Freedom of Information Act: Critics Say New Rule Limits Access to Records

WASHINGTON — Scholars and researchers say people will have a harder time getting information from the government because of a new Bush administration guideline on releasing federal records.

WASHINGTON — Scholars and researchers say people will have a harder time getting information from the government because of a new Bush administration guideline on releasing federal records.

The guideline, issued in October by Attorney General John Ashcroft, describes how the administration intends to carry out the Freedom of Information Act, which says federal agencies must make their records available to the public. Since President Gerald R. Ford, it has been customary for new administrations to outline their interpretation of the act soon after taking office.

Mr. Ashcroft said the Bush administration’s standard would be to support withholding documents as long as there was a “sound legal basis” for doing so. The previous standard, issued in 1993 by Janet Reno, the attorney general under President Bill Clinton, was to support withholding documents only if “disclosure would be harmful.”

The change in wording is a significant blow to government openness, some researchers say.

“This direction basically encourages and instructs agencies to withhold information whenever it can be fit to an exemption,” said Harry Hammit, editor of Access Reports, a newsletter about the availability of government information.

Ms. Reno’s standard, Mr. Hammit said, encouraged releasing documents even if withholding them was legally defensible, as long as the release harmed no one.

Since requests for records through the information act can take months to process, researchers say it is too early to tell exactly how the new standard is affecting their requests. But Brant Houston, executive director of Investigative Reporters and Editors, said the general feeling among journalists and researchers was “that this gives agencies a wide open door to close records without substantial reasons.”

The Justice Department said those fears were exaggerated. The new standard is “not such a drastic shift, as much as a change in tone” said Daniel J. Metcalfe, a director of the department’s Office of Information and Privacy, which gives federal agencies guidance on complying with the information act.

But either way, some scholars said, the effect is the same.

“What’s so troubling about this is the message it sends to records custodians: When in doubt, don’t give it out,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota.

The standard is so broad, Ms. Kirtley said, that agencies will have no trouble finding legal justification for withholding documents, no matter how spurious their reasons.

“The lower courts are all over the place on most exemptions,” she said.

So the Justice Department, Ms. Kirtley said, can “almost always find some court somewhere that has ruled in favor of withholding a record under this or that exemption.”

The Freedom of Information Act, enacted in 1966, was the first law to say that the people had a right to the records of federal agencies. Before that, “people were pretty much limited to materials agencies chose to disclose,” Ms. Kirtley said.

The act has become a frequent tool of journalists and scholars, particularly since 1974, when it was amended after the Watergate scandal to force more compliance from agencies. A report by the General Accounting Office, the investigative arm of Congress, found that in the 1999 fiscal year some 1.9 million requests were made through the information act to 25 federal agencies. The agencies provided all of the records requested in 82 percent of the inquiries, the report said.

Some federal officials say the information act has become a burden to federal agencies, which sometimes receive requests for documents hundreds or thousands of pages long. But many people outside government say the act is indispensable to the democratic process.

“The Freedom of Information Act is a crucial piece of legislation for journalists, researchers and investigators trying to get to the truth of how our government operates,” Mr. Houston said. “The act is crucial for the protection and general education of the public.”


News Service: New York Times


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