Critics Say New Rule Limits Access to Records
By THE NEW YORK TIMES
WASHINGTON, Feb. 26 — Scholars and researchers say people will have a harder time getting information from the government because of a new Bush administration guideline on releasing federal records.
The guideline, issued in October by Attorney General John Ashcroft, describes how the administration intends to carry out the Freedom of Information Act, which says federal agencies must make their records available to the public. Since President Gerald R. Ford, it has been customary for new administrations to outline their interpretation of the act soon after taking office.
Mr. Ashcroft said the Bush administration's standard would be to support withholding documents as long as there was a "sound legal basis" for doing so. The previous standard, issued in 1993 by Janet Reno, the attorney general under President Bill Clinton, was to support withholding documents only if "disclosure would be harmful."
The change in wording is a significant blow to government openness, some researchers say.
"This direction basically encourages and instructs agencies to withhold information whenever it can be fit to an exemption," said Harry Hammit, editor of Access Reports, a newsletter about the availability of government information.
Ms. Reno's standard, Mr. Hammit said, encouraged releasing documents even if withholding them was legally defensible, as long as the release harmed no one.
Since requests for records through the information act can take months to process, researchers say it is too early to tell exactly how the new standard is affecting their requests. But Brant Houston, executive director of Investigative Reporters and Editors, said the general feeling among journalists and researchers was "that this gives agencies a wide open door to close records without substantial reasons."
The Justice Department said those fears were exaggerated. The new standard is "not such a drastic shift, as much as a change in tone" said Daniel J. Metcalfe, a director of the department's Office of Information and Privacy, which gives federal agencies guidance on complying with the information act.
But either way, some scholars said, the effect is the same.
"What's so troubling about this is the message it sends to records custodians: When in doubt, don't give it out," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota.
The standard is so broad, Ms. Kirtley said, that agencies will have no trouble finding legal justification for withholding documents, no matter how spurious their reasons.
"The lower courts are all over the place on most exemptions," she said.
So the Justice Department, Ms. Kirtley said, can "almost always find some court somewhere that has ruled in favor of withholding a record under this or that exemption."
The Freedom of Information Act, enacted in 1966, was the first law to say that the people had a right to the records of federal agencies. Before that, "people were pretty much limited to materials agencies chose to disclose," Ms. Kirtley said.
The act has become a frequent tool of journalists and scholars, particularly since 1974, when it was amended after the Watergate scandal to force more compliance from agencies. A report by the General Accounting Office, the investigative arm of Congress, found that in the 1999 fiscal year some 1.9 million requests were made through the information act to 25 federal agencies. The agencies provided all of the records requested in 82 percent of the inquiries, the report said.
Some federal officials say the information act has become a burden to federal agencies, which sometimes receive requests for documents hundreds or thousands of pages long. But many people outside government say the act is indispensable to the democratic process.
"The Freedom of Information Act is a crucial piece of legislation for journalists, researchers and investigators trying to get to the truth of how our government operates," Mr. Houston said. "The act is crucial for the protection and general education of the public."
Bush's stance on secrecy draws a number of critics
Papers, pretzel cited as instances lacking disclosures
By Anne E. Kornblut, Globe Staff, 2/11/2002
WASHINGTON - During a tussle with Congress last summer, President Bush cracked that ''a dictatorship would be a heck of a lot easier'' than negotiating the maze of American democracy.
A few months later, Bush joked that he admired the media strategy of Chinese President Jiang Zemin, who abruptly ended a joint news conference and walked away after fielding one question.
Now, conservatives and liberals have begun to suspect that Bush is not kidding about his bent toward secrecy. The battle between Congress and the administration over documents from Vice President Dick Cheney's energy task force has made headlines, and lawmakers and government watchdogs have characterized other actions as abuses of executive power.
During his first year in office, Bush has delayed the release of presidential papers from the Reagan White House, imposed limits on public access to government documents, refused to share revised data from the 2000 Census, and shielded decades-old FBI records from scrutiny. Advisers even declined to disclose the brand of pretzel that Bush choked on last month.
''This is the Old-World style of government, where the sovereign is considered to be elite and the people are considered to be the rabble, and they have little to no right to know what the government is doing,'' said Larry Klayman, head of Judicial Watch, a conservative group that pursued Clinton administration records in court. ''It's very similar to Nixon, and many of these people come out of the Nixon era. They're like Dr. Strangelove.''
Bush officials take strong exception to that view, and maintain that many of their confidentiality measures have been designed to protect national security in the aftermath of the Sept. 11 attacks. Administration advisers describe their withholding of certain documents as an effort to return to the principles of the Constitution, which they say recognizes a need for a higher degree of confidentiality in the executive branch than now exists.
''We have been forthcoming at every turn, and we have always valued the right and the need of the public to have information about their government,'' White House spokeswoman Anne Womack said. ''But when there are important constitutional principles at stake, we will always stand with the Constitution, as I think the American people would expect and appreciate.''
According to presidential scholars, the White House has a right to protect some degree of opaqueness to the Oval Office regarding national security matters .
But critics across the political spectrum agree that Bush has taken his penchant for secrecy too far in several instances. The White House is facing a number of lawsuits, reminding some observers of the ongoing legal battles that dogged the Clinton administration.
Representative Henry A. Waxman, a California Democrat, has sued the administration for withholding revised data from the 2000 Census that could increase federal funding for California.
Judicial Watch has filed a lawsuit in pursuit not only of the confidential Cheney energy documents, but also the names of possible donors who attended a function at the vice president's mansion in May 2001, an event administration officials deny was a political fund-raiser.
In conjunction with the American Civil Liberties Union, Representative John Conyers, a Michigan Democrat, is suing the administration for closing some immigration hearings. White House officials say the practice protects national security.
Outside the courtroom, Representative Dan Burton, a Republican from Indiana, has expressed outrage over the Justice Department's refusal to share decades-old documents concerning the FBI's use of informants to investigate James ''Whitey'' Bulger and organized crime in Boston.
''It's a fiction to say the presidency's powers have eroded dramatically over the last 20 years,'' said Mark Rozell, a professor of politics at Catholic University and author of the book, ''Executive Privilege: The Dilemma of Secrecy and Democratic Accountability.''
Of the pending lawsuit against Cheney over the energy documents, Rozell said, ''This isn't Watergate. There is a principle here that the two parties are fighting over. But I think there's something of a secrecy pattern developing in the Bush administration.''
''Our situation is a subset of a broader issue,'' said David Walker, who oversees the General Accounting Office and its struggle over the records of the energy task force. Cheney has said he believed coming into this administration that the president's power had been eroded over the years, and there needed to be a new line drawn. The GAO, the investigative arm of Congress, has announced its intent to sue to get the records.
''We believe that the facts and the law are on our side, that if we go to court we will win,'' Walker said. ''This is not foreign policy. This is not national security. I'm not going to sit here and allow our agency to be stonewalled.''
To some extent, the pattern of secrecy may simply reflect a Republican tendency toward a strong executive branch, and a distrust of a Washington press corps that White House aides believe is biased toward liberals.
''In a way, I have some sympathy with the Bush administration because Congress went so far overboard in its harassment of the Clinton administration,'' said Steven Aftergood of the Project on Government Secrecy.
He contended, however, that the adminstration has been ''keeping information secret that has no relevance to the war on terrorism, whether it's the Reagan papers or energy task force papers. They are trying to put in place a new ethos and to alter the character of congressional oversight.''
Critics note that the Bush administration has continued to share with Congress some documents and e-mails from the Clinton administration - undermining this White House's argument that it has withheld its own documents as a matter of principle. Waxman has accused the Bush White House of hypocrisy.
Another example of the administration's tight-fisted approach is its recent changes in implementing the Freedom of Information Act, a Watergate-era law that allows the public to request copies of a wide range of government documents.
Reversing the Clinton administration rule, which mandated that all agencies comply with FOIA requests whenever possible, Attorney General John Ashcroft has ordered federal agencies to deny requests as long as doing so won't be a clear violation of law.
Despite the Clinton policy, Judicial Watch still found itself in court, fighting for government documents. ''We rejoiced at the end of the Clinton regime. Yet we are worried that Clintonism is still the ethic of this city,'' Klayman wrote.
This story ran on page A3 of the Boston Globe on 2/11/2002.
© Copyright 2002 Globe Newspaper Company.
Battling Over Records of Bush's Governorship
By ALISON LEIGH COWAN
AUSTIN, Tex. — The stacks of the Texas State Library and Archives groan with boxes of carefully preserved papers dating back to James Pinckney Henderson, the first governor, who served from 1846 to 1847. But anyone trawling for insights into the most recent former governor, George W. Bush, or say, his ties to Enron in the years he ran Texas, would have to travel 118 miles east to College Station. Even then, it might be months, maybe even years, before many of the records are available.
The papers, sitting in 1,800 boxes, are at the center of a tug of war between Mr. Bush and the director of the Texas state archives. By placing them at his father's presidential library at Texas A&M University, Mr. Bush is putting them in the hands of a federal institution that is not ordinarily bound by the state's tough Public Information Act.
That law, among other things, assures anyone who requests state records a reply within 10 days. Officials at the Bush library say the best they can do, given staffing and other priorities, is 90 days, and some requests have taken longer. "We'll do our best," said Warren Finch, the Bush library archivist.
But Peggy D. Rudd, the Texas state archivist, said doing their best was not quite enough. "Our opinion is that the records belong to the State of Texas, and that the State Public Information Act pertains," she said. "So, no, 90 days is not good enough."
The struggle over Mr. Bush's records is just one of many battles over access to public records as politicians test new ways to keep tight control over their archives.
"Who needs a shredder when you have Daddy's presidential library?" said James Newcomb, an official with the Better Government Association in Chicago, which relies heavily on freedom-of-information requests.
In New York, former Mayor Rudolph W. Giuliani has also been criticized over an 11th-hour deal that his administration made to send his papers to a private center that people close to him will control. Critics have expressed most concern over a line in the agreement that seems to give Mr. Giuliani the right to block the release of a document in which he has a "personal interest."
In the cases of Mr. Giuliani and Mr. Bush, people involved in the decisions have said they had the public's interests at heart. "The whole purpose here was to make them more accessible, not less," Mr. Giuliani said on Tuesday.
In a similar vein, background materials in the Texas bill that gave Governor Bush the authority to name an alternate repository for his papers refer to the desire to modernize records and ease the state's load.
Archivists say there have always been politicians who treated their papers as chattel dating to George Washington, who packed his papers into two trunks and returned to Mount Vernon, Va. By 1978, tired of tussling with Richard M. Nixon over documents, Congress passed the Presidential Records Act to assure that all official papers, with some exceptions, become public 12 years after a president leaves office.
But last Nov. 1, President Bush issued an executive order that blocked the long-awaited release of documents from Ronald Reagan's presidential library. The order, which is being challenged in court by several organizations, permits a sitting president to veto the release of a former president's records.
The Bush administration has also been criticized over a memorandum that Attorney General John Ashcroft issued in October, telling federal officials that they could "be assured" of Justice Department backing if they resisted freedom-of-information requests. Vice President Dick Cheney is also battling the General Accounting Office, the investigative arm of Congress, over a request to produce records about his energy task force. Mr. Cheney says that doing so would hinder his ability to get unvarnished advice from industry.
"What seems to be coming out of the administration is the idea that public information is a dangerous thing," said Tom Connors, a council member of the Society of American Archivists who also took part in a recent rally to protest Mr. Giuliani's records transfer.
The transfer of Mr. Bush's records was authorized by the State Legislature in 1997. The law says the governor, "in consultation with" the state archives, may designate an alternate repository for his records. But, as Ms. Rudd says, "The law is silent on what happens after the transfer takes place."
Ms. Rudd also complained that there was little if any consultation before Mr. Bush's papers were sent away. She remembers being startled when, on Dec. 19, 2000, she was asked to sign a one-page statement noting the governor's wish to ship the papers to his father's library. "The afternoon of Bush's final day in office, a young man runs over with the agreement and says, `Sign here,' " she said. She signed.
Ever since, the archives, the Bush library and representatives for the current and former governors have tried thrashing out the terms of the transfer to no avail.
One of the main sticking points, said Edward Seidenberg, the assistant state librarian, was that "the Bush library said they could not agree to abide by a Texas law."
On Jan. 16, an interim memorandum of understanding was reached that binds the parties until May 20. That is when they expect a ruling from the Texas attorney general that they hope will clarify whether Governor Bush, by transferring the records, effectively moved them from under the aegis of the state, and its public information law.
Few in Austin care to bet how John Cornyn, the attorney general, will come down. The first Republican to occupy his office since Reconstruction and a member of the Bush- Cheney transition team, he ran on a platform of open government.
Mr. Cornyn declined to be interviewed, but in his inaugural speech on Jan. 13, 1999, he not only thanked his "friend" Governor Bush but also promised his supporters to "vigorously enforce the laws requiring that government records and meetings shall be open to public view."
In the meantime, news organizations and a public interest group, Public Citizen, have petitioned the Bush library for the 60 or so Enron- related documents believed to be in the governor's files, many dating from 1997 to 1999 when Texas was debating utility deregulation.
If 10 workdays elapse, and the petitioners sue, the matter would go before a judge.
"To say we have 10 days to respond is mind-boggling," Doug Menarchek, director of the Bush library, said of the task before him. The records, housed in a temperature- controlled, specially lighted room, arrived on 60 pallets. Cataloging could take one archivist up to six years. By then Mr. Bush might have his own presidential library.
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