Curses, FOIAed Again

Seeking equilibrium between secrecy and openness


A federal court in New York held a closed-door hearing yesterday in response to an ACLU lawsuit aimed at compelling the release of more images from Abu Ghraib prison—something the Pentagon has thus far resisted on the grounds that they would become "grist" for Al Qaeda's "propaganda mill."

This is surely a dangerous line of argument. The Iraq war—never mind the Global Struggle Against Violent Extremism—has "turned the corner" so many times that it seems destined to circle dizzily for years to come, leaving no clear-cut expiration date for that kind of justification. Worse, it implies that secrecy is to be greatest when the need for public accountability is strongest: Information is to be withheld precisely when, and precisely because, government has abused its power. And in any event, there's little reason to expect that when such excuses are deployed, imagination and rumor will be kinder than truth in the parts of the world where people are disposed to believe the worst about American actions.

Nevertheless, there are reasons to think that the tide of increased secrecy that swept through government in the wake of 9/11 may be hitting its high water mark and poised to roll back.

Under Attorney General Janet Reno, agencies had been directed to err on the side of "maximum responsible disclosure" in cases where they had discretion as to whether documents sought under the Freedom of Information Act should be withheld. But in 2001, AG John Ashcroft changed course in a memorandum informing agencies that the Justice Department would back a decision to withhold information when any legal basis could be found for doing so, not merely when there was a reasonable expectation that disclosure would lead to some harm. A 2003 survey by the Government Accountability Office found that about a third of FOIA officers believed their agencies were making fewer discretionary disclosures since the memo was issued, and most cited it as a key reason for the decrease. And while FOIA disclosures have risen dramatically from the Social Security Administration and Veteran's Administration (which receive the most FOIA requests), from 1998 to 2004 the CIA went from approving 44 percent of FOIA requests to granting only 12 percent. Ashcroft's successor Alberto Gonzales, however, recently heartened advocates of open government by suggesting that he'd be willing to consider rescinding the memo.

Legislators too have expressed concern about the growth of hostility to openness in government. Sens. John Cornyn (R-Tex.) and Patrick Leahy (D-Vt.) have sponsored a series of bills aimed at expanding FOIA access. Last February, the pair introduced the OPEN Government Act (yet another cute legislative acronym: this one's short for "Openness Promotes Effectiveness in our National Government Act"), to loud applause from journalists and civil libertarians.

The act would, among other things, encourage the Office of Special Counsel to discipline officals for "arbitrary and capricious" denial of FOIA requests. "You can't find anyone who's ever been punished in the federal government for keeping something secret against the law," says Ari Schwartz, associate director of the Center for Democracy and Technology, "It's hard to say the law's being enforced well if we know there are cases where people don't give out information they're supposed to and there are no consequences for that."

The law also guarantees online journalists the same expedited review as their print counterparts and establishes an Office of Government Inofrmation Services to act as a FOIA ombudsman. But what has Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, most excited is a provision that would expand the circumstances under which agencies must pay the legal fees of people who successfully petition the courts for access to information under FOIA. Under the status quo, says Daglish, agencies often attempt to deter FOIA requests by withholding documents, waiting for the requester to run up a hefty legal bill, and then (if the requester seems likely to prevail) voluntarily releasing the information before court proceedings begin. The OPEN Government Act would require the agency to pay the complainant's legal fees under such circumstances.

One section of the OPEN Government act has already passed the Senate as a stand-alone bill. That law would attempt to eliminate "stealth exemptions" to FOIA by requiring Congress to explicitly identify any statutes that would limit the public's right to access information under FOIA. Dalglish, explains that as the law stands now, "I could spend a year going through the federal code and not know what's covered. This gives us a warning: If a bill is proposed that limits FOIA, it's not going to fly under our radar."

Those reforms may mean enemies abroad learn about abuses like those at Abu Ghraib. But they'll also see what happens when Americans know about those abuses—see that we're capable of holding accountable those who are responsible for the abuses, of ensuring they never recur. That may not be such bad propaganda after all.