Closing the books: open government after 9/11.

• Author: Benner, Jeffrey
• Position: Information collected from private industry could be kept secret from public under spcial privilege of Department of Homeland Security

WHEN THE BUSH administration drew up draft legislation to create a new Department of Homeland Security, it included a special privilege for the Office of Information Analysis and Infrastructure Protection, a key branch of the new agency. Information submitted voluntarily to the office about the security of computer systems, power plants, transportation infrastructure, banks, telecommunications, and any other facilities deemed critical to the U.S. economy would receive a blanket exemption from the Freedom of Information Act (FOIA). As a result, reams of information the government collects from private industry--and from state and local governments--would be kept secret from the public.

Some kind of FOIA exemption will almost certainly become law. The House approved its version of homeland security legislation on July 26. The bill included the broad exemption the administration requested, with some minor changes. The committee marking up the Senate's version of the bill has approved a more limited exemption than the House, setting the stage for a battle over the breadth of the measure in joint committee. Congress has vowed to have a homeland security bill on the president's desk in time for the anniversary of the attack.

Regardless of the exemption's final scope, it will be only the latest offensive in the Bush administration's sustained assault on transparency in government. The trend dates from the second month of Bush's term, when he blocked the scheduled release of presidential and vice presidential records from the Reagan administration. But it has accelerated dramatically since the terrorist attacks last fall. In an October 12, 2001, memo to all federal agencies, Attorney General John Ashcroft instructed government officials to withhold any information requested under FOIA if there is any "sound legal basis" for doing so. (The previous standard for denying a FOIA request, adopted in 1993, instructed agencies to withhold only information that could cause "foreseeable harm.") Ashcroft promised that the Department of Justice would defend any agency that withholds information under his new criterion. The impact of the new standard is hard to measure, but watchdog groups worry it has turned foot dragging and noncooperation o n FOIA requests into official policy.

In March, White House Chief of Staff Andrew Card reiterated the message in another all-agency memo. Card reminded departments to safeguard any information, no matter how old, that...