Forging the Electronic Future:
Electronic Records and President Clinton's
Freedom Of Information Act Policies.
Convention Paper.
Association for Education
in Journalism and Mass Communication.
Communication Technology & Policy Division.
Dr. David H. Morrissey
Department of Technical Journalism
Clark C-225
Colorado State University
Fort Collins, Colorado 80523
(303) 491-5986
[log in to unmask]
Forging the Electronic Future
Abstract
During the first half of the Clinton Administration the president sought
to extend the Freedom of Information Act's coverage to include
electronic
records. These actions would help clarify a law written when most
federal
documents were created and stored on paper. Congress also took steps
in
this direction.
But surveys of 70 federal agencies reveal these actions have produced
limited results. Many agencies still interpret the FOIA as an access to
paper-records only law.
Introduction
On Oct. 4, 1993, President Clinton issued new Freedom of Information Act
guidelines that had the potential of expanding public access to the
computerized data federal agencies increasingly gather and store. For the
first time a president specifically encouraged agencies to release
more
electronic records. For the first time a president emphasized the
public's
right to have access to federal computerized data. The Clinton
guidelines
also urged agencies to increase their "discretionary" FOIA disclosures
as a
means of achieving "maximum responsible disclosure" of paper and
electronic documents. The guidelines also raised the threshold for when the
Department of Justice would support federal agencies brought to court for
denying FOIA requests -- a move intended to speed the release of paper
and
electronic documents requested under the FOIA.[1]
This paper examines the status of these new Freedom of Information Act
policies at the midpoint of the Clinton administration, with particular
attention paid to the president's emphasis on increased disclosure of
electronic records. Through interviews with policy makers, examination of
primary source documents, and two surveys of 70 federal agencies, it
seeks
to answer three questions:
_How did the Clinton plan change FOIA policies that were in place during
the Bush and Reagan administrations?
_How have the federal agencies, charged with implementing the FOIA,
altered their policies in response to the president's call for change,
especially in regard to electronic records and new communication
technologies?
_How did the president's emphasis on federal electronic records affect
federal agency release of computerized data?
Fighting For Access: The FOIA Evolves
The Freedom of Information Act (FOIA) is the primary law guaranteeing
access to information from the executive branch of the federal
government.
Enacted in 1966 after years of hearings, the law provides a statutory
right
to examine records in the executive branch of the federal government.
Records are presumed to be releasable, with the burden falling on the
government to demonstrate that documents come within one of the law's
nine
exemptions.[2] Strengthened in 1974 during the Watergate crisis, the
FOIA has
become a relatively satisfactory tool for obtaining federal
information. In
the quarter century since its enactment it has matured, as one scholar has
concluded, "into a respected, sturdy and effective statute," as well as "a
highly regarded legislative model."[3] The FOIA is regularly used by
journalists, attorneys, political activists, historians, business
executives, federal prison inmates, graduate students, members of Congress,
and the occasional curious citizen.
Yet the law has never ceased to be a lightning rod of controversy. Critics
have charged the law releases too much information, costs too much, and is
unduly burdensome on federal agencies.[4]
The impact of this criticism can be seen in the guidance that presidents
issue to the federal agencies charged with responding to FOIA requests
and
interpreting the law generally. Presidents uneasy with the scope of
the
FOIA have sought to reign in its applicability through their
instructions
to the federal bureaucracy. These FOIA guidelines can change
significantly
in a short period. This last occurred when Democratic President Jimmy
Carter was replaced by Republican President Ronald Reagan,
The latest FOIA guidelines were issued by President Clinton on Oct. 4,
1993. In announcing the policy changes, the president emphasized his
support for the FOIA and for open government generally, stating:
The Act is a vital part of the participatory system of government. I am
committed to enhancing its effectiveness in my Administration.... The
existence of unnecessary bureaucratic hurdles has no place in its
implementation.[5]
Because the Clinton policy has been hailed by the federal government as
"the most significant and far-reaching Freedom of Information Act
development to occur in many years,"[6] it is important to assess what
changes
have actually been made in the Reagan and Bush administration policy now
being modified. It is also important to assess what changes the
Reagan-Bush
FOIA policy made in the Carter administration FOIA policy that was in
place during the late 1970s, as that policy is also relevant to today's
FOIA debates.
One of the more important sections of the Clinton guidelines raised the
threshold for when the Department of Justice would support federal
agencies
brought to court for denying FOIA requests. Under standards that had been
in place since 1981, the Justice Department had been required to
provide
legal support to any agency fighting the release of documents (whether
paper or electronic) requested under the FOIA as long as there was a
"substantial legal basis" for the denial. Under the new guidelines, the
Justice Department will send its attorneys "only in those cases where
the
agency reasonably foresees that disclosure would be harmful to an
interest
protected by that exemption." As the Clinton policy emphasizes, when
information "might technically or arguably fall within an exemption, it
ought not to be withheld from a FOIA requester unless it need be."[7]
In addition to establishing this new "foreseeable harm" standard for FOIA
exemptions, the Clinton policy also urged agencies to operate under a
"presumption of openness." FOIA officers were urged to use this
presumption
to increase their "discretionary" FOIA disclosures of paper and electronic
documents as a means of achieving "maximum responsible disclosure."[8]
The "foreseeable harm" standard can best be assessed through the actions
and statements of the attorney general. The Department of Justice is
the
chief legal adviser for federal agencies and plays a crucial role in
enforcing the FOIA. But the department takes its cues from the current
attorney general. Ramsey Clark was the first attorney general to issue
guidelines for federal agencies on complying with the FOIA. Those 1967
guidelines reminded federal agency heads that the act was written to
make
records easier to obtain. Under the law, Clark said, "disclosure is a
transcendent goal."[9]
In 1977, Attorney General Griffin Bell, serving in the Carter
Administration, issued more specific guidelines. Concluding too many
FOIA
requests were resisted by agencies, Bell said government information
should
not be withheld:
Unless it is imperative to public interest to do so, even if there is
some arguably legal basis for doing so. In order to implement this
view
the Justice Department will defend FOIA suits only when disclosure is
demonstrably harmful even if the documents technically fall within the
exemptions.[10]
Bell's statement was interpreted as meaning that Justice Department
assistance in resisting FOIA requests would be available only in the most
important cases. It was a policy often summarized as: "When in doubt,
release." But Carter was defeated in 1980, and Reagan soon overturned
Bell's action. On May 4, 1981, barely four months into the new
administration, Attorney General William French Smith revoked not only
the
Carter FOIA guidelines, but precedents guiding agency interpretation
of the
law dating back to the Johnson administration. Smith's directive said the
new policy was:
To defend all suits challenging an agency's decision to deny a request
submitted under FOIA unless it is determined that A) the agency's
denial
lacks a substantial legal basis; or B) defense of the agency's denial
presents an unwarranted risk of adverse impact on the agency's ability
to
protect important records.[11]
The Reagan policy drew criticism in congressional hearings. Among those
arguing against the new policy was former Congressman John Moss, the
author
of the Freedom of Information Act. Moss concluded:
If the Attorney General had ever read the voluminous transcripts of the
hearings and the massive supporting material, the careful and
thoughtful
work of members of the Information Subcommittee and the very precise
language of the FOIA, he would understand more fully the dangerous
sandtraps of secrecy that lurk in any backward movement to diminish the
absolutely necessary right of the people to know. And certainly he
would
never in the world propose such an outrageous change in the only tool
that
allows the people to take the initiative in holding government
accountable.[12]
Others at the hearing argued that the new policy was "a signal to already
recalcitrant agencies that they will be defended by the Justice
Department
as long as their denials are not obviously illegal."[13]
The Reagan FOIA policy stayed in effect for more than a decade (it was
continued by President Bush), and it is this policy that President
Clinton
has overturned.
The Clinton "foreseeable harm" standard, similar as it is to the Carter
administration "demonstrably harmful"[14] standard, appears to
encourage more
disclosure than did the "substantial legal basis" standard of Reagan
and
Bush. There can, for instance, be a substantial legal basis for
invoking a
FOIA exemption, even though disclosure would result in no foreseeable
harm.
However, the new policy also has weaknesses. Initially it calls on
agencies to reduce their backlog of pending FOIA cases, while providing no
new funds for this task. This is a significant shortcoming. It sends
mixed
signals to the agencies concerning the president's support for the
policy.
Demands for expensive change, unaccompanied by new funding, are not
always
treated seriously in Washington. Many agencies have said funding and
staffing shortages are the biggest impediment to clearing up FOIA
backlogs.[15]
The failure to provide (or even ask for) funding also stands in contrast
to a precedent set by a previous president facing a similar problem.
In
1971, President Richard Nixon asked Congress for a one-time $636,000
supplemental appropriation, so the General Services Administration could
assist the National Archives in declassifying hundreds of thousands of
backlogged World War II classified records.[16]
Electronic Records Under The Clinton FOIA Policy
The Clinton FOIA policy was the first by a president to specifically
mention the federal government's electronic records. It also emphasized
the
public's right to have access to those records -- another first. The
president called on agencies "to enhance public access through the use of
electronic information systems."[17]
This is an important milestone in light of the speed at which federal
agencies are converting to electronic formats. By the year 2000, for
instance, the federal government will conduct at least 75 percent of its
business electronically.[18] The number of federal electronic
publications
continues to increase, while the number of federal paper records
shrinks.[19]
Clearly, the federal government is racing into the electronic future.
The central problem with converting federal information to an electronic
format is that it creates a category of information not specifically
addressed by the FOIA and not contemplated by the drafters of the law.
Arguably, this is an understandable oversight. In 1955, when Congress
began debates over what would become the Freedom of Information Act, the
federal government owned just 45 computers.[20] Eleven years later, in
1966,
when the FOIA was finally signed into law, the federal government
still
owned only 3,000 computers -- or roughly one computer for every 1,000
federal employees.[21] It perhaps isn't that surprising that the FOIA
doesn't
mention computers or electronic records.
Increasingly, however, this is an omission difficult to overlook. Federal
agencies say the law's vagueness in addressing computerized data means
the
measure doesn't necessarily apply to such information. This remains
the
case even after President Clinton issued his new FOIA policy.
These federal agency views are revealed in two surveys of 70 federal
agencies, one conducted in 1993 shortly before the Clinton FOIA policy
was
announced, and one conducted in 1994, eight months after the Clinton
policy
had been in effect. The results of the surveys reveal that most agencies
made no changes in their electronic record FOIA policies as a result
of the
Clinton policy. Most continued electronic record FOIA policies they had
adopted years previously -- policies which have been criticized by
Congress
and information-user groups as excessively restrictive.
Some agencies continue to insist that the measure doesn't cover electronic
data. Some have even used the new technology to shift the burden of proof
in FOIA cases -- one of that law's most important reforms. Requesters
seeking computerized data now sometimes find they must prove why
information should be released in that electronic form -- a reversal of the
law's requirement that federal agencies prove why information should be
withheld.
These surveys reveal that at the same time that new technologies have made
it increasingly possible to access Washington's computerized records, some
federal agencies are treating electronic information as a special class of
data, outside the range of the FOIA and often off limits to the public. A
law that clearly covered paper information is now said to no longer
apply
when the same information is stored electronically -- even after
President
Clinton's new policy called on agencies to change their actions.
Yet the surveys also reveal good will on the part of some federal
information officers, and a desire to apply the new technologies properly.
Some federal FOIA officers say they would like to use the new
technologies
to more fully satisfy FOIA requests. Some acknowledge computers make
it
easier to find, retrieve, and manipulate information. But many also say
that because of confusion over what information disclosure actions are
now
proper or legal, they are hesitant to use the new technologies boldly.
The
FOIA was written in an era of paper documents, they say. Without
additional, specific guidance from Congress or the executive branch,
adapting the measure to the computer age isn't easy.[22]
The 1993 and 1994 surveys revisited research conducted by the Department
of Justice in 1989. That year, the department contacted 70 agencies,
asking
each how they responded to FOIA requests involving electronic records. The
department's action was one of the first comprehensive surveys of federal
agency electronic records practices.[23] The results indicated many
agencies
had not yet dealt with electronic record questions; the issues were
too
new. But most agencies surveyed opposed allowing requesters easier
access
to electronic agency files. These agency responses, indicating as they
did
a restrictive view toward FOIA electronic record questions, were seen
by
some as a de-facto federal policy on these issues. This view was
underscored by key Justice Department personnel, who said they would use
the 1989 survey results in drafting electronic record FOIA policy for
executive branch agencies if Congress failed to clarify the issues
involved. "That would be the next logical step," said Dan Metcalfe, the
co-director of the Justice Department's Office of Information and
Privacy.
"This was an attempt to gather not just viewpoints but facts on these
issues." The survey established "a foundation for the development of
uniform governmentwide policies," he said.[24]
The 1993 survey traced changes in agency policy since 1989. Several months
after this survey was completed, President Clinton announced his new FOIA
policy encouraging agencies to provide easier access to paper and
electronic documents. The same agencies were then resurveyed, in 1994, in
an attempt to track any policy changes resulting from the Clinton
policy.[25]
Questions asked in 1989 and 1993 were:
_Does the FOIA require agencies to create new computer programs (or modify
existing programs) for search purposes, i.e., in order to search for and
retrieve electronic records according to the particular specifications
of
FOIA requesters?
_Does the FOIA require agencies to create new computer programs (or modify
existing programs) for "processing" purposes, i.e., in order to segregate
disclosable from nondisclosable electronic record portions?
_Does the FOIA require agencies to provide requested records in the
particular forms (or database formats) specified by requesters?
_Is computer software an "agency record" under the Freedom of Information
Act?
In the 1994 survey, agencies were also asked if they had altered their
FOIA policies (for paper or electronic records) as a result of the
Clinton
policy.
Survey Results
There were several central findings from the surveys (see appendices for
detailed results.)
_More than three-quarters of the agencies surveyed (76 % in 1989; 77 % in
1993 and 1994) believed they were not required to create or modify
computer
programs to search for or retrieve electronic records requested under the
FOIA. About 6 % in 1993 and 1994 (4 % in 1989) said this was required
under
the law. Remaining agencies indicated no position on this question, or
said it hadn't arisen yet.
_Half of the agencies surveyed (47 % in 1989; 50 % in 1993 and 1994)
believed they were not required to create or modify computer programs to
segregate nondisclosable information from disclosable electronic
records.
About three % of the agencies in all three surveys felt this was
required
by the law. About half (50 % in 1989; 47 % in 1993 and 1994) said they
didn't yet have a policy on the matter.
_61 % of the agencies surveyed in 1993 and 1994 (59 % in 1989) believed
they, not the requester, had the right to choose the format in which
information is released. Three percent of the agencies in each survey said
the requester has this right and 36 % (1993/1994) had no position (39
% in
1989.)
_Agencies remain split in their interpretation of the FOIA status of
computer software. About a third (32 % in 1989, 34 % in 1993 and 1994)
said
software is a record releasable under the law. About 16 % (in 1993 and
1994; 19 % in 1989) said it isn't, and half said they didn't know.
_None of the 70 agencies surveyed has issued new FOIA regulations to
implement the president's policy on electronic records.
_Fifty-eight percent of the agencies also said they had not changed how
they respond to FOIA requests for paper records since the Clinton
policy
was announced. About half the agencies surveyed said the Clinton
policy was
what they were doing already -- and that they were therefore in compliance
with the new policy even before it was issued.
_Twelve agencies said the new policy had led, or appeared to be leading,
to the release of more information in response to FOIA requests. None
of
these agencies could specify how big an increase had occurred. All
also
said that the increase, if it had occurred, was minimal.
The responses to the 1994 survey are worth examining, for they reveal much
about existing federal information policy. These responses also reveal a
contrast between how the president and the agencies saw the new
policy.
The day after the policy was unveiled, Associate Attorney General Webster
L. Hubbell gave the keynote address at the Justice Department's annual
FOIA update seminar. Hubbell, who oversees the department's FOIA
activities, praised the president for bringing a "strong new spirit of
openness" to FOIA policy, and urged the 500 information officers present
to
take this spirit back to their jobs.[26] In a Justice Department publication
containing Hubbell's speech, the Office of Information and Privacy
called
the new policy "the most significant and far-reaching Freedom of
Information Act development to occur in many years." The Clinton
announcements were "major statements" regarding FOIA policy, the office
said.[27]
The 1994 survey, however, revealed few agency information officers saw the
president's action as a major policy shift. Most saw the changes as
evolutionary not revolutionary. Many felt their agencies were already
following the spirit of the new policy, or that adopting it would require
only minimal change in their FOIA practices.
This assessment of the new policy as incremental change largely explains
the failure of the agencies to issue new FOIA regulations. Most said
it
wasn't required for such a modest policy shift. Milton Sloane, a
FOIA/Privacy Act coordinator at the Agriculture Department, put the matter
succinctly: "We haven't issued new regulations because we don't think
it's
necessary," he said. "We're already doing a lot of the things the
foreseeable harm standard wants us to do."[28] Similar sentiments came from
other agencies.[29]
Some agency personnel predicted the new policy would eventually encourage
more disclosure. As Ross Cirrincione, director of the FOIA/Privacy
Division
with the Health and Human Services Department noted: "The policy
enunciation by the attorney general and the president has had an impact,
although it's hard to measure," he said. "They said, in effect, 'We
ain't
going to defend you guys in court unless you have a foreseeable harm.'
That's allowed me to go back to some of the more recalcitrant folks and
say, 'Look. You won't be defended in court if you deny that document
unless
you point to a foreseeable harm that will result from its release.' "[30]
All of the 12 agencies that concluded the new policy had increased
disclosure, or had appeared to have increased disclosure, were modest in
quantifying that increase. Typical of these comments was the
observation by
Dianne Salva, at the Federal Deposit Insurance Corporation. "I think the
new memo has put us in a position where we're releasing more
discretionary
information, at least we're making an effort to do that. But there's
nothing empirical to show this."[31]
It should be noted that in response to the Clinton policy, the Peace Corps
hired an historian charged with increasing agency openness by identifying
and releasing historically important documents.[32]
At about the same time, the Department of Energy decided to release
information concerning humans involved in radiation experiments, said
Denise B. Diggin, chief of the department's FOIA/Privacy Act Branch. The
department is even preparing a CD-ROM containing radiation records.
Diggin
emphasized, however, that these decisions were made by her department
before the Clinton policy was announced. Further, the policy changes
relate
only to information concerning the radiation experiments. There has been
no other FOIA policy change, she said. [33]
Electronic Records Policy in 1994
The 1994 survey also revealed continuing agency opposition to expanded
public access to federal electronic records, despite the president's
call
for increased openness in this area. It also revealed that federal
agencies
remain divided and confused about how they should respond to FOIA requests
seeking electronic records. The Energy Department's response in this area
is worth noting. DOE agrees documents can be more easily processed,
used
and analyzed if compiled on a CD-ROM. But it treats the radiation data
it
will soon publish on a CD-ROM as a special case. DOE isn't planning to
compile other releasable information into a public electronic product.
DOE continues to believe it should decide if and when electronic records
are released, Diggin said. DOE might release records in an electronic
form
"if it's easy to do it. But we believe you don't have to write a new
program or do it if it's an undue burden. We provide it in whatever manner
is most effective and cost effective for the agency."[34]
None of the 70 agencies had changed agency policies on responding to FOIA
requests for electronic records solely because of the president's
directive
to "enhance public access through the use of electronic information
systems."[35] Many also said there is still confusion over the FOIA status
of
electronic records. Partly for this reason, they said they would not
institute major changes in how they respond to these requests until they
received guidance from Congress or the executive branch. Several added
that
the Justice Department had failed to provide this guidance, even after the
president issued his directive.[36]
Until this guidance materializes, agency hesitation to release electronic
records seems likely to continue. In the 1994 survey, the Agriculture
Department's Sloane expressed an attitude that was common among
information
officers.
We are taking a wait-and-see attitude... A lot depends on what Congress
does. We're not going to take the lead when Congress hasn't acted
yet. We
wouldn't want to. We want guidance and we want to be consistent. We
wouldn't want to set the government's policy on our own.[37]
The
1994 survey also revealed that many agancies follow a case-by-case
"reasonableness" standard for FOIA requests involving electronic records.
NASA's Patricia Riep echoed sentiments heard at other agencies. "Our
advice
to FOIA officers is, if they can put it into an electronic format and if
it's not outrageous in time and price, then do it."[38]
In absence of a specific policy, however, this means that the definition
of reasonableness is left with the government and may vary from agency
to
agency and case to case. One agency's reasonable efforts may seen
unreasonable to another. This means the burden of proof for FOIA requests
seeking electronic records has, in effect, shifted, from the
government to
the requester. Certainty and uniformity will only be restored when
agencies
receive specific guidance from Congress or the executive branch. Without
this guidance, agencies will essentially retain control over these
records.
The Continuing Problem
This agency hesitation to adopt President Clinton's new spirit of openness
is likely to generate continued opposition. This is especially true in
regard to electronic records. A growing number of experts and
organizations
argue that existing agency FOIA policies on electronic records are
questionable. These critics have argued that since this information can be
made available electronically, it should be made available
electronically,
barring a justifiable claim for confidentiality.
Recent reports prepared by the House Committee on Government Operations,
the Office of Technology Assessment, the Administrative Conference of
the
United States, the American Bar Association, the U.S. National
Commission
on Libraries and Information Science, and the Benton Foundation, among
others, conclude that since the new technology allows executive branch
agencies to more easily store, retrieve, and process government
information, there should be easier public access to this information. The
reports emphasize that the intrinsic value of an informed electorate
is a
fundamental reason to seek increased access to electronic
information.[39] The
comments of the House Committee on Government Operations were typical
of
those objecting to agency hesitance to release electronic records
under the
FOIA:
A federal agency's responsibility to provide for public use of agency
records should not be considered
to be fixed or fully satisfied at any point in time.
Public access is a dynamic concept. If an agency has
developed the ability to manipulate data electronically, it is unfair to
restrict the public to paper documents. An agency cannot justify
denying
the public the benefits of new technology by preserving, without
improvement, the same type of access that was provided in the past.... A
federal agency should use modern technology to improve the range and
the
quality of public access to agency records. As technology permits an
agency to upgrade its own ability to access, copy and manipulate data,
an
agency should make a reasonable attempt to allow public users of
agency
information to share the benefits of automation.[40]
A few necessary addendums:
The Clinton FOIA policy at mid-term must also be interpreted in light of
several other recent presidential and congressional actions. While the
president's commitment to open government can be assessed, as some have,
as
long on promises and short on specifics,[41] the president has also been
willing to back his words with action.
On Nov. 10, 1994, the president signed an executive order that
declassified almost 44 million pages of previously secret federal
government records held by the National Archives and Records
Administration.[42] About half the records date to World War II, while
many of
the rest concern post-1945 military actions. According to the
Archives,
"this bulk declassification represents approximately 14 percent of the
National Archives holdings of classified material and is the largest
single
group of classified material ever declassified by NARA."[43] This action was
also significant in that the first year of the Clinton administration
actually saw a slight increase in the number of documents classified.[44]
In another move indicating support for a less secretive federal
government, the president issued an executive order on Feb. 24, 1995, that
for the first time declassified national security satellite imagery.
The
order will lead to the release of more than 800,000 spy satellite
photos
collected between 1960 and 1972.[45]
On April 26, 1993, the president also issued Presidential Review Directive
(PRD) 26, which called for a complete review of the security
classification system.[46] That review is being conducted by a
24-member
committee. While the committee's work has not been officially published, a
draft executive order prepared by the committee has been disscussed in
the
press[47] and by the American Bar Association's Standing Committee on
Law and
National Security.[48] The draft order would significantly expand the
volume of
national security information releasable under the FOIA -- expanding
electronic access in the process -- and would overturn many of the
segments
of the existing order on security classification. The existing order, No.
12356, was issued in 1982 by President Reagan and has been criticized
by
Congress and various information user groups as excessively
restrictive.[49]
Also during the first half of the Clinton administration Congress
attempted to address the status of electronic records under the FOIA. In
1994 the Senate unanimously passed, but the House failed to consider,
the
Electronic Freedom of Information Improvement Act. Senate Bill 1782
was
sponsored by Sen. Patrick Leahy, a Vermont Democrat, and Sen. Hank
Brown, a
Colorado Republican[50]. (Leahy has said he will resubmit the measure.)
Under the bill, which was essentially the same as one introduced by the two
senators in 1991,[51] records releasable under the FOIA would be defined as
including "computer programs, machine readable materials, and
computerized,
digitized, and electronic information, regardless of the medium by which
it is stored...."[52]
The bill also would have required agencies to make a reasonable effort to
create or modify computer programs to search for and retrieve
electronic
records; create or modify computer programs to segregate disclosable
from
non-disclosable information; and provide information in the format
specified by requesters.[53]
It should also be noted that Congress in 1994 did enact the Government
Printing Office Electronic Information Access Enhancement Act --
commonly
known as the GPO Access Act. As a result of this measure, the GPO has
begun
providing on-line access to recent issues of the Congressional Record, the
Federal Register and several thousand other government documents.
Eventually the act will create a central repository of select federal
electronic records.[54] In signing that measure, the president reiterated
his
support for expanded public access to federal electronic information,
stating:
It is with great pleasure that I sign into law S. 564, the 'Government
Printing Office Electronic Information Access Enhancement Act of
1993,'
which will enhance electronic access by the public to Federal
information.... Federal agencies can make Government information more
accessible to the public, and enhance the utility of Government
information as a national resource, by disseminating information in
electronic media.[55]
But while the measure offers a potentially useful source of electronic
access, it fails to address the problems raised by FOIA requests for
electronic documents. Congress intentionally left control of what records
will be available electronically with the agencies, not the
requesters. The
measure covers only a small amount of the electronic documents generated
by the federal government and makes agency participation voluntary. No
agency is required to submit electronic records for inclusion in the
system.[56] The agencies, in effect, have been given a veto power that
allows
them to release only the information they want to release -- whether
or not
this is the information requesters really seek. In addition, Congress
didn't fund the new program. As Judy Russell, the Director of Electronic
Information for the Superintendent of Documents noted, this will
require
the GPO to cooperate closely with the agencies providing electronic
information, as those agencies will bear some of the cost of providing
data. "We won't list anything an agency doesn't want listed. It has to
be a
cooperative effort," she said.[57]
Conclusions
During the first two years of the Clinton administration, the president
and Congress declared their support for more open federal information
policies and increased access to electronic records. The president issued
a
new FOIA policy for federal agencies, and Congress enacted legislation
putting many documents on line. Statements with ringing words were
widely
publicized. After 12 years of restrictive information practices under
Presidents Reagan and Bush, these steps were widely seen as a shift away
from excessive federal secrecy. Electronic access seemed closer.
However, most of the recent congressional and presidential actions
relating to information policy lack either the scope or specificity needed
to adequately guide the federal bureaucracy. Change has been
encouraged and
disclosure praised. But the details of how this will be accomplished have
in most cases not yet been announced. What has been specified -- and
achieved -- is modest. As a result, the actual changes in information
policy during the first two years of the Clinton administration -- in
regard to paper and electronic records -- have been limited. They have
not,
so far, matched the words of those advocating change.
The president's new policy on the Freedom of Information Act is a case in
point. While the administration touted the policy as "the most
significant
and far-reaching Freedom of Information Act development to occur in
many
years," and the policy specifically encouraged agencies to release
more
electronic information, the response from the federal bureaucracy has
been
minimal. The 1994 resurvey of the 70 agencies initially surveyed in
1993,
found virtually no change in agency actions or attitude concerning
FOIA
requests for paper or electronic records. Not one of the 70 agencies
surveyed in 1994 said it had adopted new regulations for processing FOIA
requests (for paper or electronic records) as a result of the
president's
new policy. Many agencies said the president's policy was what they
were
already doing -- and thus no new action on their part was required.
Most of
the agencies also failed to change their opposition to increased public
access to paper or electronic records.
The president's declassification of World War II records was also
noteworthy. But this, too, was a precedent of limited scope. The action was
a one-time declassification of mostly non-controversial documents -- many
of which were half-a-century old.
Legislative change during the first two years of this administration has
also been modest. The Electronic FOIA bill failed. The GPO Access bill
does
make some new federal information available electronically, but primarily
it is the information that agencies want to distribute. The
information for
which the FOIA was written -- information agencies often do not want
released -- is not required to be made publicly available under this new
measure.
The history of federal information policy suggests that specific and
detailed presidential or congressional action can change agency behavior.
Enactment of the Freedom of Information Act demonstrates this change.
But
as the responses of the 70 agencies surveyed for this research
suggest,
broad general statements of intent by Congress or the president appear
to
produce only minimal change in agency practices. The degree of
increased
disclosure appears to depend on the specificity of the legislation or
guide
lines given those who must implement the policy. It depends, too, on
the
interest shown by those creating the policy in actually following
through
with its implementation. The surveys suggest an innate bureaucratic
caution
when faced with the prospect of increased disclosure, but also a
willingness to overcome that caution if provided with firm and specific
action.
Consequently, the congressional and presidential actions of the first two
years of the Clinton administration do not appear to have significantly
changed federal information policy -- at least not yet. Significant
change
may be coming. Both the president and Congress appear to want this
change.
The increasing, and increasingly rapid, computerization of Washington
suggests change in some form will be needed. But to a large degree it has
not yet arrived. The president and Congress need to more clearly
outline
the policies they seek if they expect those policies to be implemented
by
the federal information bureaucracy.
Appendix 1: Cumulative Survey Responses
1. Does the FOIA require agencies to create new computer programs (or modify
existing
programs) for search purposes, i.e., in order to search for and retrieve
electronic records
according to the particular specifications of FOIA requesters?
1989: 1993/1994:
Yes: 3 agencies (4.3 %) Yes: 4 agencies (4.3%)
No: 53 agencies (75.7%) No: 54 agencies (77.1%)
NP: 14 agencies (20%) NP: 12 agencies (18.6%)
2. Does the FOIA require agencies to create new computer programs (or modify
existing
programs) for "processing" purposes, i.e., in order to segregate
disclosable from
nondisclosable electronic record portions?
1989: 1993/1994:
Yes: 2 agencies (2.9%) Yes: 2 agencies (2.9%)
No: 33 agencies (47.1%) No: 35 agencies (50%)
NP: 35 agencies (50%) NP: 33 agencies (47.1%)
3. Does the FOIA require agencies to provide requested records in the
particular forms (or
database formats) specified by requesters?
1989: 1993/1994:
Yes: 2 agencies (2.9%) Yes: 2 agencies (2.9%)
No: 41 agencies (58.6%) No: 43 agencies (61.4%)
NP: 27 agencies (38.6%) NP: 25 agencies (35.7%)
4. Is computer software an "agency record" under the FOIA?
1989: 1993/1994:
Yes: 22 agencies (31.4%) Yes: 24 agencies (34.3%)
No: 13 agencies (18.6%) No: 11 agencies (15.7%)
NP: 35 agencies (50%) NP: 35 agencies (50%)
Appendix 2: 1989 Survey responses
1: Must agencies create or modify computer programs to search for and retrieve
electronic
records?
2: Must agencies create or modify computer programs to segregate the releasable
portion of a
record?
3: Do requesters have the right to specify the format in which information is
released?
4: Is computer software an agency record?
Agency Issues: 1 2 3 4
Agency for International Development N N N NP
Agriculture Department NP NP N Y
Arms Control and Disarmament Agency NP NP NP NP
Commerce Department N N N NP
Council on Environmental Quality NP NP NP NP
Defense Department N N N Y
Air Force N N N Y
Army N N N Y
Marine Corps N NP NP Y
Navy N N N Y
Defense Contract Audit Agency NP NP NP Y
Defense Intelligence Agency N N N Y
Defense Investigative Service N N N Y
Defense Logistics Agency N NP NP Y
Defense Nuclear Agency N N N Y
Education Department NP N N NP
Energy Department N NP NP NP
Environmental Protection Agency N N N Y
Equal Employment Opportunity Commission NP NP NP NP
Export Import Bank N N N NP
Farm Credit Administration N N N N
Federal Communications Commission N NP N N
Federal Deposit Insurance Corporation N Y N NP
Federal Election Commission NP NP NP NP
Federal Emergency Management Agency N NP N N
Federal Energy Regulatory Commission NP NP NP NP
Federal Highway Administration N NP NP NP
Federal Labor Relations Authority N NP NP NP
Federal Maritime Commission N N N Y
Federal Mediation Conciliation Service N N N N
Federal Reserve Board N N N NP
Federal Trade Commission N NP N Y
Foreign Claims Settlement Commission Y Y Y Y
Health and Human Services Department N NP N NP
Food and Drug Administration N N N NP
Health Care Financing Administration N N N N
Public Health Service N NP N N
Social Security Administration N NP NP NP
Housing and Urban Development Department N NP NP NP
Interior Department N NP N Y
Internal Revenue Service N N N NP
International Trade Commission NP NP NP NP
Interstate Commerce Commission N NP N NP
Labor Department N N N NP
Library of Congress/Copyright Office NP NP NP NP
Merit Systems Protection Board Y N N NP
NASA N N NP N
National Archives Records Administration N N N N
National Credit Union Administration N NP NP NP
National Labor Relations Board N NP NP Y
National Science Foundation NP NP NP NP
National Security Agency N N NP Y
National Transportation Safety Board N NP NP NP
Nuclear Regulatory Commission N N N Y
Occupational Safety and Health Review NP NP NP NP
Commission
Office of Personnel Management N N N N
Panama Canal Commission Y NP NP NP
Peace Corps N NP NP NP
Pennsylvania Avenue Development Corp. NP NP NP NP
Pension Benefit Guaranty Corporation N N N N
Railroad Retirement Board NP NP NP NP
Securities and Exchange Commission N N N N
Selective Service System N N N N
Small Business Administration N NP N NP
State Department N N N N
Transportation Department N N NP NP
Treasury Department N N N Y
United States Information Agency N NP Y Y
United States Trade Representative N NP N NP
Veterans Affairs Department N N N Y
Appendix 3: 1993 Survey Responses
1: Must agencies create or modify computer programs to search for and retrieve
electronic
records?
2: Must agencies create or modify computer programs to segregate the releasable
portion of a
record?
3: Do requesters have the right to specify the format in which information is
released?
4: Is computer software an agency record?
Agency Issues: 1 2 3 4
Agency for International Development N N N NP
Agriculture Department NP NP N Y
Arms Control and Disarmament Agency NP NP NP NP
Commerce Department N N N NP
Council on Environmental Quality NP NP NP NP
Defense Department N N N Y
Air Force N N N Y
Army N N N Y
Marine Corps N NP NP Y
Navy N N N Y
Defense Contract Audit Agency NP NP NP Y
Defense Intelligence Agency N N N Y
Defense Investigative Service N N N Y
Defense Logistics Agency N NP NP Y
Defense Nuclear Agency N N N Y
Education Department NP N N Y
Energy Department N NP NP NP
Environmental Protection Agency N N N Y
Equal Employment Opportunity Commission NP NP NP NP
Export Import Bank N N N NP
Farm Credit Administration N N N N
Federal Communications Commission N NP N N
Federal Deposit Insurance Corporation N Y N NP
Federal Election Commission NP NP NP NP
Federal Emergency Management Agency N NP N N
Federal Energy Regulatory Commission NP NP NP NP
Federal Highway Administration N NP NP NP
Federal Labor Relations Authority N NP NP NP
Federal Maritime Commission N N N Y
Federal Mediation Conciliation Service N N N N
Federal Reserve Board N N N NP
Federal Trade Commission N NP N Y
Foreign Claims Settlement Commission Y Y Y Y
Health and Human Services Department N NP N NP
Food and Drug Administration N N N NP
Health Care Financing Administration N N N N
Public Health Service N NP N N
Social Security Administration N NP NP NP
Housing and Urban Development Department N NP NP NP
Interior Department N NP N Y
Internal Revenue Service N N N NP
International Trade Commission NP NP NP NP
Interstate Commerce Commission N NP N NP
Labor Department N N N NP
Library of Congress/Copyright Office NP NP NP NP
Merit Systems Protection Board Y N N NP
NASA N N NP N
National Archives Records Administration N N N N
National Credit Union Administration N NP NP NP
National Labor Relations Board N NP NP Y
National Science Foundation N N N NP
National Security Agency N N NP Y
National Transportation Safety Board N N N Y
Nuclear Regulatory Commission N N N Y
Occupational Safety and Health Review NP NP NP NP
Commission
Office of Personnel Management N N N N
Panama Canal Commission Y NP NP NP
Peace Corps N NP NP NP
Pennsylvania Avenue Development Corp. NP NP NP NP
Pension Benefit Guaranty Corporation N N N N
Railroad Retirement Board NP NP NP NP
Securities and Exchange Commission N N N N
Selective Service System N N N N
Small Business Administration N NP N NP
State Department N N N N
Transportation Department N N NP NP
Treasury Department N N N Y
United States Information Agency N NP Y Y
United States Trade Representative N NP N NP
Veterans Affairs Department N N N Y
Appendix 4: 1994 Survey Questions and Responses
Question 1: Have you issued any new regulations or policies for responding to
Freedom of
Information Act requests since the new FOIA policy was
announced on October 3 by the
president and attorney general?
Question 2: Has the new policy resulted in any changes in how you process FOIA
requests for
paper or electronic records?
Question 3: Has the new policy resulted in any increase of information released
under the
FOIA?
Question 4: Do you foresee the new policy ultimately causing any changes in how
you respond
to FOIA requests?
The agencies, and their responses, are as follows:
Agency Questions: 1 2 3 4
Agency for International
Development N N N N
Agriculture Department N N N N
Arms Control Disarmament Agency N N N Y
Commerce Department N Y Y Y
Council on Environmental Quality N N N N
Defense Department:
Office of the Secretary N Y Y Y
Air Force N N N N
Army N N N N
Marine Corps N Y Y Y
Navy N Y Y Y
Defense Contract Audit Agency N N N N
Defense Intelligence Agency N N N N
Defense Investigative Service N N N N
Defense Logistics Agency N N N N
Defense Nuclear Agency N N N N
Education Department N N N N
Energy Department N Y Y Y
Environmental Protection Agency N N N N
Equal Employment Opportunity
Commission N N N N
Export Import Bank N N N N
Farm Credit Administration N N N N
Federal Communications Commission N N N N
Federal Deposit Insurance
Corporation N Y Y Y
Federal Election Commission N N N N
Federal Emergency Management
Agency N N N Y
Federal Energy Regulatory
Commission N N N N
Federal Highway Administration N Y Y Y
Federal Labor Relations Authority N N N N
Federal Maritime Commission N Y Y Y
Federal Mediation and Conciliation
Service N N N N
Federal Reserve Board N N N N
Federal Trade Commission N N N N
Foreign Claims Settlement
Commission N N N N
Health and Human Services
Department N Y Y Y
Food and Drug Administration N Y Y Y
Health Care Financing
Administration N N N N
Public Health Service N N N N
Social Security Administration N N N N
Housing and Urban Development
Department N N N N
Interior Department N N N N
Internal Revenue Service N N N N
International Trade Commission N N N N
Interstate Commerce Commission N N N N
Labor Department N N N N
Library of Congress:
Copyright Office N N N N
Merit Systems Protection Board N N N N
NASA N N N Y
National Archives and Records
Administration N N N N
National Credit Union
Administration N N N N
National Labor Relations Board N N N N
National Science Foundation N N N Y
National Security Agency N N N N
National Transportation
Safety Board N N N N
Nuclear Regulatory Commission N Y Y Y
Occupational Safety and
Health Review Commission N N N Y
Office of Personnel Management N N N N
Panama Canal Commission N N N N
Peace Corps N N Y Y
Pennsylvania Avenue Development
Corp. N N N N
Pension Benefit Guaranty
Corporation N N N N
Railroad Retirement Board N N N N
Securities Exchange Commission N N N Y
Selective Service System N N N N
Small Business Administration N Y Y Y
State Department N N N N
Transportation Department N N N N
Treasury Department N N N N
United States Information Agency N N N N
United States Trade RepresentativeN N N N
Veterans Affairs Department N N N N
[1] President Bill Clinton, "Memorandum For Heads of Departments and Ag
encies, Subject:
The Freedom of Information Act." Washingto
n. 4 Oct. 1993.
[2] Harry Hammitt, "The Freedom of Information Act," Th
e Reporter's Handbook 2d
ed. (New York: St. Martins Press, 19
91) 73-99.
See, also: Freedom of Information Act, 5 U.S.C. sec. 552 (1974
).
[3] Harold Relyea, "The Freedom of Information Act in America: A Prof
ile," Access to
Government Records: International Perspective
s and Trends, ed. Tom Riley
(London: Chartwell-Bratt, 1986) 1
7.
[4] These arguments are summarized in:
United States. Congress.
Committee on Government Operations.
Hearings on Freedom of Information Act
Oversight. 97th Cong., 1st Sess.
Washington: Government Prin
ting Office, 1981.
[5] U.S. President, "Memorandum For Heads of Depa
rtments and Agencies, Subject: The
Freedom of Information A
ct."
[6] FOIA UPDATE U.S. Department of Justice Vol. XIV, No. 3, (Sum
mer/Fall
1993) 1.
[7] U.S. Attorney General, "Memorandum F
or Heads of Departments and Agencies, Subject:
The Freedom
of Information Act." Washington. 4 Oct. 1993.
[8] Ibid.
[9] Attorney
General Ramsey Clark, "Memorandum from Attorney General Ramsey Clark, to
Heads of All Federal Departments and Agencies. Subject: Free
dom of Information Act,"
Washington, 4 July 1967.
[10] A
ttorney General Griffin B. Bell, "Memorandum from Attorney General Griffin
B.
Bell, to Heads of All Federal Departments and Agencies.
Subject: Freedom of Information
Act," Washington, 5 May 197
7. (Emphasis added.)
[11] Attorney General William French Smith, "Memora
ndum from Attorney General William
French Smith, to Heads o
f All Federal Departments and Agencies. Subject: Freedom of
Information Act," Washington. 4 May 1981). (Emphasis added.)
[12] Heari
ngs before a Subcommittee of the House Committee on Government Operations o
n
Freedom of Information Act Oversight, 97th Cong., 1st Ses
s., (1981) 74.
[13] Ibid., 57.
[14] Memorandum from Attorney General
Griffin B. Bell, 5 May 1977.
[15] FOIA UPDATE (Summer/Fall 1993) 8.
[1
6] S. Rep. No. 94-755, 94th Cong., 2d Sess. VI: 345-6 (1976).
[17] Pre
sident Bill Clinton, "Memorandum For Heads of Departments and Agencies, Sub
ject:
The Freedom of Information Act." Washington. 4 Oct. 1993.
[18] H
.R. Rep. No. 978, 101st Cong., 2d Sess. (6 Nov. 1990) 2.
[19] In 1988, t
he Office of Technology Assessment concluded that federal agencies were
distributing an estimated 7,782 electronic publications, an in
crease of 216
percent over the number of electronic publicati
ons released in 1983. In a
significant parallel finding in th
e same study, OTA reported "the number of
civilian agency publications in
paper format appears to be declining
slowly."
Office of T
echnology Assessment, Informing the Nation. (OTA: Washington,
1988) 27; 31.
[20] U.S. Department of Commerce, National Bureau of Stan
dards,"Computers in the Federal
Government: A Compilation of Statistics,"
NBS Special Publication 500-7
(Washington: U.S. Government P
rinting Office, 1977) 3.
_General Services Administration, Automated Data
and Telecommunications
Service, Inventory and Summary of Fed
eral ADP Activities for Fiscal 1972
(Washington: General Serv
ices Administration, 1973) 2; 5; 12; 36.
_U.S. Department of Commerce, Na
tional Bureau of Standards, "Computers in
the Federal Governm
ent: A Compilation of Statistics-1978," NBS Special
Bulletin
500-46 (Washington: U.S. Government Printing Office, 1979).
[21] Ibid.
[22] "A technological revolution doesn't hit an agency all at once, but a
piece at a
time. Until then, we operate on the least commo
n denominator," said Doris Lama, a Navy
FOIA officer. FOIA
policies today "stand in limbo," and "there is a desperate need for
Congress to act and clarify this," she said.
Doris Lama, Assista
nt for Freedom of Information, U.S. Navy, Department of Defense,
private interview, Washington, 14 April 1993.
"They're going to h
ave to give us some guidelines -- either Congress or
the Just
ice Department," added Brenda Dolan, with the Department of
C
ommerce's Freedom of Information Act and Privacy Act Office.
Brenda Dolan
, Freedom of Information Officer, United States Department of
Commerce, private interview, Washington, 27 April 1993.
[23] For discu
ssion of an earlier survey see: Alan Westin, "The Technology of Secrecy,"
in None of Your Business: Government Secrecy in America (New
York: Penguin
Books, 1975).
[24] Dan Metcalfe, private in
terview, 11 June 1991.
[25] In 1993, the survey was mailed to Freedom o
f Information Act Officers at each
agency, from a list obta
ined from the Department of Justice. Follow-up letters and
telephone calls were made when responses were incomplete or there were no r
esponses.
Surveying continued until responses were obtained
from all 70 agencies. In 1994, the same
agencies were cont
acted by telephone.
[26] FOIA UPDATE, (Summer/Fall 1993) 2.
[27]
Ibid.
[28] Milton Sloane, private interview, Washington, 6 May 1994.
[2
9] Delmar Dowling at the Social Security Administration, assessed the Cli
nton policy
as follows: "This won't cause any major change
in what we're doing, in how we handle FOIA
requests. Applyi
ng the foreseeable harm standard was more or less what we've been doing
all along... There are certain hoops we have to jump through t
o visibly show we're doing
that, but it won't change much o
f what we're doing. We certainly don't need to issue new
re
gulations."
Delmar Dowling, private interview, Washington, 4 May 1994.
The Clinton policy was also received with equanimity at the Interstate Co
mmerce
Commission. "There was no need to change. We were al
ready doing that. Rarely is anything
denied outright," said
FOIA/Privacy Act Officer John Atkinson.
John Atkinson, private interview
, Washington, 4 May 1994.
[30] Ross Cirrincione, private interview, Wa
shington, 3 May 1994.
A similar assessment came from Gerald H. Deighton
, the Freedom of Information Staff
Director at the Food and
Drug Administration. "Any denial of records has to come through
my office. And now I can send a denial back to the FOIA officer and s
ay, 'What's the
foreseeable harm?' It makes it easier to re
lease."
Gerald H. Deighton, private interview, Washington, 3 May 1994.
[
31] Diane Salva, private interview, Washington, 2 May 1994.
Lt. Col.
Gary Kahn, in the Office of the Secretary of Defense, agreed. "In general
there's probably been a slight increase. We tend to bring th
em up (the new policies) when
there is a dispute," he said.
Gary Kahn, private interview, Washington, 2 May 1994.
[32] In June,
1994, the Peace Corps published the first in a series of historical
monographs. The preface to the monograph, documenting the agency's
entry into Russia,
states:
"This historical account at
tempts to be a proactive response to the Memorandum ...
reg
arding the Freedom of Information Act, issued by President Clinton on Octob
er 4, 1993.
President Clinton wrote: 'I remind agencies tha
t our commitment to openness requires
more than merely re
sponding to requests from the public. Each agency has a responsibility
to distribute information on its own initiative, and to enhance
public access.' This
series is offered in the spirit of Pr
esident Clinton's directive."
Tom Peirce, Peace Corps' Entry into the S
oviet Union; A History
(Washington: Peace Corps, 1994) i.
[3
3] Denise B. Diggin, private interview, Washington, 2 May 1994.
(It sho
uld be noted that late in 1994 the Department of Energy also launched an on
-line
bibliographic database of declassified agency documen
ts. The database, known as Opennet,
went on line Dec. 7. Th
e database does not contain full-text access to the documents, but
does list document location and accession numbers. Press Release, D
epartment of
Energy, Dec. 7, 1994.)
[34] Ibid.
[35] Pre
sident William J. Clinton, "Memorandum for Heads of Departments and Agencie
s.
Subject: The Freedom of Information Act," 1.
[36] "Th
ey've (the Justice Department) given us some guidance on the new memo, but
there
has been no mention of electronic records," said Frederick Smith, J
r., an attorney with
the U.S. Arms Control and Disarmament
Agency.
Frederick Smith, Jr., private interview, Washington, 2 May 1994.
Russell Powell of the Nuclear Regulatory Commission expressed a similar
sentiment: "Our
electronic record cases are still settled
case-by-case and they will have to be for some
time," he sa
id. "We don't have clear rules from the Justice Department yet."
Russell
Powell, private interview, Washington, 6 May 1994.
[37] Milton Sloane,
private interview, Washington, 2 May 1994.
At the Commerce Department B
renda Dolan was emphatic. "We need something in writing. We
need something clear-cut. We desperately need written guidelines. We just
don't know what
to do."
Brenda Dolan, private interview,
Washington, 2 May 1994.
[38] Patricia Riep, private interview, Washingto
n, 4 May 1994.
[39] A variety of groups have studied these issues and re
ached similar conclusions.
Comments of the three below are
representative:
(1) Administrative Conference of the United States
In
1988 the Administrative Conference of the United States published
Electronic Acquisition and Release of Federal Agency Information, a r
eport
also challenged existing agency practices:
"Agencies
should not frustrate the purposes of the FOIA by replacing
sy
stems of paper records with electronic databases, and then denying access
to the electronic data on the grounds that the electronic form of
pre-existing paper records is not a 'record,' that retrieval of the
electronic information is equivalent to creation of a 'new' re
cord, or that
programming is required for retrieval."
(2) The Markle
Foundation
In 1989 the Markle Foundation, a public-interest research org
anization,
published Communications Policy and the Public's R
ight to Know: Public
Access to Electronic Public Information,
by Jerry Berman. This study of
federal electronic records al
so found fault with restrictive federal
information policies.
"The public's right-to-know about the business of
government
is a fundamental principle of our democratic government and open
society
," it concluded, adding that: "In the present era of computerized
government information, this right will be ensured only if public law
and
policy guarantee and expand citizen access to electronic
public
information.... Outmoded government information law an
d policies are
creating new forms of government secrecy in th
e computer age and inequities
between different constituencies in terms o
f their ability to afford,
access and use electronic public i
nformation."
(3) National Commission on Libraries and Information Scien
ce.
In 1990 the National Commission on Libraries and Information Science,
an
independent federal agency charged with advising Congress
and the president
on national library and information policies, issued P
rinciples of Public
Information. The report criticized federa
l policies and proposed what the
commission called an "Inform
ation Age Bill of Rights," which concluded:
"Government agenc
ies should guarantee open, timely, and uninhibited access
to
public information except where restricted by law. People should be able
to access public information, regardless of its format, without any
special training or expertise."
[40] Ibid., 10; 11.
[41] "Open
ness promised, not always delivered," APME News, September/October,
1994, 38.
[42] Executive Order 12937. Federal Register, Nov. 15,
1994, p. 59097.
[43] "Opening Long-Secret Records," The Record: News Fro
m The National Archives
and Records Administration. Vol. 1 No
. 3, January, 1995, 1.
[44] Information Security Oversight Office, Repor
t to the President, Fiscal Year
1993 ii; 24.
[45] "Big Pic
ture of Cold War: U.S. Spy Photos Go Public," New York Times, 25 Feb.
1995. 8A.
[46] Information Security Oversight Office, Report to
the President, 1993 2.
[47] Accounts of the proposed new executive ord
er have appeared in:
The New York Times, 18 March 1994, A1; Washington Po
st, 13 Jan. 1994, A25;
Washington Post, 30 March 1994, A14; National Jour
nal, 16 Feb. 1994, 472;
National Security Law Report March-Ap
ril, 1994: 1.
[48] William E. Conner, "National Classification System Up
date," National Security
Law Report 16:3-3 (March-April 1994)
: 1.
[49] See:
_President Ronald Reagan, "Executive Order 12356," Publ
ic Papers of the
Presidents: 1982 (Washington,: Government Pr
inting Office, 1983) 98.
_H. R. Rep. No. 97-731, 97th Cong., 2d Sess. 3 (
1982) 12.
_Morton Halperin, "Increasing Government Secrecy: Revising the
Classification Order," First Principles (November, December,
1981): 8.
[50] U.S. Sen. Patrick Leahy, "Statement of Senator Patrick J.
Leahy. Introduction of
the Electronic Freedom of Informati
on Improvement Act of 1993," Nov. 23, 1993.
See, also:
FOIA Update, U.S
. Department of Justice. Vol XV, No. 3, (Summer, 1994) 1.
[51] S.B. 1940
, 102d Cong., 1st Sess. (1991).
[52] S.B. 1782, 103d Cong., 1st Sess. (
1993).
[53] Ibid., sec. 7; 5.
[54] Government Printing Office Electro
nic Information Access Enhancement Act of 1993,
44 U.S.C. s
ec. 41 (1993).
[55] President William J. Clinton, "Statement by Presiden
t William J. Clinton Upon
Signing S. 564," Weekly Compilati
on of Presidential Documents (Washington:
Government Printing
Office, 14 June 1993) 29:1043.
[56] Jim Byers, Graphics System Developm
ent Division, Government Printing Office,
private interview
, Washington, 11 May 1994.
Sarah Jones, Research Assistant, U.S. Congress
, Joint Committee on Printing, private
interview, 10 May 19
94.
[57] Judy Russell, private interview, Washington, 11 May 1994.
|
