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The Age of Electronic Government: Will Washington Share Its Electronic Bounty?

by David H. Morrissey

CPSR News Volume 13, Number 2: Summer 1995

The year before, President Clinton had issued new Freedom of Information Act (FOIA) guidelines for federal agencies. The guidelines, which the administration promoted as "the most significant and far- reaching Freedom of Information Act development(s) to occur in many years,"² were said to be a major step toward expanding public access to federal computerized data.

Both actions were responses to the arrival of the age of electronic Government. As a congressional committee warned in 1990, by the year 2000 as much as 75 percent of Washington's vast storehouse of documents would be created, stored, and disseminated electronically.³

This wiring of Washington suggests that without electronic access to federal files the public will have little ability to monitor, approve, or object to what Washington does. It also suggests a key question: How much access do we now have?

The answer in 1995, halfway through Clinton's term, is clearly "not enough."

The Clinton FOIA policy is the first by a president to specifically mention federal electronic records and the public's right to access them. The president encouraged agencies "to enhance public access through the use of electronic information systems."⁵

Significantly, at the same time that the number of federal electronic publications is increasing, the number of federal documents printed on paper is decreasing. In an important study, the Office of Technology Assessment in 1988 discovered that federal agencies were already distributing an estimated 7,782 electronic publications, an increase of 216 percent in just five years. In a significant parallel finding, the OTA study also reported that "the number of civilian agency publications in paper format appears to be declining slowly."⁶ Both trends have continued.

Clinton's attention to issues of access to electronic records raised by the Freedom of Information Act is clearly a step in the right direction. FOIA, enacted in 1966 after years of hearings, provides a statutory right to examine records in the executive branch of the federal Government. It remains the primary law giving citizens a right of access to Washington's files. Records are presumed to be releasable, with the burden falling on the Government to demonstrate that documents come within one of the law's nine exemptions.⁷ Strengthened in 1974 during the Watergate crisis, FOIA has become a useful though not perfect tool for obtaining federal information. In the quarter century since its enactment it has matured, as one scholar concluded, "into a respected, sturdy and effective statute," as well as "a highly regarded legislative model."⁸ FOIA is regularly used by journalists, attorneys, political activists, historians, business executives, federal prison inmates, graduate students, members of Congress, and the occasional curious citizen.

The central problem presented to FOIA by the conversion of federal information to an electronic format is that this process creates a category of information not specifically addressed by FOIA and not contemplated by drafters of the law.

Arguably, this is an understandable oversight. In 1955, when Congress began debates over what would become FOIA, the federal Government owned just 45 computers.⁹ Eleven years later, in 1966, when FOIA was signed into law, the federal Government owned roughly 3,000 computers or about one computer for every 1,000 federal employees.¹¹ The survey taken after the Clinton FOIA policy was announced found not one agency had changed policies to make access to electronic records easier. Some called the president's policy too vague. Some said that they already practiced maximum disclosure and no change in their information access policies was needed. Most continued electronic record FOIA policies they had adopted years previously, policies which have been criticized by Congress and information-user groups as excessively restrictive.

Some agencies continue to insist that FOIA doesn't cover electronic data. Some have used the new technology to shift the burden of proof in FOIA cases, one of that law's most important reforms. Requesters seeking computerized data sometimes find that they must prove why information should be released in electronic form, a reversal of the law's requirement that federal agencies prove why information should be withheld.

These surveys reveal that at the same time that new technologies have made it increasingly possible to access Washington's computerized records, some federal agencies are treating electronic information as a special class of data, outside the range of FOIA, and often off limits to the public. A law that clearly covered paper information is now said to no longer apply when the same information is stored electronically, even after President Clinton called on agencies to change their actions.

It should be noted that Clinton's policy also limits when the Department of Justice (DOJ) can go to court and defend agencies withholding documents requested under the FOIA.¹² Clinton replaced Reagan/Bush FOIA guidelines, established in 1981, which required the DOJ to defend agencies denying FOIA requests if there was "a substantial legal basis" for secrecy. In effect, agencies were told "when in doubt, deny requests."

The Clinton policy requires agencies to cite a specific "foreseeable harm" before the DOJ will defend them in court, a policy often called, "When in doubt, release."¹³ If not overturned by a new administration, this segment of Clinton's policy should eventually increase public access to electronic records.

As to Congress? Recently, it has attempted to address issues concerning electronic records twice. In 1994 the Senate passed, but the House killed, the Electronic Freedom of Information Improvement Act, sponsored by Senators Patrick Leahy, a Vermont Democrat, and Hank Brown, a Colorado Republican.¹⁴ The bill (which may be reintroduced)¹⁵ would define FOIA-releasable records as including "computer programs, machine readable materials, and computerized, digitized, and electronic information..."¹⁶ It would require agencies to make reasonable efforts to create or modify computer programs; search for and retrieve electronic records; create or modify computer programs to segregate information; and provide information in formats specified by requesters.¹⁷

Congress did pass the GPO Access Act in 1994, and the Government Printing Office now provides online access to several thousand government documents, including the Federal Register and the Congressional Record.¹⁸ President Clinton said he signed the measure "with great pleasure," adding it would "enhance electronic access by the public to federal information... Federal agencies can make government information more accessible to the public, and enhance the utility of government information as a national resource, by disseminating information in electronic media."¹⁹

But while the measure offers a potentially useful source of electronic access, it fails to address problems raised by FOIA requests for electronic documents. Congress left control over which records will be disseminated electronically with the agencies, not the requesters. The measure covers only a small number of the electronic documents generated by the federal government, and makes agency participation voluntary.²⁰ The agencies, in effect, have been given a veto, allowing them to release only the information they want to release. Information for which FOIA was written, which agencies often do not want to provide, is not required to be released.²¹ In addition, Congress didn't fund the new program. As Judy Russell, the Director of Electronic Information for the Superintendent of Documents noted, this will require the GPO to cooperate closely with agencies providing electronic information, as those agencies will bear some of the cost of providing data. "We won't list anything an agency doesn't want listed. It has to be a cooperative effort," she said.²²

A few addendums:
Clinton's policies at mid-term must also be interpreted in light of several other recent presidential actions. While some have assessed the president's commitment to open government as long on promises and short on specifics, Clinton has on occasion backed his words with action. On November 10, 1994, the president signed an executive order declassifying almost 44 million pages of previously secret, primarily World War II-era records held by the National Archives and Records Administration.²³ According to the Archives, "this bulk declassification represents approximately 14 percent of the National Archives holdings of classified material and is the largest single group of classified material ever declassified by NARA."²⁴

In another move indicating support for a less secretive federal government, the president issued an executive order on February 24, 1995, that declassified national security satellite imagery for the first time. The order will release more than 800,000 spy satellite photos collected between 1960 and 1972.²⁵

In addition, on April 26, 1993, the president issued Presidential Review Directive (PRD) 29, which ordered a review of the security classification system.²⁶ The work of the review committee has not yet been officially published. But the committee has prepared a draft executive order that has been discussed in the press²⁷ and by the American Bar Association's Standing Committee on Law and National Security.²⁸ The draft order would expand the volume of national security information releasable under the FOIA, apparently expanding electronic access in the process, and overturn much of the existing, restrictive order on security classification.²⁹

The history of federal information policy suggests that detailed presidential or congressional action can increase public access to Washington's information. Passing FOIA demonstrated this change. But as survey responses from the 70 agencies suggest, broad general statements of intent produce only minimal agency change.

The president and Congress appear to want expanded electronic access. The rapid computerization of Washington suggests that increased electronic access is needed. But to a large degree it has not yet arrived. Few agencies are actively releasing electronic files. Many electronic records remain difficult to obtain. The agencies, not the public, still set most policies guiding release of electronic federal records.

Notes
¹Government Printing Office Electronic Information Access Enhancement Act of 1993, 44 U.S.C. sec. 41 (1993). (The measure was enacted in 1993 and took effect the following year.)

²FOIA UPDATE U.S. Department of Justice Vol. XIV, No. 3, (Summer/Fall 1993) 2.

³H.R. Rep. No. 978, 101stCong., 2d Sess. (6 Nov. 1990) 2.

⁴President Bill Clinton, "Memorandum For Heads of Departments and Agencies, Subject: The Freedom of Information Act." Washington. 4 Oct. 1993.

⁵H.R. Rep. No. 978, 101st Cong., 2d Sess. (6 Nov. 1990) 2. By the early 1990s, there were more than 10,000 federal government data bases. See: Matthew Lesko, The Federal Data Base Finder: A Directory of Free and Fee-Based Data Bases and Files Available from the Federal Government, 3d ed. (Kensington, Md: 1990).

⁶Office of Technology Assessment, Informing the Nation. (OTA: Washington, 1988) 27; 31.

⁷Harry Hammitt, "The Freedom of Information Act," The Reporter's Handbook, 2d ed. (New York: St. Martins Press, 1991) 73-99. See, also: Freedom of Information Act, 5 U.S.C. sec. 552 (1974).

⁸Harold Relyea, "The Freedom of Information Act in America: A Profile," Access to Government Records: International Perspectives and Trends, ed. Tom Riley (London: Chartwell-Bratt, 1986) 17.

⁹ U.S. Department of Commerce, National Bureau of Standards," Computers in the Federal Government: A Compilation of Statistics," NBS Special Publication 500-7 (Washington: U.S. Government Printing Office, 1977) 3.

General Services Administration, Automated Data and Telecommunications Service, Inventory and Summary of Federal ADP Activities for Fiscal 1972 (Washington: General Services Administration, 1973) 2; 5; 12; 36.

U.S. Department of Commerce, National Bureau of Standards, "Computers in the Federal Government: A Compilation of Statistics-1978," NBS Special Bulletin 500-46 (Washington: U.S. Government Printing Office, 1979).

¹⁰Ibid.

¹¹I conducted surveys in mid-1993 and mid-1994. The surveys revisited a 1989 Department of Justice survey of the same 70 federal agencies. In each survey the following questions were asked:

1. Does FOIA require agencies to create new computer programs (or modify existing programs) for search purposes, i.e., in order to search for and retrieve electronic records according to the particular specifications of FOIA requesters?
2. Does FOIA require agencies to create new computer programs (or modify existing programs) for "processing" purposes, i.e., in order to segregate disclosable from nondisclosable electronic record portions?
3. Does FOIA require agencies to provide requested records in the particular forms (or database formats) specified by requesters?
4. Is computer software an "agency record" under the Freedom of Information Act?

1. Have you issued any new regulations or policies for responding to Freedom of Information Act requests since the new FOIA policy was announced on October 3 by the president and attorney general?
2. Has the new policy resulted in any changes in how you process FOIA requests for paper or electronic records?
3. Has the new policy resulted in any increase of information released under FOIA?
4. Do you foresee the new policy ultimately causing any changes in how you respond to FOIA requests?

¹³U.S. Attorney General, "Memorandum For Heads of Departments and Agencies, Subject: The Freedom of Information Act." Washington. 4 Oct. 1993.

¹⁴U.S. Sen. Patrick Leahy, "Statement of Senator Patrick J. Leahy. Introduction of the Electronic Freedom of Information Improvement Act of 1993 ' Nov. 23, 1993. See, also: FOIA Update, U.S. Department of Justice. Vol XV, No. 3, (Summer, 1994) 1.

¹⁵The measure was essentially the same as one introduced in a previous session. See: S.B. 1940, 102d Cong., 1st Sess. (1991).

¹⁶ S.B. 1782, 103d Cong., 1st Sess. (1993).

¹⁷ Ibid., sec. 7; 5.

¹⁸Government Printing Office Electronic Information Access Enhancement Act of 1993, 44 U.S.C. sec. 41 (1993).

¹⁹ President William J. Clinton, "Statement by President William J. Clinton Upon Signing S. 564," Weekly Compilation of Presidential Documents (Washington: Government Printing Office, 14 June 1993) 29:1043.

²⁰Jim Byers, Graphics System Development Division, Government Printing Office, private interview, Washington, 11 May 1994. Sarah Jones, Research Assistant, U.S. Congress, Joint Committee on Printing, private interview, 10 May 1994.

²¹Judy Russell, private interview, Washington, 11 May 1994.

²²Judy Russell, private interview, Washington, 11 May 1994.

²³Executive Order 12937. Federal Register, Nov. 15, 1994, p. 59097.

²⁴"Opening Long-Secret Records," The Record: News From The National Archives and Records Administration. Vol. 1 No. 3, January, 1995, 1.

²⁵"Big Picture of Cold War: U.S. Spy Photos Go Public," New York Times, 25 Feb. 1995. 8A.

²⁶Information Security Oversight Office, Report to the President, 1993 2.

²⁷Accounts of the proposed new executive order have appeared in: New York Times 18 March 1994, A1; Washington Post, 13 Jan. 1994, A25; Washington Post, 30 March 1994, A14; National Journal, 16 Feb. 1994, 472; National Security Law Report March-April, 1994: 1.

²⁸William E. Conner, "National Classification System Update," National Security Law Report 16:3-3 (March-April 1994): 1.

²⁹The existing order on security classification, No. 12356, was issued in 1982 by President Reagan and has been criticized by Congress and various information user groups as excessively restrictive.

See:
President Ronald Reagan, "Executive Order 12356," Public Papers of the Presidents: 1982 (Washington,: Government Printing Office, 1983) 98.

H. R. Rep. No. 97-731, 97th Cong., 2d Sess. 3 (1982) 12.

Morton Halperin, "Increasing Government Secrecy: Revising the Classification Order," First Principles (November, December, 1981): 8.

Dr. Morrissey taught in the Department of Technical Journalism at Colorado State University. A former investigative reporter, he monistored government secrecy and government information policies

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