Since Sept. 11, 2001, the media have had to contend with a new reluctance on the part of federal and state governments to release information. There have been many and continual rollbacks in disclosure. The names of terrorism-suspect detainees stateside and in captivity on foreign soil are considered secret. The predictions of water flow from a dam burst or a worst-case scenario for a manufacturing accident are now considered somehow useful to terrorists and no longer available to a public seeking environmental safety reforms. The change in attitude can be traced straight back to the top, as seen in the policy statement released by the Attorney General in October 2001 that has come to be known as "The Ashcroft Memorandum."

In late March 2003, the administration also amended the Clinton Executive Order on classification, allowing more classification than the existing memorandum anticipated. The memo reverted to an allowance of reclassification of documents that already had been made public.

The increasing push for secrecy is often curious. For instance, in July 2004, Forbes Magazine reported that the Department of Justice had denied an FOI Act request from a private party for copies of press releases issued by the agency concerning terrorism-related indictments. In January 2004, a Washington Post editorial decried the failure of the government to make Iraqi government records, seized during the invasion, available to Iraqi people or anyone else other than investigators seeking weapons of mass destruction. Secrecy News reported in October 2003 that Patent and Trademark Office secrecy orders imposed upon inventors (even those who are not funded by government) to keep secret their discoveries that might be "detrimental to the national security" were issued 75 times in 2003, more by half than the 18 to 44 totals for each of the previous four years. In November 2003, the Post reported that the new Transportation Safety Administration had not made public test results on the new pilot program to test whether public or private airport screeners are more effective.

The government's commitment to "secrecy-as-security" thwarts not only reporters but others as well. Sen. Susan Collins (R-Maine) wrote in a December 2003 opinion column in The Wall Street Journal about her own frustration at trying to check out allegations of citizenship and residency grants to suspected terrorists and being refused information by the FBI because disclosure could "gravely damage the nation's security."

Clearly the FOI Act is increasingly less effective. At an FOI oversight hearing in May 2005, Rep. Todd Platts (R-Pa.), chairman of the House Subcommittee on Government Management, Finance and Accountability, called for effective FOI policy that balances security with access, but the panel he convened cited big backlogs of requests and a lack of enforcement in agencies, which often ignore or delay response to requests.

The Ashcroft Memorandum

In his confirmation hearings and in interviews with reporters Attorney Gen. Alberto Gonzales agreed to take a new look at the "Ashcroft Memorandum," his predecessor's instruction to federal FOI officers and specialists that has greatly troubled FOI requesters over the last few years. Gonzales is from a state with a strong open records program and he has undoubtedly heard the many and strong criticisms of his predecessor's apparent disdain for disclosure. But no attorney general thus far has changed FOI guidance without a change in the presidency.

A month and a day after the events of Sept. 11, then-Attorney General John Ashcroft revoked what had been a seemingly permissive Clinton-era FOI Act instruction to federal agencies. He issued his own: a hard-nosed missive that promised agencies that if there were any "sound legal basis" for withholding information from FOI requesters, the Justice Department would support the withholding.

Only if a lawsuit might jeopardize the government's ability to withhold other information in the future would the department fail to come to the aid of agencies legally denying information, Ashcroft said. The standard regurgitated a policy first introduced in 1981 by then-Attorney General William French Smith, a Reagan appointee.

The instruction angered some members of Congress. Sen. Patrick Leahy (D-Vt.) in late February 2002 asked for a General Accounting Office audit of the effects of the memorandum, and the House Government Reform Committee edited its popular "Citizen's Guide" to FOI to specifically refute Ashcroft's instruction.

The new instruction canceled and replaced a pro-disclosure directive issued in 1993 by then-Attorney General Janet Reno, a Clinton appointee and the daughter of newspaper people, who openly endorsed disclosures of government information and appeared personally before a government-wide training session of FOI officers and specialists to tell them so.

The Reno memorandum had instructed agencies not to use discretionary exemptions to the federal act unless they could point to a "foreseeable harm" that would occur from disclosure. The Ashcroft directive made clear that is no longer the standard.

Dan Metcalfe, co-director of the Justice Department's Office of Information and Privacy, said the change in instructions from Reno to Ashcroft did not represent a "drastic" shift in the government's FOI policies as many have claimed. But it is "certainly a shift in tone," he said.

In fact, even throughout the Reno years, the government rarely regarded exemptions for privacy or business information as "discretionary" and agencies increasingly withheld information on named individuals as a matter of course, a trend not likely to be reversed.

But the automatic use of exemptions for internal records such as staff recommendations, drafts and comments on drafts was all but eliminated during the Reno years and now it is back. (Exemption 5).

Furthermore, when the Office of Information and Privacy called FOI staffs of agencies together to discuss the new memorandum on Oct. 18, 2001, in a closed session, it called up a 1989 opinion it issued that an exemption to protect records related "solely to the internal personnel rules and practices of an agency" should be used to protect information on "vulnerabilities."

Certainly that exemption would apply to protect computer security programs, but it could be used to keep secret other government-held information that might expose weakness to terrorists.(Exemption 2). And that notion has been increasingly controversial since Sept. 11. If weaknesses are withheld from terrorists, they are closed to the public as well. A strong FOI tradition suggests that the public is entitled to learn about the fallibility of its government -- where weakness exists, an informed public can clamor for change.

The 1989 legal memorandum suggests, "sensitive information in the wrong hands can do great harm."

But on the other hand, an uninformed public can do no good.

Also on the staff briefing agenda was discussion of the Electronic FOI Act of 1996, which encouraged agencies to post information on their Web sites.

Calling for a new study, Leahy, the Senate's strongest advocate of open government, wrote to the GAO, the investigative arm of Congress, that the new memorandum replaces a policy that "favored openness" and "encouraged a presumption of disclosure" with a policy that encourages denials even when "there is doubt whether an exemption applies" and there is "no foreseeable harm" from disclosure. Rep. Stephen Horn (R-Calif.) joined Leahy in his request for the GAO study.

The Ashcroft memorandum encourages agencies to disclose information protected under the act "only after full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated," Leahy wrote.

The senator asked the GAO to assess the impact of the new policy on agency responses to FOI requests, agency backlogs of requests, litigation involving federal agencies for withholding records and fee waivers for requests from news media.

The request concerning fee waivers for news media follows recent initial refusals by the Department of Justice to grant "representative of the news media" status to a researcher for American Lawyer Magazine and to a reporter for a newsletter for tax professionals.

In each of those cases, agencies granted journalists the fee benefits but only after asking them to respond to written questions and to reveal how they intended to use the requested material. In 1986, when the fee benefit for reporters was added to the FOI Act, Leahy said it should have a broad application.

The senator also asked the GAO to review agency policies under the Electronic FOI Act and to determine if agencies were accepting electronically filed FOI requests, particularly since the anthrax threat following Sept. 11 has compromised mail delivery. The act did not require agencies to accept electronic requests, but agencies could help fulfill their FOI responsibilities if they did, Leahy said.

GAO issued its report Aug. 30, 2002. Although it had interviewed representatives of the FOI requester community in Washington, D.C., it found the data it collected "largely anecdotal" and did not attempt to analyze them, other than to note that agency FOI officials and the requester community viewed the impacts of the events of Sept. 11 differently.

After reaching agreements with congressional staff, GAO limited the rest of its report to how agencies were progressing in meeting deadlines and putting information online and how the Justice Department was implementing GAO's recommendations in a study one year earlier.

Because of new and better reporting instructions, it was difficult to assess if agencies had improved their processing times for FOI requests. But GAO said that government-wide backlogs are substantial and growing, indicating that agencies are falling behind.

GAO found substantial progress in making required information available online but all information required by the Electronic FOI Act was not yet there, and when it was, it was not always easy to find. Agencies were also taking information down.

GAO found that the Justice Department had told other agencies how to make improvements under the Electronic FOI Act, but that numerous anomalies remain.

GAO did a second study at Leahy's request to evaluate the effects of the Ashcroft policies on FOI programs. The Reno memorandum had established an overall "presumption of disclosure" and promoted discretionary disclosures to achieve "maximum responsible disclosure." Had the Ashcroft's replacement policies to guarantee defense of an agency's withholding information for a "sound legal basis" changed the way the government responded to requesters?

In September 2003, GAO issued a report showing one-third of federal FOI officers said they were less likely since the Ashcroft memorandum to make discretionary disclosures of information and, of those, 75 percent cited the Ashcroft memorandum as persuasive in influencing the change.

On March 7, 2002, the House committee with FOI oversight edited its guidebook for FOI users to specifically reject the Ashcroft memorandum. Rep. Henry Waxman (D-Calif.), ranking minority member of the House Government Reform Committee, proposed the changes, and the committee's chairman, Rep. Dan Burton, (R-Ind.), approved them. The guide says, "Contrary to the instructions issued by the Department of Justice on Oct. 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a 'sound legal basis' for doing so."

The introduction to the 81-page publication admonished: "Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public."

The committee also added other language: "The history of the act reflects that it is a disclosure law. It presumes that requested records will be disclosed, and the agency must make its case for withholding in terms of the act's exemptions to the rule of disclosure.

"The application of the act's exemptions is generally permissive -- to be done if information in the requested records requires protection -- not mandatory. Thus, when determining whether a document or set of documents should be withheld under one of the FOIA exemptions, an agency should withhold those documents only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.

"Similarly, when a requestor asks for a set of documents, the agency should release all documents, not a subset or selection of those documents." (A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974)

The Card Memorandum

Reviving the contentious phrase "sensitive but unclassified information," White House Chief of Staff Andrew Card Jr. in late March 2002 ordered federal agencies to withhold information for national security reasons even when the FOI Act's exemption for national security does not apply.

He told federal agencies to reexamine how they safeguard information that could be exploited by terrorists and report the results of their efforts to the Office of Homeland Security within 90 days.

Card solicited advice from the government's chief FOI Act and classification authorities and included their guidance with his instructions. Those authorities also urged government officials to carefully consider the need to protect sensitive information from inappropriate disclosure.

The memorandum directs agencies to consider protection of information "on a case-by-case" basis and to evaluate sensitivity "together with the benefits that result from the open and efficient exchange of scientific, technical and like information."

The authors of this section, Richard Huff and Dan Metcalfe, co-directors of the Justice Department's Office of Information and Privacy, emphasize that FOI requests for this information should only be processed in accordance with Ashcroft's Oct. 12, 2001, memorandum "by giving full and careful consideration to all applicable FOIA exemptions."

They specifically suggest that Exemption 2 can be used to protect information about the "critical infrastructure" where disclosure of internal agency records might cause a risk that laws or regulations could be circumvented. They also suggest that information voluntarily provided to the government by the private sector might fall under Exemption 4, which protects certain business information.

Sections of Card's memo involving the classification of records appear to deal more narrowly with information involving weapons of mass destruction. The author of these provisions is Laura Kimberley, then acting director of the Information Security Oversight Office.

The instruction tells agencies to keep classified information that is already classified and that might "reveal information that would assist in the development or use of weapons of mass destruction" even if it is older than 10 years. The current classification order generally requires declassification of documents after 10 years but provides for extensions of up to 25 years when there is a need to keep information classified.

The memorandum also directs agencies to use loopholes in the classification order to protect such weapons information that is more than 25 years old.

It directs agencies to classify such information if it has never been classified, no matter how old it is, so long as it has not been disclosed to the public under proper authority. And it directs reclassification of sensitive information concerning nuclear or radiological weapons if, although it had been declassified, it had never been disclosed under proper authority.

The first exemption to the FOI Act protects records that are "properly classified" under an executive order. The order that is in effect was created in October 1995 in the hope that it would help alleviate problems of excessive classification. It requires that where there is any "significant doubt about the need to classify information, it should not be classified."

In late August 2002, officials at the Office of Management and Budget were contemplating new guidance for the anticipated Department of Homeland Security that would address "sensitive but unclassified" information.

The Department of Homeland Security in May 2004 issued its own directive for safeguarding "sensitive but unclassified" information that originated within the new department or was "received from other government and non-governmental activities," and it is discussed below.

The classification order amendment

In April 2005, the Inter-agency Security Oversight Office reported that the federal government in 2004 had a record 15.5 million classification actions, breaking the record set in 2003. The steady rise in classification has kept pace over time with the paperwork generated by the War on Terrorism. But there were changes in policy as well.

On March 25, 2003, the Bush administration amended the classification order that had been issued by President Clinton in 1995. The amendments made few but significant changes that will extend classification. The change eliminated a major feature of the Clinton memorandum, the provision that there would be no classification of records where there was "significant doubt" that disclosure could harm national security.

A key draftsman told public interest attorneys and others that the revisions represent a "change in tone." William Leonard, director of the Information Security Oversight Office (ISOO), told the group that the timing of the amendment was driven less by any wartime need to protect national security than by an approaching April deadline for releasing records slated for automatic declassification absent government action and the amendment extended that deadline through 2006.

But the Bush amendment does more. It calls for automatic classification of foreign government information where disclosure is not authorized, under a presumption that release would damage national security.

It gives the director of the Central Intelligence Agency new veto power over decisions by the Interagency Security Classification Appeals Panel (ISCAP), which hears appeals of agency refusals to declassify information. The CIA veto power is narrow and not necessarily final (provisions in the new order allow for presidential review of the veto) but it represents an additional check on ISCAP decisions that information should be disclosed.

It also allows reclassification of records that already have been disclosed or declassified when the head of the agency rules that it is necessary to do so and that the information can be reasonably recovered. The 1995 Clinton order, the first issued since 1982, responded to increasingly frequent complaints that vast overclassification of records was crippling the ability of outside researchers and even of federal agencies to understand national security matters. It limited the circumstances for classifying records, called for automatic declassification after 10 or 25 years absent compelling reasons, and set up the ISCAP review board which Leonard said in March 2003 had released at least 70 percent of the records it had reviewed.

Reclassification reappears

Federal agents from the CIA, Defense Department and Department of Energy in February 2005 searched the University of Washington's library archives to reclassify records once donated by the late Sen. Henry "Scoop" Jackson.

In 2005 the Department of Energy classified its intelligence budget -- and while it was at it, retroactively classified all its earlier intelligence budgets.

The classification of records already made public has been a contentious issue in the Sibel Edmonds case discussed below.

The text of the classification order is critical to the release of information on national security matters as the courts traditionally defer to agency decisions under the order on what will be secret and what will not. The first exemption to the federal FOI Act is for records "properly classified."

Classification and declassification activity

At a hearing in August 2004 before the House Committee on Government Reform's subcommittee on national security, ISOO director William Leonard warned that "In some quarters, when it comes to classification in times of national security challenges, when available resources are distracted elsewhere," the approach to classification can be to "err on the side of caution," and to delay declassification "when in doubt," saving questions for later. It is no secret, he said, that agencies classify too much information. Most troubling, he said, is that some agencies have no real idea about the increases and decreases in classification and the reasons behind them.

Leonard emphasized that security classification is permissive, not mandatory, and that decisions to classify information should occur only where allowed by standards set by the executive order on classification. The exercise of the classification prerogative has a ripple effect, he said, and can impede the sharing with other agencies or the public who have a need to know information.

The hearing followed findings by the National Commission on Terrorist Attacks Upon the United States, published July 22, 2004. Its executive summary concluded:

Secrecy stifles oversight, accountability, and information sharing. Unfortunately, all the current organizational incentives encourage overclassification. This balance should change; and as a start open information should be provided about the overall size of agency intelligence budgets.

There were concerns that part of the 9/11 Commission's own report may have been classified by the executive branch in an abundance of misplaced caution. But the classification of sections of other reports also raised concerns. Leonard called classification of portions of Maj. General Antonio Taguba's investigation of Abu Ghraib prisoner abuse a "bureaucratic impulse" to "almost reflexively reach out to the classification system."

In a Congressional Research Service report updated on Aug. 26, 2004, Harold Relyea cites the Taguba report example and others sparking controversy over competing needs for secrecy and openness in the classification of reports resulting from congressional investigations. He discusses legislation introduced by Sen. Ron Wyden (D-Ore.) and Rep. Robert Cramer (D-Ala.) to establish a three-member board to review and make recommendations on overhauling standards and processes used in classifying national security information.

Secrecy training for disclosure officers

Just to make sure that FOI Act officers and specialists know what they are expected to withhold under the administration's more crabbed interpretations of the FOI Act, the Department of Justice, which assumes leadership of the FOI Act function for the federal government, convened agency FOI Act officers and specialists shortly after the October 2001 Ashcroft memorandum, a meeting discussed above -- and then convened them again in June 2003 to discuss what else they should withhold.

Justice's Office of Information and Privacy co-directors, Huff and Metcalfe, along with a representative of the National Security Council, brought them together June 25, 2003, in a meeting that was not attended by anyone outside government. OIP issued a wrap-up of that session in early July on its Web site.

The conference leaders reviewed their earlier guidance that agencies should make broad use of Exemption 2 to protect information that might be useful to terrorists, the Card memorandum on safeguarding "sensitive but unclassified information," and the anticipated government-wide effects of the proposed rules under the Homeland Security Act. Those rules would make the confidentiality requirements Congress levied on business information on the critical infrastructure shared with Homeland Security applicable to business information shared among all agencies.

They discussed the additional requirements of the Homeland Security Act for agencies to develop procedures for identifying and safeguarding "sensitive but unclassified" homeland security information and predicted that a presidential delegation of authority will be issued soon for developing procedures -- expected to be produced for public review and comment -- for protecting sensitive but unclassified material.

The training included guidance on an amendment to the FOI Act passed by Congress in December 2002 in the Intelligence Authorization Act that for the first time cuts back on the act's requirement that "any person" be able to use the act by barring the response to foreign government requests made to intelligence agencies.

It also reviewed three 2003 decisions in which federal courts have allowed national security concerns to justify agency use of exemptions other than the FOI Act's Exemption 1, the exemption Congress devoted to the protection of national security concerns.

In Coastal Delivery Corp. v. U.S. Customs Service, decided March 17, 2003, the U.S. District Court in Los Angeles allowed the U.S. Customs Service to invoke Exemption 2 protecting internal documents to deny information on its inspections of seaport operations because "terrorists" could learn how often inspections occurred and send their containers to "vulnerable ports."

In Living Rivers, Inc., v. the U.S. Bureau of Reclamation, decided March 25, 2003, the U.S. District Court in Salt Lake City allowed law enforcement maps of flood areas below Hoover and Glen Canyon dams to be withheld because they might aid terrorists in carrying out an attack.

The conference leaders also discussed the deference appeals court judges afforded government claims of "national security" in deciding that release of detainee names could interfere with law enforcement investigation in Center for National Security Studies v. Department of Justice, discussed below.

Access to the detainees' names

Among the government's best kept secrets in its war on terrorism are the identities of the hundreds of people it has locked up (and in many cases the reasons for their detention). Names, numbers and reasons are not only secret in Iraq, Afghanistan and Guantanamo Bay, they are secret in the United States. And an appeals court decision that the U.S. Supreme Court refused to review keeps them so. The court says the names can be secret for "national security" reasons. The government says they can also be secret because disclosure of the fact of incarceration could be stigmatizing, intruding upon the detainees' personal privacy.

The privacy excuse has also been used to keep secret records about people who have challenged their detentions in court. People for the American Way in late August 2004 filed a lawsuit to find out under the FOI Act how often the Justice Department has asked judges to seal such records. The court pleadings say that the group will not push for the identity of the individual detainees. (Its FOI request was denied ostensibly for the purpose of protecting the detainees' privacy.) And the group said it is willing to accept editing for national security reasons.

A divided panel of the U.S. Court of Appeals in Washington, D.C., ruled in June 2003 that the government can withhold information about the more than 1,100 non-U.S. citizens detained in the United States at some point in connection with the Sept. 11 tragedy, finding that the law enforcement exemption to the FOI Act applies because "national security" investigations were underway. The U.S. Supreme Court refused to hear an appeal of that decision.

The plaintiffs in the case were led by the Center for National Security Studies (CNSS), a Washington, D.C.-based public interest organization and 27 other civil rights and public interest groups including The Reporters Committee for Freedom of the Press. They had filed an FOI request with the Justice Department and some of its components in October 2001.

Several news organizations had urged the high court to review the case.

The appeals court's decision opined that, because of these "national security" concerns, the court should take the Justice Department's word that disclosure might interfere with its investigations. The agency was in a better position than the court to know what should be withheld, Judge David Sentelle wrote.

Judge David Tatel, in a strong and lengthy dissent, accused the majority of "abdicating" the court's responsibility" to enforce the FOI Act as Congress intended.

The FOI Act does contain an exemption for information that is classified to protect national security, and the courts have traditionally given deference to the government's decisions to classify information, but the information sought in this case is not classified information and the government did not claim the exemption that protects classified information.

The lower court in August 2002 had ordered the names of detainees disclosed. U.S. District Court Judge Gladys Kessler in Washington, D.C., wrote, "Secret arrests are a concept odious to a democratic society." She stayed her order at the government's request, allowing it to appeal her ruling.

Kessler's ruling specifically denied information about the dates and location of the detainees' arrests, detentions and release. Those issues were being litigated in state and federal courts. A significant state appeals court decision in New Jersey condoned secrecy about the jailings under a new set of regulations issued by the Justice Department's Immigration and Naturalization Service. Those new rules prohibit state jailers from releasing information on federal prisoners housed there. Those rules trump requirements for disclosure in that state's open records law, the state appellate court ruled.

In the decision overturned by the appeals panel, Kessler rejected the government's claim that it must withhold names of most of the detainees for privacy or safety reasons. She balanced public and privacy interests. She acknowledged that some legitimate government concerns exist about the safety of individual detainees. But she ruled that, except where individuals themselves choose to "opt out" from disclosure for privacy or safety reasons, the names must be released.

There are broad public interests in disclosure, Kessler wrote. "The government's power to arrest and hold individuals is an extraordinary one," she said, noting that the groups who requested the names had "grave concerns" over the abuse of this power, ranging from denial of counsel and consular notification, to discriminatory and arbitrary detention, to the failure to file charges of mistreatment in custody for long periods of time.

The appeals panel did not address the privacy exemptions claimed by the government and refuted by the lower court.

Kessler had rejected entirely the government's claim that release of the names could interfere with its investigation, the basis of the appeals panel decision that would overrule her. She said the government failed to show that disclosure of the names could deter cooperation or enable terrorist groups to map its investigation or help terrorists create false and misleading evidence. (Center for National Security Studies v. Department of Justice)

Substantial numbers of unidentified prisoners spent many months in jail and most of their names have been secret since shortly after the events of Sept. 11.

Attorney General John Ashcroft had sworn early on that the Justice Department would not develop a detainee blacklist by releasing their names.

"It would be a violation of the privacy rights of individuals for me to create some kind of list," he said at a Nov. 26, 2001, press conference, adding that "the law properly prevents the department from creating a public blacklist of detainees that would violate their rights."

Such a list, he said, also would help Osama bin Laden.

Reporters at that press conference were hard-pressed to find how the law prevented disclosure to protect detainees' privacy, and still are. Although the Justice Department has faced widespread derision over its claim that it protects detainees' privacy, it has never recanted. There is no constitutional right of privacy guaranteeing that arrested or detained people are entitled to anonymity. In fact, civil rights groups question whether secret arrests and detainments jeopardize real constitutional rights such as free speech and a fair and open trial.

The Privacy Act is a long shot for providing any anonymity to these detainees. Under that 1974 act, the government may not disclose information retrieved from its files by name or personal identifier of citizens and lawfully admitted aliens. Most of the detainees have questionable immigration status.

Also, there are numerous exemptions to the Privacy Act, notably one requiring release of information subject to the FOI Act. The FOI Act itself embodies exemptions to protect personal privacy but they do not kick in if there is an overriding public interest served by disclosure.

At a hearing in late November 2001 before the Senate Judiciary Committee, then Assistant Attorney General Michael Chertoff said: "I need to be clear. I don't know that there is a specific law that bars disclosure of the names."

On the eve of the hearing, the Department of Justice disclosed some information, including names of 93 persons facing criminal charges. And, although it still refused to tell who they were, it made public charges against 548 other immigration detainees along with their country of origin. It said 104 individuals had been arrested on federal criminal violations and of that group 55 remained in custody, comprising part of a total 603 individuals still being held.

Those disclosures were not in response to CNSS's FOI request discussed above. The requesters still did not have information on 11 of the individuals held on federal criminal charges; they did not have names of the detainees or of their lawyers; and they had gotten from the Justice Department no information on where detainees were currently held.

The Justice Department disclosures had provided no information on persons held as material witnesses; no information on those detained on state or local charges; no information on the relevant dates; no information on courts where secrecy orders had been requested; no information on the secrecy orders themselves; and no policy directives other than an INS order regarding sealing of proceedings. It only provided partial information on people who had been detained and then released.

In early December 2001, the FOI requesters filed the lawsuit. They had received little information in response to their FOI request. Although the Justice Department had agreed to expedite its review of it, some Justice agencies had not responded at all.

The FBI expedited processing of its part of the request and denied records, saying their release would interfere with law enforcement proceedings. In response to an administrative appeal filed by the requesters, the department's Office of Information and Privacy added that records also were exempt for privacy reasons.

In late January 2002, the Justice Department released other information in response to the lawsuit, including a major list showing the status of detainees' cases but with most information blacked out, including the names of all the detainees except those criminally charged.

In court papers, the requesters have called the disclosures "incomplete and inaccurate" but note that the revealed information suggests that for many of the detainees, any link to terrorism has actually been rejected.

In its court papers, the Justice Department said the FOI Act did "not purport" to require disclosure that would "disrupt a federal terrorism task force investigation" with "important public safety implications."

Access to information on detainees

When a New Jersey trial court ordered authorities to release under the state's open records law information on federal detainees held under contract in two county jails, the federal government appealed. To bolster its case, and to make sure other states fell in line, it also adopted rules designed to prohibit states from giving out information on jailed detainees, even if state access laws require it.

The federal government's nationwide sweep of aliens who might in any way be connected to the events of Sept. 11 led to the lock-up of anyone thought to be a material witness and hundreds of other noncitizens on visa or other violations. It paid local jailers to house and keep them.

A substantial number were held in York, Pa. Substantial numbers were also sent to jails in New Jersey and New York. A St. Paul Pioneer Press reporter seeking data on detainees jailed there received a three-page list of blacked-out identities from the INS. But for the most part, citizens had and have no idea if persons connected with federal offenses were housed in their communities.

In late March 2002, a New Jersey trial court ordered the jailers in Hudson and Passaic counties to release the names of federal prisoners detained in their jails. The state's open records law required disclosure, it said. The federal government appealed.

And before the appeals panel ruled, the INS in April issued an interim rule (a rule that became effective on publication rather than after public comment) prohibiting states from releasing any information about federal prisoners held under contract in their jails. In a news release, it claimed that more than half of 19,000 INS detainees are held in state and local facilities while facing removal and immigration court proceedings.

A state appellate panel in New Jersey heard the appeal. It was not argued by the counties, whose records were sought, but by a representative of the U.S. Attorney's Office.

In mid-June 2002, the appeals court ruled that an INS regulation, as a federal regulation, would pre-empt a state law like the open records law. The new rules were appropriate, the appeals panel said. They were adopted quickly "for good cause." (ACLU v. Hudson County)

The appellate panel cited the federal government's claims that release could cause harm. For instance, detainees might not want their names released because the information might endanger their families. The Justice Department had also argued that the names would be useful to terrorist organizations.

The court did not address the communities' interest in knowing who was jailed there.

The INS issued final regulations on Jan. 29, 2003, requiring state and local jails that house detainees under federal government contracts to release no information about the individuals.

Before the INS regulations were issued and with no mention of terrorism, the government had already argued successfully before a federal court in Illinois that privacy interests would protect the identities of federal inmates held by contract in Illinois jails. A federal district judge in Springfield, Ill., ruled in February 2002 that a DeWitt County sheriff could not name any federal inmates housed in his jail to a reporter because disclosure would "stigmatize the individuals and cause irreparable damage to their reputations."

The sheriff released the names of state inmates serving time because the state's FOI Act required disclosure. But the federal government told him he could not release the names of federal inmates.

The reporter sued for the records in the local county court under the Illinois FOI Act, but the federal government intervened and forced the case into federal court.

The case did not turn entirely on privacy. Even if there were no privacy interest, the federal judge said, the names should be withheld for safety reasons because inmates have "gang ties, interest in escape and motive for violence against informants and rivals."

The (Bloomington, Ill.,) Pantagraph reporter who sought records from the sheriff did not know if detainees were among the federal inmates at the jail -- and still does not. She had hoped to report to the community what kinds of criminals were brought into it through the jail's rental program.

During the course of the litigation, a federal prisoner who once had claimed that God told him to kill doctors who perform abortions escaped from the DeWitt County jail by springing a lock with a comb and wriggling through a roof drain.

Pantagraph reporter Edith Brady-Lunny said that many of the federal inmates in the local jail eventually spend time in federal prisons. If the community is going to take risks to hold such inmates, it needs to know with whom they are dealing, she said. (Brady-Lunny v. Massey)

Access to records on overseas detainees

At a press briefing in December 2003, reporters asked Secretary of Defense Donald Rumsfeld how the Pentagon could square its release of unflattering photographs of the newly captured Saddam Hussein with its continued refusal to routinely release photographs of detainees or even to allow photos to be taken. The Geneva Convention, the Defense Department claims, does not allow photographs of prisoners as that would diminish their dignity.

"Oh come on, now," Rumsfeld told the reporters. The Red Cross, he said, was "crawling around down there," and there was no question about prisoner treatment. "They're being treated very, very well by fine young men and women who went to the high schools that you went to. And any implication to the contrary would be false."

But on January 16, 2004, the U.S. Command issued a one-paragraph press release stating: "An investigation has been initiated into reported incidents of detainee abuse at a Coalition Forces detention facility. The release of specific information concerning the incidents could hinder the investigation, which is in its early stages. The investigation will be conducted in a thorough and professional manner."

In a May 2004 New Yorker article, Seymour Hersh described torture of detainees at Abu Ghraib as outlined in a report by Major Gen. Antonio Taguba that had not been intended for release to the public. The article appeared shortly after publication and broadcast of prisoner abuse photos from Abu Ghraib.

The January press release had scooped the media in Rumsfeld's eyes, according to American Journalism Review writer Sherry Ricchiardi. She wrote that because of the paragraph-long press release, Rumsfeld noted "smugly" at a town-hall type meeting in May 2004 with Pentagon workers that "the military, not the media" had discovered and reported on the prisoner abuse at Abu Ghraib.

Also in May 2004, The Washington Post printed the names of 370 of the nearly 600 detainees held in Guantanamo Bay, Cuba, a list it put together from non-governmental sources. The government has refused to provide the names for privacy and national security reasons, just as it has refused to provide the names of detainees held in U.S. jails.

The pressure after Abu Ghraib disclosures

The American Civil Liberties Union, FOI litigant against several agencies for information on the treatment of detainees at Abu Ghraib and other foreign detention centers, was still in court on contentious disclosure issues in August 2005. But by then the ACLU requests had forced the release of hundreds of documents on how detainees were treated, on underlying debate among officials as to what constituted "torture," and on what was officially acceptable treatment under the Geneva Conventions.

Those records did not come to light quickly. In October 2003 the ACLU and other groups filed a FOI request for records on prisoner treatment of detainees held on foreign soil. There were no responses until after they filed a lawsuit in June 2004 and after the federal district court in Manhattan in August 2004 ordered agencies to begin responding to their requests.

On Aug. 14, 2004, the court ordered the Department of Defense to provide records by Aug. 23 or identify FOI Act exemptions that might apply. Judge Alvin K. Hellerstein chastised the government for not responding to the ACLU 10 months earlier -- before the public announcements of the abuses at Abu Ghraib. He said, "The information may be unpleasant, the information may be exempt or producible. To allow a process of this nature to go on so long as to be part of a lawsuit doesn't seem to be an exercise in good sense and judgment."

Over the next year the ACLU requests would produce an FBI memo describing detainees shackled in fetal position without food, water or bathroom breaks for 24 hours at a time; details conflicts between the Defense Department and the FBI on how detainees should be treated; Defense Intelligence Agency instructions to personnel to "keep quiet," avoiding descriptions of treatment; and descriptions of Pentagon officials engaged in torture posing as FBI agents. One FBI memo claimed, "You won't believe it." Another described the destruction of photos and videos of prisoner abuse after the disclosures of the Abu Ghraib pictures. The U.S. Navy released 10,000 files regarding detainee abuse -- with all names redacted.

But the government has not budged in its determination to withhold some of the torture pictures.

In early 2004 military policeman Joseph Darby had turned over pictures of detainee torture to the Army and some of those photographs were leaked to the news media. The ACLU wanted the rest and the government refused to provide them.

In June 2005 Hellerstein rejected the government's contention that privacy exemptions to the FOI Act allowed it to withhold the rest of the Darby photographs. Obscure the identities and release them, he said.

But in August 2005, the government filed new pleadings -- under seal -- claiming that the photographs were so incendiary they would lead to violence and rioting. Hellerstein ordered an unclassified summary of its arguments made public. The Reporters Committee and 13 other press groups filed an amicus brief saying that the public should not be shielded from disclosures of government activities simply because they are so horrible they could incite retaliatory conduct.

Under pressure to address public outcry over the abuses depicted at Abu Ghraib, the President had released a stack of selected memoranda addressing administration policy on the treatment of prisoners on June 22, 2004, and White House counsel spent time with reporters going over those documents.

When it first filed the FOI requests, the ACLU in a press release said, "The government's blanket assurances that it is not engaging in torture or illegal interrogations, while welcome, are not enough . . . ." It referred to a statement issued in January 2003 by President Bush that the United States "is committed to the world-wide elimination of torture and we are leading this fight by example." In light of news accounts of abuses of detainees, the ACLU's press release said, responses to the FOI query were important.

Other FOI actions for war information

The news media have devoted much attention to the detainee information uncovered by the ACLU in its lawsuit, but other lawsuits are also before the courts and other requests have provided explanations not otherwise available.

Reviewing another claim that release of prisoner's names would violate their privacy, Judge Jed Rakoff, also of the federal district court in Manhattan, told the government to ask detainees in Guantanamo whether they cared. The judge noted that the substantial majority of them for at least two years were not charged with war crimes, not told why they were detained, not permitted access to counsel, and held virtually incommunicado until the Supreme Court ruled that they were entitled to a hearing before military review tribunals.

In November 2004 The Associated Press requested the hearing transcripts, but the request was ignored until they filed a lawsuit in April 2005. At that time, the Defense Department produced the transcripts but with redactions mostly related to identities. The information was exempt, it said, because the stigma of incarceration is a privacy matter. Just ask them, the judge said.

The AP also successfully defended against an invasion of privacy claim by the wife of a Navy Seal. She sued in federal court in Los Angeles after the AP published photographs of pictures of detainee treatment she posted on the Internet. Her case was dismissed in July 2005.

And in July 2005 AP received records on detainee attacks on their guards and other provocative incidents. In May it published individual accounts by Guantanamo detainees that it also obtained through FOI requests.

The Defense Department's photos of military coffins returned to Dover, Del., were released in August 2005 in response to a lawsuit by Delaware journalism professor Ralph Begleiter. The Pentagon had objected to the release photos in response to an earlier request to the Air Force. However it began releasing its photos with the honor guards' faces blacked out to protect "privacy," and now is providing unredacted photographs.

Other FOI requests have unearthed war information. In June 2005 The Des Moines Register reported on a Justice Department memorandum expanding the definition of "terrorism."

In November 2004 The Deseret News reported on records showing police, firefighters and doctors are ill-prepared to respond to attacks against Army bases with weapons of mass destruction despite Army efforts to improve their preparedness after the Sept. 11, 2001, attacks.

In October 2005, The Salt Lake City Tribune reported on a database of 4,611 tort claims filed by Iraqi civilians against the United States and obtained through an FOI request.

In September 2004 the National Security Archive published Taliban-related cables obtained from the State Department through an FOI request.

Concealing the 'infrastructure'

On Nov. 19, 2002, the Senate defeated by 52 to 47 a last-ditch effort by Democrats to block passage of the Homeland Security Act, which Sen. Leahy called the "most severe weakening of the FOI Act in its 36-year history." The act's mandatory confidentiality for information businesses submit concerning their vulnerabilities, he said, is "a big business wish list gussied up in security garb."

The act criminalizes agency disclosures of critical infrastructure information without consent of the businesses who gave it to the department. Companies that voluntarily share information with the government not only gained the promise that the government will keep the information secret, they also gained immunity from civil liability if the information reveals wrongdoing and immunity from antitrust suits for sharing the information with the government and each other.

Legislative efforts to revise the CII mandates continued in the 109th Congress. Sen. John Cornyn (R-Texas) in March 2005 teamed with Leahy to propose major FOI Act reforms in their Open the Government Act, also introduced in the House (S.394 and H.R.867) Among the reforms, the measures call for the Comptroller General of the United States to gather agency data and report on effectiveness of the secret exchanges in the CII program. Leahy then reintroduced the "Restore FOIA" Act. (S. 622)

Leahy had first introduced that measure in March 2003. But it and its House companion languished in committees. The measures would delete criminal penalties for disclosures, protect whistleblowers and eliminate the prohibitions on use of the information in civil cases against the companies who submit the information. (S.609 and H.R. 2526)

Critics of the secrecy provisions in the Homeland Security Act pointed out that just a few months before its passage Congress had agreed not to renew efforts to criminalize leaks of classified information. The administration had advised that the measure was neither wise nor necessary to protect national security. Congress did not advocate routine penalties for release of classified information. It was strange, the critics said, that disclosure of industry information would trigger more blanket and punitive consequences than disclosure of national security information.

The Bush administration, several members of Congress and friends in industry for some time had been adamant about protecting industry-submitted information that they said might be exploited by terrorists.

They were taking a long look at what could happen to the nation's critical infrastructure and how to protect it long before Sept. 11. But when the country identified real terrorists, government concerns increased. The question of how to protect the transportation, energy, communications, health and other systems that are part of the infrastructure became one of how to protect the infrastructure from terrorists.

Access advocates fought the measure from the beginning. Knowing about vulnerabilities was a first step to seeing that something would be done about them.

After the House in July 2002 passed a homeland security measure with strong critical infrastructure protections, Leahy, Levin and Sen. Robert Bennett (R-Utah) worked on a substitute bill that would provide limited protections without decimating public access to infrastructure issues.

By August 2002, the fight for new protections of the information had centered on the President's push for a new Department of Homeland Security. FOI battles were now focused on the language in that legislation. When Congress took its August break, the House and Senate had very different measures up for consideration.

Industry representatives were vocally cold to the idea of sharing, claiming that their information could become public under the FOI Act. If they did not have better legal assurance of secrecy, they would not share. Even if they stood to benefit from better, more informed, protection of the information systems they depended on, they would not want the government to have that information without mandatory confidentiality written into the law.

Citizen activist groups and environmental groups insisted that the FOI Act already protected against any legitimate risk of harmful disclosure. They said that the government had used the existing exemptions regularly and well, and that the courts had given broad protection to industry information. In addition, a Reagan-era executive order already required agencies to let industry review FOI requests for much of its information before disclosing it. They contended that the dangers of ignorance of these vulnerabilities, ignorance that would prohibit demand that they be fixed, trumped more speculative danger of terrorist exploitation.

The House of Representatives passed the President's recommendations in the Homeland Security Act essentially as it was written by the administration. Not just critical infrastructure information submitted to the department, but any outside information, would be immune from FOI Act requests. Criminal sanctions would lie against anyone in government who revealed the information.

Rep. Jan Schakowsky (D-Ill.) tried to change the FOI Act provisions of the House measure, offering an amendment she said would prevent "the Department of Homeland Security from becoming the 'department of homeland secrecy.'" She said that she and the House Committee on Government Reform, on which she sits, repeatedly had asked proponents of the exclusion from the FOI Act "for even one single example of when a Federal agency has disclosed voluntarily submitted data against the express wishes of the industry that submitted that information."

"They could not name one case," she said. "Instead we are told that the FOIA rules just are not conducive to disclosure, that corporations are not comfortable releasing data needed to protect our country, even if we are at war."

Schakowsky's amendment lost in the House but it gained surprisingly substantial support.

The better language agreed upon by Leahy and Levin in late July 2002 was not to become law either.

Bennett and Sen. Jon Kyl (R-Ariz.) had introduced a measure in September 2001 to protect critical infrastructure information, but it encountered strong objections from groups outside industry, and Bennett's staff worked to change the measure in ways that might ensure protections without closing off too much information.

Bennett, Levin and Leahy worked together to hammer out an amendment to the Bush proposal in markup in the Government Affairs Committee. Levin and Bennett offered it on July 24, 2002, and Bennett vowed that he would stand by the compromise as the Senate considered the Homeland Security measure.

The amendment would have protected records submitted by the private sector to the Department of Homeland Security only if they pertained to vulnerabilities of the critical infrastructure. The administration bill covered any information about technologies and structures such as dams, roads, bridges or computer networks submitted to any federal agency.

The compromise would have limited the protection to information submitted "voluntarily" and not in the pursuit of a government benefit or grant. And it would not have criminalized disclosure.

Reps. Tom Davis (R-Va.) and Jim Moran (D-Va.) had pushed a critical infrastructure measure entitled the Cyber Security Information Act in the 106th Congress.

Numerous public interest groups, including The Reporters Committee for Freedom of the Press, wrote senators in December 2001 saying that, however lofty the goals of the original Bennett bill, it would have serious after-effects if enacted:

• It would bar the federal government from disclosing information on spills, fires, explosions and other accidents without obtaining written consent from the company that had the accident.

• It would give the manufacturing sector unprecedented immunity from the civil consequences of violating the nation's environmental, tax, fair trade, civil rights, labor, consumer protection and health and safety laws.

• It would sweep aside record-keeping and disclosure requirements under federal laws other than the Securities Exchange Act.

Critical Infrastructure rules at Homeland Security

The Department of Homeland Security was charged in 2004 with writing regulations that would allow confidential exchanges of critical infrastructure information between the new agency and private, primarily commercial, entities in the hope that the sharing would somehow help to alert the government to vulnerabilities that could be exploited by terrorists, and allow it to share the information with others of its choosing.

The effort to write regulations was highly controversial, as had been the earlier push to pass legislation enabling and encouraging the secretive exchanges. Exemption 3 to the Freedom of Information Act allows agencies to withhold information made confidential by other laws. The Homeland Security Act's Sec. 214 provided for confidential treatment of critical infrastructure information at the department, but viewpoints differed wildly as to what could or should be protected by that section. Government officials and private corporations maintained that information private companies gave the government voluntarily in describing their weaknesses should be withheld from the public -- should not be allowed to harm their reputations or subject them to liability. If the information was going to become public, they just would not participate, many of them had told the new agency. But news media and public interest groups argued instead that the public needs to understand those vulnerabilities in order to protect itself. More eyes on the problems, more oversight, could only lead to better solutions to those weaknesses.

On Feb. 20, 2004, the department published interim critical infrastructure information rules. The rules would only protect information submitted to DHS, at least for now. However, commentary accompanying the regulations suggested that the department was looking hard for ways to protect information submitted by these businesses to other federal agencies as well. DHS sought a second round of public comments before final regulations would be written. In late August 2004, the interim regulations were still in effect and final regulations had not been published.

The Justice Department's Office of Information and Privacy posted a notice of the DHS regulations, noting the comment that DHS "anticipates the development of appropriate mechanisms to allow for indirect submissions in the final rule." As a heads-up to FOI officers throughout the government, OIP warned that "there remains the stated prospect of [CII protection] being expanded to operate beyond DHS on an 'indirect' basis at some point in the future."

That "stated prospect" had figured prominently in the DHS proposed regulations that had appeared in April 2003. The department had planned to go farther than the act in doling out protections for critical infrastructure information submitted by businesses. The proposals would have extended the critical infrastructure information protections to all federal agencies even though the law itself covers only information submitted to the DHS. They would have required other federal agencies that receive critical infrastructure information to pass it on to the department and have it returned and this supposedly would have made it subject to the protections of the law.

Those proposed rules belied promises made by Director of Homeland Security Tom Ridge at his confirmation hearings in January 2003. Ridge heard Sen. Levin of the Committee on Governmental Affairs outline the problems with the new law making unclassified information received by the department not subject to the FOI Act.

"You could get information that, for instance, a company is leaking material into a river that you could not turn over to the EPA. If that company was the source of the information, you could not even turn it over to another agency," Levin said. A member of Congress who found out the information from oversight "would be stymied from acting on it, making it public."

Calling the FOI provisions in the act "much too broad," Levin told Ridge he needed to "look at the language."

Ridge said, "It certainly wasn't the intent . . . to give wrongdoers protection or to protect illegal activity. And I'll certainly work with you to clarify that language."

Ridge had always intended, however, for the department to protect information about vulnerabilities in the critical infrastructure. He testified on June 26, 2002, on an earlier homeland security bill, that the secrecy provision the administration sought had "the design and intent" to be "a limited exception, information volunteered to help us with our vulnerability assessment." But he emphasized to the House Judiciary Committee that the office did not want to give terrorists a road map. It may be "good competitive information," he said, but if it's subject to the FOI Act not only terrorists but others in the marketplace can get it. He did not discuss the FOI Act's existing exemption that protects competitive business information.

The President's orders on CII

President Bush in October 2001 issued an executive order on critical infrastructure protection, setting up a board to provide continuous efforts to protect information systems for telecommunications, energy, financial services, manufacturing, water, transportation, health care and emergency services and the physical assets that support those services and gave it classification authority. The order also set up an advisory council to bring private entities into the planning process.

The order interpreted the critical infrastructure legislation in anticipation of its passage. It parses out responsibilities for carrying out that law. It directs the board to set up various committees, including one to address records access and information policy.

The president did not directly address confidential treatment of information in that order.

Two months before the regulations on critical infrastructure information were published in the Federal Register, the President on Dec. 17, 2003, issued another order. This directive, addressed to all federal agencies, targeted their handling of "voluntarily submitted information." With no mention of the FOI Act, the presidential directive told all agencies that they must abide by the Homeland Security Act's prohibition against disclosures of "voluntarily submitted information and information that would facilitate terrorist targeting of critical infrastructure and key resources." The act stipulates that the CII protections are for information delivered to the Department of Homeland Security.

Homeland Security and the FOI Act

The new department was quick to issue interim FOI regulations. They were effective on Jan. 27, 2003, deferring largely to personnel and policies already in place at various agencies, which moved to the department. Several media groups, including the Reporters Committee, commented that the new department should expand the circumstances for granting expedited review to news requesters to match the criteria at the Justice Department, from which several agencies had transferred. Final FOI regulations had not been issued by late August 2004.

The Office of Homeland Security, which existed for nearly a year in the White House before the department came into being, had been the subject of a FOI lawsuit by the Electronic Privacy Information Center. The agency claimed that, until it became a department, it had existed solely to advise the President and so did not have to respond to any FOI requests. But Judge Colleen Kollar-Kotelly ruled in December 2002 that the Electronic Privacy Information Center could take discovery from the office on that claim. After that ruling, EPIC voluntarily dropped its lawsuit.

'Sensitive but unclassified' records: The new protections

Congress passed the Homeland Security Information Sharing Act as part of the Homeland Security Act requiring the federal government to both safeguard and share "sensitive homeland security information" (SHSI) with officials and others who might also be working against terrorism. How the Department of Homeland Security might implement that act greatly concerns journalists and public interest groups. In August 2004, the department's rules on handling SHSI had not yet been published.

Over the summer of 2003, government officials were considering rules to implement the act, which would protect what OMB Watch, a Washington-D.C.-based public interest group that monitors information resources at agencies, called "a vaguely defined set of information between firefighters, police officers, public health researchers and federal, state and local governments."

Seventy-five public interest groups, including news media groups, sent a letter to Secretary Tom Ridge on Aug. 27, 2003, to urge that any rules be published as proposed and that public comment be considered before they take effect. The groups voiced concern that a series of nondisclosure agreements between the federal agencies and other entities could keep community residents, parents, journalists and others from obtaining information they need to make their communities safer, inform the public and serve other purposes. In January 2005 the department eliminated the nondisclosure agreements, opting instead for an "education program" for employees.

Even though policy was not set for handling SHSI, the notion had caught on.

Protections of "Sensitive Security Information," a concept that had long been in place in aviation law, were being expanded in the merging of agencies and their transfer to DHS, and state and federal officials were already withholding information as "sensitive homeland security information." The Air Transportation Security Act of 1974 (modified in 1990) empowered the Federal Aviation Administrator to withhold information relating to civil aviation security. That withholding authority was expanded to the Under Secretary of Transportation for Security who could decide to withhold the information upon finding that it was an unwarranted invasion of personal privacy, revealed a trade secret or privileged or confidential commercial or financial information or would be detrimental to the security of transportation. The FAA regulations were incorporated into Transportation Security Administration regulations and authority for them traveled to the Department of Homeland Security when TSA became a part of that agency. SSI would now apply to transportation, not just aviation. And the Coast Guard incorporated SSI regulations into its directives for responding to maritime threats.

As the Congressional Research Service noted in an issues and options paper, SSI is "born protected" unlike classified information, which requires government officials to determine that it contains national security, intelligence or foreign relations information that qualifies it to be withheld from the public. Unlike the mandate for classification, the SSI rules do not require justifications for protecting transportation security information, they do not distinguish among classes of information (such as top secret, secret or confidential), and they do not set time limits for declassification and release.

Because the mandate for protecting SSI is statutory, SSI enjoys great protection under the exemption to the FOI Act for information that is protected by other statutes.

But SSI confidentiality would not be absolute. In June 2004, Judge Charles Breyer of the U.S. District Court in San Francisco ruled that the Transportation Security Administration had improperly categorized "innocuous" information as "sensitive security information" in a case by two women contesting their placement on federal "no fly" lists who had been unable to obtain records about how their names had gotten there. (Gordon v. FBI)

On May 11, 2004, DHS issued a management directive on safeguarding sensitive but unclassified information, which it said would be stamped "For Official Use Only" or "FOUO." The memo spelled out that various information is deserving of safeguarding because it is protected by statute or regulation -- such as Tax Return Information, Privacy Act Information, Sensitive Security Information, Critical Infrastructure Information, Grand Jury Information. Information is designated as sensitive to control and restricted access if its release could cause harm to a person's privacy or welfare, adversely impact economic or industrial institutions, or compromise programs or operations essential to the safeguarding of our national interests. The memorandum lays out procedures for giving FOUO information only to people who have a "need to know."

A critical part of the memorandum however emphasizes that FOUO information is not necessarily withheld under the exemptions to the FOI Act. The FOUO designation has to do only with safeguarding information and not with granting or denying it when the agency has received an FOI request for it.

The Federal Energy Regulatory Commission published rules for safeguarding critical energy infrastructure information as final in February 2003, ignoring comments by the Reporters Committee and the Society of Environmental Journalists that existing FOI exemptions, particularly as currently interpreted, are adequate to protect information submitted by businesses. The media groups had also pointed out that the agency's removal of the authority for protecting that information from the FOI offices would inhibit the public's ability to get needed information on vulnerabilities. FERC's Web site in August 2004 made clear that where the FOI Act makes disclosure mandatory, information will be released in response to FOI requests -- but access professionals are not involved in those decisions and CEII was not on the Web for public review.

The proliferation of new categories of information that are not really classified but signal some other need for secrecy troubled Rep. Christopher Shays (R-Conn.) who called an oversight hearing in March 2005 of his subcommittee on National Security, Emerging Threats and International Relations.

"Homeland": The new confidentiality catchword

The City of Chicago's 1998 FOI request for government database records associated with gun sales and ownership records was set to go before the U.S. Supreme Court in early 2003. Lower courts had said that the Bureau of Alcohol, Tobacco, Firearms and Explosives, then located in the Department of the Treasury, would have to disclose its gun sales database as the city requested, but the government had appealed. (Department of Treasury v. City of Chicago.)

Apparently acting on behalf of his constituents and campaign contributors in the National Rifle Association, Rep. George Nethercutt (R-Wash.) introduced a last-minute provision in a 2003 spending package that precluded the Bureau from spending any money to release government database records associated with gun sales and ownership.

The President signed the 2003 Consolidated Appropriations Resolution on Feb. 20, 2003. The House report on the bill claims that releasing the data "would not only pose a risk to law enforcement and homeland security, but also to the privacy of innocent citizens." There was no explanation of the relationship to homeland security. The Supreme Court canceled the hearing and asked the U.S. Court of Appeals (7th Cir.) in Chicago to determine what effect the legislation would have on the case. Chicago wants the database to help track the illegal use of guns in city crimes. Reporters frequently have made similar uses of the information.

But before the appeals court heard the case, Congress enacted the Consolidated Appropriations Act of 2004 and then added language making the information secret again in a 2005 appropriations measure, which included even stronger language prohibiting expenditure of funds to process FOI requests for the information.

The full U.S. Court of Appeals in Chicago heard the case in February but had not decided it by late August.

Taking down Web sites

The ability to gain access to information on the Web site at the Nuclear Regulatory Commission has fluctuated. In October 2004 NRC removed its entire Internet reading room after "sensitive" documents were noted on it. In June it began restoring 70,000 documents.

NRC was one of the first federal agencies to offer the public a useful reading room. Its FOI office once actually invited user groups in to talk about how they might be better served. Its record for openness was not perfect but, among agencies, it has traditionally enjoyed a strong reputation for being responsive to the public.

Shortly after Sept. 11, NRC removed its entire Web site following a request from the Department of Defense to do so.

"It was disappointing to us," Victor Dricks, a public affairs officer at the agency, said at the time. "We have made a strong effort to put information up and we feel strongly about that mission."

By early March 2002, the agency had gone a long way toward restoring information on its Web site. Dricks said that some information would never be restored, but he was able to describe clear guidelines for what would not be returned. If information would be of specific use to terrorists and was not widely available anywhere else, NRC would not re-post it.

NRC further modified its directions on the availability of security information for all nuclear plants on Aug. 5, 2004. Its announcement by Chairman Nils Diaz notes that the commission deliberated for many months about the agency's "commitment to openness" and the concern that "sensitive information might be misused by those who wish us harm." It decided that the results of its inspections of nuclear facilities will no longer be publicly available and "will be exempt from FOI Act requests." Enforcement information associated with the physical protection of nuclear facilities will be withheld as well, he said.

The agency continues to be wary of disclosures. It removed large sections of a draft environmental impact statement in considering whether to license a Louisiana company to build a uranium enrichment plant in Eunice, N.Y. KLFY-TV in Lafayette complained in January 2005 that the segments the public could not see concerned health and risks of accidents.

OMB Watch tracked the Web site removals following September 11 until May 2002. Although no other agencies removed their entire Web site, OMB Watch found information removed from the Department of Energy; the Interior Department's Geological Survey; the Federal Energy Regulatory Commission; the Environmental Protection Agency; the Federal Aviation Administration; the Department of Transportation's Office of Pipeline Safety and its Bureau of Transportation Statistics' Geographic Information Service; the National Archives and Records Administration; the NASA Glenn Research Center; the International Nuclear Safety Center; the Internal Revenue Service; the Los Alamos National Laboratory; and the National Imagery and Mapping Agency.

Many of the agencies posted notices that the information had been removed because of its possible usefulness to terrorists.

In their announcements of homeland security measures, agencies became increasingly cavalier in promising that information would be exempt under the FOI Act without addressing the deference to trained FOI officers who actually make decisions as to whether requested information is lawfully exempt under the FOI Act.

The Federal Communications Commission approved measures to block public access to reports of telecommunications service disruptions on Aug. 4, 2004, at a public meeting reported by Caitlin Harrington of Congressional Quarterly. The Department of Homeland Security sought the rule saying the information about outages could supply a "roadmap for terrorists." Harrington wrote that FCC special counsel Kent Nilsson said the commission concluded that the information did not have to be routinely available for public inspection and had determined that all outage reports filed with the FCC would be presumptively confidential under the FOI Act.

The Air Force Space Command issued a notice Aug. 3, 2004, that space surveillance data would now be provided to non-government entities who must promise not to redistribute them without express permission of the secretary. These new distribution rules were set in a law enacted in November 2003.

In July 2004, the Federation of American Scientists' Secrecy News reported the Army took "extraordinary steps" to limit access to its critical study of Operation Iraqi Freedom entitled "On Point," coding it on the Army Web site so that it could not be copied, downloaded or printed, apparently in an effort to limit readership to that site only. However, the newsletter reports that GlobalSecurity.org overcame the agency's coding and had made the report available. It reveals, among other things, that the seemingly spontaneous toppling of the statute of Saddam Hussein in Baghdad was engineered by Army Psychological Operations officers.

In an embarrassing FOI denial for the Justice Department, Thomas McIntyre, FOI chief at the agency's criminal division, wrote the Center for Public Integrity that it could not have an electronic copy of a public database on foreign lobbyists because making it available would crash an outdated computer system. The Center noted in the press release it issued on the May 24, 2004, denial that the government continues to use the dainty database.

It was not the only database embarrassment for the government. In February 2004, an army security officer ordered the Federation of American Scientists to "remove all Army publications ASAP," suggesting that he would contact the FBI. Secrecy News reported that "cooler heads" advised the author to "stand down," and the documents are still up.

In early October 2003, the Department of Defense removed all of its unclassified policy directives, which had been public for years. But The Memory Hole, a Web cite which purports to "rescue" information, had downloaded them. It posted them soon after and before the month was up DOD had returned them to its Web site.

One federally funded study questioned the usefulness of Web site removal. A Rand Corp. study released March 25, 2004, concluded that publicly available federal geospatial information on all but four Web sites would be of little use to terrorists. It might show location and key features of particular places, the report states, but attackers are likely to need more detailed and current information -- better acquired from direct observation or other sources.

The secrecy continues. Citing "security and privacy," the military refused in July 2005 to release the names of four enemy combatant detainees who escaped in Afghanistan, only to watch Afghan authorities disclose their identities.

A federal district judge in Washington, D.C., tried to thwart federal authorities' refusal to release information about steps it has taken to protect rail shipments from terrorists. When the city passed a law requiring hazardous rail shipments be routed around the city to curb its vulnerability to terrorist attack, the federal government asked the court to stop enforcing the law, but refused to give the city's counsel any information on federal rail security. The judge ordered disclosure in March and when the government refused, refused in April to grant its requested injunction against enforcement of the law. The court of appeals however sided with the government and in May 2005 granted the injunction without allowing D.C. officials to learn about their city's rail hazards.

Blowing whistles, or just even talking

The federal government is bloated not only with secrecy, but with paper. For journalists hoping to navigate through these records of the unknown, the FOI Act often only works when it is used hand in hand with guidance from government insiders -- not just leakers who are willing to share secrets in exchange for confidentiality, but rank and file employees willing to discuss how the government does what it does.

But the government has become increasingly unwilling to allow talk. Two federal government employees were fired for their comments about government actions in the face of new security needs after Sept. 11 and others have been disciplined or gagged.

U.S. Park Police Chief Teresa Chambers was fired in July 2004 after seven months of administrative leave in which she was prohibited from talking about her work at the Department of the Interior. In early December, she told Washington Post reporter David Fahrenthold that her 620-member force needed expansion and that she had operated with less budget than she needed for the extra security called for around national monuments after Sept. 11. Political appointees at the agency accused her of "lobbying," placed her on leave and gagged her from further talk with the news media.

Her firing came two hours after she pushed for reinstatement at the Merit Systems Protection Board. She lost her appeal in October 2004.

Sibel Edmonds, a contract translator in Middle Eastern languages at the FBI, was terminated in March 2002 for, she was advised, the "convenience" of the FBI. She had complained that despite a critical need for translations by FBI investigators in the field, her supervisor had insisted that she slow down her translations so that it would appear that the office needed more translators and more funds. She found translations erased on her computer -- erasures that needed to be redone were called "a lesson" by her supervisor, she said. Edmonds also reported that a colleague with ties to a "semi-legitimate" organization had misidentified documents about that organization as not relevant.

In October 2002, Edmonds filed a whistleblower suit in federal district court in Washington, D.C., to get her job back, but Judge Reggie Walton accepted the government's arguments that hearing the case would reveal "state secrets," and dismissed the case on July 6, 2004. In the course of the litigation and Edmonds' agreement to testify in the cases brought by the families of Sept. 11 victims, the government reclassified information that was part of her suit and that had been widely discussed in Congress and in an appearance by Edmonds and Sen. Charles Grassley (R-Iowa) on CBS's "60 Minutes" in 2002 shortly after her suit was filed. The court also held that she could not present the classified information in testimony on behalf of the families.

In May 2005 the U.S. Court of Appeals in Washington, D.C., upheld the government's claim of "state secrets" and refused to hear Edmond's case. The ACLU in August 2005 asked the Supreme Court to review the case.

Army Chaplain James Yee, cleared after several months of facing charges of spying for al Qaida, received a gag order on April 6, 2004, from his commander. Yee's attorney told ABC News it prohibits speech so broadly that it effectively bars Yee from speaking about his experiences.

Policies to keep the government's business from the public sometimes single out reporters as especially off limits. The Office of Information and Privacy at the Department of Justice, the office which gives guidance to FOI officers and specialists government-wide, has claimed to run an ombudsman service for FOI requesters who encounter difficulties in getting responses to requests -- but reporters are now not allowed to use the service. They must instead direct their questions to the Justice Department's public information officers who may, or may not, have expertise in FOI issues. FOI specialists who run the "ombudsman" hotline at (202) 514-FOIA terminate discussions once they learn that a caller is a reporter.

Contracting

From the beginning, the contracts for post-war reconstruction have been controversial and secretive. Most recent audits of Halliburton's actions were turned over to a United Nations monitoring board for the development of Iraq fund, but with redactions. Rep. Christopher Shays (R-Conn.) in June 2005 threatened a congressional subpoena for the Halliburton audits.

In November 2002, months before the U.S.-led invasion of Iraq, Bush administration officials secretly began preparing to award post-war reconstruction contracts to private American companies. Normally, the government contracting process requires the government to publicly request proposals and bids from interested companies. The proposals are scored and ranked -- based on price, experience and other criteria -- and a contract is awarded based on the highest-ranked proposal.

In this case, however, the Army Corps of Engineers and the U.S. Agency for International Development (USAID), the State Department agency responsible for awarding many of the reconstruction contracts, decided that the normal contracting process would not work. First reported by The Wall Street Journal, a secret "emergency" bidding process was used because, they said, reconstruction efforts needed to be deployed more quickly than the normal process would have allowed.

USAID selected seven companies with security clearances and previous experience working with the government -- about half the number that would normally bid -- and allowed them to bid on the initial reconstruction contracts. Many of these initial contracts, worth more than $2 billion, were awarded to a sole bidder with no competition at all. Although the contracts were signed in early-March 2003, the information was not disclosed until a few days after the March 19 invasion.

Not long after the contracts were announced, questions and criticisms began to arise over the lack of transparency and accountability. Details of the contracts -- including exactly what work was being performed, which subcontractors were performing the work, and how much they were charging -- were not publicly available.

Many of the contracts were awarded on a "cost-plus" basis, whereby the contracted company is reimbursed by the government for whatever it spends. The company is then paid a percentage of those expenditures in profit. Such contracts make it difficult to determine how much profit a company is making from a contract, and encourages companies to run up large bills to increase profits.

The criticisms were fueled by allegations of impropriety in the process. A number of major news outlets reported that the companies selected for the no-bid and limited-bid contracts were prominent campaign contributors to President Bush, including Bechtel and Halliburton, the company led by Vice President Dick Cheney before he ran for office in 2000.

In May 2004, Time magazine reported that Douglas Feith, a senior Pentagon official, wrote in an internal e-mail message that a contract awarded to Halliburton subsidiary Kellogg, Brown & Root had been "coordinated" with Cheney's office. Both the Pentagon and Cheney's office denied that Feith meant Cheney had been involved in the awarding of the contract.

Numerous examples of possible and actual financial impropriety also came to light.

Allegations that KBR had overcharged for fuel imported into Iraq from Kuwait under one of the no-bid contracts strengthened the calls for a more transparent process. It was eventually discovered that the overcharge, possibly as much as $61 million, was due to the high prices charged by a Kuwaiti subcontractor.

An audit completed by the Pentagon on Aug. 4, 2004, but not made public, showed that Halliburton had failed to account for more than $1.8 billion of the $4.2 billion it had received to provide logistical support to coalition troops in Iraq. A copy of the audit was made available to The New York Times by a person outside government, the newspaper reported.

An audit released July 30, 2004, by the inspector general for the Coalition Provisional Authority, which ruled Iraq from May 2003 until the transfer of sovereignty on June 28, 2004, found instances of fraud, mismanagement and manipulation in the contracting process. Many other such examples were reported throughout 2004.

Attempts to open the contracting process to public scrutiny have been largely unsuccessful. On April 10, 2004, Sens. Ron Wyden (D-Ore.), Susan Collins (R-Maine), Hillary Clinton (D-N.Y.), Robert Byrd (D-W.Va.) and Joseph Lieberman (D-Conn.) introduced the Sunshine in Iraq Reconstruction Contracting Act. (S. 876) On Oct. 8, 2003, Reps. Carolyn Maloney (D-N.Y.) and Henry Waxman (D-Calif.) introduced the Clean Contracting in Iraq Act. (H.R. 3275) Those bills requiring more disclosure died in committee.

As part of the $87 billion Iraqi spending bill Congress passed in October 2003, a new Program Management Office was created to oversee the $18.6 billion allocated in the bill for reconstruction of civilian infrastructure. After failing to provide much of the promised transparency during its existence, the office ceased operations when sovereignty was transferred to Iraq.

Missile defense and secrecy

While federal spending may be relatively flat on President Bush's watch, the defense budget is swollen, in part, with money for testing and deploying a missile defense system.

But top White House military officials made it clear in 2002 that the public won't have enough information to determine whether that money is well spent.

The fiscal year 2003 defense appropriations budget of $355.4 billion -- a 12 percent increase over the previous year -- approved by the Senate in August 2002 includes $7.7 billion for missile defense, along with $878 million that the Pentagon can spend on either the missile defense program or to fight terrorism. Under the Bush White House, the defense budget is expected to substantially increase by billions more through 2007.

With the establishment of the Missile Defense Agency in January 2002 -- technically, the former Ballistic Missile Defense Organization was given agency status -- Bush gave missile defense unprecedented priority.

The former director of BMDO, Air Force Lt. Gen. Ronald T. Kadish, was given the new title of director of the Missile Defense Agency. His overarching duty is to establish one program that will develop an integrated missile defense system. And another prime task seems to be assisting in the effort to keep secret most information about the successes and failures of the system.

In a June 2002 news briefing, Kadish said that "no responsible individual would make that type of information available to our adversaries so they can defeat our system."

He conceded that Congress, charged with making decisions about expenditures for the program, would be let in on "what the system can actually do" but even that would "be done in a different way."

And the public? "What will be important for people to know is that the decisions to move forward on specific elements will be based on factual information . . . . And people should have confidence in that," he said.

Pete Aldridge, the Undersecretary of Defense for Acquisition, Technology and Logistics, scoffed at any suggestions that the Defense Department would evade congressional oversight or disregard planning and reporting requirements. Those requirements, he said in a June 2002 USA Today opinion piece, merely "have been modified to accommodate the peculiarities of a development program without precedent."

Meanwhile, Defense Secretary Donald Rumsfeld, also citing national security and the need for flexibility, has proposed exempting missile defense spending from the Pentagon's auditing and accounting rules.

Critics have said such secrecy proposals are designed to deflect scrutiny of mission failures, such as the $10 million prototype booster rocket for the missile defense system that veered off course in December 2001 and crashed into the ocean near Vandenberg Air Force Base in California.

The previous year, a $100 million experiment failed when a U.S. missile warhead did not hit a dummy warhead in a test at the same air force base.

In February through May 2002, the Pentagon's new PAC-3 missile defense weapon failed numerous tests when interceptors failed to fire. Even when they did, they missed about half the time.

Journalism and public interest groups continue to press for details -- and to show that they understand the line between fair public disclosure of funding and effectiveness of missile defense systems and an unsafe release of the intricate details of military operational strategy.

Next section: The rollback in state openness