Foiled FOIA   

The Clinton administration’s words outstrip its deeds when it comes to enforcement of the Freedom of Information Act.

'Clinton was a very accessible governor," says Noel Oman, former chief statehouse correspondent for the Arkansas Democrat-Gazette. The press room was well-positioned in the state capitol between the governor's office and the parking lot, he recalls, "so we could always catch him, coming in and going out, and we were always able to talk with him."

But that didn't mean it was easy for Arkansas reporters to get usable information out of Bill Clinton. Oman and Bob Lutgen, the paper's managing editor, both said it: Clinton was great at schmoozing. He talked a good game about supporting the state's freedom of information laws, but when it came to enforcing them, he wasn't there.

"When Clinton was running in 1990," says Lutgen, "I asked him if he'd conduct a mini-seminar for agency heads so they'd get it directly from the boss, the governor, that the presumption was for openness and release of records. He said, 'Love the idea,' but he never did it."

That pattern has carried over into Clinton's presidency--fine words on openness, but not much personal follow-through.

Washington reporters and freedom of information activists give the president high marks for directives he's issued favoring disclosure of information. But they see no big change in the flow of information today, compared with the Reagan and Bush administrations which had more restrictive Freedom of Information Act policies.

"There's been no open spigot," says Jonathan Wolman, AP's Washington bureau chief. Bill Headline, CNN's former Washington bureau chief, is more blunt: "They hate us and make it as difficult as possible for us to get information," he says.

Constitutional attorney Floyd Abrams comments wryly: "No one gives freedom of information awards to the Clinton administration." Yet if he really wanted to, Clinton could win one. Since he's been in office, he has issued a couple of orders that, if he insisted they be carried out, would make him the most open president in recent history.

On October 4, 1993, Clinton and Attorney General Janet Reno put out a Freedom of Information Act directive that overturned the Reagan-Bush policy of withholding records whenever the government could get away with it. Instead, Clinton required agencies to apply a presumption of disclosure, withholding information only when there was "foreseeable harm" under a FOIA exemption, such as classified information. And in this directive, Clinton was the first president to state that the public had a right to information stored not only on paper, but also in computers.

The second action--affecting the classification of documents--came harder, a lot harder. Last April, Clinton issued an executive order canceling President Reagan's 1983 directive telling government officials that, when in doubt, they should classify as secret anything that could remotely affect national security. Instead, Clinton ordered classifiers to resolve doubts in favor of disclosure. He made declassification of all government documents mandatory after 25 years, without page-by-page review. He allowed eight exemptions, one excluding information that could "clearly and demonstrably" damage national security. But even these can be appealed.

The order was a long time coming. In April of 1993 Clinton had promised to overhaul government policies on secrets, in part to make good on his campaign pledge to run an open administration. But he spent two years arguing about it with military and intelligence officials who demanded a more secretive policy. Among a number of restrictions, they wanted to keep secrets for 40 years before mandatory release. In the end, Clinton compromised, but held out for the 25-year limit, finally issuing his Executive Order 12958 on April 17.

The directives should be a great boon to reporters trying to spring loose information through FOIA requests. However, as any reporter knows, the test of openness is in timely access to documents. And despite Clinton's good words, government bureaucrats and some of his agency heads have been dragging their feet.

'No executive branch will ever like the FOIA," says Washington attorney Bruce W. Sanford, First Amendment counsel for the Society of Professional Journalists. "All of them wish they could operate the way they do in England, in which the heads of departments can ban release of anything they want."

Steven Garfinkel, who oversees compliance with Clinton's classification order as director of the Information Security Oversight Office, has watched that play out since he was an agency FOIA lawyer in the early 1970s. "I was amazed at the culture [of secrecy] in government that was hostile toward the act," he says. The solution, as he sees it, is to "get the dinosaurs out of there." The ethic of openness, he thinks, has to be pounded in, and the pounding "has to come from the top"--meaning the president.

Lighting a fire under holdover bureaucrats is difficult, but Carl Stern, director of public affairs for the Justice Department, insists it's being done. Among other things, he says, under Attorney General Reno the Justice Department has conducted more than 100 briefings with 6,200 FOIA officials on how to expedite requests. Reno has assigned goals and has put deadlines on reducing the tremendous backlog of requests--4.8 million pages in the FBI alone. And indeed, the backlog at Justice has gone down: In 1994, despite the fact that FOIA requests went up 9 percent, the total backlog was reduced by 15 percent. Reno also reopened 504 cases in which agencies had denied release.

In one, a reporter wanted records dealing with Kurt Waldheim, the former U.N. secretary general accused of Nazi activity during World War II, who had been placed on Justice's "watch list." The Bush administration had denied the request, and the denial was upheld in the U.S. Court of Appeals. Using the new standard of "foreseeable harm," Reno decided Justice could not justify withholding the records and released them.

But the Justice Department hasn't been unwaveringly on the side of openness. For instance, Justice has appealed a U.S. District Court decision that the National Security Council is, as it has always been, a government agency subject to FOIA. In this case, Scott Armstrong, founder of National Security Archive, a library and research institute at George Washington University, had sought access to e-mail records pertaining to the Iran-contra scandal. Fighting to deny him access, the White House argued that the NSC was not an agency, but an arm of the president not subject to FOIA.

"It's a position worthy of Ronald Reagan," says Steven Aftergood, who directs the project on government secrecy of the Federation of American Scientists. "And Reagan would've done it, if only he'd thought of it first."

Terry Anderson's is another case in which the administration seems to have forgotten its promises. When the former Associated Press correspondent submitted a FOIA request to the FBI for his personal files concerning Islamic Jihad terrorists who had held him hostage in Lebanon for six years, the agency replied it couldn't release them because it would violate the terrorists' privacy. Two weeks later, Reno rejected that rationale, which was making the government look foolish, but still denied him the files, citing "national security." Anderson sued.

"We're not unsympathetic to Mr. Anderson's requests," Stern says. "Some stuff we can't provide, as a matter of law, but we're working with his lawyer to get him what he wants." Anderson's lawyer, Stuart H. Newberger, is not that sanguine. "If they're so sympathetic, why are they keeping us from getting the documents? They use national security as an excuse to keep from giving out anything--I used it, myself, when I was a U.S. attorney." Anderson himself is softer: "I'm not accusing them of being bad people. My attitude has been that this is a culture thing--keeping secrets. But they're not in compliance with FOIA, and that's why I'm in court."

Reporters who've tried using FOIA since the directive say there's been little, if any, speeding up of the process. Consider this anecdote from the Reporters Committee for Freedom of the Press 1995 FYI Media Alert:

February 1995: Five years after filing a FOIA request, Tom Foster, projects editor of the Post-Standard in Syracuse, New York, received a letter from the Department of the Army Intelligence and Security Command stating his request for information concerning Pan Am Flight 103 would not be answered within the 10-day time frame required by the Act.

Accused of long delays, FOIA officers reply they just don't have the people to respond to the millions of requests quickly, and that Congress and the administration have not been willing to allocate money for adequate staffing.

Not all agencies are equally responsive to FOIA requests. Many reporters say the Department of Defense, Department of Energy and NASA have been more amenable than others; Justice has been "pretty good," says one, and State, usually cited as one of the worst, has "improved marginally." Then there's the National Security Agency. "NSA has never complied with a FOIA request," says Tom Blanton, director of the National Security Archive.

FOIA won't work if most government documents are classified, and that's been a problem for reporters since the act was passed in 1966. If a document is classified, it is automatically exempted from release. Most bureaucrats haven't gotten the message to go easy with the "secret" stamp: They don't win any medals for releasing "sensitive" information, and they are afraid they will get in trouble if they do release it. So it's best to play it safe: When in doubt, use the stamp. The stampers--there are 32,000 of them--classified 4,700,000 documents in the last fiscal year. The government spends billions every year to keep its secrets secret.

Supporters of openness acknowledge that a public interest in secrecy does exist when it comes to, say, advanced military technology. But some classifications are just plain silly. For fun, Steve Aftergood asked the National Archives for the earliest document still being withheld as classified. It turned out to be a World War I memo from 1917 whose release, the Army said in a 1976 review, would still be considered detrimental to national security. Just possibly the Army feared the Russians would get hold of the line drawing it contained of a hollow key that could be used for transporting secret messages.

Despite the new order, what can be classified has not been changed. "Under the old system," attorney Sanford points out, "even the White House menu was classified. It probably is still classified."

Garfinkel says the administration has to jolt the bureaucrats out of their Cold War mentality and make them understand they must not classify by rote. The new order warns they'll be held accountable if they classify something that the public has a right to know--before this, no administration has ever called them to account. Some progress is being made--a report Garfinkel submitted to the president May 31 stated that classification actions taken in fiscal year 1994 decreased 26 percent from fiscal year 1993. Agencies reviewed 13 million pages of "historically valuable records" and declassified 11 million pages, 70 percent more than were declassified in fiscal year 1993.

That's the story on records, but what about the human equation in openness? As in Arkansas, Clinton has been personally accessible to reporters. Unlike President Bush, he'll answer questions at photo ops, and he hasn't tried Reagan's ploy of cupping his ear against reporters' questions while running for his helicopter. Still, he hasn't developed the easy relationship with them that John F. Kennedy cultivated so successfully. He'll talk to the press affably enough, says Ann Devroy, White House correspondent for the Washington Post, but when it comes to hard facts about his actions, he and his staff take the attitude, "We're going to be open with things we want to give you, and we're not on things we don't want to give you."

Devroy did ask for some hard facts in checking on Clinton's pledge to cut the White House staff and salaries by 25 percent. "For a year, I couldn't get them to tell me how many people were on the staff and what their salaries were." She finally broke the story--that the cuts were not so deep as advertised--when a staffer leaked the figures to her.

Early in his administration, Clinton signaled a closed-in approach by trying to keep secret the names of the 500 consultants appointed to his health care task force--something the public clearly had a right to know. That move disappointed supporters of openness, who had expected more of him.

"When a Republican administration comes in," says Floyd Abrams, "they don't talk about the Bill of Rights--Ollie North came late to the Bill of Rights. But here's a Democratic president who has taught constitutional law and has grown up in an atmosphere where openness in government is taken very seriously. But once he was in power, it seemed hard for him to keep the passion for those principles."

Abrams thinks one reason is that the press treated Clinton harshly in the early days of his administration. "He was given no honeymoon, no slack time and not enough credit for his accomplishments." So his attitude soon became, 'Why should I do the press any favors? They'll only beat on me anyway.' "

Jack Nelson of the Los Angeles Times agrees the president took a hammering on his early mistakes and, as a result, distrusts much of the press. Some of the harsh treatment "was legitimate criticism," he says, "but in my opinion, some of it has been overboard."

There's another reason Clinton is not more prone to releasing information. He has been spooked by the intelligence agencies and the military. When it comes to information touted as affecting national security, he has been as angst-ridden as any president. On May 2, distressed over leaks to the Washington Times of internal memos about negotiating with the Russians over missile defense systems, he sent a memo to Cabinet officers threatening criminal prosecution if they or their staffs leaked national security information.

All presidents get angry over leaks to the press, often because they are personally embarrassing rather than harmful to national security. Interviewed by "Inside Story" on public television after he left office, Jimmy Carter said, "I was concerned at times when there were leaks in the federal government when I was there, but now I've had a chance to put things in perspective. They weren't devastating to the country, or particularly damaging to me."

Trouble is, the intelligence community never looks at it that way--by nature, it thinks all information affects national security. And in this administration, intelligence calls the tune on disclosure. In 1994, when Clinton was planning to declassify en masse 49 million historical records from World War II through the Vietnam War, military intelligence demanded that he withhold 5 million, including 3 million from Vietnam. The president complied, cutting back his release to 44 million records in his November 10 order. "The Pentagon learned that the White House would roll," says Tom Blanton of the National Security Archives. "That shows the inability of the White House to overrule the military." Abrams and others surmise that Clinton defers to the military because he is insecure over the fact that he avoided service in Vietnam and got burned by the political right because of it.

He also has abdicated to the Pentagon over combat coverage. Asked at an ASNE meeting where he stood on the subject, he replied, "I do not think I know enough to make a decision on the relationship of the press to our military operations in time of combat."

And that gets to the heart of most criticism of Clinton's performance on his promises on openness: Every outside source interviewed said that, while some officials in his administration have taken his declarations to heart, the president himself has not taken the lead in making them real. "Clinton is a compromiser, not a leader," says media lawyer Sanford. "He's let entrenched interests drag him down. It takes leadership, and that's what is lacking." CNN's Bill Headline says he thinks Clinton recognizes the propriety of openness, but has "no real commitment." The commitment may be there, but no one thinks openness is a priority with President Clinton.

Despite all their complaints, reporters in Washington feel the overall attitude toward the press is better than it was under presidents in the recent past, including Carter.

But experience has shown that open government won't happen, in the Clinton administration or any other, unless the press insists the pols make it happen. Take it from Steve Garfinkel, who's seen it from the inside over the years: "The only reason a politician is concerned [about being open] is because someone is writing about it in the papers. Without that, there are lots more things a policy person is going to think are more important than whether records are open."