to government officials to use privacy
interests more widely." Indeed, constricting the ambit of
disclosable records on the basis of protecting privacy has been
on the agenda of FOIA foes since the 1980s.
The 1966 law that established the FOIA -- which applies only to
executive branch agencies and cabinet-level departments -- allows
government officials to deny requests for information only if
they run afoul of nine broad exemptions. The most common regard
matters of national security, personal privacy, law enforcement,
trade secrets, and internal agency memos. The others cover personnel
information, reports from regulated financial institutions, information
exempted by other statutes, and oil and gas drilling information.
The act's privacy exemption, for example, was intended by Congress
to protect individuals from unwarranted intrusions, not to be
used as a justification by agencies to shield their activities
from public scrutiny. The danger is that "invasion of privacy"
can justify withholding just about anything. Rather than cast
a cloak of confidentiality over all government records that may
raise privacy issues, a better solution is for agencies to use
a balancing test that weighs -- case by case -- the social and
public benefits of disclosure against the individual value of
privacy.
Some past administrations have also defined privacy exemptions
broadly. Release of President Nixon's infamous "enemies list,"
for example, was blocked on privacy grounds. So were documents
pertaining to the U.S. promise to uphold human rights in Haiti,
and others related to the organized-crime ties of Daniel Flood,
a former Pennsylvania congressman who was convicted of conspiracy
to solicit campaign contributions from people seeking federal
government contracts. "The big question," says Anders
Gyllenhaal, executive editor of the Raleigh News & Observer
and FOI chairman of the American Society of Newspaper Editors,
"is that we can't tell what the government is going to do.
There is a new climate in the country since September 11."
Another concern with the Ashcroft policy is the signal it sends
to state governments, all of which have adopted open-records laws.
Jim Newcomb of the Chicago-based Better Government Association,
which just completed a study of the various state FOI laws, says,
"Everyone was already pretty unhappy with state FOI laws,
because they're shot full of loopholes. Now state officials can
hide behind Ashcroft's memo. When you leave discretion like that
to the government, that's when the funny stuff happens."
Daniel J. Metcalfe, co-director of the Justice Department's Office
of Information and Privacy since 1981, readily acknowledges the
heightened emphasis on personal privacy in Ashcroft's policy,
but plays down the fears of Dalglish, Newcomb, and others. "In
the context of the historical development of the FOIA, with the
succession of attorney general memoranda over the years,"
the Ashcroft memo, he says, "ought not be viewed as such
an alarming development."
The Inquirer's Ciotta, though, is far from sanguine. "The
news media must be especially vigilant," she says. "Journalists
need to pay particular attention and monitor any cases that are
out of bounds with accepted privacy issues."
Halstuk,
a former reporter and editor, teaches media law in the College of
Communications at Pennsylvania State University.
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