Creating a culture of secrecy

From the Winter 2011 issue of The News Media & The Law, page 15.

According to many open-government experts, the root of this new wave of overclassification can be traced to several policy decisions the George W. Bush administration made following the 9/11 attacks.

Barely a month after 9/11, former U.S. Attorney General John Ashcroft issued restrictive new guidance to federal departments and agencies on how to handle FOIA requests from journalists, watchdog groups and the public. Ashcroft’s new instructions “promised agencies that if there were any ‘sound legal basis’ for withholding information from FOIA requesters, the Justice Department would support the withholding.”

The Ashcroft memo notwithstanding, the true determinant of how the executive branch must interpret the federal FOIA on national security matters is through presidential executive orders. Exemption 1 of the federal FOIA protects against the disclosure of national security documents that have been properly classified in accordance with an executive order.

In a 1995 executive order, Executive Order 12958, President Bill Clinton instructed federal FOIA officers not to classify documents if there was “significant doubt” that disclosure could threaten national security, thereby establishing the presumption of openness that marked his administration. However, an executive order issued under Bush, along with the Ashcroft memo and other policy decisions made by his administration, largely repealed this pro-disclosure spirit, according to Homefront Confidential.

Examples of this include:

• In 2002, then-White House Chief of Staff Andrew Card issued a memo instructing federal departments and agencies to withhold information from FOIA requesters on national security grounds, even in circumstances when the federal act’s national security exemption does not apply, according to the National Security Archive.

• In March 2003, Bush issued a new executive order, Executive Order 13292, regarding FOIA Exemption 1, removing the clause from the Clinton order that prevented classification in circumstances where there was “significant doubt” that disclosure would harm national security, according to Homefront Confidential.

• Bush’s new executive order also instituted automatic classification of “foreign government information where disclosure is not authorized,” and gave the CIA director new veto power over declassification decisions made by the Interagency Security Classification Appeals Panel. The order also allowed for reclassification of documents that had already been declassified, according to Homefront Confidential.

• In June 2003, the Department of Justice held meetings to train FOIA officers how to keep more information from being disclosed under FOIA.

Later polls of FOIA officers showed that the Ashcroft policies had a significant impact on their decisions to withhold information from requesters, according to Homefront Confidential. — D.S.