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
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.