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From the Winter 2003 issue of The News Media & The Law, page 5.
By Jennifer LaFleur
Even before the birth of the Department of Homeland Security Jan. 24, media and open government advocates tried to assess just how much information will come from this new concatenation of government agencies.
The department's leader, former Pennsylvania Gov. Tom Ridge, has behind him a mixed record on openness issues, making it difficult to forecast the future of freedom of information as the U.S. confronts terrorism on the homefront.
"I think we should always err on the side of the public's right to know, but I think there are times I don't think they need to know," Ridge told attendees at last year's American Society of Newspaper Editors convention.
"I think they're riding a wave of public approval -- giving them as many tools as necessary to fight terrorism," said Robert Richards, founding director of the Pennsylvania Center for the First Amendment.
"So much of what's been wrapped up into the USA PATRIOT Act and exemptions to FOIA certainly run counter to open government," said Richards, who worked with then-Gov. Ridge's administration in Pennsylvania to get a new open records law passed. "All of these things chip away at our ability to get information out of the government -- information that is important to check on government and for the public to make informed decisions."
Ridge's record of openness as governor of Pennsylvania, a position to which Ridge was elected twice and served from 1995 to 2001, is described by many as a "mixed bag."
Democratic state Sens. Gerald LaValle of Beaver County and Richard Kasunic of Fayette County claimed the governor violated the Pennsylvania Right-to-Know Law when he refused to reveal details of how and why the state paid Envirotest Inc. $145 million in 1995. The payment was made to end an old arrangement that called for Envirotest to build auto emissions testing stations in Pennsylvania and be the state's exclusive vehicle exhaust check franchisee.
In December 2000, Gov. Ridge signed into law an anti-SLAPP measure, which provides a remedy against lawsuits "brought primarily to chill the valid exercise by citizens of their constitutional right to freedom of speech and to petition the government for the redress of grievances." Under the statute, a person who successfully defends against a SLAPP lawsuit can be awarded reasonable attorneys fees and the costs of litigation.
In August 2001, Ridge's office denied a request by The (Wilkes Barre) Times- Leader to review lists of guests he entertained at the Governor's Residence, saying such information wasn't covered under the open records law.
But during that same year, Ridge's staff worked with organizations trying to improve the state's open records law, which at the time was considered to be one of the weakest in the country.
In response to a 1999 state public records audit conducted by 14 newspapers, Ridge told the Times-Leader that he was "astonished" by the survey's results. "I was quite surprised to see how difficult it was for journalists to get information I thought was clearly open," he said, adding that a broader public records law may be needed.
Those working to revise the law pushed for changes to access and in the definition of public records. The Ridge administration agreed to push for change in access, but not in the definition of public records. The governor acknowledged the need for reform in his 2001 budget address.
But Ridge headed to Washington before he could follow through with the improved records bill, which was signed in December 2002 by then-Gov. Mark Schweiker, Ridge's successor.
His move to Washington following the September 11 terrorist attacks was a return for Ridge, who served in the U.S. House of Representatives from 1983 to 1995.
Rumors circulated prior to the 2000 presidential election that he would return to the nation's capital even sooner. Many considered him a top contender to be George W. Bush's running mate. Some of the discussion, however, pointed to Ridge's record of not always going along with the administration.
In a July 2000 column about Ridge, the Pittsburg Post-Gazette's Dennis Roddy noted: "The left hates him for supporting school vouchers and abortion with restrictions. The right hates him for supporting labor and abortion with restrictions."
Roddy went on to point out an earlier piece in the National Review that "noted that Ridge is not only pro-choice, but that, while in Congress, he frequently split with Ronald Reagan. He opposed the MX missile, favored a nuclear freeze and led GOP opposition to the Star Wars missile defense."
Even in his own family, Ridge didn't follow the party line. His father, Thomas R. Ridge, was a devoted Democrat who switched parties temporarily to vote for his son in the 1982 congressional primary.
Ridge was born Aug. 26, 1945, in Munhall, Pa., and reared in a working-class family in Erie. He earned a scholarship to Harvard, graduating with honors in 1967. After his first year at The Dickinson School of Law in Carlisle, Pa., he was drafted into the U.S. Army, where he served as an infantry staff sergeant in Vietnam and received the Bronze Star for Valor.
After returning to Pennsylvania, he earned his law degree and was in private practice before becoming assistant district attorney in Erie County and later representing the area in Congress. Ridge ran George Bush's presidential campaign in Erie County in 1980.
Ridge's popularity in his home state provided support for his return to Washington.
In a November 2002 Philadelphia Inquirer column, Acel Moore called Ridge a "good choice" to head the department.
"His record as both governor and congressman indicate he is a moderate Republican, not an ideologue," Moore wrote.
Philadelphia Daily News political columnist John Baer agreed that Ridge is a good choice.
"I don't know who else who would fit the Bush requirements of total loyalty and total competence," Baer said. "Basically what I have written all along is that he seems to have been born under blessed stars. Everything he's done has seemed to work out for him. Even with doubts in the beginning, I kind of cautioned: 'just hold on.' He had a rocky start as governor and once he settled in, he really did pretty well. I suspect the same thing happened in Washington."
Baer recalled that Ridge was "pretty forthcoming" with information when he was governor.
As for his history of going against the administration when he was in Congress, Baer said that his current position is different.
"This is a different kind of role, not a political role," he said. "There hasn't been a lot of carping from the right about him."
And the governor who got tough on crime plans to get tough on terrorism, but perhaps at the expense of openness.
During the Senate Government Affairs Committee confirmation hearings for Ridge in January, Sen. Carl Levin (D-Mich.) confronted Ridge about potential restrictions to information under the new department: "The Freedom of Information Act language has got to be clarified. We are denying the public unclassified information in the current law which should not be denied to the public."
Levin later addressed the issue of new disclosure prohibitions in the Homeland Security Act that protect companies who voluntarily submit "critical infrastructure" information. The restrictions, Levin said, are "way too broad, both on the Freedom of Information Act side of it, and on the whistleblower side of it."
"There could be some very unintended consequences there, which could give protections for wrongdoing that threaten our health and environment which we should not be giving to wrongdoers," Levin said.
Ridge countered by clarifying the intent of the law: "It certainly wasn't the intent, I'm sure, of those who advocated the Freedom of Information Act exemption to give wrongdoers protection or to protect illegal activity. And I'll certainly work with you to clarify that language."
Days later, the Department of Homeland Security published interim Freedom of Information Act regulations before the normal comment period ended. Ridge said proposed rules would be "impracticable, unnecessary and contrary to the public interest."
Levin, along with Richard Durbin (D-Ill.), also broached the issue of protecting whistleblowers during Ridge's confirmation hearings.
"At this moment in time, do you believe that this new law exempts your agency or changes in any way the general law or rule as to whistleblowers in the federal government?" Durbin asked.
Ridge responded: "I do not, and more importantly, I think there's specific language in the statute that reminds the secretary and reminds everyone associated with the new department that there shall be no reprisals for legitimate whistleblower activity. So I think it's not only understood, but I think it's affirmatively reinforced by the language of the law."
But evidence already is brewing that this administration will not tolerate whistleblowers. Within weeks of opening day for the Department of Homeland Security, a federal court in Atlanta sentenced Jonathan Randel, a former analyst in the Atlanta office of the Drug Enforcement Administration, to one year in prison and three years supervised release for "selling" restricted federal information. Randel was convicted of providing "sensitive" DEA information about British financier Michael Ashcroft to the UK-based (London) Times.
In a separate instance, an effort to pinpoint the source of leaked information about conversations intercepted by the National Security Agency, the Federal Bureau of Investigation in August 2002 requested details of their press contacts from members of the Senate Intelligence Committee. FBI staff will not comment on the leaks because of an ongoing investigation.
Although many journalists who have covered Ridge in his past political positions say he will excel in his new position, media and open-government advocates are proceeding with caution. Some simply say: "The choice could have been much worse."