The world moves toward freedom of information: an increasing number of governments have enacted freedom of information legislation in a move toward more transparency, while others are making it harder to gain access.

On January 1, 2005, the United Kingdom's Freedom of Information Act (FOIA)--which Parliament passed in 2001--will go into effect. The United Kingdom is one of more than 50 countries around the world that have adopted freedom of information acts facilitating access to government records. Many other countries--38 including Russia, Germany Brazil, The Philippines, Switzerland, and Taiwan, according to the human rights group Privacy International--are moving in that direction. "The new openness laws vary tremendously, face huge implementation problems, and often receive only lip service from bureaucrats," writes Privacy International's Thomas Blanton. "But the trend is producing much more government accountability, and often dramatic headlines."

Ironically, many of these laws are based on the United States' FOIA and are progressing at a time when the United States is "backing away from its previous leadership in open government," notes Blanton.

According to a recent study based on government data, U.S. government secrecy has increased dramatically in recent years, despite rising public demand for government information. According to the August 2004 "Secrecy, Report Card" compiled by Open The Government.org, a coalition of journalists, consumer and government groups, environmentalists, labor, and others dedicated to a more open government, the increased secrecy that began during the Clinton administration has accelerated under the Bush administration.

In fact, U.S. policies and practices since 9/11 have dramatically expanded secrecy, as measured by the number of newly classified documents. For example, 3,579,505 new documents were classified by the government in 1995. In 2003, the government classified 14,228,020 new documents. While some rise in classification is typical in wartime, OpenTheGovernment.org says this dramatic increase runs counter to recommendations from the 9/11 Commission and the Congressional Joint Inquiry into 9/11, both of which recommended reforms to reduce unnecessary secrets.

While the number of documents being kept secret is increasing, so is the public demand. The number of FOI requests more than tripled between 1998, where there were fewer than 1 million requests, and 2003, which saw more than 3 million requests. At the same time, resources devoted to handling public requests for information have held steady.

Only seven agencies kept up with public requests for information through the FOIA, the report notes. The number of federal agencies reporting no backlog of public requests for information under the FOIA held steady at 12 from 1999-2001 but dropped to just seven last year. If an individual files a written request today for documents from the Reagan Presidential Library, he or she should not expect to receive an answer until 2008. The library's backlog currently is four years, up from 1.5 years in 2001.

Interestingly, this is one of the areas of greatest concern with regard to the United Kingdom's FOIA, which requires a 21-day turnaround on requests for information. A recent survey of government IT executives by consultancy group Partners for Change found that 78 percent of government bodies will not be able to comply with this provision.

The U.S. National Security Council established a working group last summer to consider amendments to executive order 12958 on classification policy. That 1995 Clinton administration order implemented the most ambitious and productive declassification program ever adopted, according to the Freedom Forum. At last report, eight agencies had proposed changes to 24 of the 34 sections of the Clinton order. Many of them were directed at the declassification provisions, which mandated that most 25-year-old documents be automatically declassified subject to a variety of exemptions. Other proposed changes to the order are rumored to include:

* Extending the 25-year period for declassification

* Modifying the order to permit reclassification of declassified documents under broader circumstances than currently allowed

* Curtailing the authority of the Interagency Security Classification Appeals Panel to order the declassification of documents against the originating agency's will

Secrecy Undermining Security

Thomas H. Kean, chairman of the 9/11 Commission, said three-quarters of the classified material reviewed by the commission should not have been classified in the first place. Others say there are just too many secrets, many of which should not be secrets at all. For example, The Washington Post reported that details of former Chilean dictator Augusto Pinochet's cocktail preferences and a practical joke in the form of a plot against Santa Claus were classified by the U.S. government to prevent public disclosure. Other examples of classification were cited at a recent House subcommittee hearing into the 9/11 Commission's conclusion that secrecy is undermining efforts to thwart terrorists.

According to a recent New York Times editorial written by Senators Trent Lott (R-Miss.) and Ron Wyden (D-Ore.), "Secrecy has become so pervasive in the federal government that it's often unclear whether facts are classified for legitimate security reasons, or simply for the political protection of agencies and officials."

And the overclassification problem is growing, said J. William Leonard, director of the National Archives' Information Security Oversight Office, which monitors federal practices. "Classification, without a doubt, is an impediment to information sharing," he said.

Excessive classification is impeding information sharing between government agencies, experts say, and excessive secrecy in government sabotaged attempts to find, track, and catch terrorists before 9/11. For example, at a meeting of FBI and CIA analysts three months before the attacks, critical intelligence about al-Qaeda suspects from the National Security Agency (NSA) was not shared by one participant because she did not have NSA's permission to do so. Had she shared her information, the other analysts may have made a connection to one of the 9/11 terrorists, the 9/11 Commission concluded in its report. "Current security requirements nurture overclassification and excessive compartmentation of information among agencies," the report states.

Challenges to changing the current culture of overclassification center around the fact that federal law divides the authority for writing the rules that govern secrets. For example, the CIA director has authority to protect intelligence sources and methods. The Energy Department has the power to write regulations to shield nuclear secrets. The Pentagon controls the classification of NATO data. The National Security Council can define eavesdropping communication secrets.

International Concerns

The United States is not the only country that has tightened the reins on information. For example, Canada's 2001 Anti-Terrorism Act contains a clause enabling the Minister of Justice to suspend the effect of the Access to Information Act, which extends Canadian laws to provide a right of access to information in records under the control of a government institution.

According to a 2003 Campbell Public Affairs Institute report, the European Union's access to information law is being implemented in a restrictive way with wide deviations used to give priority to internal security concerns. The EU Openness Regulation, regarding public access to European Parliament, Council, and Commission documents, was adopted May 30, 2001. Article 9 defines sensitive documents as those classified into three levels: top secret, secret, or confidential. These are to be kept secret to protect public security, defense, or military matters. Sensitive documents may originate not only from the institutions of the Union and member states but also from international organizations such as the North Atlantic Treaty Organization (NATO).

Article 11 of the new Regulation on Public Access to Documents states that each institution shall provide a public register, in which "references to documents shall be recorded without delay." However, according to the Campbell Public Affairs Institute report, the European Parliament's internal discussions indicate that there are at least four categories of documents that will never be made accessible to the public.

In the European Union, the effect of the "sensitive document" classification means that only certain people can process the application for access to those documents and that reference to them can only be recorded in the register or released with the consent of the originator. Because originators have total control over classification, registration, and release of documents, there is no access to such documents when authored by the council or by third parties. Still, in December 2001, the commission adopted an internal rule that indicates an agenda of setting up an EU-wide network of freely exchangeable "classified information" among the institutions, bodies, offices, and agencies of the European Union via intranet and other digital means. Third states, international organizations, and other bodies may also be included in this digital network and download information if they operate equivalent security rules themselves.

In a 2003 speech to the European Parliament, Statewatch News editor Tony Bunyan stated that less than 50 percent of the contents of documents on the Council of the European Union's public register have been released. According to Bunyan, as of December 31, 2002, the Commission register only contained references to 24,942 documents. A search of the register between June 3, 2002, and June 6, 2003, reveals that for Justice and Home Affairs documents, only 212 are listed for the entire year and only 33 of those are directly accessible, but the department produces hundreds of documents each month.

In the European Union, 38 percent of applications for access to documents are said to be refused because of "various exceptions and unspecified exceptions." Direct access to the contents of documents is only given to 45 percent of them, including those released after appeals. The number of documents in the register at the end of 2002 was 375,154, of which 168,647 were directly accessible (45 percent).

More Oversight Needed

According to the Campbell Public Affairs Institute report, "The culture of secrecy is sometimes referred to as a virus, spreading from one part of government to another, and also transnationally, invading concerns where national internal security plays no role at all."

OpenTheGovernment.org has called on the U.S. Congress to strengthen oversight of the national security classification system by creating a national classification center and a classification appeals board with authority to compel agencies to declassify documents. The 2001 Intelligence Authorization Act authorized the creation of a nine-member Public Interest Declassification Board that would advise the president and agency leaders on ways to improve the declassification process, but it was never established.

U.S. Senators Lott and Wyden, along with Senators Bob Graham (D-Fla.) and Olympia Snowe (R-Maine), all members of the Senate Select Committee on Intelligence, have introduced legislation to create a three-person, independent national security classification board. It would review and make recommendations on altering the current classification standards and process and serve as a standing body to act on congressional and executive branch requests to re-examine classification decisions.

"We need clear standards and procedures to ensure a reasonable balance between the need for citizens to have access to information and the need to protect national security" Wyden said.

The Independent National Security Classification Board Act of 2004 would, for the first time, give Congress an independent body to which it can appeal a national security classification decision. It would also clarify and streamline the process by which classification decisions are made, in turn leading to increased accountability and transparency. The board would review national security classification across all government agencies. The proposed legislation would provide $2 million in the first year to establish the board, which would be independently housed outside of any government organization.

In an August executive order, "Strengthening the Sharing of Terrorism Information to Protect Americans" President Bush called for reining in the government's tendency to overclassify. He asked the CIA director, the attorney general, and others to adopt common standards to require

* intelligence collection and analysis methods to be reported so that the sources and information are protected, thereby enabling information to be distributed at lower classification levels and for declassified versions of information to be created

* terrorism-related records to be produced in multiple versions at many classification levels, including a declassified version

In September, Rep. Henry Waxman (D-Calif.) introduced The Restore Open Government Act of 2004, which would restore the presumption of disclosure, ease public oversight of critical infrastructure safeguards, restore historians' access to presidential records, address excessive overclassification, and make it easier to challenge agencies that are improperly withholding information. For businesses, researchers, and individuals who want or need access to government data, the current culture of overclassification that is pervasive worldwide cannot change soon enough.

References

Aftergood, Steven. "2002 FOI Update: Government Secrecy." 19 March 2002. Available at www.freedomforum.org (accessed 11 October 2004).

Best, Jo. "Techies Hamstrung by Bosses on Freedom of Information." Silicon.com. 18 October 2004. Available at http://management.silicon.com/government/0,39024677,39125060,00.htm (accessed 19 October 2004).

Blanton, Thomas. "The Right to Know Is Gaining Around the World." The International Herald Tribune. 11 October 2003. Available at www.freedominfo.org/survey/iht.htm (accessed 18 October 2004).

"EU Annual Reports on Access to Documents--Still a Very Long Way to Go." Statewatch News Online. 12 June 2003. Available at http://foi.missouri.edu/internatfoinews/eannual.html (accessed 12 October 2004).

Lott, Trent and Ron Wyden. "Hiding the Truth in a Cloud of Black Ink." The New York Times. 26 August 2004.

"National Security and Open Government: Striking the Right Balance." Syracuse, New York: Campbell Public Affairs Institute, The Maxwell School of Syracuse University, 2003.

OpenTheGovernment.org. "Secrecy Report Card: Quantitative Indicators of Secrecy in the Federal Government." Washington, D.C.: OpenTheGovernment.org. 26 August 2004. Available at www.openthegovernment.org/otg/secrecy_reportcard.pdf (accessed 12 October 2004).

Sniffen, Michael J. "'Secrets' Perplex Panel." The Washington Post. 3 September 2004.

Sullivan, Eileen. "Too Much Secrecy: Overclassification Hampers Cooperation." FederalTimes.com. 13 September 2004. Available at http://federaltimes.com/index.php?S=347512 (accessed 11 October 2004).

Nikki Swartz is Associate Editor of The Information Management Journal. She may be contacted at [e-mail].