This article examines the legal bases of the public’s right to access government information, reviews the types of information that have recently been removed from the Internet, and analyzes the rationales given for the removals. The article suggests that the concerted use of the Freedom of Information Act by public interest groups and their constituents is a possible method of returning the information to the Internet.
¶8 The FOIAwas amended in 1974 .1 9 These amendments broadened the definition of agency, revised time limits for responding to FOIA requests, required agencies to make indexes of information more readily available, clarified Congressional intent to allow in camera judicial review of allegedly classified documents in FOIA litigation, required annual reports to Congress, and granted courts discretion to award attorney’s fees and court costs for successful litigants (who would be advancing “a strong congressional policy” 20 ). 21 The am endments were not passed without a political battle. President Ford vetoed the amendments to FOIA, on the advice of Chief of Staff Donald Rumsfeld and Deputy Chief of Staff Richard Cheney that, among other concerns, the amendments would go too far in allowing judicial review of classified documents.22 Antonin Scalia weighed in with arguments that the amendments were unconstitutional. 23 Congress overrode the veto.
¶12 In every new administration, the attorney general sends out a memorandum discussing the Department of Justice’s implementation of FOIA. 34 The Clinton administration enhanced FOIA’s statutory presumption of disclosure. Even before the passage of the E-FOIA, Attorney General Janet Reno instructed all agency and department heads that documents should be provided to requestors unless the “agency reasonably foresees that disclosure would be harmful to an interest protected by” a particular exemption; she further indicated that doubts about whether or not a document fell within an exemption should be resolved in favor of disclosure. 35 Since FOIA was enacted to overcome the reluctance of agencies to reveal their workings to the public, the attorney general’s memorandum sends a message, one way or the other, on how agency stubbornness in releasing documents will be viewed from above.
[D]epartments and agencies maintain and control sensitive information related to America’s homeland security that might not meet one or more of the standards for classification set forth in Part 1 of Executive Order 12958. The need to protect such sensitive information from inappropriate disclosure should be carefully considered, on a case-by-case basis, together with the benefits that result from the open and efficient exchange of scientific, technical, and like information.
¶15 The proponents of open government on the House Committee on Government Reform were so angered by the Ashcroft Memorandum that when they revised the Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974, which is edited and published from time to time by the committee, they included the following statement in the introduction: “Above all, the statute requires Federal agencies to provide the fullest disclosure of information to the public. . . . Contrary to the instructions issued by the Department of Justice on October 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a ‘sound legal basis’ for doing so.” 39.
¶17 While some agencies appear unaffected by the Ashcroft Memorandum, it does make it more likely that a request will be denied. The only way to resolve a dispute over an agency’s refusal to honor an FOIA request is through a lawsuit. 43 But the time and monetary cost of a suit means that access for most individuals is effectively denied, making public interest groups the default defenders of access to information. As a consequence, many lawsuits have been filed by public interest groups since October 2001, testing whether the courts will continue to virorously enforce FOIA.
¶19 While the Bush administration is facilitating agencies’ bureaucratic reluctance to provide information, access to information is also being blocked on another front.
The report then reviewed the many alternate sources for TRI information about a facility,67 and concluded that because the TRI data has low usefulness, is widely available elsewhere, and is public domain information, it would be difficult and unnecessary to restrict access to the information.
¶27 Protecting the government from criticism is another reason that agency Web pages are removed. On April 8, 2005, the Defense Technical Information Center Joint Electronic Library took its entire library offline, apparently because several of the library’s holdings, including the Joint Doctrine for Detainee Operations, were about to be criticized in the press.77 Although most of the library was put back online the following week, the offending articles are still missing.
¶37 Once information has been posted on the Internet, it has entered the FOIA form of the “public domain.”107 Web pages are by their nature widely published, and a FOIA request for a Web page that has been taken down is in reality just a request to have the same information in the same format republished. Mere publication of classified information does not automatically put the information in the public domain, but if the information is “well publicized,” then “suppression . . . would frustrate the aims of the FOIA without advancing countervailing interests.”108 Web publication has been accepted, albeit reluctantly, by the DOJ as so “well publicized” that the documents posted on the Inte rnet cannot be recalled.109 Consequently, such material cannot be reclassified.110 The “well publicized” rule is set forth in Afshar v. Department of State: the person requesting agency records under FOIA is required to “bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.”111 In the case of Web pages removed from the Internet, the person requesting agency records will be able to carry this burden. The information will be identical in every way. The disclosure will be specific and will exactly m atch; a requestor will only be asking for an exact duplicate of what was previously available.
¶40 E-FOIA may provide some cumbersome relief from this climate of secrecy. If agency Web pages removed from the Internet are considered agency records, then E-FOIA requires agencies to make electronic copies available of “all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent [FOIA] requests. . . .”119 If concerned groups make multiple FOIA requests for removed Web pages, the agency is obligated to make those documents available in its electronic reading room. There is no overall standard for determining how many requests will trigger the reading room requirement.120However, many agencies have published regulations about repeatedly requested records.121The majority of them leave the determination of how many requests it takes, or whether or not records are likely to be repeatedly requested, entirely to the agency (subject to the absolute requirement that such documents must be posted online). Those agencies that do specify a number to limit agency discretion specify between three and five requests.122 Since the electronic reading room requirements were intended to avoid duplicative efforts and increase access to useful materials,123 the small number is not surprising.
¶41 Public interest groups interested in recovering removed Web pages could create and publicize places on their Web sites where individuals could make concerted requests for the Web pages by posting something like the FOI Letter Generator.124 An additional radio button could give users the option to send a copy of their request to the host of the Web site, so that any eventual administrative appeal or lawsuit seeking to have an item permanently posted to the agency’s reading room could state with assurance the number of requests that had been made. The rule is that if enough people ask, the material must be posted to an electronic reading room. And the number of people does not have to be large. Three requests could be sufficient.
¶43 An agency climate of nondisclosure will result in more lawsuits being filed to compel disclosure. The agency response to a FOIA request that Web pages removed from the Internet be provided in the same format may not be immediately favorable. Multiple FOIA requests for the same Web pages may not have a higher chance of success. Only pages that have actually been produced in response to an FOIA request would be required to be posted to an agency’s electronic reading room,127 but to avoid a second lawsuit over where the Web pages should be posted, any lawsuit to enforce compliance with multiple FOIA requests for the same pages (when the multiple requestors all want them produced as Web pages128) should include a request to the court to specify where the pages should be posted. The district court should have discretion, under the Declaratory Judgment Act, to declare where the requested Web pages should be posted.129 Since E-FOIA requires the pages to be posted in the agency’s electronic reading room, a request to do so would not be unreasonable.
¶45 The Bush Administration’s interpretation of FOIA dispenses with the presumption of access and essentially gives agencies carte blanche to deny access. Since the number of FOIA requests has increased dramatically,135 administrative appeals and lawsuits have become the norm. Nonetheless, only one of these lawsuits has been directed at information that has been removed from the Internet. The Project on Government Oversight v. Ashcroft suit136 involved the DOJ’s efforts to classify letters from Senate Judiciary Committee members to the FBI and the Justice Department regarding Sibel Edmonds; the letters had been posted on the Senate Judiciary Committee Web site but removed when the DOJ asserted that information in the letters was classified.137 The complaint alleged that the letters could not be classified once posted on the Internet,138 and the suit was settled by the government’s agreement that the documents were subject to an FOIA request and the assurance that the plaintiffs would not be subject to any liability for posting the documents on the Internet.139 The suit fell short of an enforc eable order requiring an agency to post documents in an electronic reading room. But the clear language of E-FOIA compels such a conclusion.
¶47 According to Lee, the court in Heine was “[s]olicitous of ‘the spread of information’ that was lawfully available to the public,”142 that is, in the public domain. Once in the public domain, it is protected by the First Amendment.
¶48 E-FOIA was a statutorily mandated expansion of the public domain. E-FOIA requires agencies to create an online location “where the public can obtain immediate access to government records.”144 If Web pages are removed, E-FOIA gives the requestor the right to require that the information be provided as a Web page. When more than two requestors seek access to the information through a FOIA request, the Web pages are required to be posted to the reading rooms.
¶50 Groups interested in disclosure must band together to challenge the removal of documents from the Internet and the current administration’s shifting of the burden of producing documents. This can be accomplished by making concerted FOIA requests for the missing Web pages and engaging in such administrative and judicial follow-up as is necessary. Organizations such as the American Federation of Scientists, Project on Open Government, National Security Archive, and individual scholars and citizens have uncovered massive amounts of information the government might have wished to keep secret.149 But secrecy in government should be the exception, not the norm; that is what the Freedom of Information Act was intended to accomplish. FOIA has been enacted, amended, and repeatedly tinkered with the years to accompl ish openness in government. But it has always needed the actions of concerned citizens to keep it vital.
* This article (without the appendices) was first published in 98 Law Library Journal 1 (2006).
** © Susan Nevelow Mart, 2006; Reference Librarian and Adjunct Professor of Law, University of California Hastings College of the Law Library, San Francisco, California.
1. Quoted in John Cornyn, Ensuring the Consent of the Governed: America’s Commitment to Freedom of Information and Openness in Government, 17 LBJ J. PUB. AFF. 1, 8 (2004).
2. CITIZEN’S GUIDE TO THE FREEDOM OF INFORMATION ACT 1 (1987) (quoting letter from James Madison to W.T. Barry (Aug. 24, 1822), in IX THE WRITINGS OF JAMES MADISON 103 (G.P. Hunt ed., 1910)).
4. See MARY THORN, NAT’L COUNCIL FOR RESEARCH ON WOMEN, MISSING: INFORMATION ABOUT WOMEN’S LIVES (2004), available at http://www.ncrw.org/misinfo/report.pdf. The report details, for example, the deletion of information on condom use from Web sites, id. at 8, and the removal of the Handbook on Women Workers and fact sheets on women workers from the U.S. Department of Labor site, id. at 12.
5. See Democracy Now!: Civil Rights Commission Purges Reports Critical of Bush (radio broadcast Feb. 16, 2005), available at http://www.democracynow.org/article.pl?sid=05/02/16/156238.
6. JOHN C. BAKER ET AL., RAND NAT’L DEFENSE RESEARCH INSTITUTE, MAPPING THE RISKS: ASSESSING THE HOMELAND SECURITY IMPLICATIONS OF PUBLICLY AVAILABLE GEOSPATIAL INFORMATION 71 (2004), available at http://www.rand.org/pubs/monographs/2004/RAND_MG142.pdf; see also Emerging Threats: Overclassification and Pseudo-classification: Hearings Before the Subcomm. on National Security, Emerging Threats, and International Relations of the House Comm. on Government Reform, 109th Cong. 121-26 (Mar. 2, 2005) [hereinafter Emerging Threats Hearings], available at http://www.gwu.edu/~nsarchiv/news/20050302/ (prepared statement by Thomas S. Blanton, Director, National Security Archive, George Washington University).
7. NANCY KRANICH, THE INFORMATION COMMONS: A PUBLIC POLICY REPORT (2004), http://www.fepproject.org/policyreports/infocommons.contentsexsum.html (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)).
8.5 U.S.C. § 552 (Supp. 2002).
9. HERBERT N. FOERSTEL, FREEDOM OF INFORMATION AND THE RIGHT TO KNOW: THE ORIGIN AND APPLICATION OF THE FREEDOM OF INFORMATION ACT 10-28 (1999); see also S. REP. NO. 89-813, at 3 (1965) (“After it became apparent that section 3 of the Administrative Procedure Act was being used as an excuse for secrecy, proposals for change began.”).
10. FOERSTEL, supra note 9, 39-40. After news media groups had worked for ten years to get a Freedom of Information Act passed, agencies were quick to find loopholes; in 1972, public interest groups, including Ralph Nader’s, pushed for the 1974 FOIA amendments. ALAN. B. LEVENSON & HARVEY L. PITT, GOVERNMENT INFORMATION: FREEDOM OF INFORMATION ACT, SUNSHINE ACT, PRIVACY ACT 1-2 (1978).
11. S. REP. NO. 89-813, at 10.
12. FOERSTEL, supra note 9, at 66-67.
14. See generally Barry P. MacDonald, The First Amendment and the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age, 65 OHIO ST. L.J. 249, 258-302 (2004).
15. From Martin v. Struthers, 319 U.S. 141 (1943), to Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court has recognized a constitutional right to receive information. See generally Susan Nevelow Mart, The Right to Receive Information, 95 LAW LIBR. J. 175, 2003.
16. The exemptions are listed in 5 U.S.C. § 552(b) (2000). See Appendix One.
17. Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979).
18. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
19. Pub. L. No. 93-502, 88 Stat. 1561 (1974).
20. H.R. REP. NO. 93-876, at 2, reprinted 1974 U.S.C.C.A.N 6267, 6267-68.
21. Id. at 6-7, reprinted in 1974 U.S.C.C.A.N. 6267, 6272.
22. Veto Battle 30 Years Ago Set Freedom of Information Norms (Dan Lopez et al. eds, National Security Archive Electronic Briefing Book No. 142, Nov. 23, 2004), http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB142.
24. For example, the 1976 amendments, Pub. L. No. 94-409, § 5(b), 90 Stat. 1241, 1247, were Congress’s attempt to strengthen judicial review of exemption 3 (exempting information governed by another statutory exemption), in response to a case deferring to the agency’s broad interpretation of this exemption. See Michael H. Hughes, Note, CIA v. Sims: Supreme Court Deference to Agency Interpretation of FOIA Exemption 3, 35 CATH. U.L. REV. 279, 281 (1985). The 1986 amendment, Pub. L. No. 99-570, §§ 1802-03, 100 Stat. 3207, 3207-48 to -49, tried to clarify fees and fee waivers, as well as refining exclusionary language. FOERSTEL, supra note 9, at 55-56.
25. P.L. 104-231, 110 Stat. 3048 (1996).
26. § 4(5), 110 Stat. at 3049 (codified at 5 U.S.C. § 552(a)(2)(D) (2000) (emphasis added)).
27. § 4(7), 110 Stat. at 3049 (codified at 5 U.S.C. § 552(a)(2) (2000) (emphasis added)). Attempts to limit publication in electronic reading rooms on privacy grounds have not always been successful. See, e.g., McCready v. Principi, 297 F. Supp. 2d 178, 198-99 (D.C. Cir. 2003) (holding that posting of final audit report, which included criticism of former Secretary, on the electronic reading room of the Veteran Administration’s Web site did not violate the Privacy Act).
28. U.S. Dept. of Justice, Other Federal Agencies’ FOIA Web Sites, http://www.usdoj.gov/04foia/other_age.htm (last visited Oct. 12, 2005).
29. Patrice McDermott, An OMB Watch Update Report on the Implementation of the 1996 “E-FOIA” Amendments to the Freedom of Information Act, GOV’T INFO. INSIDER, Spring-Summer 1999, available at http://www.gao.gov/new.items/d02493.pdf. The report specifically found that of sixty-four agencies examined, 11% did not have a useful FOIA Web presence, 89% had varying compliance rates, and, as of November24, 1999, no agency had complied fully with E-FOIA. McDermott found that the primary problems were lack of funding, lack of OMB guidance, lack of encouragement by DOJ to comply, and lack of agency emphasis on making public access to government information a priority.
30. Id. (citing Michael Tankersley, Introducing Old Duties to New Technologies 2 (1998)).
31. P.L. 107-306, § 312, 116 Stat. 2383, 2390-91 (codified at 5 U.S.C. § 552 (a)(3)(E) (Supp. 2002)).
32. P.L. 107-296, § 214, 116 Stat. 2135, 2152-55 (2002) (codified at 6 U.S.C. § 133 (Supp. 2002)).
33. The Restoration of Freedom of Information Act of 2003, S. 609, 108th Cong. (2003), and a companion bill, H.R. 2526, 108th Cong. (2003), were introduced to narrow the exemption. Although the bills died in committee, the Senate bill has been reintroduced as the Restoration of Freedom of Information Act of 2005, S. 622, 109th Cong. (2005).
34. For a discussion of the role of the attorney general’s memorandum in each new administration, see Kristen Elizabeth Uhl, Comment, The Freedom of Information Act Post-9/11: Balancing the Public’s Right to Know, Critical Infrastructure Protection, and Homeland Security, 53 AM. U. L. REV. 261, 269-70 (2003).
35. Memorandum from Janet Reno, Attorney General, to Heads of [All Federal] Departments and Agencies, The Freedom of Information Act (Oct. 4, 1993), in FOIA UPDATE, 1999, no. 3, available at http://www.usdoj.gov/oip/foia_updates/Vol_XIV_3/page3.htm.
36. Memorandum from John Ashcroft, Attorney General, to Heads of All Federal Departments and Agencies, The Freedom of Information Act (Oct. 12, 2001) (emphasis added), available at http://www.usdoj.gov/04foia/011012.htm.
I asked the Acting Director of the Information Security Oversight Office and the Co-Directors of the Justice Department’s Office of Information and Privacy to prepare guidance for reviewing Government information in your department or agency regarding weapons of mass destruction, as well as other information that could be misused to harm the security of our nation and the safety of our people. Their guidance is attached, and it should be distributed to appropriate officials within your department or agency, together with this memorandum, to assist in your undertaking an immediate reexamination of current measures for identifying and safeguarding all such information at your department or agency.
38. Memorandum from Laura L.S. Kimberly, Acting Director, Information Security Oversight Office, Richard L. Huff & Daniel J. Metcalfe, Co-Directors, Office of Information and Privacy, Department of Justice, to Departments and Agencies (Mar. 19, 2002) (emphasis added), available at http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm#guidance. Some agencies have jumped on the “sensitive but unclassified” (SBU) bandwagon by creating multiple categories of pseudo-classifications that flag material that should be carefully considered before release, as the Centers for Disease Control did when it created twenty-seven new categories of SBU. Office of Sec. & Emergency Preparedness, Centers for Disease Control & Prevention, Sensitive But Unclassifi ed Information (July 22, 2005), available at http://www.fas.org/sgp/othergov/cdc-sbu.pdf.
39. A CITIZENS’ GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS, HR. REP. NO. 109-226, at 3 (2005) (emphasis added).
40. U.S. GEN. ACCOUNTING OFF., FREEDOM OF INFORMATION ACT: AGENCY VIEWS ON CHANGES RESULTING FROM NEW ADMINISTRATION POLICY 24 (GAO-03-981, 2003), available at http://www.gao.gov/new.items/d03981.pdf.
41. Id. at 14. U.S. GEN. ACCOUNTING OFF., FREEDOM OF INFORMATION ACT: AGENCY VIEWS ON CHANGES RESULTING FROM NEW ADMINISTRATION POLICY 24 (GAO-03-981, 2003), available at http://www.gao.gov/new.items/d03981.pdf.
42. One form of agency obstruction is requesting excessive fees, despite a statutory mandate to charge only the reasonable costs of copying. 5 U.S.C. § 552(a)(3)(E)(4)(A)(ii)(II) (2000) (noncommercial requestors shall only be charged “reasonable standard charges for document duplication). For example, the DOJ requested advance payment of huge fees as a condition of responding to a FOIA request. Press Release, People for the American Way, Dept. of Justice Asks for Outrageous FOIA Fees in Secret Trials for 9-11 Detention Cases (Jan. 31, 2005), available at http://www.pfaw.org/pfaw/general/default.aspx?oid=17777. In April 2005, the DOJ dropped its $373,000 fee request. Dan Christensen, Feds Drop $373,000 FOIA Search Fee Demand, LAW.COM, Mar. 4, 2005, file:///C:/Documents%20and%20Settings/LLRX/Local%20Settings/Temporary%20Internet%20Files/Content.IE5/C5MNSTEZ/h%20ttp://www.law.com/jsp/article.jsp?id=1112349912757.
43. The 1974 amendments to FOIA expedited judicial review by setting a ten-day limit for the initial response and a twenty-day limit for a decision on the administrative appeal from a denial or failure to respond within ten days. 5 U.S. C. §§ 552 (a)(6)(A)(i)-(ii) (2000).
44. H.R. 5073, 108th Cong. (2004).
45. Minority Staff, Comm. on Gov’t Reform, U.S. House of Representatives, Summary: The Restore Open Government Act of 2004 (Sept. 14, 2004), http://democrats.reform.house.gov/features/secrecy_report/pdf/pdf_leg_restore_open_government_act_summary.pdf.
46. H.R. 2331, 109th Cong. (2005).
47. S. 394, 109th Cong. (2005); H.R. 876, 109th Cong. (2005).
48. S. 589, 109th Cong. (2005).
49. News Release, U.S. Senator John Cornyn, Cornyn, Leahy Introduce Bipartisan Bill To Promote Openness In Government (Feb. 16, 2005), available at at http://cornyn.senate.gov/FOIA/FFOIA.cfm.
50. News Release, U.S. Senator Patrick Leahy, Cornyn, Leahy Introduce Bill to Create Open Government Commission (Mar. 10, 2005), available at http://leahy.senate.gov/press/200503/031005.html.
51. OMB Watch, an agency oversight group, maintains a detailed register of missing information. OMB Watch, Access to Government Information Post September 11th, http://www.ombwatch.org/article/articleview/213/1/104 (last visited Oct. 26, 2005).
52. The following notice was posted by the EPA (and last updated Oct. 22, 2001): “In light of the September 11 events, EPA has temporarily removed RMP Info from its website. EPA is reviewing the information we make available over the Internet and assessing how best to make the information publicly available. We hope to complete that effort as soon as possible.” Chem. Emergency Preparedness & Prevention Office (CEPPO), U.S. Environmental Protection Agency, RMP Info-Temporarily Unavailable, http://www.epa.gov/OEM/rmp_unavailable.htm (last visited Oct. 26, 2005).
53. Paul M. Schoenhard, Note, Disclosure of Government Information Online: A New Approach From an Existing Framework, 15 HARV. J.L. & TECH. 497, 518-19 (2002). The OCA information had been removed from Internet distribution for an initial one-year period by legislation introduced in the 106th Congress. Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, Pub. L. No. 106-40, 113 Stat. 207 (1999) (codified at 42 U.S.C. § 7412(r)(7)(H)(ii) (2000)). During that one-year period, OCAs were not subject to FOIA. § 7412(r)(7)(H)(iii).
54. Accidental Release Prevention Requirements, 69 F.R. 18819, 18824 (Apr. 9, 2004). The Agency also agrees with the comment that removing OCA data from executive summaries would reduce or eliminate any risk that Internet posting of executive summaries might pose. The final regulations on posting this information on the Internet are at 40 C.F.R. § 1400.13 (2005). Under 42 U.S.C.§ 7412(r)(7)(H)(iii) (2000), these regulations supersede FOIA requests for the information covered by the regulations. However, the remainder of the information contained in the RMPs is not governed by these sections and are supposed to be available on the Internet. See OBM Watch, supra note 51, http://www.ombwatch.org/article/articleview/213/1/104/#EPA%20 (risk management plans removed from EPA Web site).
55. The EPA has also limited access to its online Envirofacts databases; after registration, access is limited to EPA employees; EPA contractors; and military, federal, and state agency employees. See U.S. Environmental Protection Agency, Accessing the Envirofacts Database, http://www.epa.gov/enviro/html/technical.html#Accessing%20 (last visited Oct. 26, 2005); OMB Watch, supra note 51, http://www.ombwatch.org/article/articleview/213/1/1/#EPA (no direct access to Envirofacts Databases).
56. Timothy R. Henderson, September 11th: How It Has Changed a Community’s Right to Know, MD. B.J., July/Aug. 2002, at 3, 8.
57.OMB Watch, supra note 51, http://www.ombwatch.org/article/articleview/213/1/104/#FERC (FERC removes documents).
58. Fed. Regulatory Energy Comm’n, How to File a Critical Energy Infrastructure Information (CEII) Request, http://www.ferc.gov/help/how-to/file-ceii.asp (last visited Oct. 26, 2005).
59. Schmitt & Pound, supra note 3, at 18, 20, 22; Now: Veil of Secrecy (PBS television broadcast Dec. 12, 2003) (transcript available at http://www.pbs.org/now/transcript/transcript246_full.html). This was a joint investigation by U.S. News and World Report and the Public Broadcasting Service (PBS). Although the information provided by the published article and contemporaneous broadcast transcript frequently overlap, some is available in one source but not the other.
60. The article details missing energy information, tire and safety information, environmental information, transportation information, and the potential for misuse of critical infrastructure information laws to shield industry. Id. 22, 24-25, 27-28; Now: Veil of Secrecy, supra note 59.
61. Now: Veil of Secrecy, supra note 59 (remarks of interviewee Joseph McCormick).
64. LINDA-JO SCHIEROW, CONGRESSIONAL RESEARCH SERV., CHEMICAL PLANT SECURITY 12 (CRS Report No. RL31530, 2005) (quoting Carl Prine, Lax Security Exposes Lethal Chemical Supplies, PITTSBURGH TRIBUNE-REVIEW, Apr. 7, 2002). Two of the plants the reporters visited were on the list of 123 plants nationwide where a worst-case scenario would affect more than 100,000 residents. “The report concluded that . . . access was easy to some sites owned by corporations with large security budgets; employees, customers, neighbors, and contractors ‘not only let a stranger walk through warehouses, factories, tank houses and rail depots, but also gave directions to the most sensitive valves and control rooms’; and access to 19 sites was allowed due to ‘unguarded rail lines and drainage ditches, dilapidated or nonexistent fences, open doors, poorly angled cameras an d unmanned train gates.'” Id. (quoting Carl Prine, Chemicals Pose Risk Nationwide, PITTSBURGH TRIBUNE-REVIEW, May 5, 2002). Walking around would give terrorists the detailed information needed to plan an attack that is not available in RMPs (which provide only the more general information needed to identify a site).
65. BAKER ET AL., supra note 6, at 83.
67.Id. at 84 (noting that the information is also available from HUD’s E-MAPS, the Department of Commerce’s LANDVIEW, RTKNet from the Unison Institute, and Scorecard from Environmental Defense). State databases also contain some of this information. Id. at 85.
70. Id. at xxix. An example of information specific enough to be useful to a terrorist might be the location of a “choke point in a major power grid or telecommunications network.” Id.
71. Id. at 125 (“Given the ready availability of alternative data sources, restricting public access to such geospatial information is unlikely to be a major impediment for attackers in gaining the needed information for identifying and locating their desired U.S. targets.”).
72. Id. at 69-70. This analysis means that the actions of the National Imagery and Mapping Agency in ending the online sale of large-scale maps to the public, OMB Watch, supra note 51, http://www.ombwatch.org/article/articleview/213/1/1#NIMA, cannot be justified on national security grounds. The scale of the maps does not give a terrorist the detailed information needed to carry out a planned attack, so removing the maps does nothing to prevent harm and keeps the American public from getting easy access to useful information.
73. Emerging Threats Hearings, supra note 6, at 124-25 (testimony of Thomas S. Blanton).
74. NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 247, 276, 541 n.107 (2004).
76.Paraphrasing LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY 92 (1914) (“Sunlight is the best disinfectant; electric light the best policeman.”).
77. Defense Doctrine Web Site Goes Dark, SECRECY NEWS, Apr. 8, 2005, http://www.fas.org/sgp/news/secrecy/2005/04/040805. Secrecy News reported the shutdown on April 8, 2005. The library was restored the following week, although the critical documents remain unavailable. DOD Joint Electronic Library Back Online, SECRECY NEWS, Apr. 18, 2005, http://www.fas.org/sgp/news/secrecy/2005/04/041805.html#4. Some of the documents formerly accessible through the library are available from the Fed’n of Am. Scientists, Defense Department Intelligence and Security Doctrine, Directives and Instructions, http://www.fas.org/irp/doddir/dod/ (last visited Oct. 26, 2005), and Cryptome.org (http://www.cryptome.org/).
78. THORN, supra note 6, at 14 (providing chart of missing information on women’s work, domestic violence, pay equity, and trafficking).
79. Id. at 12. A researcher’s attempt to get a copy of the publication or other information on pay equity or worker’s rights for women from the Women’s Bureau extended to direct telephone contact, but the researcher was told “that no publications on workers’ rights and fair pay per se were available at that time from the Bureau.” Id. at 13. Another publication, the Handbook on Women Workers, has been removed and has never been re-released. Id. at 12.
80. The National Cancer Institute had had a report on its Web site informing women that there was no scientific basis for a suggested link between abortion and breast cancer. In 2002, that fact sheet was removed and replaced with a publication stating that studies showing the abortion/breast cancer correlation were inconsistent. Id. at 7. Only after a hundred experts gathered to hold a hearing on the issue was the National Cancer Institute forced to re-post the information that there was no increased risk of breast cancer associated with abortion. Abortion and Breast Cancer, N.Y. TIMES, Jan. 6, 2003, at 20.
81. Adam Clymer, Critics Say Government Removed Sexual Material From Websites to Push Abstinence, N.Y. TIMES, Nov. 26, 2002, at A18. Although the CDC said that the information was removed in 2001 to be updated, the Web site has not been updated and abstinence is being promoted instead.
82. Democracy Now!: Civil Rights Commission Purges Reports Critical of Bush, supra note 7.
A few agencies have removed electronic information products that we have cataloged and pointed to as part of the FDLP/Electronic Collection. We are redirecting the PURLs to agency notices or our own notice to explain the situation. A partner agency, the Department of Energy Office of Scientific and Technical Information, has pulled over 5,800 research reports from three national laboratories that were included in the Information Bridge. We have requested that these be reviewed and returned, as appropriate, for public access. Other agency withdrawals have been information beyond the purview of the FDLP.
Letter from Francis J. Buckley, Jr., Superintendent of Documents, to Depository Library Directors (Mar. 14, 2002), available at http://www.access.gpo.gov/su_docs/fdlp/withdraw.pdf.
84. Announcement of Intent to Initiate the Process to Remove Aeronautical Information From Public Sale and Distribution, 69 Fed. Reg. 67546 (Nov. 18, 2004).
85. BAKER ET AL., supra note 8.
86. “[W]e estimate that fewer than 1 percent of federal data are both unique to federal sources and potentially useful to attackers’ information needs, compared with about 6 percent that is potentially useful to the attacker and about 94 percent that our assessment found to have no usefulness or low usefulness. Given these results, we conclude that only a few of federal agency geospatial sources appear significant to attackers’ needs.” BAKER ET AL., supra note 8, at 70. The same analysis would apply to the Nuclear Regulatory Commission’s (NRC) action in completely shutting down its 700,000 document online reading room, then only restoring part of the library. Nuclear Commission Restores Portions of Online Library, OMB WATCHER, Nov. 15, 2004, http://www.ombwatch.org/article/articleview/2517/1/1. The offending documents were floor plans from several university nuclear labs. NRC Removes All Information From Its Public Website, OMB WATCHER, Nov. 1, 2004, http://www.ombwatch.org/article/articleview/2498/1/297. The NRC still maintains that the offending documents should not be available online, but scientists disagree; while the “information might aid terrorists a little . . . ‘if someone is determined to do this, it won’t help them much. If someone wanted to find this out, they can.'” Id. (quoting David Albright, Institute for Science and International Security).
87. Naomi Lubick, Homeland Security and Geospatial Data, GEOTIMES, July 2004, http://www.geotimes.org/july04/NN_homelandsec.html.
88. Mike Allen, Basing Panel Criticizes Rumsfeld, Upsets Pentagon, S.F. CHRON., May 16, 2005, at A5.
89. Id. Two of the critical reports were withheld from Congress, but Secrecy News obtained copies in August 2005. Suppressed BRAC Critiques Disclosed, SECRECY NEWS, Aug. 4, 2005, http://www.fas.org/sgp/news/secrecy/2005/08/080405.html.
90. The Memory Hole, Classified Letters Regarding FBI Whistleblower Sibel Edmonds, http://www.thememoryhole.org/spy/edmonds_letters.htm (last visited Oct. 27, 2005).
91. Chris Strohm, Lawsuits Challenge Justice Department Efforts to Classify Previously Public Information, DAILY BRIEFING, June 28, 2004, at http://www.govexec.com/dailyfed/0604/062804c1.htm.
92. The Memory Hole, supra note 92.
93. Democrats.com, FBI Whistleblower Breaks Ashcroft’s Gag Order to Warn America that the 9/11 Report is a Massive Coverup (Aug. 4, 2004), http://archive.democrats.com/search.cfm?term=sibel%20edmonds.
94. Kevin Bohn, FBI Translator Suit Dismissed Over Security Issues, CNN, July 7, 2004, http://www.cnn.com/2004/LAW/07/06/fbi.translator.
95. Stipulation of Dismissal, Project on Gov’t Oversight v. Ashcroft , Civ. No.1:04cv1032 (D.C. Cir. Mar. 9, 2004) (on file with author); see also Letter of Vesper Mei, U.S. Dept. of Justice, to Michael T. Kirkpatrick, Public Citizen Litigation Group (Feb. 18, 2005), available at http://pogo.org/m/gp/gp-02182005-JusticeDeptLetter.pdf (acknowledging that the letters are “releaseable in full, pursuant to the Freedom of Information Act”).
96. Henry H. Perritt, Jr., Sources of Rights to Access to Public Information, 4 WM. & MARY BILL RTS. J. 179, 186 (1995).
97. 5 U.S.C. § 552(f)(2) (2000) (“‘record’ and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format”).
99. U.S. DEP’T OF JUSTICE & U.S. GEN. SERVICES ADMIN., YOUR RIGHT TO FEDERAL RECORDS: QUESTIONS AND ANSWERS ON THE FREEDOM OF INFORMATION ACT AND PRIVACY ACT, http://www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm#format (last visited Oct. 29, 2005).
100. Congress Enacts FOIA Amendments, FOIA Update, 1996, no. 4, available at http://www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page1.htm.
101. See Henry H. Perritt, Jr., Recent Development: Electronic Freedom of Information, 50 ADMIN. L. REV. 391, 395-97 (1998) (discussing rejection by H.R. REP. NO. 104-795 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3462, of Dismukes v. Dep’t of the Interior, 603 F. Supp. 760 (D.D.C. 1984) (holding that agency is not required to accommodate plaintiff’s format preference under FOIA) and SDC Dev. Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976) (holding that agency-created computer database was library material and not agency record in accordance with Records Disposal Act)).
102. See Schoenhard, supra note 55, at 509-11 (citing H.R. REP. NO. 104-795, at 6 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3449).
103.Id. at 511 (citing Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989)).
104. For purposes of the Federal Records Act, “‘records’ are defined as all books, papers, maps, photographs, machine readable [i.e., electronic] materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business documentary materials ‘made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business. . . .” Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir. 1993) (citing 44 U.S.C. § 3301 (2000)). The Federal Records Act definition of records has been utilized in FOIA actions. See, e.g., Weisberg v. U.S. Dep’t of Justice, 631 F.2d 824, 828 (1980) (court looked to the provisions of the Federal Records Act in defining the phrase “agency records” in FOIA).
105. OFFICE OF INFO. AND PRIVACY, U.S. DEP’T OF JUSTICE, FREEDOM OF INFORMATION ACT GUIDE (2004) (footnotes omitted), http://www.usdoj.gov/oip/readingroom.htm.
106. See, e.g., Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D.C.Cir. 1982) (holding that method of accessing information can’t be used to circumvent full disclosure policies of FOIA).
107. Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (citations omitted) (In discussing the public domain doctrine, the court noted that “materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record. For as we have recently observed, ‘the logic of FOIA’ mandates that where information requested ‘is truly public, then enforcement of an exemption cannot fulfill its purposes.'”); Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir 1992) (“We have held, however, that the government cannot rely on an otherwise valid exemption claim to justify withholding information that has been ‘officially acknowledged’ or is in the ‘public domain.'”); see also Schoenhard, supra note 55, at 512-14; Edward Lee, The Public’s Domain: The Evolut ion of Legal Restraints on the Government’s Power To Control Public Access Through Secrecy Or Intellectual Property, 55 HASTINGS L.J. 91, 123 (2003) (“[I]nformation falls into the public domain when it becomes available to the public (without IP protection).”).
108. Schoenhard, supra note 55, at 513-14 (citing Founding Church of Scientology v. NSA, 610 F.2d 824, 831-32 (D.C. Cir. 1979).
109. Stipulation of Dismissal, supra note 97; see also Letter of Vesper Mei, supra note 97; Schoenhard, supra note 55, at 14 (citations omitted) (“The posting of a web page to the Internet clearly qualifies as disclosure and publication. This argument has been tested in trade secret litigation, where the courts universally have accepted that web publication constitutes public disclosure. Government information that has been posted on the Internet is thus no longer eligible for the national security exemption from the FOIA.”).
110. Exec. Order 13292, § 1.7(c)(2), 68 Fed. Reg. 15315, 15318 (Mar. 28, 2003) allows the reclassification of previously declassified material only if “the information may be reasonably recovered.” Once information is on the Internet, and available in whole or in part on other Web sites, it can’t reasonably be “recovered.” The FBI finally conceded that you can’t unring the bell.
111. 702 F.2d 1125, 1130 (D.C. Cir. 1983) (citations omitted).
112.44 U.S.C. §§ 3506(4)(C), 3506(4)(G), 3511 (2000); see also 36 C.F.R. § 1234.1 (2005) (“establish[ing] basic requirements related to creation, maintenance, use, and disposition of electronic documents”).
113. 44 U.S.C. §§ 3601-3606 (Supp. 2002). The government has been somewhat slow to understand the need to index, archive and preserve electronic documents, but a plan has been put in place with the E-Government Act. Lee, supra note 107, at 168-69 (citations omitted) (discussing the Act’s requirements that every federal agency “‘establish a process for determining which Government information the agency intends to make available and accessible to the public on the Internet and by other means,'” that a “‘federal Internet portal that will integrate agency Web sites'” be created, and that a “‘public domain directory of public Federal Government Web sites'” be established). Lee thought the “efforts to build an online space for the public domain offer perhaps the greatest step forward for attaining the public domain’s full p romise: the public’s free access to vast amounts of sources of learning.” Id. at 169 (footnote omitted); see also Memo from Joshua B. Bolten, Director, Office of Management and Budget, to All Department and Agency Heads, Implementation Guidance for the E-Government Act of 2002 (Aug. 1, 2003) (establishing a timetable for recordkeeping for government Internet documents), available at http://www.whitehouse.gov/omb/memoranda/m03-18.pdf.
114. 44 U.S.C. §§ 207, 3501 nt, 3602(e)(5) (Supp. 2002).
115. 44 U.S.C. §§ 3301-3303a, 3308-3311 (2000). See U.S. Dep’t of Educ., Federal Records Act, http://www.ed.gov/policy/gen/leg/fra.html (last visited Oct. 30, 2005) (providing excellent overview of the Act’s requirements); HAROLD C. RELYEA, CONGRESSIONAL RESEARCH SERV., ELECTRONIC GOVERNMENT: A CONCEPTUAL OVERVIEW 26 (CRS Report No. RL30745, 2001), available at http://www.ipmall.piercelaw.edu/hosted_resources/crs/RL30745_Sept_10_2001.pdf (listing some of the information that has become freely accessible on the Internet as result of electronic government initiatives, but noting that two important matters remain to be addressed: the length of time docum ents or data are available on the Web and the subsequent retrieval from online archives, and the ability to make online FOIA requests for records and information not otherwise available online).
116. MINORITY STAFF, COMM. ON GOV’T REFORM, U.S. HOUSE OF REPRESENTATIVES, SECRECY IN THE BUSH ADMINISTRATION 4 (2004) (quoting fax from Philip H. Melanson, Professor of Policy Studies and Director, Policy Studies Program, Univ. of Massachusetts at Dartmouth, to House Government Reform Committee minority staff, The Bush Administration and FOIA (July 10, 2004)), available at http://democrats.reform.house.gov/features/secrecy_report/pdf/pdf_secrecy_report.pdf.
117. Id. at 30 (quoting 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)).
118. Id. at 31 (quoting e-mail from David C. Vladeck, Associate Professor, Georgetown Univ. Law Center, to House Government Reform Committee minority staff (June 22, 2004)). The top-level trend toward more secrecy is having a trickle down effect on agency action; the FBI, for example, is trying to limit the scope of the searches it must perform in response to a FOIA request. In one case, the FBI performed an automated search that failed to find any documents responding to a request, even though searches through other channels showed that relevant documents had been released in response to a previous FOIA request. The indexes the FBI searched are not complete. Michael J. Sniffen, FBI Tries to Limit Info Searches, CBS NEWS, Jan. 21, 2005, http://www.cbsnews.com/stories/2005/01/21/national/main668365.sht%20ml.
119. 5 U.S.C § 552(a)(2)(D) (2000) (emphasis added).
120.The Office of Management and Budget’s failure to provide guidance to agencies by establishing a “clear definition of what constitutes a repeatedly requested record” is one of the criticisms made about FOIA implementation in a report published by OMB Watch. McDermott, supra note 31. The report notes that it is not “up to the agency to decide if it is interested in disseminating the information; it depends solely on whether outsiders submit multiple requests for this information. . . . [I]nformation that is of sufficient interest to the public to spark two or more request must be placed in the agency’s reading room and, if created since November 1, 1996, must be made available electronically and in such a way that anyone with online access will enjoy the same informational access.” Id.
121.Three general types of regulations that have been promulgated. Some regulations list the factors guiding agency discretion in determining whether or not a document has been requested often enough to be posted in an electronic reading room. See, e.g., 7 C.F.R. § 1.4(a)(4) (2005) (Department of Agriculture); 32 C.F.R. § 701.14 (d) (200) (Department of the Navy). Most agencies leave it entirely up to the agency. See, e.g., 37 C.F.R. § 102.2 (c)(2) (2005) (United States Patent and Trademark Office); 15 C.F.R. § 4.2(d)(2) (2005) (Secretary of Commerce). Finally, some agencies actually specify the number of requests that will require posting in an electronic reading room. See, e.g., 36 C.F.R. § 1250.12 (a)(4) (2005) (National Archives and Records Administration); 32 C.F.R. § 806.12 (2005) (Department of the Air Force); 26 C.F. R § 601.702 (b)(1)(D) (2005) (Internal Revenue Service). For a more complete listing of agency regulations regarding frequently requested documents, see Appendix Two.
122.NARA requires posting if there have been three requests, 36 C.F.R. § 1250.12 (a)(4); the Air Force requires posting if there have been or are likely to be five or more requests, 32 C.F.R. § 806.12(b); and the IRS requires posting if there have been more than four requests, 26 C.F.R § 601.702 (b)(1)(D)(2).
123.H.R. REP. NO. 104-795, at 11 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3454 (“[T]he information technology currently being used by executive departments and agencies should be used in promoting greater efficiency in responding to FOIA requests. This objective includes using technology to let requestors obtain information in the form most useful to them. Existing technologies for searching electronic records can often review materials more quickly than is possible via a paper review.”).
124.Reporters’ Comm. for Freedom of the Press, FOI Letter Generator, http://www.rcfp.org/foi_letter/generate.php (last visited Oct. 31, 2005) (“This letter generator is designed to help you create a simple FOI letter. It asks you for all pertinent information, guides you through the options available, and even lists a number of federal agencies and their addresses.”). A similar form could be created by any public interest group seeking to have interested parties make multiple FOIA requests.
125.Melanie McFarland, TV 2004: Janet Jackson’s, uh, Expose Really Set Off The Sensors Of The Censors, SEATTLE POST, Dec. 30, 2004, at C1. The statistics exclude the Super Bowl incident involving Janet Jackson. McFarland reports on the alleged 159 complaints from the Parents Television Council about Married by America that led to a $1.2 million fine. An investigation revealed that, in fact, there were only ninety complaints about the show, made by twenty-three individuals (with twenty of those copies of a letter written by a single person). The Parents Television Council responded that its members sent in 4073 complaints about the show.
126. Administrative appeal is normally a prerequisite to suit. Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 57-58 (D.C. Cir. 1987) (“It goes without saying that exhaustion of remedies is required in FOIA cases.”); see also U.S. DEP’T OF JUSTICE, FREEDOM OF INFORMATION ACT REFERENCE GUIDE (Apr. 2005), http://www.usdoj.gov/04foia/referenceguidemay99.htm#appeals.
127. 5 U.S.C. § 552(a)(2)(D) (2000). One commentator has suggested that FOIA may require agencies to take the initiative and post documents that they know will be of wide public interest in electronic readings rooms without waiting for requests. Michael Tankersley, Introducing Old Duties to New Technologies, FED. LAW., Sept. 1998, at 24, 27.
128. FOIA gives the district courts explicit statutory authority to review agency decisions to withhold records de novo. 5 U.S.C. § 552 (a)(4)(B) (2000). The requestor has the discretion to specify the format of the records being requested. 5 U.S.C. § 552 (a)(3)(B) (2000) (“In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”).
129. 28 U.S.C. § 2201 (2000). An agency does not have discretion about posting frequently requested documents in an electronic reading room, so its discretion to determine the number of requests that trigger the obligation cannot be absolute. The legislative history establishes a mandate to post materials on the Internet to avoid multiple FOIA requests and the concomitant duplication of agency resources. See supra ¶ 36. This policy has been implemented in an OMB circular directing agencies, when providing information to the public, including under the Freedom of Information Act, to disseminate information in a way that “achieves the best balance between the goals of maximizing the usefulness of the information and minimizing the cost to the government and the public.” Office of Mgmt. & Budget, Circular No. A- 130, Management of Federal Information Resources § 8(a)(5)(d)(i) (Nov. 28, 2000), available at http://www.usdoj.gov/04foia/referenceguidemay99.htm#appeals.
130. See McDermott, supra note 31 (finding that no agency reading room contains all of the statutorily mandated material. And “fewer than 30% of the sites examined contained FOIA-released repeatedly requested documents in addition to these other items). Elsewhere, McDermott pointed out that the requirement that agencies put up information that has been released on a FOIA request-and for which they anticipate more requests-is “way more honored in the breach than the observance. Agencies mostly put up trivia if they put up anything.” Posting of Patrice McDermott, Assistant Director, American Library Association, Office of Government Relations, to [email protected] (May 25, 2005, 10:19:35) (copy on file with author).
131. James T. O’Reilly, FOIA and Fighting Terror: The Elusive Nexus Between Public Access and Terrorist Attack, 64 LA. L. REV. 809, 821-22 (2004) (estimating that agencies have won summary judgment motions in about 90% of litigated cases, by offering agency affidavits on the nature of the documents being withheld). But see Office of Info. & Privacy, U.S. Dep’t of Justice, New FOIA Decisions October-December 2004, FOIA Post, Jan. 10, 2005, http://www.usdoj.gov/oip/foiapost/2005foiapost1.htm (of twenty-eight cases reported, only five appear to have been resolved by agency declaration as to the nature of the documents being withheld); Office of Info. & Privacy, U.S. Dep’t of Justice, New FOIA Decisions January-March 2005, FO IA Post, Mar. 31, 2005, http://www.usdoj.gov/oip/foiapost/2005foiapost9.htm (of fifty-nine cases reported, twenty-one appear to have been resolved by agency declaration as to the nature of the documents being withheld). This mini-survey of FOIA lawsuits does not confirm a 90% claim.
132. Athough only classified documents are explicitly exempt from FOIA disclosure pursuant to 5 U.S.C. § 552(b)(1) (2000) (exempting those documents which are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order”), several recent cases have shielded “pseudo-classified” documents labeled “sensitive, but unclassified” or “for your eyes only” under a number of theories. See Emerging Threats Hearings, supra note 6, at 8, available at http://reform.house.gov/UploadedFiles/Hammitt%20Testimony.pdf (prepared statement of Harry Hammitt, Editor/Publisher , Access Reports) (citing Living Rivers, Inc. v. Bureau of Reclamation, No. 2:02-CV-644TC (D. Utah, Mar. 25, 2003) (accepting agency’s declaration that law enforcement maps of flood areas below the Hoover and Glen Canyon dams might aid terrorists in carrying out an attack); Coastal Delivery Corp. v. Customs Service, No. 02-3838 WMB (C.D. Cal., Mar. 14, 2003) (upholding use of exemption 2 protecting internal documents as basis for denying information regarding inspections of seaport operations because if terrorists knew how often inspections occurred, they could send their containers to vulnerable ports)).
133. No. C 03-01779 CRB, 2004 WL 1368858 (N.D. Cal.) (June 15, 2004) (citations omitted) (emphasis added).
135. OpenTheGovernment.org, Secrecy Report Card: Qualitative Indicators of Secrecy in the Federal Government 8 (Aug. 6, 2004), http://www.openthegovernment.org/otg/secrecy_reportcard.pdf (noting that from 2000 to 2003, FOIA requests have increased dramatically, from 2,174,570 to 3,266,394).
136. Complaint for Declaratory and Injunctive Relief at 1, Project on Gov’t Oversight v. Ashcroft, , Civ. No.1:04cv1032 (D.C. Cir. June 23, 2004), available at http://www.pogo.org/m/gp/a/Complaint.pdf.
137. See supra ¶ 33 for discussion.
138. Complaint for Declaratory and Injunctive Relief, supra note 136, at 1, 6.
139. Stipulation of Dismissal, supra note 97; see also, Letter of Vesper Mei, supra note 97 (“The FBI has acknowledged that these documents are releaseable in full, pursuant to the Freedom of Information Act.”).
140. Lee, supra note 109, at 131 (quoting United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945)) (citations omitted).
144. Michael Tankersley, How the Electronic Freedom of Information Act Amendments of 1996 Update Public Access For the Information Age, 50 ADMIN. L. REV. 421, 428 (1998).
146. Memorandum from Richard L. Huff & Daniel J. Metcalfe, Co-Directors, Office of Information and Privacy, U.S. Dep’t of Justice, to Principal FOIA Administrative and Legal Contacts at All Federal Agencies, Further Efforts to Implement E-FOIA Provisions (Mar. 23, 2001), http://www.usdoj.gov/oip/2001gaomemo.htm.
147. Stipulation of Dismissal, supra note 97.
148. Mark Tapscott, Too Many Secrets, WASH. POST, Nov. 20, 2002, at A25 (quoting Donald Rumsfeld, June 20, 1966, “advocating passage of the FOIA, of which he was a co-sponsor”).
149.For discussion of just a few notable FOIA lawsuits, see Project on Gov’t Secrecy, Fed’n of Am. Scientists, Freedom of Information Act Documents, http://www.fas.org/sgp/foia/index.html (last visited Nov. 1, 2005); Elec. Privacy Info. Ctr., Litigation Docket, http://www.epic.org/privacy/litigation (last visited Nov. 1, 2005); Public Citizen Litigation Group & Freedom of Info. Clearinghouse, Obtaining Access To Government Records Since 1972: Highlights Of Advocacy Efforts Against Government Secrecy (Jan. 1998), http://www.citizen.org/litigation/free_info/foic_aids/articles.cfm?ID=758.
Each agency has been left with the responsibility of promulgating regulations for “frequently requested” documents. Following are those agency regulations located by the author that address the FOIA requirement that “frequently requested” documents be made available in electronic reading rooms.
interest in the records. (Public Access To Certain Materials, 7 C.F.R. 1.4(a) (4) (2004)).
5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. These records are referred to as FOIA-processed (a)(2) records. DON activities shall decide on a case-by-case basis whether records fall into this category based on the following factors: previous experience of the DON activity with similar records; particular circumstances of the records involved, including their nature and the type of information contained in them; and/or the identity and number of requesters and whether there is widespread press, historic, or commercial interest in the records.
(1) This provision is intended for situations where public access in a timely manner is important and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. DON activities may remove the records from this access medium when the appropriate officials determine that access is no longer necessary.
(2) Should a requester submit a FOIA request for FOIA-processed (a)(2) records and insist that the request be processed under FOIA, DON activities shall process the FOIA request. However, DON activities have no obligation to process a FOIA request for (a)(2)(A), (B) and (C) records because these records are required to be made public and not FOIA-processed under paragraph (a)(3) of the FOIA. (emphasis added). (5 U.S.C. 552(a)(2) Materials, 32 C.F.R. § 701.14 (d) (2004)).
5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. These records are referred to as FOIA-processed (a)(2) records. DoD activities shall decide on a case-by-case basis whether records fall into this category based on the following factors: previous experience of the DON activity with similar records; particular circumstances of the records involved, including their nature and the type of information contained in them; and/or the identity and number of requesters and whether there is widespread press, historic, or commercial interest in the records.
(1) This provision is intended for situations where public access in a timely manner is important and it is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. DoD activities may remove the records from this access medium when the appropriate officials determine that access is no longer necessary.
(2) Should a requester submit a FOIA request for FOIA-processed (a)(2) records and insist that the request be processed under FOIA, DoD activities shall process the FOIA request. However, DoD activities have no obligation to process a FOIA request for (a)(2)(A), (B) and (C) records because these records are required to be made public and not FOIA-processed under paragraph (a)(3) of the FOIA. (emphasis added). (5 U.S.C. 552(a)(2) Materials, 32 C.F.R. § 286.7(b)(4) (2004)).
The FOIA requires that copies of records, regardless of form or format, released pursuant to a FOIA request under 5 U.S.C. 552(a)(3) that have become or are likely to become the subject of subsequent requests for substantially the same records be made publicly available. Such records created by the Corporation after November 1, 1996 will be made available electronically while records created prior to this date will be made available for inspection and copying in Amtrak’s public reading room.
(iii) The identity and number of requesters and whether there is widespread media or commercial interest in the records.
(2) The provision in this paragraph is intended for situations where public access in a timely manner is important. It is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. Amtrak may remove the records from this category when it is determined that access is no longer necessary. (emphasis added). (Frequently Requested Information, 49 C.F.R. 701.4 (c) (2004)).
Copies of records requested 3 or more times under FOIA and other records that have been or are likely to become the subject of subsequent FOIA requests for substantially the same records…(emphasis added). (What Types Of Records Are Available In NARA’s FOIA Reading Room?, 36 C.F.R. § 1250.12 (a)(4)(2004)).
(a) HQ AFCIC/ITC will make the traditional FOIA-processed (a)(2) materials (5 U.S.C. 552(a)(2)(A), (B), and (C)) available to the public. Each Air Force activity must make 5 U.S.C. 552(a)(2)(D) records (“FOIA-processed (a)(2)(D) records”–records which they determine will, or have become, the subject of frequent or subsequent requests) available to the public in a reading room in hard copy and electronically by posting it to their appropriate web site. There is no requirement to make all FOIA-released records available electronically. The FOIA manager, in coordination with the functional OPR, or the owner of the records, determines qualifying records, after coordination with any interested OCRs. As required by AFIs 33-129 and 35-205, OPRs request clearance of these records with the PAO before posting on the WWW.
(b) Normally, if the FOIA office or OPR receives, or anticipates receiving, five or more requests for the same record in a quarter, they will consider it a frequently requested record (FOIA-processed (a)(2)(D) record) and make it publicly available in hard copy and electronically as outlined in § 806.12(a). OPRs may elect to make other records publicly available if they receive, or expect to receive, less than five requests a quarter. The purpose is to make records available in an ERR to potential future FOIA requesters instead of waiting to receive a FOIA request, and reduce the number of multiple FOIA requests for the same records requiring separate responses. In making these determinations, recognize there are some situations in which a certain type of record becomes the subject of simultaneous FOIA requests from all interested parties and then ceases to be of interest. Activities may typically receive a “flurry” of FOIA requests for contract records im mediately after a contract is awarded, but do not receive any subsequent requests for such bulky records after that point. In some cases, activities may decide that placing records in the ERR would not serve the statutory purpose of “diverting some potential FOIA requests for previously released records.” (emphasis added).(Record Availability, 32 C.F.R. § 806.12 (2004)). The actual number of requests (5) that normally triggers posting a document to the electronic reading room is listed in the regulation.
(2) When more than four requests for substantially the same records have already been received. (emphasis added). (Publication, Public Inspection, And Specific Requests For Records, 26 C.F.R. 601.702 (b)(1)(D) (2004)).
the component that maintains them determines, because of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records.
o The Department of Commerce (Public Reference Facilities, 15 C.F.R. 4.2(c) and (c) (2) (2005)).
o The National Credit Union Administration (What Records Does NCUA Make Available To the Public For Inspection and Copying?, 12 C.F.R. § 792.02(d) (2004)).
o Department of Defense – National Security Agency/Central Security Policy, (32 C.F.R. § 299.3(c ) (2004)).
Service (NSA/CSS) o Export-Import Bank Of The United States (Public Reference Facilities, 12 C.F.R. § 404.3 (2004)). It is not clear from this regulation that the agency intends to put the material on the Internet, as E-FOIA requires.
o United States Patent And Trademark Office (Public Reference Facilities,37 C.F.R. § 102.2 (c)(2) (2004)). It is not clear from this regulation that the agency intends to put the “frequently requested’ documents on the Internet.
o Office Of Government Ethics (Public Reading Room Facility And Web Site, 5 C.F.R. 2604.201(a) (4) (2004)).
o Federal Maritime Commission (Mandatory Public Records, 46 C.F.R 503.21(a)(4) (2004)). It is not clear from this regulation that the agency intends to put the “frequently requested’ documents on the Internet.
o Occupational Safety and Health Review Commission (General Policy, 29 C.F.R 2201.4 (c)(3) (2004)).
o Office of the Secretary of Commerce (Public Reference Facilities, 15 C.F.R. 4.2(d)(2) (2004)).
o Nuclear Regulatory Commission (Publicly Available Records, 10 C.F.R. 9.21 (c)(5) (2004)).
o Peace Corps Public Reading Room, (Public Reading Room, 22 C.F.R.303.5 (b) (4) and (d) (2004)).
o Legal Services Corporation (Public Reading Room, 45 C.F.R. 1602.5 (b)(4) (2004)).
o Federal Election Commission (Availability of Records, 11 C.F.R . 4.4 (a) (4) (2004)).
o Securities and Exchange Commission Commission (Records And Information, 17 C.F.R. 200.80 (a)(2)(vi) (2004)).
o Office of the Secretary of the Treasury (Public Inspection and Copying, 31 C.F.R. 1.4 (a)(4) and (b)(2004)).
o Federal Deposit Insurance Corporation (Publicly Available Records, 12 C.F.R. 309.4(a)(2)(D) (2004)).
Copying, 29 C.F.R. 102.117(a)(2)(vi) (2004)).
o Federal Housing Finance Board (Records Available to the Public, 12 C.F. R. 910.2 (b)(1)(v) (2004)).
o Department of Urban Development (Publicly Available Records,12 C.F.R. 1703.12(a)(4) (2004)).
o United States Postal Service (Availability of Records, 39 C.F.R. 265.6(a)(4)(2004)).
materials will be published on the Internet.
o Federal Trade Commission (The Public Record, 16 C.F.R. 4.9(b)(9)(ix) (2004)).
o Federal Financial Institutions (Council Records Available on the ASCs World Wide Web Site, 12 C.F.R. 1102.305(a)(2)(i)(D) (2004)).
o National Aeronautics and Space Administration (Types of Records To Be Made Available, 14 C.F.R. 1206.200(b)(1)(iv) (2004)).
o Overseas Private Investment Corporation (What Types Of Opic Records Are Publicly Available, And How Do I Obtain Access To Or Copies Of These Records?, 22 C.F.R. § 706.21 (a) (2) (2004)).
o Social Security Administration (Availability of Records, 20 C.F.R. 402.45 (d) (2004)).
o Environmental Protection Agency (Where Requests For Records Are To Be Filed , 40 C.F.R. § 2.101(c) (2004)).
o Chemical Safety And Hazard Investigation Board (Public Reading Room ,40 C.F.R. 1601.12(e) (2004)).