Government Often Keeps Public Records Private

FALL RIVER, Mass. -- Ed Lambert, Al Lima and Mike Miozza never thought of themselves as activists, just as regular guys.

Then an energy company announced plans to build a liquefied natural gas terminal in this small community on the Taunton River. The men -- the mayor, a city planner and an engineer -- had nightmare visions of gas igniting into a huge fireball on the river. They asked for government-held reports that studied the threat to the town if the plant or a tanker were attacked.

But like many people who ask for government records these days, they didn’t get what they were looking for.

“It’s a farce,” Miozza said.

And it’s happening across the country. To a Virginia homeowner seeking plans for a gas pipeline near his home. To Wyoming politicians worried about local dams. To an environmental group that wants the studies on 100-year floods and dam failures in a Southwest river canyon.

All asked for records, and all were turned down.

Behind the rejections is a transformation of the nation’s Freedom of Information Act -- a federal law that allows public access to government reports, documents and other records. That freedom is supposed to be balanced by the needs of national defense and privacy, and government officials argue that America’s war on terror requires a new, more closely guarded approach.

The law itself hasn’t changed, but the balance shifted after the Sept. 11, 2001, attacks with a series of actions by the Bush administration and Congress. Creation of the Homeland Security Department effectively added another reason that government doesn’t have to open its books. States and local governments followed suit, moving more information out of public view.

“We’re denied information that could put our community at risk,” Lambert said in an interview in his sixth-floor office, the granite mills, sea gulls and steep hills of Fall River spread out below. “It seems to us like a bad movie ... yet we’re all living it.”

Originally passed in 1966, the Freedom of Information Act grew out of a backlash to the Cold War-culture of government secrecy that flourished amid the nation’s worries about communism.

The Watergate scandals spurred a strengthening of the law, giving it teeth for the first time, and it has been revised since then -- most recently in 1996, when it was updated to make more information available over the Internet.

The American policy has inspired governments across the globe. Slowly at first, but increasingly in the last decade, nation after nation -- including Japan, South Africa and Armenia -- have opened their government information to citizens.

Although the U.S. law is often associated with journalists and government watchdog groups, private citizens actually use it far more frequently. Individuals with questions for Social Security or Veterans Affairs, usually about their own personal records, are the biggest users. Prison inmates frequently make FOIA requests, as do businesses, since documents can reveal details about government contracts and their competitors.

In all, more than 3.2 million FOIA requests were made to the federal government in fiscal year 2003, the last year with complete figures, the Justice Department said, up from 1.9 million in 1999.

Staff time on such requests equaled a full year’s work of more than 5,000 employees.

The CIA’s website, where information requests can be made online, offers a glimpse into the public’s obsessions.

January’s top information searches? “UFO” (2,019 times) and “Vietnam” (1,889 times). Other searches in the top 25 included “Iraq,” “mind control,” “Bay of Pigs” and “mapping the global future.”

While many requests are for personal records and some might be pointless, in the end, the idea is to help people keep an eye on how they are being governed, invigorating American democracy. But the changes in recent years have raised alarms from journalists and public interest and civil liberties groups.

“Instead of government officials being considered public servants, they are now more and more like gatekeepers who can determine what the public can know,” said Steven Aftergood, director of the Federation of American Scientists’ Secrecy Project. “And that’s a profound change.”

A month and a day after the terror attacks, former Atty. Gen. John Ashcroft issued a memo as part of the guidance the Justice Department provides to all federal agencies as they consider whether to grant requests for information or deny them.

Shifting from the Clinton administration’s standard that experts say emphasized “maximum responsible disclosure,” Ashcroft encouraged staff to consider “institutional, commercial, and personal privacy interests,” and said the Justice Department would defend any rejections unless they lacked a “sound legal basis.”

Another memo followed five months later from White House Chief of Staff Andrew Card, urging agencies to “safeguard” information that could help in the development or use of weapons of mass destruction, and other information that could be used “to harm the security of our nation.”

After that note, thousands of documents were removed from public access, according to government watchdog groups and federal agencies.

Finally, with creation of the Homeland Security Department, the administration and Congress made an exemption to FOIA that allows private companies to give the agency information that can then be kept secret if it is considered “critical infrastructure.” The idea is to get companies to share more information with the promise that it won’t be made public.

“Unquestionably, agencies do look at information now through a post-9/11 lens,” said Daniel J. Metcalfe, co-director of the Justice Department’s Office of Information and Privacy. He helped Ashcroft draft his Oct. 12, 2001, memo, although he noted that work on it started long before the terrorist attacks.

The Card memo that followed and the provision in the Homeland Security Act all helped create a new tone for handling information requests, but Metcalfe stressed that they did not change the law.

In Fall River, that tone meant the denial of information.

“We’re trying to balance the public’s need to know with the need to keep this information from getting into the hands of those who would kill our citizens,” said Bryan Lee at the Federal Energy Regulatory Commission, which holds the reports.

“Nobody here wants to be the equivalent of the State Department administrator who gave the visas to the terrorists who came into this country,” Lee said.

His agency would allow Lambert, Lima and Miozza to see the records regarding the plant only if they promised not to speak about them. Lambert refused, figuring that it would limit his ability to address the subject in public. Lima and Miozza agreed, but said so much material was blacked out that it was useless.

“What’s the use of the information if we can’t talk about it?” Lima said. “It’s this surreal, Kafka-esque situation.”

The terminal, if approved, would hold 52.8 million gallons of gas, with aircraft carrier-sized tankers coming up the narrow river roughly once a week. Residents say it’s an unacceptable risk, with homes and schools all within a mile -- the range for second-degree burns if the fuel ignited, according to government studies.

The federal regulatory agency has yet to decide whether to let the plant be constructed; the opposition includes the governors and congressmen from Massachusetts and nearby Rhode Island.

Cases such as Fall River’s are helping fuel the sentiment behind a bipartisan Senate bill that would revisit FOIA and the exemption created under the Homeland Security Act.

“As American citizens, we have a right to know the good, bad and ugly,” said Sen. John Cornyn, a Texan Republican who emphasized that he isn’t trying to counteract the Bush administration as much as government bureaucracy’s tendency to protect itself at the public’s expense. The co-sponsor is Vermont Sen. Patrick J. Leahy, a Democrat.

“This is an issue that conservatives and liberals alike, Republicans and Democrats and independents, can and should support,” Cornyn said. “What we’re trying to do is nothing less than a restoration of the people’s power to control the instruments of government.”

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Next week: Many federal departments began reducing the amount of information they released in 1998, the Associated Press finds.