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November-December 2004

Beware regulatory creep as secrecy shrouds records

by Pete Weitzel

I'm still trying to find my way around Washington, D.C., a city of circles and squares and main streets that go off on an angle. Travels are made even more difficult for those of us who are direction-impaired by the high number of partisan streets. Don't even try the two-way streets; they're as deadlocked as Congress.

Coming back into the city on a recent weekend, my wife suggested a scenic route around the U.S. Capitol. At one intersection, a portable sign told me to go right. That led to a concrete barricade, forcing a detour to the left. Halfway down the block, a cop stopped us for a look-see. A block later, a trio of police officers made it clear I needed to try some other route across town.

Coincidentally, a story in The Washington Post that day described how district and federal police, responding to heightened threat warnings, had proceeded to safeguard the city. One morning earlier in the week, a street had been closed without notice; a few days later, another. So it went, one by one by one, with no one street closing seeming particularly consequential. Suddenly people, and the Post, realized: You can't get there anymore.

Since this is not a travel magazine, you may have guessed there's a metaphor lurking somewhere.

I'm also still trying to find my way around government in Washington, and coming to realize that the paths of information are not unlike the city's streets. The access routes are irregular, often cut on the bias, frequently partisan, made difficult to navigate by bureaucratic round-a-bouts, and increasingly, blocked by barricades and thought patrols.

In far too many cases - more than ever before - you can't get there.

National security is the given reason for much of the sealing of both roads and records. And the stealth approach to implementation of the respective barricades is remarkably similar.

Anyone seeking information from the Department of Homeland Security knows how D.C. drivers must now feel. The department has perfected the craft of regulatory creep in putting a secrecy shroud over a vast array of records. The only criteria seem to be that the information have some relation to infrastructure and other security concerns.

DHS takes its secrecy seriously. In May, the department's Transportation Security Administration implemented new regulations closing transportation-related records without the usual notice and comment period. It said it would accept comment de facto. About the same time, DHS sent staff a directive outlining procedures to be followed in closing records that were "sensitive but unclassified." The directive was itself labeled "For Official Use Only," which means not to be shown to anyone outside the department. It became public when an open government advocacy group learned of it and submitted an FOIA request.

A month later, DHS sent out notice of new environmental review procedures - potentially eliminating much of the public input and information sharing built into the National Environmental Protection Act. The DHS notice initially allowed 30 days for response, one-third the normal comment time.

"Government secrecy is being ratcheted up, sometimes conspicuously,s ometimes imperceptibly," Sen. Patrick Leahy, D-Vt., one of the administration's strongest critics on transparency issues,wrote recently.

Secrecy classification system

The increased secrecy comes in areas such as official classification of information,a structured process with statutory accountability built in. That rose 25 percent last year, following a 14 percent increase the year before. The imperceptible, and more serious, ratcheting comes in executive orders, regulations, directives that take documents off the declassification table, Web site modifications, restricting of FOIA access and establishment of new, broad-ranging categories of closure.

Records are now being "safeguarded " by DHS and other agencies under such secrecy designations as critical infrastructure information (CII), sensitive security information (SSI)and sensitive but unclassified (SBU). The first two are extrapolated from language in the Homeland Security Act, little noticed at the time, to automatically exempt vast amounts of information from public review under the Freedom of Information Act. If you request a document with sensitive but unclassified information, someone will be required to actually look at it before telling you "no."

In effect, these designations form a new, fourth level of classification within the federal government, one that is not constrained by statute or formal oversight, as is the classification system. There are no established standards of experience, training or level of responsibility for the decision makers. There are no criteria for determining if information is "critical " or "sensitive."

The information does not have to be related to defense and intelligence matters, as are documents subject to classification. In the case of SSI, it has only to have a connection to any kind of transportation, including pipelines. In the case of CII, it needs only be related to infrastructure, whether that's a telephone line, or a bridge or a football stadium.

These are designations that should concern reporters around the United States far more than "top secret "and "secret," because the potential for burying information that the public needs to know and has a right to know is far greater. Worse, the potential for deep-sixing extends well beyond Washington and past federal officials. Homeland Security is authorized to gag and bind state and federal officials using nondisclosure agreements that protect any information shared, including information that comes from state and local files.

Take a moment and consider the potential that has for abuse by a port authority official who has records he doesn't want a reporter to see.

Pushing back

Unfortunately, the Washington-based press corps did not pick up on these provisions when the Homeland Security Act was moving through Congress and paid little attention when DHS translated the act into broad new secrecy measures.

The critical expansion of the power to control transportation information came in two imperceptible language modifications approved by Congress. In the bill creating the Transportation Security Administration less than two months after 9/11, the word "air" was dropped from the 1974 definition of SSI written so the FAA could examine lists of air passengers. Then the word "passengers" was dropped in a seemingly innocent redefinition of SSI in the Homeland Security Act. No one picked up on the fact the document should have been 79,917 words.

The still pending legislation points to another problem - amendments pulled from nowhere and dropped into a bill. For example, appropriation bills loaded with lard are popular vehicles - without discussion and at the last moment. That's what happened with a potentially catastrophic expansion of TSA's authority to shelter whatever information it deems sensitive. An amendment was added to the U.S. House of Representatives' transportation bill as it went to a floor vote in the U.S. Senate. It would give TSA and the Department of Transportation the authority to nullify state open records laws. A reporter who later asked his two senators about their vote was told the SSI provision wasn't in the bill.

More important, the amendment, which was not discussed, or debated or decried, was not reported at the time. Journalists are not always at their best when their reporting must raise their own issues.

Does the media need to become more aggressive and to push back, as Associated Press chief Tom Curley has suggested? Absolutely. Access issues need to be vigorously reported and investigated, especially in a source-driven town like Washington. FOI should be a beat for every newsroom and in every Washington bureau.

And the media needs to be proactive in identifying and pressing for legislative change that enhances transparency, as has happened in a number of states. This can be done through journalism organizations or media-supported coalitions, rather than individually, but it must be done unless we are prepared to accept more secrecy.

As one proactive example, and perhaps a goal: Imagine the effect of one simple change in the federal law-making process - a requirement for an independent impact statement to accompany any bill that affects open government.

This would require legislative researchers to imagine and publish the full range of consequences of any government closure provision. That kind of required warning might discourage the filing of a lot of secrecy proposals; it would probably stop many from being approved, and it would preclude deniability by those who voted in support.

Pete Weitzel is the FOI coordinator for the Coalition of Journalists for Open Government, based in Washington,D.C. He is a former managing editor of The Miami Herald and helped found the Florida First Amendment Foundation.