The other shoe has dropped at the federal Department of Justice. If you didn’t hear the thud, it may be because it was drowned out by the sound of file drawers slamming shut at federal agencies.
Ever since President George W. Bush announced the appointment of former U.S. Senator John Ashcroft as attorney general, access advocates had wondered how long it would take the new administration to declare a formal policy on the interpretation of the federal Freedom of Information Act.
The last Justice Department policy memo on FOIA had been issued in October of 1993 by Janet Reno. It had given federal administrators more latitude for “discretionary release” of information. In other words, if a FOIA request was in doubt, agency administrators and FOIA officers had the attorney general’s blessing to lean toward openness.
It wasn’t an invitation to release information immediately and completely (no one could accuse the Clinton bunch of wholesale information release) but, after 12 years of Republican reticence, it at least seemed to open the door a little wider.
In essence, Reno was saying to FOIA administrators: You can be trusted to make the right decision.
One didn’t have to be a die-hard pessimist to consider anything with Reno’s signature an endangered species in the new administration. The only question was what would set the ax in motion.
Nothing happened in the early months of the year, no doubt because Bush and Ashcroft still were trying to get other Justice Department appointees confirmed in Congress.
While it was tempting to press Ashcroft for his attitude on FOIA, there was little point in hastening a decision or provoking a knee-jerk, anti-Reno, response. So, for the first eight months of the new administration, no news was good news. Without a new policy, the Reno directive was still in force at Justice and throughout the federal bureaucracy.
How long it would have remained alive in more normal times is now a moot point. On Oct. 12, Ashcroft announced the Bush administration’s first official FOIA policy. While mentioning FOIA’s importance in government accountability (namely, revealing fraud and government waste) the memo is far more concerned with privacy and security issues.
It states: “Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.”
Ashcroft’s memo tells agencies to consult with Justice Department lawyers, including civil litigation lawyers, “when significant FOIA issues arise.”
The message: We know more than you do. Don’t act alone. Take all the time you need. Privacy and security are now the goals.
(Read the full text of the memo and the DOJ’s announcement of it online.)
Six days after the Ashcroft memo was announced, The Associated Press reported that President Bush has lent his support for a new FOIA exemption to allow information on private sector computer security breaches to remain secret.
Ostensibly, the exemption would encourage companies to report security breaches in their information infrastructure, something that apparently doesn’t happen now because company bigwigs want to avoid being embarrassed in the media and the marketplace.
In short, we now know the Bush approach to FOIA – and it’s a whole new ballgame. You may remember it. It’s called “keep-away.” And guess who has the ball.
Ian Marquand is special projects coordinator for the Montana Television Network. He is chairman of SPJ’s Freedom of Information Committee. Contact him at ian@kpax.com.
Tagged under: FOI
