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Monday, March 4, 2002

Freedom of Information Under Attack

By Richard Knee

The public’s business isn’t necessarily public, according to U.S. Attorney General Ashcroft.

In a memorandum circulated last Oct. 12 to all federal department and agency heads, Ashcroft said the Justice Department and the Bush administration “are committed to full compliance with the Freedom of Information Act [FOIA]” but added that they are equally committed to protecting “other fundamental values” such as national security, effective law enforcement, and protecting “sensitive” business information and personal privacy.

Here’s the alarming part of Ashcroft’s memo: “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

FOI advocates are predictably worried.

Under Ashcroft’s predecessor, Janet Reno, the Justice Department “would defend a decision to withhold information if it was ‘reasonably foreseeable that this disclosure would be harmful to an interest protected by that exception,’” said Tim McGuire, president of the American Society of Newspaper Editors, and Anders Gyllenhaal, FOI Chair, after a joint ASNE-FOIA meeting last month.

FOI advocates fear Ashcroft’s policy “may represent a sharp turn in how this will affect the fundamental flow of information from the federal government.” McGuire and Gyllenhaal’s memo urges newspapers to keep records of responses to FOIA requests.

Also disturbing is that the Justice Department and the administration did not publicize Ashcroft’s memo.

“Somehow, this memo never surfaced,’’ wrote the San Francisco Chronicle in a Jan. 6 editorial.

“When coupled with President Bush’s Nov. 1 executive order that allows him to seal all presidential records since 1980, the effect is positively chilling.”

The editorial gave several examples of FOIA-aided barings of “official skullduggery, some of which even violated the law. True, such revelations may disgrace public officials or even result in criminal charges, but that is the consequence — or shall we say, the punishment — for violating the public trust.”

Karen Ocamb, sunshine co-chair of the Los Angeles Press Club, warned that Ashcroft’s policy is likely to “trickle down” to state and local government agencies.

“This only adds to the burden already placed on those of us trying to access the public records to which we are entitled,” said Ocamb, a West Hollywood-based freelance journalist.

“Journalists aren’t the only ones being denied public documents by ill-trained or manipulative public employees,” she said. “The executive director of a non-profit organization that helps inmates with HIV/AIDS was forced to sue under the FOIA to find out about a [Los Angeles] County-administered state-funding contract for services her organization provides.”

FOI proponents hope to put a state constitutional amendment (SCA7) strengthening the California Public Records Act on this November’s ballot. Doing so will require approval from two-thirds majorities in the Senate and Assembly by June 27. Information is available at www.cfac.org.

National Writers Union Local 3 member Richard Knee is a San Francisco-based freelance journalist. This article first appeared in the March 2002 issue of HearSay, the Bay Area monthly newsletter of the National Writers Union.