Statement of Ralph Nader before FOIndiana


September 21, 1996

Freedom of Information is an expression that appeals to Americans, and it is an idea that has much support internationally, among citizens. People outside of government want to know what the government is doing -- to put the government, rather than the citizen, under surveillance. And there is more. The government is the source of vast amounts of information on a dazzling array of topics -- weather reports, statistics on the economy, abstracts of medical research, mapping coordinates, tests of auto safety and fuel efficiency, and countless other items. We want access to government information, in order to be informed, to become better citizens, to exercise more political power, and to deepen our understanding of the world we live in.

The modern freedom of information movement has its roots in the early cold war period, but it was the dramatic evidence of lying and official misconduct from the Vietnam war and Watergate which mobilized a generation to demand freedom of information and open government laws across the United States.

Today, thirty years after the 1966 passage of the first federal FOI, and twenty two years after the law was strengthened in 1974, we can look back at the many benefits of the federal and state FOI laws that were passed, and reflect upon the importance of the public's right to know. We can also look at the present and consider the future.

At the most basic level, there are three important issues which determine the public's ability to obtain information from governments.

1. First, what information do governments collect? For example, what types of information does the government collect on environmental risks. What types of information does the government collect about the economy? What types of reports and findings are made by agency officials? This is a huge and often neglected issue in the right to know community.

2. Second, what do governments publish? Are these publications readily available to citizens?

3. Third, how do citizens obtain access to unpublished documents?

Often the FOI community focuses on the third issue only, but the public's right to know is determined by all three questions.

Most information created or collected by the government is not routinely disseminated to the public. These are the unpublished records. FOI laws are a tool to give the public access to this body of information. FOI laws are necessary because government employees and public officials often want to hold onto these records as though they are state secrets. The culture of secrecy in government is not unlike the culture of secrecy in many areas outside of government. People know that information is related to power, and often they want to control information, in order to enhance their own power.

As important and useful as the FOI is, it remains far from the tool we need for broad public access to government information. At the federal level, we have the problems of huge delays in processing requests, and even after the delay, a variety of efforts to frustrate the FOI requesters. There is the problem of poor searches, that never seem to find anything related to the request, huge abuses in statutory exemptions relating to national security, proprietary corporate information, or law enforcement, and the increasing problem of FOI access to records held or created by private contractors to government agencies.

The only modern President who has actively supported the Public's right to know was Jimmy Carter, who took steps to reduce official secrecy, and to improve the administration of the FOIA. The Clinton Administration raised expectations about the access under the federal FOIA, talking the talk, but has failed to walk the walk.

There is the problem of failing to "oil the machinery." The Clinton administration hasn't come close to the statutory time limits for processing FOIA requests, and has done little to address the serious problems of sealing records with overbroad and unjustified secrecy classifications. And when faced with the new issues presented by electronic communications, the Clinton Administration has been a disaster.

Consider the issue of Scott Armstrong v. Executive Office of the President. This is a case which involves access to the electronic mail messages from While House employees. As this audience will recall, much of what we know about the Iran-Contra scandal we learned from the electronic mail records of Oliver North and others. At the end of the Reagan Administration, Scott Armstrong, the journalist, the National Security Archives, the American Library Association, the American Historical Association, the Center for Strategic Studies, and Eddie Becker, an individual, sought and received an injunction which prevented the White House from destroying its email records. Through a number of subsequent actions, these parties, who are represented by Public Citizen's litigation group, have sought to have White House email records subject to the Federal Records Act (FRA) and the FOIA. In addition to the injunction over the Reagan records, there is an injunction over the Bush Administration records, and there are efforts to preserve and provide access to the Clinton Administration records. The case is popularly called the White House email case.

Not surprisingly, the Bush administration mounted a huge challenge to the Armstrong case. Perhaps more surprising has been the effort by President Clinton, who has also fought the Armstrong case with a vengeance. In fiscal year 1993, government lawyers spent 8,793 hours opposing this suit. In fiscal year 1994 they spend 8,594 hours opposing the suit. In fiscal year 1995 they spent 5,704 hours opposing the suit, and we don't have the figures for fiscal year 1996.

One of the disputes concerned the status of the National Security Council (NSC), under the Federal Records Act (FRA) and FOIA. For years the NSC has considered itself subject to FOIA. Indeed, the Ford, Carter, Reagan and Bush Administrations did not claim that the NSC was exempt from FOIA. But in March 1994, the Clinton Administration declared that all NSC documents would be exempt from FOIA and the FRA, a claim that the past three Republican presidents did not dare to make.

On August 2, 1996, the Clinton Administration got much of what it wanted from the federal Court of Appeals for the District of Columbia. In an opinion written by former Reagan White House employee Douglas Ginsburg, the Court ruled that the National Security Council is "not an agency" for purposes of the Federal Records Act (FRA) or the FOIA. This is a devastating opinion for the public's right to know. It gives the president the right to destroy NSC records without judicial review, and it provides an enormous loophole for exempting records from the FOIA. If this decision had been made earlier, Reagan could have destroyed the Iran-Contra records when he left office.

As a footnote, under the Reagan Administration, Judge Ginsburg served as the Administrator of OMB's Office of Information and Regulatory Affairs (OIRA), where he helped supervise the elimination of many government publications, while increasing user fees on publications that there were not eliminated. He was also one of the architects of the Reagan Administration's policy of privatizing the dissemination of government information.

The Clinton Administration has also tried to push the envelope in protecting many other government records. For example, there have been several attempts by citizens to obtain records from two government computer databases which contain thousands of court opinions. One such database is called FLITE, and it is managed by the Air Force. It contains, for example, copies of U.S. Supreme Court opinions, going back to 1937. These are hardly state secrets, but the Clinton Administration has gone to great lengths to withhold these records from the public. In order to avoid the FOIA, the Clinton Administration was developed a legal theory that the FOIA doesn't cover "library" or "reference" materials. And since you can find Supreme Court cases in libraries, they refused to release the taxpayer funded computer database which contained the court opinions.

The Clinton Administration litigated this issue of access to the FLITE Supreme Court records in Oakland, California, and won, creating a controversial judicial precedent that excludes many important government databases from the FOIA. [We continue to have discussions with the Clinton Administration over the release of the FLITE Supreme Court records, and we hope for a partial reversal of policy, but this is taking years, and leaving a trail of harmful jurisprudence.]

The Clinton Administration has issued FOIA guidelines that assert this theoretical "library materials" FOIA exemption, and this year the Clinton administration sought, unsuccessfully, to include language exempting "library" and "reference materials" from FOIA, in the "Electronic FOIA" legislation.

The chief information policy official for the United States government is Sally Katzen, who holds Judge Ginsburg's old job of Administrator for the Office of Information and Regulatory Affairs (OIRA). This job turns out to be an odd matching of responsibilities. The "I" in OIRA stands for information policy, including such items as FOIA, privacy, and copyright policy. The "R" stands for regulatory policy. Basically, OIRA is an agency that takes one last look at regulations before they are issued, and the OIRA Administrator has often been cast in the role of the champion for business interests, who lost their case at the agency level. Indeed, before her confirmation, Ms. Katzen told a group of right-to-know activists that she saw her job as an ambassador to the chamber of commerce on regulatory matters. One wonders how being a great ambassador to the Chamber of Commerce qualifies someone to be the top information policy official in the Clinton Administration. Right-to-Know groups asked the Clinton Administration to split the office's two functions. We pressed this point directly to Vice-President Gore when he was just getting his reinventing government campaign underway. But the commercial data vendors have always preferred the present arrangement, and it has endured from Reagan to Bush and now to Clinton.

In 1995, when Congress was re-writing the Paperwork Reduction Act (PRA), West Publishing (the company that benefited the most from the refusal to give the public the Air Force database of Supreme Court records) inserted a provision in a pending bill mark-up which would have eliminated the public's FOIA rights to any government records if there was "value added" by a private party. This included cases where the government hired the party as a contractor, at taxpayer expense. The government was also prohibited from disseminating the information to the public, or even "pointing" to the information, without obtaining contractual permission from the company who "added the value." This clause was immediately dubbed the "West Provision" in the bill, and became extremely controversial.

Sally Katzen, testifying on behalf of the Clinton Administration, raised no objection to this provision, despite its enormous impact on the public's rights to obtain federal information which involved any private contractors at all, including firms that simply processed payroll records or other routine tasks. There was an immediate and large citizen protest over the provision, which was mobilized over the Internet. The Department of Justice sent Congress a letter, explaining that the provision was so broad, it would not even permit the DOJ to cite a West Published case in a brief without the firm's permission. The "West Provision" was soundly defeated in Committee.

In the same legislation, Congress was trying to limit the prices the federal government could charge for information, to the cost of dissemination -- a policy that had been endorsed by the Bush Administration. But Sally Katzen, the chief Information Policy Officer for the Clinton Administration, fought the pricing limit, and unsuccessfully sought a general waiver of this policy, allowing agencies to charge higher prices after simply posting notice that the pricing limit was to be waived. On both issues, right-to-know advocates prevailed -- rejecting the "West Provision" and the "wavier" of the fee limit. We did better with the Republican congress than with the Clinton Administration on these issues.

As noted earlier, the public right-to-know depends also upon access to published information. The federal government publishes millions of reports, books, periodicals, and other items. Many of these are items are available for free to the public through a network of 1,400 federal depository libraries, under a program administered by the United States Government Printing Office, popularly known as GPO.

The Clinton Administration has been oddly hostile to the GPO and the Depository Library Program. It has told agencies that participation in the Depository Library Program is voluntary, which undermines the program, and agencies are encouraged to avoid the GPO in printing and disseminating information. GPO's role has been that of a central clearinghouse for printed documents, with centralized catalogues. GPO has a large program of free dissemination through its Internet GPO Access program, and its prices for printed sales products are limited by statute.

In its place, the Clinton Administration is favoring dissemination through the very pricey National Technical Information Service (NTIS). The NTIS was once an agency that was supposed to enhance the dissemination of scientific data. When the Reagan Administration tried to sell NTIS off to private sector, the Congress made the agency into a government run business, funded through fees. Now its turning into a monster, charging thousands of dollars for databases that it figures are worth big bucks to businesses. The agency charges $20,000 for ten years of bank call reports, for example. Very early on, we met with Vice President Gore and discussed pricing problems at NTIS, to explain who the NTIS policies were entirely inconsistent with policies to expand public access to government information. But there has been zero change in policy since the Reagan years.

Now the Clinton Administration is trying to move its collections of economic statistics from free web pages to the Department of Commerce's STAT-USA program, which costs $100 per year. Despite passage of new legislation which is supposed to limit the prices for government information, and prohibit restrictive contracts on the redissemination of information, the Clinton Administration has done nothing to solve huge pricing and licensing problems with databases such as MEDLINE, the world's most important database of medical research, or AGRICOLA, a database of agriculture research, to mention just a few.

The Clinton Administration's has turned policy on intellectual property rights, including copyright, over to Bruce Lehman, the Commissioner of the Patent and Trademark Office (PTO). Mr. Lehman, sometimes referred to as the "monopoly man," for his ambitious interpretation of what can be patented, is a leading proponent of a new property right for databases of public domain materials. The Clinton Administration wants legislation that will give anyone who expends any effort to assemble these databases a 25 year monopoly on data extracted from the database. The legislation is being pushed by West Publishing, and will including such items as the paper copies of court opinions that West now published in books.. These will be defined as a database, and receive super protection that is far stronger than even copyright protection. The legislation is supposed to overturn the 1991 Supreme Court Fiest decision, which declared that facts cannot be copyrighted.

The Clinton Administration could not get this bill through the Congress, but in December the proposal will be voted on at a meeting of the World Intellectual Property Organization (WIPO) in Geneva. Heading the US delegation to Geneva will be "monopoly man" Bruce Lehman. One note about Bruce Lehman: As head of the PTO, he refuses to release on the Internet the full text of U.S. patents, because several publishers, including foreign owned West Publishing and Lexis, say that this would hurt their profits from the sale of U.S. patent information. The Clinton Administration stands behind Lehman on this position. What is the result? Patents are mostly read by the patent bar, rather than by students, inventors and small businesses people.

There are areas where the Clinton Administration helped to broaden the public's access to government information. The Clinton Administration's positive rhetoric about public access to government information has encouraged many agencies to use the Internet and other new information technologies to vastly expand public access to government information.

When there were early questions about what could be done with the Internet, the National Science Foundation funded a pilot project to show that the Securities and Exchange Commission (SEC) EDGAR database could be disseminated on the Internet for far less than LEXIS, the SEC contractor, had claimed. When the SEC balked at picking up the pilot project, the White House appeared at an SEC public hearing to urge the agency to continue this important program. The success of the EDGAR dissemination project has made it easier for other agencies to take similar steps.

The Clinton Administration issued an Executive Order which reversed a policy by the Reagan Administration that shifted the burden for release of information. The Clinton policy requires the agency to show "foreseeable harm" as a justification for denying a FOIA request. This was better than the Reagan policy, but not as good as the Carter Administration, which had required a showing of "demonstrable harm." Some federal agencies have used the new FOIA guidelines to release more documents to the public. Unfortunately, this isn't always the case, and many FOIA experts say the Department of Justice's Civil Division is strangely out of sync with the Executive Order on FOIA, defending dubious denials.

Secretary Hazel O'Leary at the Department of Energy has instituted a pro-active program to declassify and release documents of public interest, on topics such as the impact of radiation of human health and other issues.. She has meet much resistance from DOE and DOD, but she is working hard at this, and has met with some success.

Finally, I would like to say how impressive the FOI efforts are in Indiana. This organization is a model for civic action on openness initiatives that should be widely emulated. FOI and other open government efforts do not happen in a vacuum. Education and advocacy on right-to-know issues remain as important today as ever. Indeed, the challenges presented by the new information technologies are raising a number of new issues that demand attention. For example, as you know in Indiana, there is increasing emphasis on the economics of government information, and the problems presented by privatization of public records. Your efforts will help to make the public's records truly public.

Selected Information Policy Resources

Consumer Project on Technology

Taxpayer Assets Project

Digital Futures Coalition

Public Citizen

Freedom of Information Clearing House

DOE Openness Initiative

Secrecy & Government Bulletin

Archives of Info-Policy-Notes

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