FOI expert: Government agencies remain tight-fisted with information

Wednesday, March 17, 1999

Jim Lesar...
Jim Lesar

ARLINGTON, Va. — Getting the government to comply with the Freedom of
Information Act is like engaging in “trench warfare,” a lawyer said today at the World Center.

Jim Lesar, a Washington, D.C., lawyer who has argued more than 170 FOIA cases in federal court, said government agencies hold onto even the most benign information. Sometimes the agencies’ actions border on the ridiculous.

For example, Lesar said the CIA had issued a report on the agency’s efforts to improve openness in the early 1980s. Lesar put in a request for a copy of the report. “They denied it,” he said.

Lesar was speaking at a discussion on “When FOIA Requests Wind Up in
Court,” part of The Freedom Forum’s National FOI Day Conference.

Jane Kirtley, executive director of the Reporters Committee for Freedom
of the Press, said examples like the one Lesar gave come from
government’s longtime knee-jerk response to FOI requests: “When in
doubt, black it out.”

Even worse, Kirtley said, when people would take their FOI request to
court to appeal the government’s decision, judges most often would defer
to the agency’s opinion that the material should remain secret.

Lesar said one judge revealed another reason why the courts seem hostile
to FOI cases: “Law clerks aren’t trained to do FOIA cases, so the judges
have to do them!” Because they’re so much work, the judge told Lesar,
it’s easier to just remove the cases from the books.

Fred Hitz, former CIA inspector general, admitted that panelists were
“right in saying there is a culture of classification weighted against revealing (information). You can’t open up the environment to fresh air. Clearly, there is a need for a legal precedent out there to act as a

“But (people who want information also) ought to lobby the intelligence
community to put more money into declassification efforts. That’s one of
the hardest parts (of complying with FOI requests) — there’s not enough
[people working on declassification], and the records are voluminous.”

Besides the traditional struggle with the classification culture, Kirtley said there are two other areas that have come to the forefront of access issues in the past five years: electronic information and privacy concerns.

Jane Kirtley...
Jane Kirtley

The public’s fears about the right to privacy have escalated as the Internet has grown, Kirtley said. The government keeps detailed records on citizens, she noted, and people are worried about that information being released to the public. As a result, she said, the judiciary seems to be increasingly inclined to keep such information secret.

Michael Tankersley, a lawyer with the Public Citizen Litigation Group,
says the courts seem to be more concerned about personal privacy than
national security. “I don’t think you’ll see a (positive) change in personal privacy cases,” he said. “There have been some limited exceptions to the general rule when the individual has an interest in having (his or her own name) released and being contacted.”

Information that has always been available to the public by digging through courthouse files are now accessible with the click of a mouse, Kirtley said. In this environment, people are worried that their bankruptcy proceedings, divorce papers and property records will get into the hands of the unscrupulous.

“To me this says that when access is really meaningful, that it’s time to close down that access,” Kirtley said. “It seems to me that if a public document should be publicly available, the fact that it’s in electronic form should not alter that.”

But speaking from the audience, Christie Vernon of the American Library Association said that some of the access advocates on the panel were “pretty cavalier about the concerns about privacy. What you do think is the proper balance” between private and public interests, she asked.

“The way the question should be posed is, why does the government collect this information in the first place?” Kirtley replied. “Is there a legal reason? The invasion of privacy occurs when the government gets the information in the first place.” The press’s job, she said, is to find out how and why the government is compiling data on citizens, and whether they’re doing it right.

Another problem: Government employees sometimes use privacy fears when
they want to keep documents classified for other reasons, Lesar said. For example, as part of its records on the assassination of the Rev. Martin Luther King Jr., the FBI had a newspaper clipping. When the clipping was released, Lesar said, the name of an FBI agent who testified was blacked out.

There is some good news, said Steven Aftergood of the Federation of American Scientists. “We have seen significant changes since the executive order (to declassify documents) was signed. The number of new secrets dropped to historic lows. At the same time, the volume and pace of declassification has skyrocketed.”