FOIA and Fighting Terror: The Elusive Nexus Between Public Access and Terrorist Attack

Author:James T. O Reilly
Position:Volunteer Professor of Law University of Cincinnati College of Law

I. Introduction II. Background Of Statutory Disclosure Systems III. Transformative Effects Of The Internet IV. Costs And Benefits V. Congress Led The Retreat VI. Preempting State Disclosures VII. Delegating The Shield Power VIII. Implementing The Will Of Congress IX. Congress Also Serves "Sushi" X. The Administration Also Shrinks Data Flows XI. The Courts Also Retreat Into Deferential Acceptance... (see full summary)


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Volunteer Professor of Law University of Cincinnati College of Law.

I Introduction

How much should our society change to fight terrorism and still maintain our traditions and rights? Information is power, and less information is flowing out of government as more information has been flowing in. Is this a serious trend or a misperception? In my corner of administrative law, amid the Freedom of Information Act (FOIA) and privacy legislation aficionados, there is a raging storm of contrary opinions that surfaces whenever our small band of disclosure advocates gets together, and we (being lawyers) cannot agree.

Picture the television commercials of cars with crash dummies hitting a wall. Our open society went suddenly from a trend of "everyone should get everything online that they ever could want to know" to the rapid deceleration-;the slowdown of disclosure-;that marks the foreseeable future response to Al Queda. The change is the brutal awakening to a new opponent seeking martyrdom, who was in Florida libraries and was downloading United States government website files. The enemy using our federal agencies' web disclosures is no longer a slow-moving, monolithic Kremlin seeking missile technology secrets with agents who can be pinpointed and sometimes offered asylum to switch to our side. The adversary is a mass movement of technically well-educated and very dedicated small cells of attackers using the internet, the library, and the news sources of the twenty-first century. Their goal is no longer to defend a land mass and a particular politburo. Rather, their goal is to use their martyrdom to force westerners into submission to a theocratic Taliban-like state, run on eighth century norms of societal subjugation. Suddenly, we are the infidels; we are the target of a six- foot five-inch Saudi millionaire with a masters in civil engineering and a devoted cadre of highly motivated and literate followers.

As the game has changed, the rules are changing. This paper represents a snapshot of that change as it relates to information exchange and disclosure. This paper proposes that we recognize that the retreat from pro-disclosure openness is underway; that the voters are tolerant, if not fully supportive, of federal secrecy; and that we should look to a new form of administrative surrogates for the resolution of disclosure disputes between government and citizens.

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II Background Of Statutory Disclosure Systems

The FOIA1 disclosure system was created between 1961 and 1964, and was premised on a "retail" style, one request at a time, disclosure system. The "wholesale" aspect of disclosure had already been required in the 1946 Administrative Procedure Act,2 which had required all rules to be published. What was new about the 1966 FOIA3 was its novel permission to individuals to obtain agency records on request unless one of nine exemptions4 applied. The FOIA ideal was that "any person" could have access without explaining why.5 During the development of the Act, the primary movers were the American Society of Newspaper Editors.6 They considered having language that would give extra access rights for reporters or the media, but settled on the less objectionable view that all requesters of whatever background should be the democratically ideal audience for government information.

The first of several myths, which I call the "FOIA Fictions," was that any average person would be using the disclosure statute. The next twenty years showed that average users were not journalists or common citizens. It may be speculated (in the absence of a centralized statistical database report) who the FOIA users have been. It is my observation that convicted criminals in federal prisons and their defense counsel have been the largest identifiable class of requesters. These user statistics seem to be followed closely by requests from agents of corporations which opposed regulators, or argued about federal contract denials, or who wanted to study the competitors' application for a government license or approval. The third largest requesters may have been the Washington based advocacy groups, whose selective use of federal documents to blast federal agencies has frankly scared some agency employees out of using written advocacy for controversial proposals or innovative policy proposals. Fourth on the list may have been trade press and specialized news service reporters seeking insider information for publication to their insider audiences. A distant fifth or sixth were general journalists, and far back in the pack were average citizens who, for individual reasons, wanted to have some knowledge of a certain government program.7

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What could this "any person" do with the records? Anything! The FOIA did not care. Indeed, it aggressively declined to consider motives of the first requester,8 because once the record is released to any person, it is deemed no longer subject to an exemption from required disclosure.9 An alleged terrorist could, and indeed, has sued for FOIA access to federal investigations of his work.10 This blindness to motives was a conscious policy response against the perceived evils of selectivity in disclosure. The press had been denied more than selective, "leaked" records access in the 1950s,11so the press endorsed very un-selective access in the FOIA in the early 1960s. At the time, that was an understandable policy choice for the advocates of an openness proposal. The policy of "disclose to one, disclose to all" has continued for decades since, as a fundamental assumption of FOIA with rare exceptions.12

III Transformative Effects Of The Internet

What effect did the Internet have? In those glorious days of peace and harmony around 1996, when the most recent FOIA amendments were being adopted,13 the emphasis was on pushing out the maximum set of records at maximum speed and with minimal transaction costs and minimal delays.14 The Internet magnified the consequence of disclosure, from one person getting one sheet of paper, to millions of potential users world-wide downloading data and diagrams. We were naÔve, and we assumed all consequences of disclosure were good. Parents of teenage drivers can relate to this feeling: the younger driver never experienced the consequence of inattention and cannot calibrate the potential harm of bad driving Page 812 habits. For example, the Clean Air Act of 1990 required analysis of the potential consequences of release of extremely hazardous chemicals.15 The EPA thought it would help more people by requiring these to be posted on the Internet.16 Opponents of secrecy did not accept the assertions that someone reading this Internet posting might want to actually cause the release to happen-;that someone might want to sabotage a plant and spread a cloud of poison just where the mandatory analysis documents said it would go.17

We will never know if disclosure of a particular federal agency file on the Internet will allow that file to be used for an attack against the refinery, bridge, or other entity that is described in the file. We cannot tell. By its open nature, the Internet cannot tell us who has downloaded what records. In the old days, one could make an FOIA request for the agency log of FOIA requests, so as to track competitors' inquiries. That method of requesting and tracking was quaint, obsolete, and archaic; for today, the concept of "Internet data mining" of Internet files for competitive intelligence is taught quite openly around the world.

We heard during that pre-Internet era the FOIA Fiction was that citizens would benignly volunteer to make the requests and use the law to hold government accountable for government managers' behaviors. Instead, government has been a rich source of competitively valuable intelligence about competitive companies' permits and applications, plant inspections, and formulations. "Money talks and information walks" was the reality. In retrospect, federal agency accountability through right-minded FOIA requests by interested citizen-critics was a pleasant, obsolescent ambition from forty years ago.

IV Costs And Benefits

It would be intriguing to see an update of the economists' evaluations of FOIA that were performed two decades ago.18 What have we purchased for the eighty-two million dollars that the Justice Department spent on FOIA last year,19 or the hundreds of millions devoted to FOIA in all of the agencies? You paid for at least one side of the litigation in each of the cases brought under FOIA; when the Page 813 federal agency loses, the court may award attorneys fees for the winning side,20 and it seems to do so in just under half the cases where disclosures are made.21 So what did the taxpayers get for their money? Since I started compiling my FOIA treatise in 1976, I have endeavored to read and summarize every reported FOIA decision; there have been a little over 5,000 decisions.22 These 350 cases each year remain an important subset of administrative law jurisprudence. But have we seen the classic secrecy behaviors of bureaucrats change? Not so much. Has FOIA been a "weapon of mass instruction?" Not much. Some advocacy groups have embraced the public benefits of dissemination of data and their Internet websites are archives of embarrassing...

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