September 3, 2003 | Commentary on National Security and Defense

FOI Blunders and Abuses

Ask a journalist about the Patriot Act, and the response may strike you as overly suspicious or even paranoid. But those who have submitted a Freedom of Information Act request to a federal agency know better.

Consider FOIA requestor Robert Todd, who recently asked the Department of Defense and the General Services Administration for copies of the unclassified cover sheets typically used by government officials to indicate a document's sensitivity. Yellow sheets are used for "confidential" documents, red for "secret," and orange for "top secret." GSA produces these colorful sheets by the millions.

The Defense Department rejected Todd's request, claiming that release of the unclassified documents would aid circumvention of agency rules, policies or statutes and impede the Pentagon from fulfilling its mission.

Todd got the exact opposite response from GSA, which promptly provided him with copies of the unclassified cover sheets "with no qualms whatsoever," according to the Federation of American Scientists.  View the cover sheets.

Regardless of which agency you think made the right decision, Todd's experience surprises no one in an American newsroom. Most journalists can recite litanies of nightmares in which their FOIA requests -- often for the most mundane documents -- to local, state and federal agencies and officials have been delayed, misplaced, ignored, ridiculed, rejected and abused.

This unfortunate fact was documented last year by the National Security Archive at George Washington University, which described "a federal FOIA system in extreme disarray. Agency contact information on the web was often inaccurate; response times largely failed to meet the statutory standard; only a few agencies performed thorough searches including e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress."

What's the link between this FOIA mess and the Patriot Act? Attorney General John Ashcroft and other high-ranking Justice Department officials discount worries that the Patriot Act would ever be used to seize a reporter's notes, tapes of interviews with confidential sources or documents in an anti-terrorism investigation.

But Assistant Attorney General Daniel Bryant recently told Reps. James Sensenbrenner, R-Wisc., and John Conyers, D-Mich., that under the Patriot Act's Section 215 "such an order could conceivably be served on a public library, bookstore or newspaper, although it is unlikely that such entities maintain those types of records." Bryant declined to say how many times the government has requested such a Section 215 order.

One wonders if Ashcroft would support amending the Patriot Act to state explicitly that neither Section 215 nor any other of its provisions are to be applied in violation of the Privacy Protection Act of 1980, which prohibits officials from searching or seizing a journalist's "work product" or "documentary materials."

A narrow list of exceptions in the 1980 law includes national defense but requires that officials demonstrate probable cause to believe the journalist has or is about to commit a crime. No such prior showing of probable cause is required under Section 215, according to the Reporters Committee for Freedom of the Press (www.rcfp.org).

There is no reason to doubt the good intentions of Ashcroft, Bryant or others in the Bush administration who promise never to violate the rights of any American, except under the most extreme circumstances. They are right that many of the Patriot Act's most controversial provisions simply extend to the war on terrorism actions and procedures law enforcement officials have used for years against drug runners and the mob. And an occasional restriction on a journalist is a small price to pay for security against terrorism, right?

Wrong. The problem is there are no guarantees that law enforcement and national security officials in future administrations will respect civil liberty or that federal functionaries who routinely abuse or ignore the FOIA now won't soon do the same to the Patriot Act.

James Madison -- arguably the father of the U.S. Constitution -- knew better and so sought to limit federal power. Madison's 18th century warning rings true for our generation, too: "There are more instances of the abridgement of freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."

Mark Tapscott is The Heritage Foundation's director of media services and its Guardabassi Fellow for Media and Public Policy.

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