As a journalism student, I have always been very supportive of open information. Transparency and accountability for private companies, government agencies and even journalists themselves are vital to the well-being of citizens by aiding them to make important, enlightened decisions that affect their everyday lives. As someone from a military family, however, I have also had one specific reservation regarding this open flow of information: national security. Personally, if the issue were between knowing information first and saving lives, I would absolutely choose saving lives every time. However, this type of approved secrecy is a delicate issue and can easily go too far, sparking its controversial nature among journalists and the general US population. Frankly, it opens up a horde of difficult First Amendment-related questions. Who can be barred from speech in this instances? What constitutes a matter of national security? How many people have to be at risk before it becomes a national issue? Questions like this help to fuel the debate over which would win the ultimate case where information goes up against national security.
On October 12, 2001, Attorney General John Ashcroft sent out a memo to heads of all federal departments and agencies. The note discussed the federal Freedom of Information Act and stated that while the government is dedicated to providing essential information to citizenry, it is “equally as committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information, and, not least, protecting personal privacy.” Up until this point, I completely agreed with Ashcroft’s statement. While information, clarity and government accountability is essential, so is the imminent protection of US citizens, especially as this note was sent just weeks after 9/11.
As the memo continues though, Ashcroft seemed to almost undermine the federal FOIA, stating “Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.” The journalist in me had a difficult time with this. Sure, as consenting employees of the government, federal department heads are not necessarily being deprived of their First Amendment right by being barred from specific speech in specific situations. But while institutional issues may be valid, allowing commercial and personal privacy interests to become a strong part of the decision may very well open up numerous opportunities for unnecessary government secrecy. For example, while trade secrets are obviously a commercial exemption, could a contract between a government agency and a corrupt weapons dealer overseas also be considered a commercial interest? What about the personal privacy of a government employee who is caught in an act of fraud? While these examples may be extreme, they are still incredibly viable.
Another significant issue I had with this memorandum had to do with the presumption of nondisclosure. Ashcroft’s memo switched the entire thought process of federal department leaders to assume that under the majority of circumstances that arise, their departments should be able to find a reasonable cause to decline FOIA requests. This is nearly exactly opposite of a memo released in 1993 by Ashcroft’s predecessor, Janet Reno, who strongly supported FOIA and believed requests should only be denied under threat of legitimate and immediate harm. The mindset seemed to switch from Reno's pro-free speech, pro-open information policy to anti-transparency all with a simple, basic memo.
Also, Ashcroft’s memo stated that as long as the request’s decline has some sort of legal basis, the Department of Justice would defend it. This was again a switch from Reno’s 1993 note which it stated: “The Department will no longer defend an agency's withholding of information merely because there is a "substantial legal basis" for doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure…In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be.”
While I believe national security should take priority over information in incredibly extreme times (such as after 9/11), Ashcroft’s memo took government secrecy too far. The government and its leaders should not be under the constant impression that the American public does not have credible reasons to request government information or that any released information will result in harm. Rather, the government should presume that the release of information could only further the marketplace of ideas, rather than cripple the safety of the public. Only under extreme and deliberately researched circumstances that would result in inevitable harm should requests be denied, with exemption given only to the provisions stated in the federal FOIA act itself.
On March 19, 2009, current Attorney General Eric Holder effectively reversed Ashcroft's memo with a statement that was sent out to all federal department heads. The memo basically reinstated Reno's former policy, one of "a presumption of openness." The statement even went further to encourage partial disclosures in cases where full disclosures may not be permissible. However, I can only hope that the FOIA policy that is in place today will continue to remain open, such as it has under Reno and Holden, and not continually stagger with the incoming of each new president or political majority's term.
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