WWW. DEMOCRATS. REFORM. HOUSE. GOV
UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON GOVERNMENT REFORM — MINORITY STAFF
SPECIAL INVESTIGATIONS DIVISION
SEPTEMBER 14, 2004
SECRECY IN THE BUSH ADMINISTRATION
PREPARED FOR
REP. HENRY A. WAXMAN
SECRECY IN THE BUSH ADMINISTRATION
TABLE OF CONTENTS
EXECUTIVE SUMMARY...................................................................................................................... iii
INTRODUCTION ............................................................................................................................... 1
PART I: LAWS THAT PROVIDE PUBLIC ACCESS TO FEDERAL RECORDS............................................ 2
I. FREEDOM OF INFORMATION ACT ................................................................................................. 2
A. The Ashcroft Memo....................................................................................................... 4
B. The Card Memo............................................................................................................. 6
C. Critical Infrastructure Information ................................................................................ 8
D. Other Statutory and Regulatory Exemptions............................................................... 11
1. National Security Agency Operational Files.......................................................... 11
2. Commercial Satellite Data ..................................................................................... 12
3. Vehicle Safety Defect Information......................................................................... 12
4. Critical Energy Infrastructure Information ............................................................ 14
E. Denying Fee Waivers.................................................................................................... 16
1. Narrowing the Definition of “ Representative of the News Media” ....................... 17
2. Claiming Information Would Not Contribute to Public Understanding............... 19
3. Using Sequential Fee Waiver Denials.................................................................... 19
F. Inappropriate Use of Exemptions.................................................................................. 21
1. Making Frivolous Exemption Claims..................................................................... 22
2. Abusing the Deliberative Process Privilege............................................................ 23
3. Abusing the Law Enforcement Exemption ............................................................ 24
4. Withholding Data on Telephone Service Outages................................................ 25
G. Denial through Delay................................................................................................... 26
H. The Views of Experts ................................................................................................... 28
II. PRESIDENTIAL RECORDS ACT.................................................................................................... 31
III. FEDERAL ADVISORY COMMITTEE ACT..................................................................................... 35
A. Limiting FACA through Legislation............................................................................ 36
B. Avoiding and Disregarding FACA .............................................................................. 37
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PART II: LAWS THAT RESTRICT PUBLIC ACCESS TO FEDERAL RECORDS ....................................... 42
I. NATIONAL SECURITY CLASSIFICATION OF GOVERNMENT RECORDS .......................................... 44
A. President Bush’s Executive Order 13292..................................................................... 45
1. Eliminating the Presumption of Disclosure............................................................ 45
2. Undermining Automatic Declassification.............................................................. 45
3. Protecting Foreign Government Information ........................................................ 46
4. Reclassifying Information ....................................................................................... 47
5. Weakening the Interagency Security Classification Appeals Panel....................... 47
6. Exempting Vice Presidential Records from Mandatory Declassification
Review.................................................................................................................... 48
B. President Bush’s Expansion of “ Original Classification Authorities” ........................... 48
C. The Impact on Classification Decisions ....................................................................... 49
II. EXPANDED PROTECTION OF “ SENSITIVE SECURITY INFORMATION” .......................................... 53
III. WEAKENED DHS DISCLOSURE UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT........... 55
IV. LAWS THAT EXPAND SECRET GOVERNMENT OPERATIONS ..................................................... 56
A. The USA PATRIOT Act ............................................................................................ 57
1. Obtaining Records in Secret .................................................................................. 57
2. Conducting Secret Wiretaps .................................................................................. 58
3. Expanding Use of “ Sneak and Peek Warrants” ..................................................... 59
4. Expanding Use of Federal Grand Juries ................................................................. 60
B. Secret Detentions, Trials, and Deportations ............................................................... 61
1. Deportations of Enemy Combatants ...................................................................... 62
2. Trials of Enemy Combatants.................................................................................. 64
3. Detentions and Deportations of Aliens ................................................................. 65
PART III: CONGRESSIONAL ACCESS TO INFORMATION.................................................................. 68
I. GAO AUTHORITY TO INVESTIGATE ........................................................................................... 69
II. SEVEN MEMBER RULE ................................................................................................................ 72
III. INFORMATION REQUESTS FROM RANKING MEMBERS OF CONGRESSIONAL COMMITTEES........ 76
IV. INVESTIGATIVE COMMISSIONS................................................................................................. 78
CONCLUSION..................................................................................................................... ............ 81
SECRECY IN THE BUSH ADMINISTRATION
EXECUTIVE SUMMARY
Open and accountable government is one of the bedrock principles of our
democracy. Yet virtually since inauguration day, questions have been raised about
the Bush Administration’s commitment to this principle. News articles and reports
by independent groups over the last four years have identified a growing series of
instances where the Administration has sought to operate without public or
congressional scrutiny.
At the request of Rep. Henry A. Waxman, this report is a comprehensive
examination of secrecy in the Bush Administration. It analyzes how the
Administration has implemented each of our nation’s major open government laws.
The report finds that there has been a consistent pattern in the Administration’s
actions: laws that are designed to promote public access to information have been
undermined, while laws that authorize the government to withhold information or to
operate in secret have repeatedly been expanded. The cumulative result is an
unprecedented assault on the principle of open government.
The Administration has supported amendments to open government laws to create
new categories of protected information that can be withheld from the public.
President Bush has issued an executive order sharply restricting the public release of
the papers of past presidents. The Administration has expanded the authority to
classify documents and dramatically increased the number of documents classified. It
has used the USA Patriot Act and novel legal theories to justify secret investigations,
detentions, and trials. And the Administration has engaged in litigation to contest
Congress’ right to information.
The records at issue have covered a vast array of topics, ranging from simple census
data and routine agency correspondence to presidential and vice presidential records.
Among the documents that the Administration has refused to release to the public
and members of Congress are ( 1) the contacts between energy companies and the
Vice President’s energy task force, ( 2) the communications between the Defense
Department and the Vice President’s office regarding contracts awarded to
Halliburton, ( 3) documents describing the prison abuses at Abu Ghraib, ( 4)
memoranda revealing what the White House knew about Iraq’s weapons of mass
destruction, and ( 5) the cost estimates of the Medicare prescription drug legislation
withheld from Congress.
There are three main categories of federal open government laws: ( 1) laws that
provide public access to federal records; ( 2) laws that allow the government to
restrict public access to federal information; and ( 3) laws that provide for
congressional access to federal records. In each area, the Bush Administration has
acted to restrict the amount of government information that is available.
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Laws That Provide Public Access to Federal Records
Beginning in the 1960s, Congress enacted a series of landmark laws that promote
“ government in the sunshine.” These include the Freedom of Information Act, the
Presidential Records Act, and the Federal Advisory Committee Act. Each of these
laws enables the public to view the internal workings of the executive branch. And
each has been narrowed in scope and application under the Bush Administration.
Freedom of Information Act
The Freedom of Information Act is the primary law providing access to information
held by the executive branch. Adopted in 1966, FOIA established the principle that
the public should have broad access to government records. Under the Bush
Administration, however, the statute’s reach has been narrowed and agencies have
resisted FOIA requests through procedural tactics and delay. The Administration
has:
• Issued guidance reversing the presumption in favor of disclosure and instructing
agencies to withhold a broad and undefined category of “ sensitive” information;
• Supported statutory and regulatory changes that preclude disclosure of a wide
range of information, including information relating to the economic, health, and
security infrastructure of the nation; and
• Placed administrative obstacles in the way of organizations seeking to use FOIA
to obtain federal records, such as denials of fee waivers and delays in agency
responses.
Independent academic experts consulted for this report decried these trends. They
stated that the Administration has “ radically reduced the public right to know,” that
its policies “ are not only sucking the spirit out of the FOIA, but shriveling its very
heart,” and that no Administration in modern times has “ done more to conceal the
workings of government from the people.”
The Presidential Records Act
The Presidential Records Act, which was enacted in 1978 in the wake of Watergate,
establishes the important principle that the records of a president relating to his
official duties belong to the American people. Early in his term, President Bush
issued an executive order that undermined the Presidential Records Act by giving
former presidents and vice presidents new authority to block the release of their
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records. As one prominent historian wrote, the order “ severely crippled our ability to
study the inner workings of a presidency.”
The Federal Advisory Committee Act
The Federal Advisory Committee Act prevents secret advisory groups from
exercising hidden influence on government policy, requiring openness and a balance
of viewpoints for all government advisory bodies. The Bush Administration,
however, has supported legislation that creates new statutory exemptions from
FACA. It has also sought to avoid the application of FACA through various
mechanisms, such as manipulating appointments to advisory bodies, conducting key
advisory functions through “ subcommittees,” and invoking unusual statutory
exemptions. As a result, such key bodies as the Vice President’s energy task force
and the presidential commission investigating the failure of intelligence in Iraq have
operated without complying with FACA.
Laws that Restrict Public Access to Federal Records
In the 1990s, the Clinton Administration increased public access to government
information by restricting the ability of officials to classify information and
establishing an improved system for the declassification of information. These steps
have been reversed under the Bush Administration, which has expanded the capacity
of the government to classify documents and to operate in secret.
The Classification and Declassification of Records
The classification and declassification of national security information is largely
governed by executive order. President Bush has used this authority to:
• Reverse the presumption against classification, allowing classification even in
cases of significant doubt;
• Expand authority to classify information for longer periods of time;
• Delay the automatic declassification of records;
• Expand the authority of the executive branch to reclassify information that has
been declassified; and
• Increase the number of federal agencies that can classify information to include
the Secretary of Health and Human Services, the Secretary of Agriculture, and
the Administrator of the Environmental Protection Agency.
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Statistics on classification and declassification of records under the Bush
Administration demonstrate the impact of these new policies. Original decisions to
classify information — those in which an authorized classifier first determines that
disclosure could harm national security — have soared during the Bush
Administration. In fiscal years 2001 to 2003, the average number of original
decisions to classify information increased 50% over the average for the previous five
fiscal years. Derivative classification decisions, which involve classifying documents
that incorporate, restate, or paraphrase information that has previously been
classified, have increased even more dramatically. Between FY 1996 and FY 2000,
the number of derivative classifications averaged 9.96 million per year. Between FY
2001 and FY 2003, the average increased to 19.37 million per year, a 95% increase.
In the last year alone, the total number of classification decisions increased 25%.
Sensitive Security Information
The Bush Administration has sought and obtained a significant expansion of
authority to make designations of Sensitive Security Information ( SSI), a category of
sensitive but unclassified information originally established to protect the security of
civil aviation. Under legislation signed by President Bush, the Department of
Homeland Security now has authority to apply this designation to information
related to any type of transportation.
The Patriot Act
The passage of the Patriot Act after the September 11, 2001, attacks gave the Bush
Administration new authority to conduct government investigations in secret. One
provision of the Act expanded the authority of the Justice Department to conduct
secret electronic wiretaps. Another provision authorized the Justice Department to
obtain secret orders requiring the production of “ books, records, papers, documents,
and other items,” and it prohibited the recipient of these orders ( such as a telephone
company or library) from disclosing their existence. And a third provision expanded
the use of “ sneak and peak” search warrants, which allow the Justice Department to
search homes and other premises secretly without giving notice to the occupants.
Secret Detentions, Trials, and Deportations
In addition to expanding secrecy in government by executive order and statute, the
Bush Administration has used novel legal interpretations to expand its authority to
detain, try, and deport individuals in secret. The Administration asserted the
authority to:
• Hold persons designated as “ enemy combatants” in secret without a hearing,
access to a lawyer, or judicial review;
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• Conduct secret military trials of persons held as enemy combatants when deemed
necessary by the government; and
• Conduct secret deportation proceedings of aliens deemed “ special interest cases”
without any notice to the public, the press, or even family members.
Congressional Access to Federal Records
Our system of checks and balances depends on Congress being able to obtain
information about the activities of the executive branch. When government
operates behind closed doors without adequate congressional oversight,
mismanagement and corruption can flourish. Yet despite Congress’ constitutional
oversight role, the Bush Administration has sharply limited congressional access to
federal records.
GAO Access to Federal Records
A federal statute passed in 1921 gives the congressional Government Accountability
Office the authority to review federal records in the course of audits and
investigations of federal programs. Notwithstanding this statutory language and a
long history of accommodation between GAO and the executive branch, the Bush
Administration challenged the authority of GAO on constitutional grounds, arguing
that the Comptroller General, who is the head of GAO, had no “ standing” to enforce
GAO’s right to federal records. The Bush Administration prevailed at the district
court level and GAO decided not to appeal, significantly weakening the authority of
GAO.
The Seven Member Rule
The Bush Administration also challenged the authority of members of the House
Government Reform Committee to obtain records under the “ Seven Member Rule,”
a federal statute that requires an executive agency to provide information on matters
within the jurisdiction of the Committee upon the request of any seven of its
members. Although a district court ruled in favor of the members in a case involving
access to adjusted census records, the Bush Administration has continued to resist
requests for information under the Seven Member Rule, forcing the members to
initiate new litigation.
Withholding Information Requested by Congress
On numerous occasions, the Bush Administration has withheld information
requested by members of Congress. During consideration of the Medicare legislation
in 2003, the Administration withheld estimates showing that the bill would cost over
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$ 100 billion more than the Administration claimed. In this instance, Administration
officials threatened to fire the HHS Actuary, Richard Foster, if he provided the
information to Congress. In another case, the Administration’s refusal to provide
information relating to air pollution led Senator Jeffords, the ranking member of the
Senate Committee on Environment and Public Works, to place holds on the
nominations of several federal officials.
On over 100 separate occasions, the Administration has refused to answer the
inquiries of, or provide the information requested by, Rep. Waxman, the ranking
member of the House Committee on Government Reform. The information that the
Administration has refused to provide includes:
• Documents requested by the ranking members of eight House Committees
relating to the prison abuses at Abu Ghraib and elsewhere;
• Information on contacts between Vice President Cheney’s office and the
Department of Defense regarding the award to Halliburton of a sole- source
contract worth up to $ 7 billion for work in Iraq; and
• Information about presidential advisor Karl Rove’s meetings and phone
conversations with executives of companies in which he owned stock.
The 9- 11 Commission
On November 27, 2002, Congress passed legislation creating the National
Commission on Terrorist Attacks upon the United States ( commonly known as the
9- 11 Commission) as a congressional commission to investigate the September 11
attacks. Throughout its investigation, however, the Bush Administration resisted or
delayed providing the Commission with important information. For example, the
Administration’s refusal to turn over documents forced the Commission to issue
subpoenas to the Defense Department and the Federal Aviation Administration.
The Administration also refused for months to allow Commissioners to review key
presidential intelligence briefing documents.
The Collective Impact
Taken together, the actions of the Bush Administration have resulted in an
extraordinary expansion of government secrecy. External watchdogs, including
Congress, the media, and nongovernmental organizations, have consistently been
hindered in their ability to monitor government activities. These actions have
serious implications for the nature of our government. When government operates
in secret, the ability of the public to hold the government accountable is imperiled.
SECRECY IN THE BUSH ADMINISTRATION
INTRODUCTION
One of the core principles of our democracy is that government should be open
and accountable. As stated by William Jennings Bryan in 1915:
The government being the people’s business, it necessarily follows that its
operations should be at all times open to the public view. Publicity is
therefore as essential to honest administration as freedom of speech is to
representative government. “ Equal rights to all and special privileges to
none” is the maxim which should control in all departments of
government. 1
Or as Justice Louis D. Brandeis said in 1933, “ sunlight is said to be the best of
disinfectants.” 2
Contrary to these open government principles, the Bush Administration has often
pursued polices that limit public access to information and allow more secret
government operations. Some of these actions have been described in reports and
news articles. In September 2003, the Reporters Committee for Freedom of the
Press published a white paper entitled “ Homefront Confidential: How the War on
Terrorism Affects Access to Information and the Public’s Right to Know.” 3 This
paper surveys Administration actions that enhance secrecy in the name of the war
on terrorism. In December 2003, U. S. News and World Report published an
investigative report entitled “ Keeping Secrets: The Bush Administration Is Doing
the Public’s Business out of the Public Eye,” 4 and NOW with Bill Moyers ran an
associated story entitled “ Veil of Secrecy.” 5 Major national newspapers such as
1 William Jennings Bryan, Secretary of State, Bryan’s Ten Rules for the New Voter, Baltimore
Sun ( Apr. 25, 1915) ( speech before the City Club, Baltimore, Maryland).
2 L. Brandeis, Other People’s Money, 62 ( 1933).
3 Reporters Committee for Freedom of the Press, Homefront Confidential: How the War on
Terrorism Affects Access to Information and the Public’s Right to Know ( 4th ed., Sept. 2003);
see also Christopher Gozdor et al., Where the Streets Have No Name: The Collision of
Environmental Law and Information Policy in the Age of Terrorism, Environmental Law
Reporter, 10978 ( Dec. 2003).
4 Keeping Secrets, U. S. News and World Reports ( Dec. 22, 2003).
5 Veil of Secrecy, NOW with Bill Moyers ( Dec. 12, 2003). See also Stephen Pizzo,
Misleader. org, Hiding the Truth? President Bush’s Need- to- Know Democracy ( Oct. 29,
2003) ( online at http:// www. misleader. com/ pdf/ specialreport2_ secrecy. pdf). Center for
American Progress and OMB Watch, Special Interest Takeover: The Bush Administration
and the Dismantling of Public Safeguards, 87– 99 ( May 2004).
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the New York Times, the Washington Post, and the Los Angeles Times have also run
articles on secrecy in the Bush Administration. 6
This report looks at secrecy in the Bush Administration from a different vantage
point. At the request of Rep. Henry A. Waxman, ranking minority member of the
House Committee on Government Reform, it systematically examines how the
Bush Administration has implemented the major laws that govern access to
government records. It considers each of the principal laws, regulations, or
executive orders that provide rights of access to government records or give the
government the right to keep information secret. And it documents how the
Administration has interpreted and applied — or sought to change — these
requirements and precedents. The result is a comprehensive assessment of secrecy
in the Bush Administration.
The report is organized into three parts. Part I examines how the Administration
has implemented our nation’s basic open government laws, like the Freedom of
Information Act and the Presidential Records Act. Part II investigates how the
Administration has implemented laws that allow the government to keep
information from the public, by means such as executive orders on the
classification of documents. Part III concludes the report by looking at the special
laws and precedents that govern Congress’ access to information.
The report reveals that there has been a systematic effort by the Bush
Administration to limit the application of the laws that promote open government
and accountability. In the case of each of the nation’s fundamental open
government and secrecy laws, the Bush Administration has sought to curtail
public access to information while expanding the powers of government to operate
in secret.
PART I: LAWS THAT PROVIDE PUBLIC ACCESS TO FEDERAL RECORDS
I. Freedom of Information Act
The Freedom of Information Act ( FOIA) is the key law providing public access to
information held by the Executive branch. 7 FOIA establishes the presumption
that the people should be able to obtain information held by their government. 8
6 See, e. g., Government Openness at Issue as Bush Holds onto Records, New York Times ( Jan.
3, 2003); Under Bush, Expanding Secrecy, Washington Post ( Dec. 23, 2003); Supreme
Court to Hear Cheney Secrecy Case, Los Angeles Times ( Dec. 16, 2003).
7 5 U. S. C. § 552.
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Prior to FOIA’s adoption in 1966, individuals seeking government records had to
prove that they had a unique entitlement to the records they were requesting. 9
FOIA reversed this. It established that any individual has a right to information
held by the government unless the government proves that there is a reason to
withhold the information. That reason must fall under one of the specific
exemptions that FOIA provides to the disclosure requirements. 10 FOIA lays out
the procedures for an individual to request the release of government information.
It also provides for an appeals process, including judicial review, if the government
denies the request.
The Bush Administration has taken a series of actions to undermine, and in some
instances reverse, the principle that the public has a right to government
information under FOIA. Specifically, the Bush Administration has:
• Issued guidance reversing the presumption that government documents should
be disclosed whenever possible.
• Directed agencies to withhold from release a new category of documents —
those that could be considered “ sensitive but unclassified.”
• Pursued legislation to create new categories of information that are exempt
from disclosure under FOIA, including any information voluntarily provided
to the government by a private party and designated “ critical infrastructure
information.”
• Adopted regulations that block the release of specific types of information
under FOIA.
• Delayed and denied fee waivers for FOIA searches, thereby imposing on the
public a considerable practical barrier to using FOIA.
8 Committee on Government Reform, U. S. House of Representatives, A Citizen’s Guide on
Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government
Records ( 2003) ( H. Rept. 108- 172). This Citizen’s Guide has been issued and periodically
updated by the full Committee on Government Reform ( and its predecessors), which has
jurisdiction over FOIA, since 1977.
9 Id.
10 5 U. S. C. § 552( a)( 3)( A) states:
each agency, upon any request for records which ( i) reasonably describes such
records and ( ii) is made in accordance with published rules stating the time,
place, fees ( if any), and procedures to be followed, shall make the records
promptly available to any person.
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• Applied FOIA exemptions inappropriately to withhold documents.
Experts on government openness and information policy from academia and
citizens’ groups who were consulted in the preparation of this report view these
actions as significantly constricting access to government information. Jane
Kirtley, a professor at the University of Minnesota, stated: “ the message is that
refusals to disclose information will be defended as long as they have ‘ a sound legal
basis.’ . . . It means delay, obfuscation, and frivolous denials will be
commonplace.” 11 Philip Melanson, a professor at the University of Massachusetts,
stated: “ The Bush Administration has radically reduced the public right to know
via executive orders, court cases and policy memos, more so than any
administration in modern history.” 12 Other independent experts decried “ a
proliferation of new restrictions on unclassified information,” 13 “ more secrecy,” 14
and the Bush Administration’s efforts “[ to] roll[] back public access to
government records and … to shield government from the people.” 15
A. The Ashcroft Memo
Recognizing that not all government information can be made public, the
Freedom of Information Act exempts certain types of matters from the FOIA
requirements. Specifically, section 552( b) excludes matters that fall under nine
specific exemptions. Important exempt categories include classified information,
certain information compiled for law enforcement purposes, and internal agency
documents that would be exempt from discovery in litigation ( e. g., documents
that reveal the government’s predecisional deliberative process and attorney-client
privileged documents). 16 Since FOIA was first adopted, a key issue in the
11 E- mail from Jane E. Kirtley, Silha Professor of Media Ethics and Law and Director, Silha
Center for the Study of Media Ethics and Law, University of Minnesota, to House
Government Reform Committee minority staff, re: Comments on FOIA Policy ( July 16,
2004).
12 Philip H. Melanson, Professor of Policy Studies and Director, Policy Studies Program,
University of Massachusetts at Dartmouth, The Bush Administration and FOIA ( July 10,
2004) ( fax communication to House Government Reform Committee minority staff).
13 Telephone conversation between Steven Aftergood, Project on Government Secrecy,
Federation of American Scientists, and House Government Reform Committee minority
staff ( July 14, 2004).
14 E- mail from Meredith Fuchs, General Counsel, National Security Archive, George
Washington University, to House Government Reform Committee minority staff ( July 21,
2004).
15 E- mail from David C. Vladeck, Associate Professor, Georgetown University Law Center,
to House Government Reform Committee minority staff ( June 22, 2004).
16 The nine exemptions are: ( 1) classified materials; ( 2) matters related solely to the
internal personnel rules and practices of an agency; ( 3) matters specifically exempted in
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ongoing struggle over government secrecy has been implementation of the
exemptions that FOIA delineates.
The Clinton Administration formally took the position that there would be a
“ presumption of disclosure” for exempt materials. Attorney General Janet Reno
issued a memorandum stating that the Department of Justice would defend an
agency’s assertion of a FOIA exemption only where “ the agency reasonably
foresees that disclosure would be harmful to an interest protected by that
exemption.” 17 In other words, the Clinton Administration’s policy was that where
there would be no foreseeable harm in releasing a document, an agency should do
so, even if there were technical grounds for withholding it under FOIA.
The Bush Administration reversed the Clinton Administration’s position in a
memorandum issued by Attorney General Ashcroft on October 12, 2001. The
Ashcroft memorandum states that the Department of Justice will defend agencies’
assertions of FOIA exemptions “ unless they lack a sound legal basis.” 18 The
memorandum further urges the agencies to carefully consider a variety of
countervailing interests before making any discretionary disclosure under FOIA.
In other words, the Bush Administration’s policy is that agencies are not required
to release, and are in fact discouraged from releasing, any document if there are
technical grounds for withholding it under FOIA.
For example, the Ashcroft memorandum has had a direct effect on public efforts
to gain access to information about how the Bush Administration developed its
energy policies. Public interest organizations filed multiple FOIA requests seeking
information on the role played by federal agencies in developing the National
Energy Policy. After months of stonewalling by the Administration, some records
were finally released. But the Department of Energy alone fully or partially
withheld over 4,500 documents that were responsive to the FOIA request. 19 Of
other statutes; ( 4) trade secrets and confidential business information; ( 5) internal agency
documents that would be exempt from discovery in litigation ( e. g., attorney- client
privileged documents); ( 6) personnel and medical files; ( 7) certain information compiled
for law enforcement purposes; ( 8) records regarding supervision of financial institutions;
and ( 9) geological and geophysical information concerning wells.
17 Janet Reno, Attorney General, Memorandum for Heads of Departments and Agencies,
Subject: The Freedom of Information Act ( Oct. 4, 1993).
18 John Ashcroft, Attorney General, Memorandum for Heads of all Federal Departments and
Agencies, Subject: The Freedom of Information Act ( Oct. 12, 2001).
19 Judicial Watch v. U. S. DOE, 319 F. Supp. 2d 271, 320 ( D. D. C. 2004).
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these, DOE withheld the vast majority as exempt “ deliberative and pre- decisional”
information. 20
Under the Clinton Adminstration policy, the agency would have had to identify
some actual harm expected from the release of these documents. Under the
Ashcroft policy, however, all of these documents were simply automatically
withheld from the public.
B. The Card Memo
In a March 2002 memorandum, the Bush Administration further reduced public
access to information through FOIA by urging agencies to safeguard records
regarding weapons of mass destruction and “ other information that could be
misused to harm the security of our Nation and the safety of our people.” 21 The
memorandum did not define these terms and left agencies under direction to
withhold from disclosure under FOIA any information that could in some
conceivable way be used to harm security.
Specifically, the memorandum prepared by White House Chief of Staff Andrew
Card directs all federal agencies to review their records management procedures
within 90 days to ensure that they are acting in accordance with the directives of
the accompanying guidance encouraging agencies to protect from release
“ sensitive but unclassified information.” This is information that does not meet
the criteria for classification ( other portions of the guidance urge additional
classification of documents), but which is “ sensitive information related to
America’s homeland security.” 22 The guidance also references “ information that
could be misused to harm the security of our nation or threaten public safety.” 23
However, it provides no further definition of “ sensitive but unclassified
information.”
As a mechanism for such withholding, the guidance encourages agencies to apply
exemption 2 under FOIA. 24 This exempts records “ related solely to the internal
personnel rules and practices of an agency.” Exemption 2 has been interpreted to
20 See Department of Energy’s Vaughn Index ( Apr. 25, 2002), Judicial Watch v. U. S. DOE,
319 F. Supp. 2d 271 ( D. D. C. 2004) ( No. Civ. A. 01- 0981( PLF)) ( consolidated with NRDC
v. U. S. DOE ( No. Civ. A. 01- 2542 ( GK)).
21 Andrew H. Card, Jr., Assistant to the President and Chief of Staff, Memorandum for the
Heads of Executive Departments and Agencies; Subject: Action to Safeguard Information
Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland
Security ( Mar. 19, 2002).
22 Id.
23 Id.
24 Id.
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protect agency records where disclosure risks circumvention of agency regulations
or statutes, or where disclosure would render them “ operationally useless.” Most
commonly, agencies have used this exemption to justify withholding information
related to employment or law enforcement matters, although longstanding DOJ
guidance suggests it could also be applied to shield vulnerability assessments. 25
New DOJ guidance referenced in the Card memo encourages an expansive
application of exemption 2 to protect “ a wide range of information” stating:
“ Agencies should be sure to avail themselves of the full measure of Exemption 2’ s
protection for their critical infrastructure information.” 26
The guidance also encourages agencies to use exemption 4 of FOIA, stating that
information voluntarily submitted to the government from the private sector “ may
readily fall within the protection of Exemption 4 of the FOIA.” 27 Exemption 4,
however, does not apply to all voluntarily submitted private sector information,
but only to trade secrets and privileged or confidential commercial or financial
information.
For example, the Department of Defense relied on the Card memorandum in
refusing a FOIA request from the Federation of American Scientists for release of
an unclassified report on lessons learned from the 2001 anthrax attacks. This
report examined the United States’ preparedness to detect and respond to a
bioterrorist assault, and it highlighted improvements needed in the areas of
emergency preparations and response.
The Department of Defense did not invoke national security as a basis for
withholding this unclassified document, which was prepared by the Center for
Strategic and International Studies using entirely public materials. Instead, as
recommended in the Card memorandum, the Department applied FOIA’s
exemption 2 regarding records related solely to the internal personnel rules and
practices of an agency. 28 The Federation of American Scientists objected, arguing
25 See DOJ, Freedom of Information Act Guide ( May 2004); Office of Information and
Privacy, DOJ, FOIA Update; OIP Guidance: Protecting Vulnerability Assessment through
Application of Exemption Two ( Summer 1989).
26 Office of Information and Privacy, DOJ, FOIA Post: New Attorney General FOIA
Memorandum Issued ( Oct. 15, 2001).
27 John Ashcroft, supra note 18.
28 See Letter from Sandy Ford, FOIA/ Privacy Act Officer, Defense Threat Reduction
Agency, to Steven Aftergood, Federation of American Scientists ( Dec. 12, 2003). The
Department of Defense also relied on the Ashcroft memorandum, claiming that it was
restricted from “ the public distribution of information related to homeland security and
protection of critical infrastructure.” Id. However, the Ashcroft memorandum provides
no legal basis for denying a FOIA request; in fact, it contains no discussion of restriction
of information related to homeland security or critical infrastructure.
SECRECY IN THE BUSH ADMINISTRATION
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that release would enhance U. S. biopreparedness by building support for
correcting vulnerabilities. 29 The Department of Defense finally released a
redacted version of the report in March of 2004, almost two years after the report
was completed, and after the Federation of American Scientists appealed the
Department’s decision to deny the request. 30
C. Critical Infrastructure Information
In 2002, President Bush included a major new exemption to FOIA in his
legislative proposal creating the new Department of Homeland Security. 31 This
exemption was adopted into law as the “ Critical Infrastructure Information Act of
2002” ( CIIA), which is part of the Homeland Security Act. 32 The CIIA exempts
from FOIA any information that is voluntarily provided to the federal government
by a private party, if the information relates to the security of vital infrastructure.
The “ critical infrastructure information” provisions establish a broad new
exemption to FOIA. The definitions used in this Act cover everything from
information about a potential leak at a chemical plant to a deficiency in a software
program used by the Department of Defense. “ Critical infrastructure” includes
vital “ systems and assets, whether physical or virtual,” whose destruction would
have a “ debilitating impact on security, national economic security, or national
public health or safety.” 33 “ Critical infrastructure information” is “ information
not customarily in the public domain and related to the security of critical
infrastructure or protected [ computer] systems.” 34 The definition encompasses
information related to “ threatened interference” with critical infrastructure, the
ability of critical infrastructure to resist interference ( including any vulnerability
estimate, risk planning, or testing), and any “ planned or past operational problem
or solution” regarding “ repair, recovery, reconstruction, insurance, or continuity”
of critical infrastructure.
The exemption from FOIA applies to information that is “ voluntarily” submitted
to DHS without DHS exercising its legal authority to obtain the information. A
29 See Letter from Steven Aftergood, Federation of American Scientists to Maj. Gen. Trudy
H. Clark, Deputy Director, Defense Threat Reduction Agency ( Dec. 12, 2003).
30 Censored Study on Bioterror Doubts U. S. Preparedness, New York Times ( Mar. 29, 2004).
31 White House, A Bill To Establish a Department of Homeland Security, and for Other
Purposes ( undated legislative language provided by the Bush Administration to the
Government Reform Committee in 2002).
32 6 U. S. C. § 131.
33 42 U. S. C. § 5195c( e). Critical infrastructure is not defined specifically in the CIIA but is
defined in the Homeland Security Act as being the same as in the Patriot Act.
34 6 U. S. C. § 131.
SECRECY IN THE BUSH ADMINISTRATION
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company must simply accompany the information submitted with an “ express
statement” identifying it as critical infrastructure information. 35 DHS is then
barred from releasing such information without written consent from the
submitting entity. 36 Protected critical infrastructure information cannot be
directly used by the government or a private party in any civil action. Any
government employee who knowingly releases protected information faces
criminal penalties, including possible imprisonment. 37 CIIA allows the
government or a private party to use information that is “ independently
obtained,” but this phrase is ambiguous. 38
These provisions operate to shield from public scrutiny a broad range of private
sector communications with DHS. Communications from the private sector to
government agencies are routinely released under FOIA ( apart from confidential
business information). This is an important check against capture of government
agencies by special interests. But under the critical infrastructure information
exemption even routine communications by private sector lobbyists can be
withheld from disclosure. For example, a corporate lobbyist may now meet
secretly with DHS officials to urge changes to federal immigration or customs
regulations if the lobbyist asserts that the changes are related to the effort to
protect the nation’s infrastructure.
Under a broad interpretation, CIIA could also be used preemptively to shield
information that is potentially embarrassing or harmful to a company, such as
information that reveals errors or misconduct. A commenter from the Heritage
Foundation wrote: “ One need not be a Harvard law graduate to see that, without
clarification of what constitutes vulnerabilities [ of infrastructure], this loophole
could be manipulated by clever corporate and government operators to hide
endless varieties of potentially embarrassing and/ or criminal information from
public view.” 39
In addition, the blanket nature of the protection will likely block the release of
substantial amounts of innocuous information. Under FOIA, records to which an
exemption applies must be redacted to allow as much of the requested record as
possible to be disclosed. But CIIA exempts from FOIA all information marked
35 6 U. S. C. § 133.
36 The CIIA’s nondisclosure requirement does not apply in the case of a criminal
prosecution, a disclosure to either House of Congress, a congressional committee with
jurisdiction, or the Government Accountability Office. 6 U. S. C. § 133.
37 6 U. S. C. § 133.
38 Id.
39 Mark Tapscott, Director, Heritage Foundation’s Center for Media and Public Policy, Too
Many Secrets, Washington Post ( Nov. 20, 2002).
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critical infrastructure information. None of the information in a submission
marked as critical infrastructure information is likely to be disclosed, even when
portions of the information do not themselves constitute critical infrastructure
information. Additionally, the harsh penalty provisions will have a further chilling
effect on disclosures. Federal employees, faced with criminal penalties if they
disclose critical infrastructure information, will certainly prefer to err on the side
of nondisclosure.
In April 2003, DHS proposed regulations to implement CIIA. 40 The proposal
included a number of provisions that would have expanded CIIA’s impact in
limiting public access to information. For example, entities could submit
information labeled as critical infrastructure information to another agency with a
request to forward the information to DHS. 41 All such information would have
been protected unless DHS determined that the information did not meet the
definition of critical infrastructure information. 42
In the face of sharply critical public comments on the proposed rule, DHS issued
an interim final rule in February 2004 that changed some of the troubling
provisions in the proposed rule but added others. 43 The rule itself provides for
direct submissions of critical infrastructure information only to DHS. However,
the preamble also states that after the critical infrastructure information program
becomes operational, DHS “ anticipates the development of appropriate
mechanisms to allow for indirect submissions in the final rule and would welcome
comments on appropriate procedures for the implementation of indirect
submissions.” 44 New contradictory language in the final rule also makes it unclear
whether critical infrastructure information voluntarily submitted to DHS is
protected even if it is legally required to be submitted to another agency. 45
40 Department of Homeland Security, Procedures for Handling Critical Infrastructure
Information, 68 Fed. Reg. 18524- 29 ( Apr. 15, 2003) ( proposed rule).
41 Id. at 18525.
42 Id. at 18527.
43 Department of Homeland Security, Procedures for Handling Critical Infrastructure
Information, 69 Fed. Reg. 8073- 8089 ( Feb. 20, 2004) ( interim rule). In issuing the final
rule as an “ interim rule” DHS specified that although the rule was finalized on February
20, 2004, the agency would continue to accept additional comments on the rule through
May 20, 2004. DHS indicated that it may make changes to the rule at some unspecified
time in the future based on those comments.
44 Id. at 8075. 6 C. F. R. 29.3 provides: “ Information submitted to any other Federal agency
pursuant to a Federal legal requirement is not to be marked as submitted or protected
under the CII Act of 2002 or otherwise afforded the protection of the CII Act of 2002,”
but then adds, “ provided, however, that such information, if it is separately submitted to
DHS pursuant to these procedures, may upon submission to DHS be marked as Protected
CII or otherwise afforded the protections of the CII Act of 2002.”
45 Id. at 8084.
SECRECY IN THE BUSH ADMINISTRATION
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In addition, the rule protects information unless DHS determines the information
is not eligible for protection, and there is no deadline for DHS to make that
determination. While DHS must give the entity that submits the information an
opportunity to appeal any adverse determination, there is no procedure for a
person requesting information to appeal a decision to protect information, even if
circumstances related to DHS’s decision to protect the information have
changed. 46
D. Other Statutory and Regulatory Exemptions
1. National Security Agency Operational Files
In 2003, the Bush Administration sought and won a new legislative exemption
from FOIA for all National Security Agency “ operational files.” 47 The
Administration’s main rationale for this new exemption is that conducting FOIA
searches diverts resources from the agency’s mission. 48 Of course, this rationale
could apply to every agency. As NSA has operated subject to FOIA for decades,
it is not clear why the agency now needs this exemption.
In the past, the release of thousands of declassified NSA documents has provided
valuable information relating to the use of signals intelligence in space, the Cuban
missile crisis, and cryptography in World War II and the Korean War. 49 In urging
Congress to adopt this provision, the Administration argued that NSA would
continue to release information under its historical review program to declassify
and release records considered historically significant. 50 While useful, this
program cannot fully substitute for FOIA, which gives an individual requesting
46 Id. at 8086.
47 See H. R. 1588- 179, § 922, National Defense Authorization Act for Fiscal Year 2004. The
final legislation defines these as files held by the Signals Intelligence Directorate and the
Research Associate Directorate that document the means by which foreign intelligence or
counterintelligence is collected through scientific or technical systems.
48 See National Security Agency, Proposal for Exemption from the Freedom of Information Act
for Operational Files ( May 13, 2003). Additionally, the Administration claimed that the
information contained in these files is “ almost invariably” withheld under FOIA as
classified information. Id. However, in the past such files have been released in redacted
form, protecting the classified portions and providing valuable unclassified information.
In addition, the new statutory language explicitly provides that the exemption applies
even when information in operational files has been declassified, which refutes the
argument that the Administration’s purpose here is solely to avoid the waste of effort of
searching for files that are “ almost invariably” withheld as classified. See 50 U. S. C. A. §
432a( a)( 4)( C).
49 See NSA, Id.
50 Id.
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information the ability to file a FOIA request for specific information and provides
recourse to federal court in the event that an agency fails to comply with the
FOIA requirements.
2. Commercial Satellite Data
In 2004, the Bush Administration pushed for a new legislative FOIA exemption
for certain data generated by commercial satellites. 51 Under this provision,
agencies are not only authorized to withhold data under FOIA, they are also
barred from releasing it. This exemption and ban was added to the Defense
Authorization Act for fiscal year 2005, which has been passed by both the House
and Senate and is currently in conference. 52 The ban applies to any “ land remote
sensing” data that under the Land Remote Sensing Policy Act may only be sold to
the government, and it includes “ any imagery and other product that is derived
from such data.” 53 The provision also bars state and local governments from
releasing such data under their own information disclosure laws.
The provision is strongly opposed by the news media, who routinely use non-confidential
commercial satellite imagery in network and local news broadcasts. 54
Media representatives note that such imagery has recently been used to provide
the public with compelling news coverage of, among other topics, the Iraq and
Afghanistan conflicts; nuclear and other weapons of mass destruction sites in Iran
and elsewhere; flooding in Bangladesh; deforestation in Brazil; wildfires and
tornadoes in the United States, and refugee crises in the Sudan and elsewhere. 55
This provision, they state, “ would result in taxpayer dollars being used to preclude
the media from adequately informing the public about matters of critical
importance that in no way implicate the national security.” 56
3. Vehicle Safety Defect Information
The Administration has by regulation blocked vehicle safety information from
public access through FOIA.
51 Conversation between House Government Reform Committee minority staff and Senate
Armed Services Committee minority staff ( July 2004).
52 See H. R. 4200; S. 2400 § 1034.
53 S. 2400 § 1034.
54 Letter from Barbara S. Cochran, President, Radio- Television News Directors Association,
to Rep. Duncan Hunter, Chairman, House Armed Services Committee ( Sept. 3, 2004).
55 Id.
56 Id.
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In October 2000, Congress passed the Transportation Recall Enhancement,
Accountability, and Documentation Act ( TREAD Act). This law responded to
the failure of Ford, Firestone, and the National Highway Transportation Safety
Administration ( NHTSA) to react promptly to indications of a safety defect in
many Firestone tires, particularly when they were used on Ford Explorer SUVs.
The defect was reportedly linked to 270 highway deaths.
The TREAD Act required NHTSA to promulgate “ Early Warning” reporting
requirements to ensure that manufacturers promptly notify NHTSA of potential
or known safety defects. The required reporting includes information about
claims of death or injury, numbers of property damage claims, consumer
complaints, warranty claims, field reports, and other information about equipment
repairs or replacements. The law did not provide any exemption from FOIA for
this information.
In the past, NHTSA had acquired this type of information during defect
investigations. In those cases, including the Ford/ Firestone investigation,
NHTSA routinely disclosed detailed company documents, including engineering
tests, warranty claims, consumer complaints, and even certain production
figures. 57 NHTSA noted this in the proposed rule to implement the early warning
reporting requirements:
Historically, these types of information generally have not been considered
by the agency to be entitled to confidential treatment, unless the
disclosure of the information would reveal other proprietary business
information, such as confidential production figures, product plans,
designs, specifications, or costs. 58
NHTSA also noted that the TREAD Act does not affect the right to withhold
confidential business information under FOIA. NHTSA clearly indicated that it
expected that most of the information submitted under the early warning
requirements would be available to the public through FOIA: “ accordingly, the
agency does not expect to receive many requests for confidential treatment for
submissions under the early warning reporting requirements of the TREAD
Act.” 59
57 See Public Citizen, Comments of Public Citizen Regarding 49 CFR Part 512 Confidential
Business Information 67 Federal Register ( Apr. 30, 2002) ( DOT Docket No. NHTSA- 02-
12150).
58 66 Fed. Reg. 66190, 66214 ( Dec. 21, 2001).
59 Id.
SECRECY IN THE BUSH ADMINISTRATION
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However, NHTSA subsequently reversed its position through amendments to the
agency’s regulations governing treatment of confidential business information.
Under FOIA case law, while a business may claim that the information that it is
required to submit to the government is confidential business information, the
government cannot withhold that information from release unless it finds that
release is likely to cause actual competitive harm. 60 The final regulations issued by
NHTSA in July 2003 make a blanket finding in the regulation itself that release of
much of the data to be submitted under the early warning requirements would
cause competitive harm. 61 Specifically, NHTSA effectively exempted from FOIA
all information on: warranty claims, field reports, and consumer complaints, as
well as production numbers for vehicles other than light vehicles, child restraint
systems, and tires.
Congress did not intend the TREAD Act to be a cloak to shield information that
has always been available to consumers. The congressional authors of the
provision, Reps. Billy Tauzin and Edward Markey, had a colloquy on the floor of
the House on this precise point. 62 In fact, NHTSA might never have investigated
the Ford/ Firestone case itself without pressure from an informed public. NHTSA
had received information indicating a problem in July 1998, but did not begin to
investigate until two years later, after a Houston TV station broadcast a report that
sparked a flurry of consumer complaints. 63
4. Critical Energy Infrastructure Information
The Federal Energy Regulatory Commission ( FERC) has also issued regulations
that have the effect of limiting the information released under FOIA.
On February 21, 2003, FERC issued a final rule defining a new category of
information termed “ critical energy infrastructure information.” 64 Under this rule,
60 See 5 U. S. C. § 552( b)( 4); Nat’l Parks & Conservation Ass’n v. Morton, 498 F. 2d 765, 770-
71 ( D. C. Cir. 1974).
61 68 Fed. Reg. 44209, 44232 ( July 28, 2003).
62 146 Cong. Rec. H9629 ( daily ed. Oct. 10, 2000). Mr. Markey stated: “ Would [ Mr.
Tauzin] agree that this special disclosure provision for new early stage information is not
intended to protect from disclosure [ information] that is currently disclosed under
existing law such as information about actual defects or recalls?” Mr. Tauzin responded:
“[ T] he gentleman is correct.”
63 Public Citizen, Chronology of Firestone/ Ford Knowledge of Tire Safety Defect ( online at
http:// www. citizen. org/ autosafety/ articles. cfm? ID= 5336).
64 Federal Energy Regulatory Commission, Critical Energy Infrastructure Information, 68 Fed.
Reg. 9857 ( Mar. 3, 2003) ( Order No. 630). See also Federal Energy Regulatory
Commission, Critical Energy Infrastructure Information, 68 Fed. Reg. 46456 ( July 23, 2003)
( Order No. 630- A); Federal Energy Regulatory Commission, Critical Energy Infrastructure
Information, 68 Fed. Reg. 48386 ( Aug. 10, 2003) ( Order No. 649).
SECRECY IN THE BUSH ADMINISTRATION
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FERC would generally protect this information from disclosure, but could release
it to selected recipients under limited circumstances. FERC claims that the rule
does not purport to expand the scope of exemptions under FOIA because the
category is limited to information that is already exempt from disclosure under
FOIA. 65
However, in practical terms, FERC’s new category of protected information will
almost certainly result in less information being released to the public. The
preamble to FERC’s rule provides an expansive interpretation of several FOIA
exemptions to argue that information otherwise meeting the criteria for critical
energy infrastructure information would be exempt from FOIA under exemption 2
( records relating to internal agency practices), exemption 4 ( information that
could cause competitive harm), or 7 ( information compiled for law enforcement
purposes). For example, FERC opines that because a terrorist attack on energy
infrastructure would cause financial harm to the owner, this would put the owner
at a competitive disadvantage, justifying withholding information that might
facilitate such an attack as “ privileged or confidential” “ commercial or financial
information” under exemption 4.66
In comments on FERC’s proposed rule, the Reporters Committee for Freedom of
the Press pointed out the need for public information on vulnerabilities in energy
infrastructure, such as pipelines. 67 Without information on vulnerabilities, the
public will not be able to demand the safety improvements necessary to strengthen
the infrastructure. The Reporters Committee noted that between 1985 and 1994,
209 people were killed and 1,056 injured due to gas pipeline accidents. In one
incident in 2000 that killed 12 people, the pipeline had not been checked for
corrosion since 1950. Release of this information helped generate public pressure
that led to passage of the Pipeline Safety Improvement Act of 2002, which
attempts to address pipeline safety issues. 68
65 The other criteria for “ critical energy infrastructure information” are that it is information
about “ proposed or existing critical infrastructure” that: ( i) relates to the production,
generation, transportation, transmission, or distribution of energy; ( ii) could be useful to a
person planning an attack on critical infrastructure; and ( iii) does not simply give the
location of the critical infrastructure.” 18 CFR 388.113. “ Critical infrastructure” is
defined even more broadly than it is under the PATRIOT Act to include systems and
assets whose incapacity “ would negatively affect security, economic security, [ or] public
health or safety.” Id.
66 68 Fed. Reg. 9857, supra note 64, at 9871.
67 Reporters Committee for Freedom of the Press and the Society of Environmental
Journalists, Comments of the Reporters Committee for Freedom of the Press and the Society of
Environmental Journalists to Proposed Rules; Re: Public Access to Critical Energy
Infrastructure Information ( Nov. 13, 2002) ( online at http:// www. rcfp. org/ news/
documents/ 20021113fercceiico. html).
68 Pub. Law 107- 355 ( Dec. 17, 2002).
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E. Denying Fee Waivers
As amended in 1986, FOIA provides that an agency may charge fees for the
provision of records for a commercial use, limited to reasonable charges for search,
duplication, and review of the documents. 69 Because these charges can be
prohibitively expensive for members of the media, public interest organizations,
and the general public, the law provides that fee waivers can be granted if one of
two conditions is met. First, when the records are not sought for commercial use
and the request is made by “ an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a representative of
the news media,” the agency may only assess duplication fees. 70 Membership in
one of these categories is considered “ preferred status” for fee purposes. As
established through case law, the term “ representative of the news media” is
broadly defined to include entities that publish or otherwise disseminate
information to the public. 71 Second, FOIA provides that an agency must waive or
reduce the fees if “ disclosure of the information is in the public interest because it
is likely to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial interest of the
requester.” 72
The Bush Administration, however, has instituted an aggressive policy of
questioning, challenging, and denying FOIA requesters’ eligibility for fee waivers
under both provisions, using a variety of tactics. 73 Among others, these tactics
include challenging requesters’ assertion of “ preferred status” for fee purposes,
challenging requesters’ assertions that the information is likely to contribute
significantly to public understanding of government activities, and using
69 5 U. S. C. § 552( a)( 4)( A)( ii).
70 Id.
71 See Nat’l Sec. Archive v. U. S. Dep’t of Defense, 880 F. 2d 1381, 1387 ( D. C. Cir. 1989).
72 5 U. S. C. § 552( a)( 4)( A)( iii).
73 See, e. g., Keeping Secrets, supra note 4; Federal Charge of $ 25,280 to Fulfill Records Request
Angers Activist, Los Angeles Times ( Jan. 8, 2004); DOE Charges Watchdog for Lab Data,
Albuquerque Journal ( Dec. 20, 2002); Plaintiffs’ First Amended and Supplemented
Complaint for Declaratory and Injunctive Relief, 8– 9 ( June 13, 2003), Sierra Club et al. v.
U. S. Dept. of Interior, D. D. C. ( No. 1: 03 CV 00652) ( giving examples of recent
unprecedented fee waiver denials). Senator Leahy has requested that GAO investigate
this issue, and GAO is currently finalizing the design phase of the study. Telephone
conversation between staff of Senator Leahy and House Government Reform Committee
minority staff ( July 26, 2004).
SECRECY IN THE BUSH ADMINISTRATION
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hypertechnical objections as grounds for rejecting substantively meritorious fee
waiver requests. 74
The abrupt shift in policy on fee waivers under the Bush Administration is
illustrated by the experience of a professor at the University of Massachusetts at
Dartmouth. Professor Philip Melanson states:
Over the past 30 years, prior to this administration, I have made
approximately 200 FOIA requests and was granted a fee waiver
approximately 95% of the time, due to my academic and library affiliations
and publication record. During the last six months, I have initiated 41
requests on eleven topics relating to the war on drugs to: FBI, CIA, DEA,
Customs, State Department, and [ the] Department of Justice. I was not
granted a single fee waiver and have lost all administrative appeals to
date. 75
1. Narrowing the Definition of “ Representative of the News Media”
Entities and individuals that have long been granted preferred status for FOIA fee
purposes are now reporting that Bush Administration officials are frequently
attempting to deny them such status.
For example, Dr. Jeffrey Richelson, a Senior Fellow of the National Security
Archive and a freelance author and journalist, has made many FOIA requests
over the years. 76 Until 2001, various agencies had for years granted Dr. Richelson
preferred status for fee waivers as a representative of the news media. 77 However,
over the past two years, these same agencies suddenly began denying Dr.
Richelson preferred status. Among other erroneous grounds for these denials, the
Department of Energy took the position that publishing books and articles “ is
characteristic of an entity that does not publish or broadcast news to the public
itself” and an individual that conducts such activities is therefore not a
74 In one instance, USDA stated that it was denying a fee waiver because “[ w] e believe that
your organization does not qualify for a mandatory fee waiver.” Letter from Barbara J.
Bryant, Acting FOIA Officer, USDA, to Joseph Mendelson, III, Legal Director, Center
for Food Safety ( Aug. 7, 2002). USDA identified no reason for its “ belief,” and the only
concern identified by the agency was that the requester had asked for a voluminous
quantity of documents. There is simply no legal basis in the FOIA statute or regulations
for denying a fee waiver on these grounds.
75 Philip H. Melanson, supra note 12.
76 Letter from Meredith Fuchs, General Counsel, National Security Archive, to Tara
Magner, Professional Staff Member, Committee on the Judiciary, U. S. Senate ( Oct. 3,
2003).
77 Id.
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representative of the news media. 78 As well as being contrary to case law and
precedent, this position has the absurd result of denying all freelance journalists
preferred status for fee waivers. Ultimately, these denials were resolved through
the appeals process. However, they had the effect of delaying the processing of
Dr. Richelson’s FOIA requests for many months. 79
In another example, the Defense Department denied a fee waiver request from
the Electronic Privacy Information Center ( EPIC), a nonprofit public interest
research center and educational organization that publishes newsletters, reports,
and books on civil liberties issues including privacy, open government, and free
speech. 80 Since EPIC had been established in 1994, no agency had ever previously
challenged its status as a news media requester for FOIA fees purposes. 81 In this
instance, however, the Defense Department denied EPIC’s request and
subsequent appeals, explaining that “[ y] ou state that EPIC is an educational
organization that disseminates information instead of being an entity that is both
organized and operated to disseminate information.”
The U. S. District Court for the District of Columbia upheld the legitimacy of
EPIC’s claim. 82 The court found that the circumstances “ mirror[ ed]” those in the
controlling case, National Security Archive v. Dept. of Defense, in which the DC
Circuit had settled this issue in 1989.83 As another basis for upholding EPIC’s
claim, the court also noted that EPIC publishes a periodical distributed to over
15,000 readers and that the Defense Department’s own FOIA regulations list
publishers of periodicals as an example of the news media. 84 Finally, the court
noted that four other federal agencies, including two operating under the Defense
Department’s FOIA regulations ( the National Security Agency and the Defense
Technical Information Center) had classified EPIC as a representative of the news
media. 85
78 See id.
79 Id.
80 See the EPIC website at http:// www. epic. org/ epic/ about. html.
81 E- mail from David L. Sobel, General Counsel, EPIC, to House Government Reform
Committee minority staff ( Dec. 18, 2003).
82 Electronic Privacy Information Center v. Dept. of Defense, 241 F. Supp. 2d 5 ( D. D. C. 2003).
83 Id. at 9. See also id. at 12 (“ Simply put, there are no material differences between the
National Security Archive and EPIC for purposes of the news media status
determination”).
84 Id. at 12– 13.
85 Id. at 14.
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2. Claiming Information Would Not Contribute to Public Understanding
Under the Bush Administration, agencies have also attempted to deny fee waiver
requests by asserting that the information requested would not contribute
significantly to the public’s understanding of government operations, and
therefore the request is not eligible for a fee waiver. Under this approach, the
government decides what the public needs to know.
For example, the Bureau of Alcohol, Tobacco and Firearms ( ATF) denied a FOIA
fee waiver request from the Brady Center to Prevent Gun Violence regarding a
request for inspection reports on a specific firearms dealer. The dealer was alleged
to have illegally sold a gun that had been used to shoot two police officers. 86 Yet
the Bureau denied the fee waiver on the grounds that the Brady Center had
already received such information about other gun dealers, so there would be no
benefit to releasing information on the dealer in question. 87
3. Using Sequential Fee Waiver Denials
The Bush Administration is also delaying processing FOIA requests by raising
multiple objections sequentially to individual fee waiver requests. Under this
approach, an agency waits for an applicant to satisfy one objection before raising
another, which significantly stretches out the process timeline. Two examples
demonstrate the extent of the Administration’s efforts to deny fee waivers.
In 2001, the Natural Resources Defense Council ( NRDC) requested information
from the National Institute of Environmental Health Sciences ( NIEHS) regarding
a memorandum of understanding between NIEHS and the American Chemistry
Council. This memorandum established a partnership to fund testing of chemicals
for human health effects. 88
NIEHS denied the fee waiver requested by NRDC on two grounds. 89 First,
NIEHS claimed that NRDC had not demonstrated that the information would be
widely distributed. Second, the agency claimed that NRDC had “ not presented
evidence of a unique capability to educate the public beyond other individuals
86 See Store Agrees to Pay $ 1 Million to Officers Shot with Gun It Sold, Associated Press ( June
23, 2004).
87 Letter from Marilyn R. LaBrie, Treasury Department, Bureau of Alcohol, Tobacco and
Firearms, to Elizabeth S. Haile, Brady Center ( May 22, 2003).
88 Letter from Steven G. Gurney, Geologist, NRDC to Joyce Bumann, FOI/ Privacy Act
Specialist, NIEHS, Re: FOIA Request ( Aug. 10, 2001).
89 Letter from Susan R. Cornell, Esqu., FOIA Officer, NIH to Steven G. Gurney, Geologist,
NRDC, Re: FOI Case No. 26846 ( Oct. 15, 2001).
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and/ or groups that have the same concerns.” 90 The FOIA officer concluded that
“[ b] ecause of these reasons, I have determined that to furnish the information to
you at no cost does not outweigh the burden that will be placed on the NIEHS in
supplying the records.” 91
NRDC appealed the denial and provided substantial additional detail regarding its
demonstrated capacity to widely distribute information obtained through FOIA
requests. 92 More than ten months later, NIEHS responded to the appeal, again
denying the fee waiver request, but this time on new grounds. 93
In this second round, the agency claimed that NRDC had not demonstrated how
disclosure of the information was likely to contribute significantly to the public’s
understanding of government activities, how disclosure would reveal such
information that was not already public knowledge, and how it would advance the
understanding of the general public, as opposed to a narrow set of interested
persons. 94 The agency also found “ no evidence” to support NRDC’s statements
regarding the organization’s capability to distribute information.
NRDC had in fact discussed at length in its initial request how disclosure would
contribute to the general public’s understanding of an arrangement that could
“ give regulated industry an unprecedented influence on prioritizing federal funded
research,” the dangers of tainted public health research, and the current press
coverage of this issue. 95 The initial denial gave no indication that this discussion
was inadequate.
Moreover, the requester ( one of the nation’s most prominent environmental
advocacy organizations) had already stated that it had 15 people on staff
specifically devoted to communications work, and the requester had attached a
90 Id.
91 Id. As an initial matter, neither the FOIA law nor regulations requires any showing of a
“ unique capability to educate the public beyond other individuals or groups.” Thus, this
basis for denying a fee waiver appears illegal ( and the agency did not attempt to defend it
upon appeal). The balancing test that NIEHS enunciated between the interest in
providing free information and the burden on the agency is also not a legal criterion for
granting a fee waiver.
92 Letter from Jon P. Devine, Jr., Senior Attorney, NRDC, to Deputy Assistant Secretary for
Public Affairs ( Media), HHS, Re: FOIA Appeal — Case No. 26846 ( Oct. 17, 2001).
( NRDC also provided information demonstrating its unique capability to educate the
public on these matters, although noting that this is not required.)
93 Letter from William A. Pierce, Deputy Assistant Secretary for Public Affairs/ Media to Jon
P. Devine, Jr., Senior Attorney, NRDC ( Aug. 23, 2002).
94 Id.
95 See Letter from Steven G. Gurney, supra note 88.
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list of 53 citations in the news media regarding NRDC and FOIA. 96 NIEHS did
not provide any indication of what evidence would be sufficient in the agency’s
view to prove the requester’s ability to disseminate information.
The Brady Center experienced similar sequential denials with respect to a fee
waiver request it submitted to ATF on July 7, 2003. In this case, its underlying
FOIA request was for inspection reports and variances pertaining to
manufacturers of semiautomatic assault weapons. 97 The Brady Center wanted to
know how many times ATF had granted variances to allow assault weapons
manufacturers to replace “ defective” banned assault weapons with newly
manufactured replacement weapons. 98 ATF denied the fee waiver request on
August 26, 2003, on the grounds that the documents were “ similar and
repetitive.” 99 ATF asserted that the public interest would be just as well served by
releasing a sampling of documents, covering five or so of the 62 manufacturers. 100
In its appeal, the Brady Center pointed out that a sampling of documents would
not produce information necessary to inform the public whether ATF’s variance
practices were undermining the assault weapons ban. ATF responded over a
month later, again denying the fee waiver, but on an entirely new basis. 101 ATF
acknowledged “ that the Brady Center has the resources to disseminate
information” and that ATF had previously granted the Brady Center fee waivers
for similar types of requests. But ATF now asserted, for the first time, that the
Brady Center had failed to inform ATF “ how, where or when” it intended to
disseminate the information to the public. 102
F. Inappropriate Use of Exemptions
Under the Bush Administration, agencies are making extensive use of FOIA
exemptions, often inappropriately or with inadequate justification. As discussed
above, an agency may withhold a document from release under FOIA only if one
of the nine specific exemptions identified in the law applies to the document. The
96 Letter from Jon P. Devine, Jr., supra note 92.
97 Letter from Daniel R. Vice, Brady Center, to Bureau of Alcohol, Tobacco, Firearms and
Explosives ( July 7, 2003).
98 Id.
99 Letter from Marilyn R. LaBrie, Disclosure Specialist, Bureau of Alcohol, Tobacco and
Firearms, to Daniel R. Vice, Brady Center ( Aug. 26, 2003).
100 Id.
101 Letter from Marilyn R. LaBrie, Disclosure Specialist, Bureau of Alcohol, Tobacco and
Firearms, to Daniel R. Vice, Brady Center ( Oct. 15, 2003).
102 See id. The Brady Center has provided additional information and appealed this
determination, but has not yet received a response from the agency.
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examples below include the improper use of exemptions both to withhold entire
documents and to redact information in documents.
1. Making Frivolous Exemption Claims
In August 2002, anti- war activists Rebecca Gordon and Jan Adams were detained
and searched at San Francisco International Airport while boarding a flight to
Boston. They were told that they had been stopped because their names appeared
on a secret national “ No- Fly” list. 103 Hoping to learn why they were included on
such a list, Ms. Gordon and Ms. Adams contacted the ACLU of Northern
California ( ACLU- NC), which filed FOIA requests with the Transportation
Security Administration ( TSA) and the Federal Bureau of Investigation ( FBI). 104
After receiving no answer, the ACLU- NC filed suit, and subsequently received 94
pages of heavily redacted documents that failed to answer most of its questions
about the composition of, and criteria for inclusion on, the No- Fly list. 105 The
ACLU- NC went back to court to obtain an adequate response.
After reviewing large portions of the information withheld, a federal district court
ordered the TSA and FBI to reconsider their withholding of each of the
documents. The court found that the government, had “ in many instances . . .
not come close to meeting its burden [ of proving its right to claim exemptions],
and, in some instances, [ had] made frivolous claims of exemption.” 106 The court
identified several striking examples of abuse of FOIA exemptions:
• The TSA cited exemption 3 to withhold not only the names of people on the
No- Fly lists, but the number of people listed, without providing any
explanation of how this information was “ sensitive security information.” 107
• The FBI cited exemption 7( C) to withhold an e- mail it had received
summarizing the complaints of Ms. Adams, Ms. Gordon, and others,
contending that it would invade Ms. Adams’s and Ms. Gordon’s privacy to
give them information about themselves. 108
103 American Civil Liberties Union of Northern California, Federal Judge Says Government Is
Using “ Frivolous Claims” in Refusing to Disclose No- Fly Documents ( June 17, 2004) ( online
at www. aclunc. org/ pressrel/ 040617- nofly. html).
104 Id. The ACLU- NC also filed requests under the Privacy Act.
105 Id.
106 Gordon v. FBI, No. C 03- 01779 CRB at 7 ( N. D. Cal. June 15, 2004) ( order for production
of documents).
107 Id. at 3– 4.
108 Id. at 4– 5.
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• The TSA cited exemption 6 to redact, among other things, the names of
prominent officials within the TSA, even though the identity of those officials
was public knowledge, and even though the documents in question contained
no personal information about them. 109
• The FBI used exemption 7( C) to redact the names of government employees,
including “ even the name of the FBI employee who was responsible for
responding to inquiries from the public regarding names appearing on No Fly
lists.” 110
2. Abusing the Deliberative Process Privilege
Under the Federal Land Policy and Management Act of 1976, the Bureau of Land
Management ( BLM) of the Department of the Interior ( DOI) is required to
inventory federal lands to determine which areas might be eligible for protection
as wilderness. 111 In 1996, the State of Utah sued BLM to prevent it from
conducting such an assessment on certain lands in the state. 112 The suit was
dismissed, except for one claim, which languished in District Court until 2003.113
Then, over a two- week period, Utah refiled its complaint and reached a
settlement with the Department of the Interior. 114 The settlement provided that
despite prior interpretations of the law, BLM had no further authority to conduct
inventories. 115
The Wilderness Society filed FOIA requests to obtain information about the
settlement and how it was reached, ultimately suing DOI to compel a response to
its requests. 116 DOI had withheld most of the requested information by citing
FOIA exemption 5, which covers predecisional and deliberative documents
prepared by agency staff, as well as documents created by agency attorneys in
anticipation of litigation. Upon reviewing these claims, however, The Wilderness
Society found that DOI:
• Designated as “ predecisional” documents composed after the date of the
settlement. These included documents developed four weeks after the
109 Id. at 6– 7.
110 Id.
111 See 43 U. S. C. § 1711( a), 43 U. S. C. § 1782( a).
112 Tom Turner, Unsettling Development, Environmental Forum, 32 ( Jan./ Feb. 2004).
113 Id.
114 Id.
115 Id.
116 Plaintiffs’ Memorandum in Support of Its Motion for Summary Judgment, 1 ( Feb. 13,
2004), Wilderness Soc’y v. Norton, Civ. No. 03- CV- 01801 ( D. D. C. 2004).
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settlement that were apparently intended to address its impact on agency
public relations. 117
• Withheld documents discussing how to communicate with the media and
explain Department policy as “ predecisional and deliberative.” 118
• Withheld strictly factual material as “ deliberative” in some cases, and in other
cases failed to segregate factual material from policy discussion. 119
• Claimed attorney- client privilege for documents whose authors and recipients
were unidentified, which were not shown to be associated with an actual
attorney, and which did not appear to have been handled confidentially. 120
3. Abusing the Law Enforcement Exemption
The United Mine Workers Association ( UMWA) requested notes from a
September 2002 meeting between officials of the federal Mine Safety and Health
Administration ( MSHA) and representatives of the Ohio Valley Coal Company
( OVCC), including OVCC’s president and Robert Murray, a major Republican
campaign contributor. 121 Although MSHA released copies of the notes pursuant
to the UMWA’s FOIA request, the agency redacted the bulk of the text,
rendering the notes mostly incomprehensible. Copies of the unredacted notes
were obtained by the Mine Safety and Health News. 122
The full notes show that much of the deleted material consisted of accusations,
threats, and profane invective directed by Mr. Murray and his associates against
MSHA officials. Among other things, the OVCC representatives repeatedly
referred to one MSHA official as a “ puppet,” accused MSHA officials of “ acting
maliciously, capriciously, unprofessionally,” and repeatedly threatened to have
them fired. To buttress these threats, Mr. Murray noted that “[ Kentucky
Senator] Mitch McConnell calls me one of the five finest men in America.” 123
117 Id. at 18.
118 Id. at 26.
119 Id. at 27– 30.
120 Id. at 31– 33.
121 MSHA Not Adhering to FOIA Requirements According to Committee, Mine Safety and
Health News ( Mar. 3, 2003); see Center for Responsive Politics, Ohio Valley Coal 2000
PAC Summary Data ( http:// www. opensecrets. org/ pacs/ lookup2. asp? strID= C00255315
& cycle= 2000) ( listing Ohio Valley Coal PAC as the top coal mining contributor to
Republicans in the 2000 election cycle).
122 MSHA Not Adhering to FOIA Requirements According to Committee, id.
123 Comparison of MSHA/ Murray Meeting Notes, September 11, 2002, Mine Safety and Health
News ( Mar. 3, 2003).
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The legal basis for MSHA’s redactions is tenuous. MSHA cited FOIA exemptions
7( A) and 7( C), which apply to law enforcement records whose release could
interfere with enforcement proceedings or threaten an unwarranted invasion of
personal privacy, and exemption 5, which protects agency deliberative
documents. 124 The meeting had no apparent law enforcement purpose, and even
if it had, it is unclear how release of the redacted material could have either
interfered with enforcement or constituted an unwarranted invasion of personal
privacy. Moreover, the notes were a factual record of a conversation with outside
parties, not intra- agency deliberative material.
4. Withholding Data on Telephone Services
On August 4, 2004, the Federal Communications Commission ( FCC) reversed its
longstanding policy of providing public access to telephone service providers’
reports on service outages. 125 The FCC expanded the outage reporting
requirements to cover providers of wireless and satellite communications, but also
added a presumption in the regulations that all such outage reports would be
confidential and withheld from FOIA requestors. 126
In initially adopting the outage reporting requirements in 1992, the FCC
identified four purposes of the requirements, two of which were to “ serve as a
source of information to the public,” and to “ assist in dissemination of information
to those affected.” 127 Noting that “ outages have been of enormous public
concern,” the FCC at that time decisively rejected commenters’ requests that
outage reports should routinely be treated as confidential, stating, “ the public is
entitled to full and forthcoming explanations of these events.” 128
The FCC’s proposal in March 2004 to expand the outage reporting requirements
did not include any proposal to withhold the reports from the public. 129 In its
comments on the proposal, however, the Department of Homeland Security urged
124 5 U. S. C. § 552( b).
125 FCC, In the Matter of New Part 4 of the Commission’s Rules Concerning Disruptions to
Communications, Report and Order and Further Notice of Proposed Rule Making, ET Docket
No. 04- 35 ( Aug. 4, 2004) ( FCC 04- 188) ( online at http:// hraunfoss. fcc. gov/ edocs_ public/
attachmatch/ FCC- 04- 188A1. pdf) ( hereinafter “ FCC Order”).
126 47 C. F. R. 4.2.
127 FCC, In the Matter of Amendment of Part 63 of the Commission’s Rules to Provide for
Notification by Common Carriers of Service Disruptions, 7 F. C. C. R. 2010 ( Feb. 13, 1992).
128 Id.
129 FCC, Commission’s Rules Concerning Disruptions to Communications: Proposed Rule, 69
Fed. Reg. 15761 ( Mar. 26, 2004).
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the FCC to reverse its policy on security grounds. 130 In the final rule, the FCC
justified the withholding under exemption 4 of FOIA, which exempts confidential
business information, explaining that competitors could use information about the
scope and frequency of a company’s service disruptions in marketing campaigns. 131
After the final rule was announced, consumer advocates, state regulators, and
some businesses denounced the new policy, saying that the outage data are
“ essential to your ability to understand what is going on.” 132 Critics say the
information is necessary to evaluate the reliability of phone service and make
business decisions such as building networks and locating data centers. 133
G. Denial through Delay
In numerous instances, the Bush Administration has simply failed to respond to
FOIA requests. Whether this is just inordinate delay or an unstated final refusal
to respond to the request, the effect is the same: the public is denied access to the
information.
FOIA recognizes that the timeliness of information is often critical to its
usefulness, and hence the statute sets very tight timeframes for agencies to
respond to FOIA requests. By law, within 20 business days of a request an agency
must notify a requester whether the agency will comply with the request. 134 The
agency may extend these time limits only by giving the requester written notice
setting forth the “ unusual circumstances” that necessitate an extension and
specifying a date by which the agency expects to provide the information. 135
Similar timelines apply in handling appeals. 136 The statute also allows requesters
to ask for expedited responses to their requests and it authorizes agencies to set up
multi- track processing systems to allow smaller and simpler requests to move
forward quickly, while longer requests are ongoing. 137
130 DHS, Comments of the Department of Homeland Security, In the Matter of New Part 4 of the
Commission’s Rules Concerning Disruptions to Communications, ET Docket No. 04- 35 ( June
2, 2004); DHS, Reply Comments of the Department of Homeland Security, In the Matter of
New Part 4 of the Commission’s Rules Concerning Disruptions to Communications, ET Docket
No. 04- 35 ( June 29, 2004).
131 FCC Order at 24– 26.
132 FCC Cuts Public Line to Phone Outage Data, Washington Post ( Aug. 28, 2004).
133 Id.
134 5 U. S. C. § 552( a)( 6)( A).
135 5 U. S. C. § 552( a)( 6)( B).
136 5 U. S. C. § 552( a)( 6).
137 5 U. S. C. § 552( a)( 6)( D), ( E).
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In practice, many agencies frequently fail to meet these deadlines and many have
substantial backlogs of FOIA requests that date back from before the Bush
Administration. 138 Nevertheless, anecdotal evidence indicates a very high level of
frustration on the part of FOIA requesters with respect to apparently unlimited
delays by agencies under the Bush Administration. Many requesters have not yet
received responses to numerous FOIA requests made in the past few years, even
where the request is relatively narrow, specific, and unlikely to involve documents
subject to an exemption.
For example, the National Security Archive is an independent research institute
and library located at George Washington University, which collects and
publishes declassified documents acquired through FOIA. As of early 2004, the
National Security Archive had over 300 outstanding FOIA requests submitted in
2001, for which the government had provided no substantive response. 139 Among
these, for example, was an August 2001 FOIA request to the CIA for a Scientific
Intelligence Committee report, “ Science and Technology in Communist China
through 1970,” dating to circa 1966.140 Although the CIA acknowledged the
request, the agency neither released nor denied the request for the record. 141 No
explanation was given for the delay in processing a request for a specifically
identified single document relating to matters over 30 years old. Similarly, the
Archive has received only an acknowledgment of its simple request in September
2001 to the State Department for “ the State Department’s contract with DynCorp
for services in Colombia, contract # 2071- 125123E1.” 142
A second example involves the Arctic National Wildlife Refuge. In February
2002, several environmental groups submitted a FOIA request to the Department
of Interior for records related to the Department’s positions on oil exploration and
138 GAO, Information Management: Update on Freedom of Information Act Implementation
Status, 32 ( Feb. 2004) ( GAO- 04- 257) ( indicating a governmentwide FOIA backlog of
roughly 160,000 requests in 2000); National Security Archive, Justice Delayed is Justice
Denied: The Ten Oldest Pending FOIA Requests; Freedom of Information Act Audit, Phase
Two ( Nov. 17, 2003).
139 E- mail from Meredith Fuchs, General Counsel, National Security Archive, to House
Government Reform Committee minority staff ( Jan. 15, 2004).
140 Letter from William Burr, National Security Archive, to Kathryn I. Dyer, FOIA and
Privacy Coordinator, CIA ( Aug. 27, 2001).
141 See Letter from Kathryn I. Dyer, FOIA and Privacy Coordinator, CIA to William Burr,
National Security Archive ( Sept. 17, 2001).
142 See Letter from Michael Evans, National Security Archive, to Margaret P. Grafeld,
Director, Department of State ( Sept. 13, 2001); Letter from Katrina M. Wood,
Department of State to Michael Evans, National Security Archive ( Nov. 16, 2001).
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development in the Arctic Refuge. 143 In April 2002, the groups submitted a
second FOIA request to Interior for documents relating to a revision of a report by
U. S. Geological Survey scientists on the wildlife impacts of oil drilling in the
Arctic Refuge. 144 For both of these requests, Interior responded with various
delaying tactics. These included invoking the statutory time extension without
citing any “ exceptional circumstances” as required, refusing to classify requesters
as “ educational” institutions for fee waiver purposes, reinterpreting and narrowing
the scope of the request contrary to the groups’ explicit language in the request,
and “ closing” the request file when the Department did not hear back from the
groups within 20 days. 145
The groups addressed Interior’s last set of objections on June 27, 2002, and May
15, 2002, respectively, but received no response. 146 They wrote again on
September 19, 2002, but received no response. 147 On March 11, 2003, the groups
filed suit on both requests. 148 After the suit was filed, Interior released some of the
requested documents. 149
H. The Views of Experts
In preparing this report, the staff of the Special Investigations Division
interviewed experts in FOIA law and practitioners with extensive experience in
making requests for information under FOIA to obtain their views on how public
access to government information has changed under the Bush Administration.
Across the board, these experts believe that the Bush Administration is
significantly more secretive than previous administrations, and that it is
fundamentally resistant to providing public access to information held by the
government. As Harry Hammitt, the editor of Access Reports, stated: “ The Bush
Administration has shown a dislike for the concept of open government from the
top.” 150
143 Plaintiffs’ First Amended and Supplemented Complaint for Declaratory and Injunctive
Relief, 14 ( June 13, 2003), Sierra Club et al. v. U. S. Dept. of Interior, D. D. C. ( No. 1: 03 CV
652).
144 Id. at 12.
145 Id. at 13– 17.
146 Id.
147 Id.
148 Id.
149 Id.
150 E- mail from Harry Hammitt, Editor, Access Reports, to House Government Reform
Committee minority staff, re: Bush and FOIA ( June 25, 2004).
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The experts see this attitude shift as driving a myriad of changes, both large and
small, in the government’s FOIA policies. Furthermore, they believe that these
actions, taken together, “ radically” limit the public’s ability to find out what the
government is doing. For example:
• Jane E. Kirtley, Silha Professor of Media Ethics and Law at the University of
Minnesota and former Executive Director of the Reporters Committee for
Freedom of the Press, wrote: “ The Bush Justice Department does not seem to
view the FOIA as a law, like any other law, that must be enforced to promote
the legislative goal of openness and accountability. Instead, it regards the
exemptions as loopholes to be interpreted as broadly as possible in order to
thwart the public’s right to know what its government is up to.” 151 She further
wrote: “ It is impossible to overestimate the significance on the Ashcroft FOIA
memo. In implementing FOIA, government agencies take their cue from the
Justice Department. If the Justice Department makes clear that it intends to
enforce FOIA’s provisions and spirit — the presumption of openness, the idea
that exemptions should be narrowly construed, and discretionary disclosure
unless there is a serious risk of actual harm — agencies will take that directive
seriously, and therefore handle requests seriously. If, on the other hand, as
with the Ashcroft memo, the message is that refusals to disclose information
will be defended as long as they have a ‘ sound legal basis’ ( a standard easily
met, given the many disparate FOIA decisions from a variety of federal
courts), agencies will interpret this to mean, at the very least, ‘ when in doubt,
don’t give it out.’ It means delays, obfuscation, and frivolous denials will
become commonplace.” 152
• Prominent open- government advocate Steven Aftergood, who heads the
Project on Government Secrecy at the Federation of American Scientists
wrote: “ The problem of classified information is bad enough. But in the last
couple of years there has been a proliferation of new restrictions on
unclassified information. Whether they are called ‘ sensitive but unclassified,’
or ‘ for official use only,’ or ‘ critical infrastructure information,’ barriers to
public access are springing up right and left.” 153
• Meredith Fuchs, the General Counsel for the National Security Archive at
George Washington University wrote: “ The Bush Administration started on a
bad foot when Attorney General Ashcroft introduced a policy that
discouraged government agencies from releasing records under FOIA even
when they have the discretion to release. It got worse when they elevated
151 E- mail from Jane E. Kirtley, supra note 11.
152 Id.
153 Telephone conversation with Steven Aftergood, supra note 13.
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privacy, corporate and other interests above any public interest in information.
Then journalists began to get hassled for fees that they should not have to pay.
As the General Accounting Office and the National Security Archive found
in separate audits of federal agency FOIA practice, all of this has meant more
secrecy.” 154
• Professor Philip H. Melanson, Director of the Policy Studies Program at the
University of Massachusetts at Dartmouth, wrote: “ The Bush administration
has radically reduced the public right to know via executive orders, court cases
and policy memos, more so than any administration in modern history. The
Freedom of Information Act of 1966 has been so narrowed by the policies and
decisions of the White House and Attorney General Ashcroft that it has been
weakened to a point that threatens its viability.” 155
• Rebecca Daugherty, Director of the FOI Service Center, Reporters Committee
for Freedom of the Press, wrote: “ The Department of Justice under the Bush
Administration will go to court on the flimsiest of excuses to protect
information that is vital to the public’s understanding of what is going on in
government. . . . It insists also that people locked up in connection with the
War on Terrorism have a privacy interest in not having the public know that
they are locked up — never mind the public’s interest in knowing whether
there are systematic civil liberties abuses going on. National security and
privacy are twin veils that smother the public’s ability to evaluate what is going
on. Access to information has never been this difficult since passage of the
Freedom of Information Act.” 156
• Professor Barbara Croll Fought at the S. I. Newhouse School of Public
Communications at Syracuse University wrote: “ The Freedom of Information
Law is all about openness, access and accountability. Particularly at this time
of terrorism and war, citizens need to understand what our government is
doing, how our tax money is being spent and why decisions are made. The
policies and pronouncements of the Bush administration — in particular the
Ashcroft and Card memos — are not only sucking the spirit out of the FOIA,
but shriveling its very heart.” 157
154 E- mail from Meredith Fuchs, supra note 14.
155 Philip H. Melanson, supra note 12.
156 E- mail from Rebecca Daugherty, Director of the FOI Service Center, Reporters
Committee for Freedom of the Press, to House Government Reform Committee minority
staff ( Aug. 31, 2004).
157 E- mail from Barbara Croll Fought, Associate Professor, S. I. Newhouse School of Public
Communications, Syracuse University, to House Government Reform Committee
minority staff ( July 16, 2004).
SECRECY IN THE BUSH ADMINISTRATION
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• Professor David C. Vladeck of the Georgetown University Law Center, who
specializes in open government litigation, wrote: “ George W. Bush will go
down in the annals of history as ‘ The Secrecy President.’ No president in
modern times has done more to conceal the workings of government from the
people. Not just with regard to asserted national security information, but on
every front Bush has rolled back public access to government records and has
tried to shield government from the people. For those who believe that
democracy can flourish only with open and accountable government, the Bush
Administration has been a nightmare.” 158
Television news journalist Bill Moyers has echoed these concerns:
It’s always a fight, to find out what the government doesn’t want us to
know. It’s a fight we’re once again losing. Not only has George W. Bush
eviscerated the Presidential Records Act and FOIA, he has clamped a lid
on public access across the board. It’s not just historians and journalists he
wants locked out; it’s Congress . . . and it’s you, the public and your
representatives. 159
II. Presidential Records Act
The purpose of the Presidential Records Act is to ensure that after a President
leaves office, the public will have full access to White House documents used to
develop public policy. On November 1, 2001, however, President Bush issued an
executive order that threatens to undermine this important law.
Congress passed the Presidential Records Act in 1978, following the bitter
controversy over public access to Nixon Administration records relating to the
Watergate break- in and coverup. 160 Before the enactment of the Presidential
Records Act, a president’s papers relating to his official duties were considered to
be his personal property. While most presidents of the modern era preserved their
records and eventually made them public, absent the Presidential Records Act
there is no guaranteed public access.
The Presidential Records Act establishes that the records of a president relating to
his official duties belong to the American people. 161 The law gives the Archivist of
158 E- mail from David C. Vladeck, supra note 15.
159 Bill Moyers on the Freedom of Information Act, NOW with Bill Moyers ( Apr. 5, 2002)
( online at http:// www. pbs. org/ now/ commentary/ moyers4. html).
160 44 U. S. C. § 2201- 2207.
161 44 U. S. C. § 2202.
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the United States custody of these records and the “ duty to make such records
available to the public as rapidly and completely as possible consistent with the
provisions of this Act.” 162
The Act recognizes the need for some limits on public access. For the first five
years after a president leaves office, there is generally no access to the presidential
records except by Congress and the courts. 163 The Act also permits a former
president to restrict public access to sensitive records for up to 12 years after
leaving office. 164 The Act specifies six categories of records eligible for such a
restriction, such as confidential communications between a president and his
advisers. 165 When the 12 years expire, the Presidential Records Act restrictions
on release are eliminated, and access to the records is governed by the Freedom of
Information Act. The Archivist must release records in response to FOIA
requests, except that the exemption from FOIA for materials involving the
government’s internal deliberative processes does not apply and such materials
would be released. 166 The Presidential Records Act does not affect any rights a
president or former president may have to assert executive privilege, which is a
recognized constitutional privilege to maintain confidentiality of presidential
documents under certain circumstances. 167
On January 16, 1989, President Reagan issued Executive Order 12667.168 This
order established a process for handling potential executive privilege claims over
records covered by the Presidential Records Act. It provided the sitting president
and former presidents notice that records would be released and also provided an
opportunity to assert executive privilege. If the former president asserted
executive privilege, the claim would be reviewed by federal officials. Ultimately,
the materials would be released unless either the current president or the
Archivist concurred with the claim of privilege.
On November 1, 2001, President Bush replaced the Reagan executive order with
Executive Order 13233. 169 Under the law and the Reagan order, the presumption
was that most documents would be released. In contrast, the Bush executive
order establishes a process that generally operates to block the release of
presidential papers.
162 44 U. S. C. § 2203( f).
163 44 U. S. C. § § 2204, 2205.
164 44 U. S. C. § 2204( a).
165 Id.
166 44 U. S. C. § 2204( c); 5 U. S. C. § 5( b)( 5).
167 44 U. S. C. § 2204( c)( 2).
168 Exec. Order No. 12667, 54 Fed. Reg. 3403 ( Jan. 18, 1989).
169 Exec. Order No. 13233, 66 Fed. Reg. 56025 ( Nov. 1, 2001).
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The Bush order made several significant changes to the implementation of the
Presidential Records Act. First, the order allows a former president unilaterally to
block the release of records by asserting executive privilege. If, after being notified
of the intent to release documents, the former president makes an executive
privilege claim, the Archivist must withhold the records, even if neither the
Archivist nor the incumbent president concur. Individuals seeking access to the
records must initiate litigation to obtain an independent review of the legitimacy
of the former president’s executive privilege claim.
Second, the order facilitates the ability of a former president to defend an
assertion of executive privilege in court. The order provides that “ absent
compelling circumstances,” the incumbent president “ will concur in the privilege
decision of the former President.” Whenever the incumbent president concurs in
a privilege claim, the order provides that the incumbent president, who is
represented by the Justice Department, will defend the claim of privilege in any
litigation. This shifts the cost of defending the claim from the former president to
the taxpayer.
Third, the Bush order enables the president or former president to block release of
records indefinitely, even without asserting executive privilege. The Presidential
Records Act requires claims to withhold documents to be considered within
specific time frames to assure expedited release. Under the Bush order, the
incumbent and former presidents have 90 days to review documents prior to their
release, but they can request an unlimited extension of that review time, blocking
any release of documents in the interim.
Fourth, the Bush order expands the scope of protected records to include vice
presidential records. It also allows the former vice president to assert an executive
privilege claim with respect to such records, as long as either the incumbent or
former president authorizes the claim.
Finally, the Bush order allows the designated representatives of the former
president to invoke executive privilege on the president’s behalf, even after the
death of the president. In addition, the Bush order designates the former
president’s family as the representative in the event of the death or disability of a
president prior to the designation of a representative. This is in direct conflict
with the Presidential Records Act, which says: “ Upon the death or disability of a
President or former President, any discretion or authority the President or former
President may have had under this chapter shall be exercised by the Archivist
SECRECY IN THE BUSH ADMINISTRATION
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unless otherwise previously provided by the President or former President in a
written notice to the Archivist.” 170
The reaction of historians to the Bush order was sharply critical:
• Dr. Stanley Kutler, whose efforts forced the release of the Nixon tapes and
who was instrumental in making the case for the Presidential Records Act,
wrote: “ If his action stands, Bush will have substantially shut down historical
research of recent presidents. With this order, we would have no studies of
recent events such as we have for the Vietnam War, using Lyndon Johnson’s
and Richard Nixon’s records to reveal their own doubts about the war,
including its origins and attempts to make peace.” 171
• Prominent writer and reporter Richard Reeves wrote: “ With a stroke of the
pen on Nov. 1, President Bush stabbed history in the back and blocked
Americans’ right to know how presidents ( and vice presidents) have made
decisions.” 172
• Historian Robert Dallek wrote: “ President Bush, however, has severely
crippled our ability to study the inner workings of a presidency. On Nov. 1, he
issued an executive order that all but blocks access to the Reagan White
House and potentially that of all other recent presidents.” 173
Editorial writers across the country were similarly outraged. 174
The Bush Administration’s approach to the release of thousands of previously
confidential documents in 2001 and 2002 demonstrates the potential impact of
the Bush order on public access to historical information.
170 44 U. S. C. § 2204( d).
171 Classified! George W. Uses 9/ 11 as a Pretext to Reverse the Will of Congress and Wall off
Presidential Records, Chicago Tribune ( Jan. 2, 2002).
172 Writing History to Executive Order, New York Times ( Nov. 16, 2001).
173 All the Presidents’ Words Hushed, Los Angeles Times ( Nov. 25, 2001).
174 See Cheating History, New York Times ( Nov. 15, 2001); A Flawed Approach on Records,
Washington Post ( Nov. 9, 2001); A Dark Oval Office, Los Angeles Times ( Nov. 6, 2002)
(“ The more the public knows about how government business is conducted, the stronger
a democracy becomes. This attempt to gut the 1978 Presidential [ Records] Act is an
attack on the principle of open government”); Self- Serving Secrecy, USA Today ( Nov. 12,
2001); People’s Papers; Executive Order Shows Contempt for Law and What’s Right, Houston
Chronicle ( Nov. 26, 2001); A Knife in History’s Back, St. Louis Post- Dispatch ( Nov. 25,
2001); Guarding History, St. Petersburg Times ( Nov. 24, 2001); Abusing the Privilege;
Bush’s Order Cloaking Records in Secrecy Must Be Rescinded Now or Overturned in Court
Later, Plain Dealer ( Nov. 20, 2001).
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On January 20, 2001, the 12- year Presidential Records Act restrictions on
President Reagan’s papers expired. Soon after that, the National Archives and
Records Administration informed both former Presidents Reagan and Bush that it
would begin to release documents. The Archives announced that it was prepared
to release approximately 68,000 pages of documents that were responsive to FOIA
requests filed in the previous seven years, but that had been withheld under the
Presidential Records Act as confidential communications. The Bush
Administration first delayed release of these documents by requesting multiple
extensions of the 30- day deadline for asserting executive privilege that was
imposed by the Reagan Executive Order. It then announced the new executive
order, which changed the process for reviewing and releasing documents, further
delaying the release.
The Bush Administration finally began to allow the release of these papers in
January 2002, but many were withheld until June 2002, fully 15 months after they
were initially scheduled to be released. That same month, the Archives sent
notice that it would open another 1,654 pages of these previously confidential
documents. More than six months later, 1,580 of those pages were released. 175
The final 74 pages were withheld after former President Reagan and President
George W. Bush asserted constitutionally- based privilege. 176
Over the coming years, millions more pages of Reagan presidential papers, George
H. W. Bush vice- presidential papers, and George H. W. Bush presidential papers
will be requested under the Freedom of Information Act and prepared for release.
Under the Bush order, the release of each set of these papers can be delayed
indefinitely by both the incumbent president and the former president. Any can
be blocked with an assertion of executive privilege by the president or the former
president or his family. This will delay analysis of these historical documents and
will unnecessarily bar valuable historic papers from release.
III. Federal Advisory Committee Act
In 1972, Congress adopted the Federal Advisory Committee Act to govern how
the Executive branch obtains advice from groups of advisors outside the federal
government. 177 FACA sets out rules for the operation of advisory bodies such as
175 National Archives and Records Administration, NARA’s Opening of Presidential Records
under the Presidential Records Act ( July 19, 2004) ( e- mail to House Government Reform
Committee minority staff).
176 Letter from Alberto R. Gonzales, Counsel to the President, to Gary M. Stern, General
Counsel, National Archives and Records Administration ( Jan. 12, 2004).
177 5 U. S. C. App. 2.
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boards, task forces, and commissions to promote the “ good government” values of
openness, accountability, and a balance of viewpoints. The goal of FACA is to
prevent secret advisory bodies from exercising a hidden influence on government
policy.
FACA applies to any advisory group that is established or used by a federal agency
and has at least one member that is not a federal employee. 178 The membership of
a group subject to FACA must be “ fairly balanced in terms of the points of view
represented and the functions to be performed.” 179
Generally, FACA requires that advisory committees announce their meetings,
hold their meetings in public, take minutes of the meetings, and provide the
opportunity for divergent viewpoints to be represented. 180 The public must be
given access to the minutes as well as other records, reports, and transcripts. 181 To
protect sensitive information, FACA includes exemptions for information that
relates to national security issues and information that is classified. 182
The Bush Administration, however, has acted to weaken and avoid FACA’s
requirements. The Administration has supported legislative changes to carve out
new exemptions to the law. In other instances, the Administration has carefully
structured the way it solicits advice from private entities to avoid establishing an
advisory committee subject to FACA. And sometimes the Administration simply
ignores FACA requirements.
A. Limiting FACA through Legislation
The Bush Administration has supported specific legislative carve- outs from
FACA, just as it has done with FOIA. As these categorical exemptions
accumulate over time, FACA will no longer be a generally applicable requirement
supporting open government across government agencies and activities.
In the proposal to Congress to establish a new Department of Homeland Security,
President Bush proposed to exempt all advisory committees established by DHS
178 See GSA, The Federal Advisory Committee Act ( FACA) Brochure ( undated) ( online at
http:// www. gsa. gov/ Portal/ gsa/ ep/ contentView. do? pf= y& channelId=- 13171& contentId
= 11869& programId= 9140& pageTypeId= 8203& ooid= 9755& contentType= GSA_ BAS
IC& programPage=/ ep/ program/ gsaBasic. jsp& P= MC).
179 5 U. S. C. App. 2 § 5( b)( 2).
180 5 U. S. C. App. 2 § 10.
181 5 U. S. C. App. 2 § 10( b), ( c).
182 5 U. S. C. App. 2 § 10( d).
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from FACA. 183 As finally adopted in the Homeland Security Act, this across- the-board
exemption was dropped, but it was replaced by a mechanism likely to have a
similar result. The Act gives the Secretary of Homeland Security the authority to
exempt any advisory committee from FACA on a committee- by- committee basis.
The only requirement is that the Secretary must publish notice of the committee
in the Federal Register. 184 Amendments to the Medicare law, signed in December
2003, establish another new exemption from FACA. The law creates
“ competitive acquisition programs” to provide for the furnishing of competitively
priced items and services and to award contracts for various types of medical
equipment and supplies. 185 Section 302 establishes an advisory committee to give
the Secretary of Health and Human Services advice and technical assistance in
implementing this program. In particular, the committee is to offer advice on
establishing data collection requirements and “ the development of proposals for
efficient interaction among manufacturers, providers of services, suppliers . . . and
individuals.” This advisory committee is exempted from the requirements of
FACA. 186
The Administration also supported a new FACA exemption that affects
Department of Energy advisory committees with members that are federal
contractors. 187 This provision, included in the fiscal year 2004 authorization bill
for the Defense Department, allows DOE contractors to be considered federal
employees for purposes of FACA when they are serving on an advisory committee.
Because advisory committees composed solely of federal employees are not subject
to FACA, the effect of the provision is to allow these contractors to provide
advice to DOE officials without triggering FACA. The potential for abuse is
significant given that federal contractors have a substantial financial stake in
many DOE decisions, such as how best to clean up DOE sites with nuclear waste
or which research and development activities to fund.
B. Avoiding and Disregarding FACA
In several instances, it appears that the Bush Administration has either violated
FACA or structured its operations very carefully to avoid triggering FACA
applicability. In some cases, the Bush administration has established groups of
government employees that work extremely closely with outside entities, primarily
183 White House, Homeland Security Act of 2002, legislative proposal transmitted to Congress
June 18, 2002.
184 Homeland Security Act of 2002, Pub. L. 107- 296, § 871.
185 Medicare Prescription Drug and Modernization Act of 2003, Pub. L. 108- 173, § 302( b).
186 Id.
187 Pub. L. 108- 136, section 3112; see Letter from Linton F. Brooks, National Nuclear
Security Administration, DOE, to Rep. Edward J. Markey ( Sept. 3, 2003).
SECRECY IN THE BUSH ADMINISTRATION
38
from industry, to gather and channel advice to government agencies or the White
House. In others, the Administration or the advisory committee has exploited
loopholes in the law to avoid FACA applicability.
Vice President Cheney’s energy task force is the most prominent instance of an
advisory body established by the Bush Administration that either violated or
deliberately skirted FACA requirements. In this case, Vice President Cheney
headed a task force to develop a national energy policy. The task force was
ostensibly composed of the heads of nine federal agencies and several high-ranking
White House officials. As partially revealed through news accounts, some
documents obtained under FOIA, and an investigation by the Government
Accountability Office, the task force engaged in extensive consultations with key
representatives of the energy industry, particularly with coal, oil and gas, and
nuclear interests. 188 While the full extent of these consultations is not known, the
task force had minimal contact with individuals representing environmental and
consumer interests related to a national energy policy. 189
A lawsuit brought by the Sierra Club and Judicial Watch alleges that the
consultations with industry representatives were sufficient to make the
representatives de facto members of the task force and hence to subject the task
force to the requirements of FACA. 190 The district court, upheld by the D. C.
Circuit Court of Appeals, issued decisions allowing the plaintiffs to conduct
discovery of task force records that would show the role of nongovernmental
parties in the operations of the task force. 191 On appeal, however, the Supreme
Court vacated the D. C. Circuit’s opinion and sent the case back to the D. C.
Circuit to consider whether to block the discovery requests in light of separation-of-
powers considerations, among other concerns. 192
The energy task force is not the only instance where the Bush Administration has
sought to avoid the application of FACA. Another example is the President’s
Commission on Intelligence on Weapons of Mass Destruction, which President
Bush established on February 6, 2004.193 The WMD Commission has been
188 GAO, Energy Task Force: Process Used to Develop the National Energy Policy ( Aug. 2003)
( GAO- 03- 894); Top G. O. P. Donors in Energy Industry Met Cheney Panel, New York Times
( Mar. 1, 2002); Bush’s Energy Plan Bares Industry Clout, Los Angeles Times ( Aug. 26,
2001).
189 See id.
190 Judicial Watch v. National Energy Policy Development Group, 219 F. Supp. 2d 20 ( D. D. C.
2002), aff’d sub nom In re Cheney, 334 F. 3d. 1096 ( D. C. Cir. 2003), vacated and remanded
sub nom Cheney v. U. S. Dist. Court for Dist. of Columbia, 124 S. Ct. 958.
191 Id.
192 Id.
193 Exec. Order No. 13328, 69 Fed. Reg. 6901 ( Feb. 6, 2004).
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39
charged with investigating intelligence capabilities and failures with regard to
weapons of mass destruction, including the Administration’s assessments of Iraq’s
possession of WMD. 194 Despite the broad public interest in the work of the WMD
Commission, President Bush included in the executive order a provision whose
sole purpose appears to be to exempt the Commission from FACA.
The WMD Commission is established within the Executive Office of the
President, its members are appointed by the President, the Co