The CPSR Newsletter
Volume 13, No. 2 COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY Summer 1995
Access to Electronic Records 3
Will Washington Share Its
Electronic Bounty? 5
Problems with Information
Archival issues Raised by
Information Stored in
Electronic Form 11
Public and Private Networks, and the Status of Public
Records, Open Meetings, and FOIA 13
CPSR and EPIC FOIA Cases:
Current Status 14
FOI and First Admendment related Resources on the
Six Tips for Starting a State
Freedom of Information
Director Search 20
Public Information 21
Chapter Updates 22
Computers, Government, and Access to Electronic Records
by Marsha Woodbury Director-at-Large, CPSR
It is the invariable habit of bureaucracies, at all times and everywhere, to assume . . . that every
citizen is a criminal . . . The moment they become aware of a definite citizen, John Doe, seeking what is
his right under the law, they begin searching feverishly for an excuse for withholding it from him.
ÑH. L. Mencken, "Life under Bureaucracy," 1927
It's appropriate to preface this issue of the CPSR Newsletter with a "fighting" quote from Mencken.
Although I, the guest editor, have worked successfully with government officials to obtain government
information, I and many other journalists and activists have met Mencken's bureaucrats as well. The
law may state that we have access to certain records, but we can't always acquire them, particularly in
a useful format.
The articles in this issue should update your knowledge of what freedom of information laws are, how
these laws treat electronic records, and what we, as computer professionals and concerned citizens,
should know about our responsibilities for creating, maintaining, and using databases. Our purpose
herein is to discuss how computers and digitized records will change your access to government data. In
order to focus on the topic, I left the issues of copyright, maintaining the integrity and authenticity of
records, and protecting personal privacy for future editors to cover.
One piece of advice: always try to obtain information without resort to the law. Once you make a formal
request, the government officials can find many reasons for not filling it, and you may wait for years.
You can catch more bytes with honey than with vinegar, as it were.
Freedom of Information
The people like to believe they have the right to oversee their elected or appointed officials, even if they
in truth cannot always get the information they seek. The FOIA [Freedom of Information Act, pronounced
foya] is a romantic notion and not the ultimate guarantee of responsible government.
ÑAntonin Scalia, "The Freedom of Information Act Has No Clothes," 1982
Freedom of information, or "the right to know," is an emotional issue. The concept's undergirding
philosophy recognizes that the public, as "the people" with a common interest in the common good, has
"the right to know." In contrast, a totalitarian government doesn't even go through the motions of
openness. Those who believe in the right to know hold that an informed public is a safeguard against
governmental abuse of power; yet, no matter how open a government aspires to be, it can hardly avoid
reining in access to and release of information, in order to govern. For any nation accustomed to
"freedoms" such as the freedom of speech or religion, labeling legislation a freedom of information law
gives it an emotional boost that the word access would fail to provide.
Other countries adopted freedom of information laws before the United States did. Sweden has had right-
of-access since 1766. Finland passed its freedom of information law in 1951, Denmark in 1964.
When the United States federal government adopted a FOIA in 1966, it applied only to records in the
possession of agencies and departments of the Executive Branch, such as Agriculture, the Justice
Department, and Health, Education, and Welfare. Congress and the Judicial Branch remained exempt.
Each of the 50 states has its own FOIA legislation, so a citizen's right of access to records very much
depends on where she or he lives. My state, Illinois, was the last state in the Union to adopt a FOIAÑeven
Mississippi beat it to the post. However, in Illinois a record stored in electronic form is considered an
official public record, a clarification that other states have not made.
The articles that follow should broaden our knowledge of what has been happening to federal, state, and
local FOIAs as records are increasingly stored in electronic form.
The first article, by the Reporters Committee for Freedom of the Press, defines many of the issues and
offers guidance about how to prepare a FOIA request. Next, David Morrisey, a professor in Colorado,
writes about the lack of government preparation for electronic access. In the subsequent article, Eileen
Gannon describes how the Environmental Working Group acquires and translates data in order to
provide information to the public.
Archivists have many legitimate concerns about how the government stores its records electronically.
The Society of American Archivists has written a position statement on archival issues to guide your
planning. This statement is followed by the concerns of James Love, who fills us in on public and
private networks in regard to the status of public records and open meetings under FOIA.
David Sobel has contributed an update on the CPSR and EPIC lawsuits, some of which concern FOIA
issues. Joel Campbell gives some tips for starting a state freedom of information organization. Dave
Gowen relates his own experience in acquiring electronic data. Finally, we include a list of listservs,
Gopher, web, and FTP resources for further information. I hope this newsletter will do three things:
1. Help you to obtain and use information stored in digital form, whether browsing it online, doing
research, or monitoring the government.
2. Make us all more aware of the pitfalls and plusses of digital record-keeping, and how we can use our
expertise to help others.
3. Lend support to the journalists, archivists, and activists who are working hard to insure our right
to know. People who save a tree or historic building enjoy more publicityÑtheir acts are visual and
dramatic. A person who stops a mass "delete" or puts up government web pages earns little public
acclaim. This newletter gives them the attention they deserve.
Mencken, H.L. "Life Under Beaurocracy." Prejudices: Sixth Series, (New York: A.A. Knopf, 1927):
Scalia, Antonin. "The Freedom of Information Act Has No Clothes." Regulation 6(2) 1982: 14-19.
tion 6(2) 1982: 14-19.
Marsha Woodbury, a Director-at-Large on the CPSR Board of Directors, is the Associate Director of
Education at the Sloan Center, University of Illinois, Urbana-Champaign. She can be reached at
Access to Electronic Records
by the Reporters Committee for Freedom of the Press
When the Houston Chronicle requested a computerized COW of records on Texas's 12 million drivers,
the Department of Public Safety agreedÑfor $60 million.
When the Dayton Daily News wanted to beef up its computerized reporting, the county government
allowed the newspaper to hook up to its electronic jail files, court records, mortgage deeds and voter
registration recordsÑfor $40 a month.
And when a freelance reporter requested copies of electronic mail written by high-level administrators
at the University of Michigan, the school said the information was off limits. But in Washtenaw County,
where the Ann Arbor campus is located, the county government disagreed, and adopted a resolution to
make the county government's email an open record.
Similar stories of electronic nightmares and nirvanas are commonplace across the country.
Confrontations result in lawsuits, legislative action, and policy decisions, which reach widely varying
conclusions in different states, cities, and agencies. Reporters often struggle for access to database
information. The Brechner Center for Freedom of Information in Gainesville reported in 1991 that 75
percent of Florida journalists surveyed said their access to computer records had been impeded by
government agencies. In addition, cost dissuaded 38 percent of responding newspapers from seeking
Certain conflicts over access to electronic records are especially common.
Public Access Terminals
Even obtaining copies of records in a generic format has been an issue for small news organizations
unable to purchase the tapes or disks. To avoid the expense, many reporters go to agency offices to read
Some agencies provide computer terminals for public use. Others post printouts of electronic files for
public inspection. Montana is among the growing number of states that are beginning to put legislative
information on line with remote access over the telephone.
Exemptions and Privacy Concerns
Electronic records are subject to the same exemptions from disclosure under open records laws as
75 percent of Florida journalists surveyed said their access to computer records had been impeded by
Will That Be Paper or Diskette?
The right of a requester to demand that information be provided as a computer printout, a computer
tape, a disk, or in some other form varies by state.
The format in which information is produced can render data either very useful or practically useless.
A computer can search through millions of drivers' records in a relatively short period. The same task
could take a reporter weeks of poring over paper records.
Legislatures have begun to address the issue of data manipulation. When an agency wants to restrict
access to information, the records custodian may say that manipulating database information is
"creating" a new record, which is often not required by law.
Others argue that "creating" a specialized record is the very essence of why databases are set up. Their
primary function is to permit users to manipulate data and information.
Often, statutes that regulate the practice do not require an agency to manipulate computer data for
requesters, but neither do they prohibit an agency's compliance with such requests.
Obtaining the Software
Among all electronic records questions, perhaps the responses vary most in cases concerning the
release of software. Nearly every state allows agencies to keep information confidential if it qualifies as
a "trade secret." The definition of a trade secret, however, varies from state to state and does not
necessarily apply to software.
There are disputes over whether requesters may obtain copies of specific software to read coded
electronic records. Copyright issues arise when requesters seek certain types of software. Commercial
software is privately produced and licensed to the government, as with any other license.
Some software is prepared by a state agency or university. State-created software is arguably not
proprietary since it was built using state money. However, unlike the federal government, some states
claim that they may copyright items such as statutory compilations and computer programs. On the
other hand, many states, like the federal government, do not recognize the concept of a government
Most states that have chosen to regulate access to software explicitly simply exempt it from their
public records statutes, regardless of whether the program is commercial or agency-written.
The fees an agency charges for access to electronic data are critical to many requesters. Arbitrary and
prohibitively high fees can undercut a requester's ability to invoke freedom of information laws.
There are nearly as many approaches to fees as there are states. Fees for computer time, programming
time, printouts, supplies, labor, and overhead may be assessed against the requester. Many statutes
dictate that an agency may not charge more than "actual cost." However, the National League of Cities
resolved in December 1993 that cities and towns should set higher fees for access to electronically
stored public information than for providing paper copies, to offset the costs of developing better
computer systems. Many officials attempt to recoup more than costs. Their agencies try to use
electronic records to generate revenue for the government's coffers. In response, members of the
public often point out that they have already paid for electronic information systems through their
Reasons for Denial
Government agencies still deny requests for electronic information in many cases. Common reasons that
agencies give are that:
¥ The same material already exists in printed documents.
¥ Public and private information are mixed together in the database.
¥ The open records law does not require the agency to "create" a new record by running a specific
search or program.
¥ Agency programmers will be prevented from performing their "real" duties.
¥ Software is proprietary or copyrighted and thus cannot be distributed.
Geographic Information Systems as Cash Cows
Municipal governments have quickly realized that members of the public are willing to pay money,
sometimes large sums, to obtain access to specialized computer systems. One of the more popular types
of systems is the Geographic Information System (GIS), which can overlay large databases with
regional maps. A political party might use a GIS to sketch future district lines; a mail-order house, to
target potential customers.
The substantive conflicts over GIS access involve fees and the desire of various governmental bodies to
turn these systems into cash cows. At least 25 states have GIS laws on the books. Some GIS laws, such as
Arizona's, are codified in the public lands code. Alaska's GIS law appears in its education code. Florida's
law is included in the section on appropriations. California includes rules governing disclosure of GIS
records in its open records law.
Planning a Strategy for Obtaining Access
Here are some practical suggestions to improve your chances of getting an electronic record in the form
you need. A well-developed strategy may be more important for obtaining access to electronic records
than for obtaining more traditional records.
Check whether online access is available. Downloading information into your own computer may save
time and money. However, many agencies charge access time fees.
Gather Information Before You Make a Request
Determine whether data in the computer file are confidential under state law. If the information is
exempt from disclosure under your state public records law, you probably will not get it more easily
because your request is for an electronic file. But when in doubt, ask. Officials will tell you if they
believe it is confidential. Establish whether the computer file contains information not in paper files.
That information may be important to establish a right to the computer file rather than voluminous
Learn whether an agency can satisfy your request without additional software. If possible, determine
whether the records custodian could easily supply a government official with the same information in
the format you seek.
Agencies may use the need for more programming as an excuse to deny access. As a federal agency
official observed, "Programming a computer may involve a simple procedure that can be done in a few
minutes," or it may demand "many manhours to write a complex program." If an agency has issued
computer-generated documents similar to those you seek, obtain those documents for evidence of its
ability to meet your request.
If you want a tape, disk, or other electronic copy, make sure it will be compatible with your equipment.
Reporters need to understand what their own equipment will do and what the agency's equipment can
provide. Sometimes the news organization's computer specialist can discuss this with the agency's
Make an Informal Oral Request
Determine whether an agency will be cooperative before using tactics that might be viewed as
confrontational. A records custodian may provide records you need without requiring a formal request.
If the agency makes electronic records available to other agencies, it may produce them for a requester.
Many agencies now make computer terminals available for public use.
Make a Formal Written Request
Develop a good "paper trail." As you appeal an adverse decision, documentation of your request and the
agency response will be valuable.
Show that your request is reasonable by including information you reamed earlier. If state statutes
support your request, cite them. If any court decisions from your state support your request, cite those
as well. Alternatively, cite other state or federal cases, especially those from jurisdictions that have
public records laws similar to yours.
Because of the potential costs of computer access, it is important to discuss fees in your request letter.
Ask that the agency incur no costs until it advises you, or state the maximum you are willing to pay. Ask
for fee waivers where appropriate. Offer to discuss your request with agency officials to avoid delays.
Follow any denial with oral negotiations. Ask a records custodian if you can narrow a request to satisfy
the custodian's concerns or reduce fees. Try to negotiate lower fees if necessary.
Appeal if Necessary
Determine whether an administrative appeal is available. Some states allow, or even require, review
by another public official before an appeal to a court. Explain in detail why your request is, or ought to
be, covered by the state open records law and why a denial is unlawful or unreasonable. Pursue a
judicial appeal if necessary. If your request is important enough to you, it may warrant an appeal to a
court. Seeking legal representation is best, but if you cannot afford an attorney, you may be able to
pursue your own appeal. All evidence you have gathered will be important at this stage. You must also
address cases that weaken your position. If a case is contrary, demonstrate how your situation is
different from that of the earlier case.
Reprinted and condensed from the introduction to Access to Electronic Records, a publication of the
Reporters Committee for Freedom of the Press Copyright 1990, 1991, and 1994 by the Reporters
To obtain copies of the full 28-page report, including a :state-by-state survey of electronic access
laws and practices, please send $6.00 to The Repotters Committee for Freedom of the Press, 1101
Wilson Blvd., Suite 191O, Arlington, VA 22209 To obtain a list of publications offered by the
Reporters Committee, call 703-807-2100 or send email to firstname.lastname@example.org with "request list''
(without quotes) as the subject line of the mail Specify "request help" as the subject for a list of free
publications and services available from our email infobot.
The Age of Electronic Government: Will Washington Share Its Electronic Bounty?
by David H. Morrissey
Last year Congress provided online access to thousands of federal documents when the Government
Printing Office (GPO) Electronic Information Access Enhancement Act went into effect.'
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 1995Ñhalfway through Clinton's termÑis 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."4
This is an important milestone in light of the speed at which federal agencies are converting to
electronic formats. The number of federal databases and electronic documents is growing rapidly.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 computersÑor about one
computer for every 1,000 federal employees.'¡ It thus perhaps isn't that surprising that FOIA doesn't
mention computers or electronic records. At the time, they seemed largely irrelevant to the law.
Increasingly, however, this is an omission difficult to overlook. Many federal agencies have said that
the law's vagueness in addressing computerized data means that the measure doesn't necessarily apply
to such information. Some have continued to maintain this position, even after Clinton issued his new
These views are revealed in two surveys I conducted of 70 federal agencies, one in 1993 shortly before
the Clinton FOIA policy was announced, and one in 1994, eight months after the Clinton policy had been
in effect. " 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 Ñpolicies which have been criticized by Congress and information-user groups as
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 casesÑone of that law's most important reforms.
Requesters seeking computerized data sometimes find that they must prove why information should be
released in electronic formÑa 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
electronicallyÑ 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
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
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 Ñwhich agencies
often do not want to provideÑis 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
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 FOIAÑ apparently expanding electronic access in the processÑand 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
1 Government 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.)
2 FOIA 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.
4 President Bill Clinton, "Memorandum For Heads of Departments and Agencies, Subject: The Freedom
of Information Act." Washington. 4 Oct. 1993.
5 H.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).
6 Office of Technology Assessment, Informing the Nation. (OTA: Washington, 1988) 27; 31.
7 Harry 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).
8 Harold 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).
11 I 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:
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?
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
Does FOIA require agencies to provide requested records in the particular forms (or database formats)
specified by requesters?
Is computer software an "agency record" under the Freedom of Information Act?
In the 1994 survey, additional questions were asked:
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?
Has the new policy resulted in any changes in how you process FOIA requests for paper or electronic
Has the new policy resulted in any increase of information released under FOIA?
Do you foresee the new policy ultimately causing any changes in how you respond to FOIA requests?
12 President Bill Clinton, "Memorandum For Heads of Departments and Agencies, Subject: The Freedom
of Information Act." Washington. 4 Oct. 1993.
13 U.S. Attorney General, "Memorandum For Heads of Departments and Agencies, Subject: The Freedom
of Information Act." Washington. 4 Oct. 1993.
14 U.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.
15 The 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.
18 Government Printing Office Electronic Information Access Enhancement Act of 1993, 44 U.S.C. sec.
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
20 Jim 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.
21 Judy Russell, private interview, Washington, 11 May 1994.
22 Judy Russell, private interview, Washington, 11 May 1994.
23 Executive 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.
26 Information Security Oversight Office, Report to the President, 1993 2.
27 Accounts 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.
28 William E. Conner, "National Classification System Update," National Security Law Report 16:3-3
(March-April 1994): 1.
29 The 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.
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 teaches in the Department of Technical Journalism at Colorado State University. A
former investigative reporter, he how monitors government secrecy and government information
policies. he can be reached at email@example.com.
Jim Warren, a long-time CPSR activist, played a key role in the passing of the California Legislature's
Assembly Bill 1624, which givers the public electronic access to almost all public information about
legislation in process, all current state statutes and the the voluminous California Constitution.
The Jim Warren Gopher is a collection of electronic newsletters distributed by him on the subjects of
political action and government access through the use of computer communications.
You can find it at gopher://gopher.path.net:8102/1.
Jim is the founder of Infoworld magazine, Dr. Dobbs Journal and the West Coast Computer Faire. He
chaired the first conference on Computers, freedom and Privacy and now sits on the board of directors
Solving Environmental Problems with Information Technology
by Eileen Gannon
A tall man pushing a cart full of TV cameras and equipment catches my eye as he passes by my office.
The second one today, the tenth in two weeks.
He is headed down the hall, where all of them have gone, to a spacious room filled with the best
equipment Apple Computer makes and three computer programmers who manage about 200 gigabytes of
data. Media representatives are so common in our office that we're no longer surprised when reporters
from the New York Times or "Primetime Live" set up residence.
They're here for one reason: the Environmental Working Group (EWG) has unlocked important
governmental data and developed database applications that allow anyone who can click a mouse to scan
numerous details about the economy and the environment in every county, congressional district, and
state in the nation. We pull most of the information from government databases that would have
otherwise been ignored or stored away on bureaucratic mainframes.
It all started three years ago, when Ken Cook and his staff of three at the Center for Resource Economics
(now EWG) started filing Freedom of Information Act requests in electronic form. Since most of the data
had never been requested outside of the government, the process was arduous and slow.
Eventually the data started to arrive on nine-track tapes. EWG knew the power of the information, but
was faced with the question of how a small, startup nonprofit could afford to purchase the needed
computers and staff even to download *e data, not to mention programming, manipulating, analyzing,
and understanding millions of records. Then along came an EarthGrant from the Apple Computer
Corporation in the spring of 1993. Click. EWG was off, with one full-time and one part-time computer
Now a 15-member group, who just received a second EarthGrant of nearly $100,000 in equipment,
EWG performs analyses of large, previously unpublished computer records to "georeference"
environmental policy issues. The results of our studies have been on the pages of every major and most
minor newspapers in the country.
Our first big hit was the report Pesticides in Children's Food published in June 1993. The day it was
released, the Clinton Administration announced a historic change in federal policyÑa commitment to
reduce pesticide use in agriculture. The computer story behind Pesticides in Children's Food illustrates
how we work.
What made the report so powerful was our innovative analysis of Food and Drug Administration (FDA)
data from their testing program for pesticide residues in food. No one had requested or obtained these
FDA data files beforeÑbut we did, through the Freedom of Information Act. FDA refused to give us the
information in electronic form as we asked; instead, they printed out 6,000 pages and shipped them to
us. Undaunted, we took 1,700 of those pages to a commercial scanning shop and recreated the
government's database. Then our staff proofread it for 10 days against the original hard copy.
That database detective work enabled us to analyze pesticides in 22 foods that are heavily consumed by
infants and children under the age of five. We found, among other things, that little kids get much of
their lifetime "allowable" dosage of pesticides from food in the first few years of life. They get a much
larger dose of carcinogens in food than previously estimated. And if they are among the millions of
children whose drinking water comes from surface water supplies (as in most midwestern cities), they
consume a very large dosage of carcinogens in the tap water that they drink directly or in infant
Having done this analysis, we then took great care to present the information responsibly and
constructively. We did not want to inspire a food scare or prompt consumer hysteria. We wanted to
provide straight information about real risks that can and should be eliminated in the foods that little
kidsÑand the rest of usÑeat almost every day. It was that tone, and the authoritative substance of our
work, that persuaded three federal agencies to officially recognize our work and its importance to their
More studies with similar impact followed: Tap Water Blues, an original analysis of 20,000 water
samples, brought the issue of herbicides in drinking water to the 14 million people who are routinely
exposed to such pollution. The U.S. Environmental Protection Agency not only adopted our study
methodology, but initiated a special review of three of the five herbicides we analyzed in the report.
EWG's greatest feat so far, in mid-March 1995, was the report City Slickers, which tracked farm
subsidy payments flowing into the 50 most populous cities in the nation. We found that over the past
decade, taxpayers wrote 1.6 million agriculture subsidy checks worth more than $1.3 billion to a-
handful of absentee owners, corporations, and other ''farmers'' who live smack in the middle of the
country's biggest cities. EWG's analysis of 110 computer records of $106 billion-worth of farm
subsidy payments made since 1985 found over 74,000 recipients whose current mailing address is in
at least one of those top 50 cities. When we looked at major suburbs and satellite cities of just 28 of the
50 cities, we found another $528 million, bringing total payments to $1.8 billion.
This study, which will be followed by a series of EWG studies on the structure and function of federal
agricultural assistance, comes at a time when budget cutters want to overhaul farm programs. EWG
aims to inform and invigorate the debate to help family farmers who live on the land and to protect the
environment on which they depend.
EWG will continue to apply its capabilities in research, data and policy analysis, technical assistance,
and outreach to issues of toxics, ecosystem protection and management, and environmental budget
matters, among others. This expansion will include aggressively obtaining and analyzing hundreds of
datasets within the U.S. Environmental Protection Agency whose enormous potential for environmental
activism has never before been useable.
EWG's goal is to use information technology to help activists achieve environmental reforms at the
local, state, and federal levels. EWG gives activists the ammunition they need to raise awareness of and
interest in environmental problems among the media and in the policy community by using information
relevant to their own backyards. We also help environmental advocates participate in a more consistent
and coordinated fashion in policy debates extending beyond their communities. Reversing the old adage,
we aim to help environmentalists "think locally, act globally"
Eileen Gannon is Director of Development and Finance for the Environmental Working Group. She can
be reached at 202-667-2982 or firstname.lastname@example.org.
AGENCY: National Institute of Standards and Technology (NIST), Commerce.
ACTION: Request for comments.
SUMMARY: NIST is considering the development of a Federal Information Processing Standard (FIPS)
for the data elements which, when taken together, will describe information objects of many different
kinds, both electronic and non-electronic. The standard would apply to a wide range of information-
creating software products. It would apply also to software products for document management and
object repository. Federal agencies would use the standard in specifying many software products used to
create documents or information objects (for example, electronic mail systems), and also when
specifying products for the storage and management of documents and objects This notice uses the word
record as a broadly encompassing term that includes documents and objects, regardless of media or
The framework for this proposed FIPS was developed by a working group of the interagency Integrated
Services Panel, under the Federal Information Resources Management Policy Council. NIST solicits
comments on the scope, purpose, background, and rationale for the proposed standard, and on certain
technical issues. After analyzing the comments, NIST may propose a FIPS for review and comment.
DATES: Comments on this effort must be received within 90 days.
ADDRESSES: Written comments should be sent to: Director, Computer Systems Laboratory, ATTN: Data
Standard for Records Description,
Technology Building, Room B154, National Institute of Standards and Technology, Gaithersburg, MD
Written comments received in response to this notice will be made part of the public record and will be
made available for inspection and copying in the Central Reference and Inspection Facility, Room 6020,
Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, N.W.,
Washington, DC 20230.
FOR FURTHER INFORMATION, CONTACT: Mr. Bruce K. Rosen, National Institute of Standards and
Technology, Technology Building, Room A-266, Gaithersburg, MD.
Archival Issues Raised by Information Stored in Electronic Form
The Society of American Archivists (SAA) Position Statement
Increasingly, individuals and organizations use computers and telecommunications technologies to
communicate and conduct business. The rapid change in recordkeeping technologies and practices raises
concerns about the retention, access, and preservation of information stored in electronic form.
The most widely publicized legal case that addressed these issues, known as the PROFS litigation, was
initiated by a Freedom of Information Act request for access to electronic documents maintained by the
The PROFS litigation has caused judicial review of questions relating to the legal status of information
stored in electronic mail systems and authority over the disposition of federal records, presidential
records, and personal materials of federal officials.
The PROFS litigation raises many specific legal issues concerning the Freedom of Information Act, the
Federal Records Act, the Presidential Records Act, and the Administrative Procedures Act, as well as
specific technical concerns regarding the design and configuration of information systems.
The implications of the legal cases reach beyond the particular records, individuals, and institutions
involved in the legal actions. Their resolution will have a lasting impact on the nature of historical
records in the information age and on the ability of researchers to use electronic records as reliable,
authentic evidence of past events, facts, and actions.
Therefore, the Society of American Archivists, the largest and oldest association of archivists in the
United States, representing more than 3,000 individuals and 500 institutions, proclaims its position
1. Electronic communications that are created, stored, or transmitted through electronic mail systems
in the normal course of activities are records.
2. Professional archivists should have exclusive authority to determine the long-term value of records
and the most appropriate methods for ensuring preservation of and continuing access to them. In
determining the long-term value of records, archivists should be shielded from undue political or
Archivists must have sufficient authority and independence to determine the adequacy of documentation,
the effectiveness of recordkeeping systems, and the continuing value of records. Archivists should not
be pressured into approving the destruction of records because they may implicate, embarrass, or
expose to unfavorable publicity the originators or subjects of the records.
These decisions must be based exclusively on professional judgment, guided by a professional code of
ethics that forbids professional archivists from revealing or profiting from information they
encounter in the course of their work.2
3. Preserving electronic records and providing continuing access to them will require significant
changes in recordkeeping policies and practices and an enhanced role for archivists in designing
recordkeeping systems, appraising records, and setting standards for their retention and preservation.
Electronic records pose significant challenges to the archival profession. The PROFS litigation is only
one of many examples that illustrate the need for new methods and approaches to the long-term
preservation of electronic records.
To reduce the risk of legal actions, loss of valuable records, and expensive recovery procedures,
recordkeeping requirements must be identified so that systems can automatically segregate records
from non-record material. Organizations must then take appropriate measures to ensure that records
with continuing value are not corrupted inadvertently, deleted intentionally, lost through system
failure, or rendered inaccessible by hardware or software obsolescence. Professional archivists can
provide advice that would allow for the creation of systems able to
¥ Automatically segregate records from other forms of information
¥ Maintain the integrity and authenticity of records
¥ Ensure the accessibility of records over time
¥ Protect the confidentiality of records
¥ Ensure appropriate flow of records in relation to administrative processes
¥ Maintain proper documentation of systems, records, and transactions
¥ Administer the regular and orderly disposition of records with no continuing value
Archivists can provide advice on storage media for short- and long-term preservation, on retrieval
systems, and on proper procedures for the control, audit, and review of recordkeeping practices.
In 1993, the Society of American Archivists Council endorsed curriculum guidelines for automated
records and techniques, recommending that all professional archivists become familiar with the basic
concepts of electronic recordkeeping and automation in archives by the year 2000. In 1994, the
Society of American Archivists established an Electronic Records Strategies Task Force to provide
further guidance to the profession on electronic records issues.
Notwithstanding the many initiatives that the Society has taken, is taking, and will continue to take, the
challenges presented by the ever increasing use of new information technologies and the rapidity with
which they change are too formidable to be dealt with in isolation. A larger collective effort is needed to
ensure that individuals and organizations acting on behalf of society remain accountable for their
actions and that future generations can look to earlier records for inspiration, warning, guidance, or
simply in order to reflect on the past.
The Society of American Archivists reaffirms the ultimate importance of creating and maintaining
reliable and authentic records for administrative and historical accountability. The Society of American
Archivists seeks support, cooperation, assistance, and advice in this endeavor from allied professions
and everyone concerned about preservation of the historical record in the information age.
1 Scott Armstrong, et al., plaintiffs v. Executive Office of the President, et al., defendants; Scott
Armstrong, et al., appellees v. George Bush, et al., appellants; and American Historical Association, et
al., plaintiffs v. Trudy Peterson, Acting Archivist of the United States, defendant. All three cases refer
to information in the PROFS electronic mail system used in the White House.
2 SAA Code of Ethics. This position statement is an excerpt from an SAA press release posted by Luciana
Duranti (luciana@UNIXG.UBC.CA) in listserv email@example.com March 23, 1995
Public and Private Networks, and the Status of Public Records, Open Meetings, and FOIA
by James Love
Taxpayer Assets Project
This is a note about an emerging issue concerning electronic mail and the Internet, and the status of
public records and open meetings, when private networks are used. Generally speaking, most agency
records stored in paper formats are subject to the federal Freedom of Information Act (FOIA), and many
official agency meetings are open to the public, under the Government in the Sunshine Act (5 U.S.C.
552b), as are official Advisory Board meetings, under the Federal Advisory Committee Act (FACA).
The status of electronic records under FOIA has been rapidly evolving under caselaw, as federal judges
have ruled on requests to accord the public the same rights of access to electronic records as to paper
records. There is also current litigation over whether or not electronic mail records are subject to the
Federal Records Act (FRA).
Of particular note is a lawsuit brought by Public Citizen on behalf of Scott Armstrong, the American
Historical Association, the American Library Association, the Center for National Security Studies, and
others, who contend that Executive Branch agencies must "institute programs to manage, safeguard, and
dispose of agency records stored on computer systemsÑjust as they must do with paper records," under
the FRA. The litigation (Scott Armstrong, et al., v. Executive Office of the President, et al.) is often
called the PROFS case, because it has included discussions of the preservation of the PROFS email
messages used by Oliver North and others in the Iran/Contra scandal.
One of the principal issues is whether or not government agencies must provide the National Archives
and Records Administration (NARA) with copies of email messages stored on government computers. A
related but separate issue is whether the data must be available to the public under FOIA. Not all
records required to be archived are available under FOIA, which provides for numerous exemptions;
and not even all federal agencies are subject to FOIA.
The federal administration is extremely upset over the PROFS case. At a recent White House meeting
with telecommunications executives and public interest groups, Vice President Gore spoke at length
about his frustration over efforts to make his email a government record.
The firm's officials acknowledge that some federal agencies prefer Meta Network services because they
believe the records will not be subject to FOIA or archiving under the FRA.
Government officials and agencies, from the White House down, rely more and more on electronic
communications to conduct public business As noted in the PROFS case, agency staff now use electronic
communications systems to create, send, and store letters, memoranda, schedules, and other documents,
and many government records are now only available in electronic formats. There is also increasing
interest in using electronic mail discussion lists and conferences as substitutes for meetings, including
advisory board meetings. These new and important uses of electronic mail could either lead to an
expansion of the public's ability to monitor government activities, or to more secrecy, depending upon
the rules for archiving records, and for methods of providing public access, such as disclosure under
Many public officials are anxious to find ways of avoiding the federal archiving requirements for email;
they are also concerned about whether the public will have access to their email under FOIA. As a
result, some governmental bodies have begun to hire private firms, at public expense, to provide
public officials with access to non-government computer networks, which in turn are used to send and
receive email, and also to carry out computer conferences, which are rapidly becoming an important
alternative to face-to-face meetings.
For example, the Meta Network, run by the Metasystems Design Group in Arlington, Virginia, provides
governmental and other clients with networking services, including email and computer conferencing.
One such contract involves Vice President Gore's National Performance Review (NPR). According to
Meta Network officials (who can be reached at 703-243-6622), some government agencies use public
conferences, while others use private. closed conferences. Even the public conferences, however, are
only available to Meta Network subscribers, who pay $20 a month for the service. The firm's officials
acknowledge that some federal agencies prefer Meta Network services because they believe the records
will not be subject to FOIA or archiving under the FRA. Meta Network officials say that the purported
non-governmental status of the records that reside on their system allow federal employees more
freedom to communicate candidly and express controversial views. Meta Network representatives, who
are knowledgeable about the FRA and FOIA and the PROFS lawsuit, seemed to view the desire of public
officials to avoid disclosure of their email as both an important public policy question and a business
opportunity for their company.
Scott Armstrong (firstname.lastname@example.org), one of the litigants in the PROFS case, has said that if government
officials use email to conduct official business, the records should be subject to the FRA and FOIA. He
asserted that if government employees use private networks to send and receive email about official
business, they have a responsibility to download those records and process them under the FRA, a
scenario that seems unlikely at best. Armstrong maintains that a government employee's receiving
email used for official business at a private site is similar to receiving postal mail for official
government business at a private address, or taking records from the office to a private residence and
claiming they are no longer public records.
Armstrong also noted that the issue of public access to email messages has been raised in connection
with the communications of the Health Care task force, which used Internet email extensively.
A member of the Clinton Administration's Information Infrastructure Task Force (IITF) recently
suggested, on the Internet discussion list COM-PRIV, that the new NII Advisory Council set up a system
of email conferencing on a private network, in order to avoid problems under FOIA. We objected at the
time, since we could not imagine the rationale for allowing this official advisory committee to hold
"meetings in cyberspace" that were nonpublic.
Under current law, telephone conference calls involving federal bodies are subject to laws about open
meetings, as long as a quorum is present to
deliberate on official business, even if no actions are taken. The use of computer email lists or
conferences presents concerns similar to those raised by conference calls.
These issues are extremely important. One of the first lessons learned by investigative reporters is
that organizations do not operate without a "paper trail," involving schedules, agendas, meeting notes,
follow-up memoranda, and other mechanisms for clarifying the decision-making process. These types
of records have typically been the subject of FOIA requests or even discovery in civil or criminal cases
when violations of the law are involved. The term "paper trail," however, is no longer accurate, since
many of these records are now stored and managed in electronic formats.
One can easily imagine how today Oliver North could use the Internet to maintain his records from the
Iran/Contra operations, perhaps storing the files in Zurich or Finland, where they would be instantly
available to his office, but far from NARA, FOIA, or a government subpoena. Moreover, with data
readily accessible through high-speed networks, many more types of records than email messages can
be stored off-site. Ledgers, calendars, minutes of meetings, budgets, contracts, and other items could be
maintained on computer networks that are invisible to the general public.
This Taxpaper Assets Project (TAP) Information Policy Note Noms originally distributed to TAP-INFO
a free Internet distribution list. Subscription requests may be sent to email@example.com. James
Love is the Director of TAP and may be reached at firstname.lastname@example.org.
CPSR and EPIC FOIA Cases: Current Status
by David Sobel
The Electronic Privacy Information Center (EPIC) is a joint project of CPSR and the Fund for
Constitutional Government. CPSR and EPIC have made frequent and effective use of the Freedom of
Information Act (FOIA) to obtain the public release of government information concerning information
security, privacy, and technology policy. The following cases are among those recently litigated:
Electronic Privacy Information Center v. National Security Council, C.A. No. 95-0461 (D.D.C.). In this
case, we seek the disclosure of a secret Presidential directive establishing the Security Policy Board
and documents discussing the Board's activities. This new entity has been assigned responsibility for
developing government-wide policies on information security. In the spirit of the Computer Security
Act, EPIC believes that the development of such policies should be open and subject to public scrutiny.
Electronic Privacy Information Center v. FBI, C.A. No. 94-1720 (D.D.C.). This lawsuit seeks the
release of two FBI internal surveys cited by Director Louis Freeh in support of wiretap legislation
enacted by the 103d Congress. The case was filed several days after the legislation was introduced and
highlighted the fact that the Bureau never documented the need for enhanced wiretapping capabilities.
The pendency of the case was noted in numerous articles concerning the controversial legislation. The
FBI initially sought to delay proceedings in the case for five years. This request was denied by Judge
Charles Richey in a strongly worded opinion. The judge recently upheld the Bureau's refusal to disclose
the surveys, a decision we are reviewing for purposes of appeal.
Computer Professionals for Social Responsibility v. FBI, C.A. No. 92-2117 (D.D.C.). In this case, we
sought disclosure of early FBI documents concerning the Bureau's "Digital
Telephony Proposal"Ñan attempt to require communications providers to guarantee that their systems
can be wiretapped. After initially seeking to withhold a large amount of relevant material, the FBI
reversed itself after we opposed the withholding in court. Among other things, the released documents
indicated that the Bureau's claimed need for this legislation is highly exaggerated.
Issues to be litigated will include the propriety of NSA's classification of the Clipper algorithm on
national security grounds.
Computer Professionals for Social Responsibility v. National Security Agency, C.A. No. 93-1074
(D.D.C.). This lawsuit seeks the disclosure of key documents concerning the controversial Clipper Chip
encryption initiative. The court has ordered the National Security Agency and the National Security
Council to complete their processing of these documents by the middle of 1995. Issues to be litigated
will include the propriety of NSA's classification of the Clipper algorithm on national security grounds.
Computer Professionals for Social Responsibility v. National Institute of Standards and Technology, C.A.
No. 920972 (D.D.C.) (appeal pending). The district court, in a brief opinion, upheld the government's
refusal to disclose all documents concerning the development of the Digital Signature Standard (DSS), a
cryptographic technique for authenticating electronic communications developed by NSA. An appeal of
this ruling is now pending in the U.S. Court of Appeals. A large number of documents were released as a
result of this litigation. This material provides a comprehensive view of the relationship between NSA
and NIST in the development of cryptographic standards under the Computer Security Act of 1987.
Computer Professionals for Social Responsibility v. United States Secret Service, C.A. No. 93-0231
(D.D.C.) (appeal pending). This case seeks information concerning a controversial Secret Service raid
on a public meeting of young people affiliated with "2600 Magazine." The case raises significant issues
of free speech and assembly, privacy and government accountability. Judge Louis Oberdorfer ruled in
our favor in July 1994, ordering the Secret Service to release the vast majority of withheld
documents. The court's decision, which has been widely discussed within the FOIA community, raises
important issues concerning the disclosure of "law enforcement" records. The government has appealed
this ruling to the U.S. Court of Appeals.
State ex rel. Beacon Journal Publishing Co. v. City of Akron, No. 932012 (Supreme Court of Ohio).
EPIC staff, on behalf of Computer Professionals for Social Responsibility, joined with the Public
Citizen Litigation Group in filing a "friend of the court" brief in this case. Our brief highlighted the
privacy implications of Social Security number (SSN) disclosures and argued in support of the City of
Akron's decision to withhold the numbers from a local newspaper. The brief urged the Ohio Supreme
Court to follow the lead of the U.S. Court of Appeals for the Fourth Circuit in the case of Greidinger v.
Davis, where Virginia's practice of requiring SSNs for voter registration purposes was held
unconstitutional. EPIC staff had similarly participated in the Greidinger litigation as friends of the
On October 26, 1994, the court issued an opinion upholding the privacy of SSNs, adopting our
argument and citing Greidinger. Coming a year after the Greidinger decision, the City of Akron case is
part of a trend toward judicial recognition of the privacy implications of SSNs. EPIC will continue to
participate in related litigation in an attempt to establish a body of caselaw protecting the
confidentiality of SSNs and other personal information.
Other pending FOIA requests concern the following issues:
¥ Collaboration between the Defense Department and the U.S. Postal Service to establish a key-
management infrastructure for the security and authentication of civilian electronic communications.
¥ FCC implementation of the Communications Assistance to Law Enforcement ActÑalso known as the FBI
digital telephony wiretap bill.
¥ The Drug Enforcement Administration's collection and use of commercial databases in furtherance of
its investigative activities. (EPIC's recent analysis of a similar Internal Revenue Service proposal led
to the abandonment of the initiative.)
David Sobel is the Legal Counsel the Electronic Privacy Information Center. For additional information,
FOI and First Amendment-related Resources on the Internet
From the FOI-L and Internet Resources session presented by Barbara Fought and Joel Campbell at the
NFOIC Conference on Saturday, April 8.
American Communication Association http://www.uark.edu/depts/comminfo/www/ACA.html
The best place to start for Internet searches of FOI and First Amendment-related topics.
FOI Topics include:
¥ Canada's Coalition for Public Information Gopher
¥ Citizen's Guide to Using the FOIA
¥ Citizen's Information Bill of Rights
¥ Clinton Administration Policy on Freedom of Information
¥ Flow of Information and NII (NAS)
¥ Freedom of Information (DFP)
¥ Freedom of Information Act Exemptions
¥ Freedom of Information Act Info (CPSR)
¥ Freedom of Information Act Kit
¥ Freedom of InformationÑapplies to email (U Victoria, 30 Oct. 1992)
¥ Right to Know Net
¥ Using the FOIA: A Step-by-Step Guide (ACLU)
¥ Information Rights Bibliography
¥ Open Government Project (Canada)
Other topics of interest:
¥ Academic Freedom and Campus Speech Codes
¥ Copyright and Intellectual Property
¥ Freedom of Speech
¥ Freedom of Religion
¥ Human Rights Issues
¥ Law and Legal Research
¥ Privacy Rights and Issues
¥ Telecommunications: Law, Policy, and Society
American Civil Liberties Union gopher://aclu.org/
American Library Association http://aultnis.rutgers.edu/ pgalapage.html
Of special interest is the section about legislation that affects libraries.
Bibliography on Electronic Library Issues http://aultnis.rutgers.edu/texts/ElectLibBib.html
Prepared by Peter Graham for the October, 1994 ALA/ALCTS Institute, The Electronic Library:
Administrative Issues for Organization and Access (San Antonio). 12 KB (3 pages).
The Coalition for Networked Information http://www.cni.org/ CNI.homepage.html
CNI is a joint project of the Association of Research Libraries, CAUSE, and EDUCOM. The Coalition's
mission is to promote the creation of and access to information resources in networked environments in
order to enrich scholarship and enhance intellectual productivity.
Computer Professionals for Social Responsibility http://cpsr.org/home
CPSR is a nonprofit, public interest organization concerned with the effects of computers on society.
CPSR is supported by its membership and has chapters throughout the country. The Internet site
cpsr.org offers many discussion lists on topics of interest, as well as numerous publications.
Electronic Frontier Foundation http://www.eff.org/
Use Topical Index to go to FOIA activism archive or point to
Network resources on FOIA
gopher://csf.Colorado.EDU:70/00/ eforum/comm/Freedom-of-Info-Act (How to Use the FOIA)
Journalism_Info_Internet (The Journalism List) http://cpsr.org:80/cpsr/foia/ (CPSR Archives)
http://www.eff.org/pub/EFF/Policy/Activism/FOIA/ (EFF Archives)
http://jnews.umd.edu/ajr/rowe.html (A JOURNALIST'S GUIDE TO THE NET BY E-MAIL)
Freedom of Information listserv: Started by the National Freedom of Information Coalition for persons
working on FOIA issues. Address: email@example.com. Message: Subscribe FOI-L your name.
Newsgroups: alt.society.foia, alt.freedom.of.information.act
The Jim Warren Gopher gopher://path.net:8102/
The Jim Warren Gopher is a collection of electronic newsletters distributed by Jim Warren on the
subjects of political action and government access through the use of computer communications.
Political action can be proactive or reactive, deal with the political establishment directly, or
indirectly through education, the distribution of information, or even the functioning of business in the
area of software publication. Jim Warren is founder of such computerist's institutions as Infoworld
Magazine, Dr. Dobbs Journal, and the West Coast Computer Faire. He chaired the first conference on
Computers, Freedom, and Privacy and
Harry Ham mitt's newsletter Access Reports is mainly used by agency staff involved at the
administrative or legal level with FOIA issues. It costs $325 for 24 issues a year. He also offers a two
volume looseleaf service known as the Reference File, which includes the text of the FOIA, Privacy Act,
FACA, and Sunshine Act, the legislative history of those statutes, the Justice Department's case list and
agency guidance, and various other documents in this area. Updated quarterly, it sells for $450 a year
or $575 in tandem with a newsletter subscription. In addition, he also publishes Access Reports:
Canada and Abroad, a monthly newsletter that concerns similar issues in Canada and other countries and
costs $225 a year. Finally, he publishes the Canadian Access Reference Book, updated yearly, which
contains the text of all access and privacy laws at the federal and provincial levels and includes major
federal and provincial contacts.
now sits on the board of directors of Autodesk. Jim played a key role in the passing of the California
Legislature's Assembly Bill 1624, which gives the public electronic access to almost all public
information about legislation in process, all current state statutes, and the voluminous California
Journal of Online Law http://www.law.cornell.edu/jol/ jol.table.html
Ralph E. McCoy's Freedom of the Press, an Annotated Bibliography
Society of Professional Journalists http://town.hall.org/places/spj/spj.html
See FOI resources by clicking "FOI" or "FOI toolbox" or pointing your browser at
State Government Information
Council of State Governments (Use the Internet search engine to find the address)
CSG is a nonprofit organization that provides information on state government issues to both the
legislators and the public. This gopher is still in development, and the menus will be changing fairly
regularly. Send your comments and questions to one of the gopher system coadministrators: Cathy Wiley
(firstname.lastname@example.org) and Kevin Morrison (email@example.com).
The following three sites are very similar. You may find that one is better for your purposes than the
WWW Virtual Library! State Government Information Servers http://www. Iaw.indiana.edu/law/
Washington's Page on State and Local Government Information http://olympus.dis.wa.gov/www/
Library of CongressÑState and Local Government Information http://lcweb.loc.gov/global/state/
Federal Government Information
Legi-Slate Gopher Service gopher://LEGISLATE.COM :70
The Legi-Slate Gopher Service is the first combined federal legislative and regulatory service available
over the Internet using the Gopher protocol. The Legi-Slate Gopher Service takes advantage of the
powerful Legi-Slate mainframe database to provide access to timely, comprehensive congressional and
regulatory information. Developed in conjunction with the Distributed Computing Services Center at
the University of Minnesota, the Legi-Slate Gopher Service runs on a Gopher+ server. Some of the data
in the Legi-Slate Gopher Service is publicly available to all Internet users; other data is available only
to paid subscribers. See "Public Access to the Legi Slate Gopher Service" for further details.
Federal Web Locator http://www.law.vill.edu/Fed-Agency/fedwebloc.html
The Federal Web Locator is a service provided by the Villanova Center for Information Law and Policy
and is intended to be the one-stop-shopping point for federal government information on the World
Wide Web. This list is maintained to bring the cyber citizen to the federal government's doorstep. If you
learn of a federal government site that is not listed, please email it to us so we can add it to the list and
spread the wealth of information about the federal government on the Web. FedWorld
http://www.fedworld.gov/ FedWorld is an electronic gateway to U.S. Government information operated
by the Department of Commerce's NationalTechnical Information Service (NTIS). FedWorld services
include more than 100 U.S. Government information servers, and WWW and gopher clients, sorted by
subject categories. The NTIS home page provides information on the more than 2 million U.S.
Government information products available from NTIS. National Association of Government Archives
and Records Administrators (NAGARA) gopher://archives.state.ri.us:70/1/NAGARA Read the group's
guidelines for archiving and classifying records. National Association of State Information Resource
Lists and Information
Sponsored by National Freedom of Information Coalition. Subscribe by sending the following message to
listserv @ suvm.syr.edy:
subscribe firstname lastname
CAL-FOI, California Freedom of Info Act List
Subscribe by sending the following message to firstname.lastname@example.org:
subscribe firstname lastname
GovAccess is a list that delivers irregular information and advocacy, maintained by Jim Warren, a
columnist for MicroTimes, Government Technology, BoardWatch, and so on. You can reach him as
follows: voice/415-851-7075; email@example.com (well.com = well.sf.ca.us; also at
firstname.lastname@example.org). To add or drop the GovAccess list, send email to email@example.com. Past
postings are at ftp.cpsr.org: /cpsr/states/california/ govaccess and by WWW at http://
Reporters Committee for Freedom of the Press/News Media Update
News Media Update is a biweekly publication of the Reporters Committee for Freedom of the Press,
1101 Wilson Blvd., Suite 1910, Arlington, VA 22209. 703-807-2100. The electronic version is a
digest of News Media Update. To subscribe to the full version, send $50 to the Reporters Committee for
Freedom of the Press, 1101 Wilson Blvd., Suite 1910, Arlington, VA 22209. Specify whether you
would like the email or print version. While this newsletter is available to anyone, it is written for
working journalists and others who want to follow emerging developments and trends in media law.
Journalists aware of legal controversies concerning the news media at their papers or in their areas
are encouraged to pass the word on to the Reporters Committee. They like to track all cases, reporting
on them as needed and even intervening where appropriate. Please call Gregg Leslie at 703-807-
For information on receiving paper copies of the newsletter, or ordering their quarterly magazine or
other publications, please call 703-807-2100. For a complete publications list, send email to
firstname.lastname@example.org with only REQUEST LIST in the subject line.
National Press Club
Newslink is a good connection to all known news organizations with a presence on the Internet.
Poynter Center for Media Studies Investigative Reporting Bibliography
This bibliography contains information titles on obtaining and using government records.
It was compiled by Joel Campbell, master's candidate, Ohio State University, School of Journalism,
April 6, 1995. (On leave of absence from Utah Foundation for Open Government). Email:
email@example.com. Telephone: 614889-0479.
EXECUTIVE DIRECTOR SEARCH Computer Professionals for Social Responsiblity
The Executive Director is responsible for fundraising, including an appropriate mix of grant writing,
membership solicitations, corporate and major donor solicitations, .special events, and so forth. While
CPSR has a relatively steady revenue flow from membership dues and regular contributions, the
Executive Director is expected to raise enough additional funds to provide for stability in terms of staff
levels and program activity.
The Executive Director also acts as the principal organizational spokesperson In that capacity, the
Executive Director is responsible for initiating external outreach and public relations, interacting
with the media, writing articles and giving talks that explain and publicize CPSR's position, and finding
ways to utilize the technical resources and skills of the CPSR membership.
The Executive Director is responsible for overseeing the organization's day-to-day financial
management, including approval of expenses; interaction with bookkeeping, accounting, and payroll
services; and, in conjunction with the financial staff and CPSR Treasurer, the preparation of an annual
budget and financial status report. The Executive Director is also responsible for managing the office,
setting administrative priorities, maintaining internal communications, and monitoring project work
done by other staff.
The Executive Director is hired by the CPSR Board, reports to the president, is an ax-officio member
of the Executive Committee, and is evaluated by the Board's Personnel Committee. In consultation with
appropriate committees, the Executive Director hires, fires, and supervises the rest of the CPSR staff
within the context of the organization's personnel policies and procedures. The Executive Director is
responsible for communicating on a timely basis with the Board of Directors and providing the board
with the information it needs to maintain its oversight responsibilities.
Qualifications: The ideal candidate will have a successful track record pursuing a variety of fundraising
strategies; solid financial management skills and experience; a general familiarity with information
policy issues and the ability to quickly learn more; an extremely high level of communication skills;
experience managing and/or leading a membership-based activist-oriented nonprofit organization; and
a commitment to and history of working with a diverse membership that includes people with varying
levels of technical expertise. Because much of CPSR's work is carried out electronically, the successful
candidate must also feel comfortable using modern computer technology, including electronic mail,
spreadsheets, database systems, and desktop publishing.
The position is located at the CPSR national office in Palo Alto, California. Salary depends on
qualifications and experience and includes a flexible benefit package.
CPSR is an equal opportunity employer.
To apply, please send a cover letter and resume to:
CPSR Executive Director Search P.O. Box 717 Palo Alto, CA 94302-0717 (E-mail: cpsr-ed-search@
Confidentiality and Availability of Public Information
by Dave Gowan
Data are easily and cheaply provided to requesters these days. Many agencies use computer bulletin
board systems (BBSs), and many more are now developing Internet nodes that can distribute the same
information. Some agencies, with entrenched bureaucracies devoted to providing paper documents at
cost, and computer bureaucracies that have not yet emerged from the mainframe days of the 1960s,
maintain that the data they use are not available in PC formats, or on PC-compatible media. All this is
probably untrue. Almost all government data are maintained on computers, even most documents
described as "out of print." I was repeatedly told by the librarian of a major state agency that data I
needed were unavailable except as a multi-dollar printed document from their bookstore, yet with a
few calls I discovered the information on their mainframe database and found a staffer who willingly
sent it to me by modem at no cost.
Failures to provide requested data are usually merely policy, and not the result of hardware or
software limitations. Agency attorneys should advise management that the agency's best interests are
better served by sharing resources than making them difficult to obtain. Presently no Florida agency is
reaping the great public relations benefits that could be obtained by an open-information policy.
It is true that providing information on paper and nine-track tape are costly, but many times it seems
that these formats are deliberately used by agencies to discourage public information requests. In fact,
it is not at all difficult to export data from mainframes these days in ASCII format (which any PC
software can use) via BBS, Internet, or even a 3.5 inch diskette in the mail; if we consider the costs
involved, no agency should be allowed to distribute information otherwise.
In my own experience, 9 megabytes of 132-column ASCII data from a federal database becomes about
3,800 pages of paper when printed with a 7-point Courier font. The toner, paper, packaging, and
mailing cost about $ 118.00. The same data, compressed with a well-known shareware file
compression utility, PKZIP.EXE, reduces to 1.41 Mb, fits on a standard 1.44Mb diskette (69 cents in
bulk), which can go in a standard, 5-cent business envelope, and the whole package weighs less than 1
ounce (29 cents postage)Ñtotal cost delivered, $ 1.03. The same data, placed on a computer BBS
operated by the government agency for 23 cents a day, can be retrieved at no printing or delivery cost
to the provider.
The costs to governments of furnishing information on paper are so large, and the costs of providing
data electronically so small, that there is no good reason to use paper anymore. In fact, the expense of
merely assessing costs for providing data electronically are greater than the data delivery costs. Since
the work and expense involved in supplying data electronically are now so little, there's no excuse for
refusing to provide data on demand. Though the benefits of doing so may not be appreciated immediately,
they do accrue, most notably in the areas of good public relations and, eventually, media coverage.
Conference Proceedings Available
Developing an Equitable and Open Information Infrastructure, A Directions and Implications of Advanced
Computing Symposium: Proceedings from DIAC '94. Edited by Hans Klein and Coralee Whitcomb.
Articles reflect a wide range of perspectives and subjects related to the National Information
Infrastructure (NII), including economics, gender issues, multi-user dungeons (MUDs), nonprofits,
postmodern technology, community cable systems, media regulation, White House activities in
electronic democracy, and electronic access for the poor. Sottcover, 230 pages. $25.00.
PDC '94: Proceedings from the Participatory Design Conference. Edited by Randall Trigg, Susan Irwin
Anderson, and Elizabeth Dykstra-Erickson. Articles reflect a wide range of perspectives and subjects
related to participatory design (PD), including political and technical agendas, education, contingent
jobs and work reorganization, Scandinavian PD, PD in software package development and complex
organizations, and PD artifacts in use. Softcover, 183 pages. $20.00.
Please include $3.00 shipping and handling for each proceeding ordered, and enclose a check with your
order. Mail to: CPSR, P.O. Box 717, Palo Alto, CA 94303. Proceedings from earlier DIAC and PDC
conferences are also available.
compiled by Braise Liffick
Middle Atlantic Director, CPSR
Ongoing CPSR/Boston activities were covered extensively in last quarter's report. The current
primary focus is activism related to the regional Telecommunications Policy Roundtable. TTPR/NE now
sponsors a free hands-on introduction to the Internet, at Virtually Wired, a new downtown site
dedicated to ease access to and provide training for using the net.
Sessions take place at 3:00 and 6:00 daily and include an Internet overview, surfing the net on the
World Wide Web, a discussion of the policy issues concerning the future of the Internet, and an
opportunity to give our government your thoughts. This event coincides with the federal government's
open, online meeting, "People and Their Governments in the Information Age."
For more information please call Coralee at Virtually Wired, 617-542-555 or
CPSR/Chicago has been meeting regularly over the past several months. The chapter was active in
helping to organize the Midwest Conference on Technology, Employment, and Community, held in
Chicago on March 3 and 4 The conference examined the relationship between new technologies and jobs,
the effect of job loss on Chicago's neighborhoods, and strategies for dealing with the changing job
environment. The chapter organized and helped to staff a technological demonstration center during the
conference, which introduced community leaders to the possibilities of the "information highway."
Chapter members also created and maintained a conference web page, allowing anyone with web access
to see reports on the plenaries, papers presented. and even pictures, as the conference progressed.
Check out the web page at: http://cs-www.uchicago.edu:80/ discussions/cpsr/jobtech/job-tech.html
CPSR/Chicago has also been active in the recently formed Chicago Coalition for Information Access, a
coaltion of Chicago-area organizations working for equitable and universal access to information.
Finally, CPSR/Chicago will host the CPSR Annual Meeting on October 7 and 8, at the University of
Illinois-Chicago. This will be the first time the meeting has taken place in the Midwest, and we look
forward to seeing all of you there.
CPSR/LA organized a May 24 meeting that dealt mainly with local community online networking,
especially among progressive nonproft organizations in the region.
Republican Governor Tommy Thompson has eliminated funding for the Privacy Advcoate and the Privacy
Council in next year's budget. He has not yet eliminated the position of the Privacy Advocate, and it is
unclear whether he can do so. However, he would probably like to incorporate it into the Department of
Administration, where he is collecting many entities formerly not under the control of the executive
In January, the San Diego chapter held an event entitled "The Future of Computer Networking and
Telecommunications in San Diego." A panel consisting of Temple University Professor Emeritus
Herbert Dordick, San Diego State University Professor John Eger, Howard Stapleton representing the
City of San Diego, and Michael Shames of the Utility Consumer Action Network debated the future of
telecommunications policy in San Diego, with particular reference to the recommendations of the
Mayor's City of the Future task force. The event was well attended and inspired considerable interest in
public interest organizing to address computer networking and telecommunications issues in San Diego,
including the creation of a local version of the Telecommunications Policy Roundtable.
Please send chapter news and questions about this column to Blaise Liffick at firstname.lastname@example.org.
Exciting News on the Financial Front
CPSR recently received a particularly generous donation from one of the founders of FTP Software,
John Romkey. John's gift of 5,000 shares of FTP Software is by far the largest donation we have gotten
in our history, and we want to thank John for his support of our work. These new resources provide us
with an unprecedented opportunity to strengthen CPSR so that we can meet the challenges of the coming
Announcing the 1995 CPSR Annual Meeting
This year, CPSR's Annual Meeting will be held on Saturday and Sunday, October 7-8, at the Chicago
campus of the Univerisity of Illinois. The Chicago chapter is already hard at work, so save the date!
806 Martin Luther King Drive
Abbeville, LA 70510
We are looking for volunteers. If you are interested, please contact the office at 415-322-3778 or
PO Box 28562
Oakland, CA 94604
2 Newland Road
Arlington, MA 02174
tomt @ ics.com
528 S. Humphrey
Oak Park, IL 60304
3121 Seventh Street
Boulder, CO 80304
PO Box 66039
Los Angeles, CA 90066
rodney @ oxy.edu
6041-B Laurel Street
New Orleans, LA 70118
1406 Drake Street #1
Madison, WI 53711
E. Kent Gordon
46 High Bluff Road
Cape Elizabeth, ME 04107
UW-Milw IMT, Box 413
Milwaukee, WI 53201
3225 Wellington Lane
Plymouth, MN 55441
rogerr27 @ aol.com
59 Briarwood Dr.
Seymour, CT 08483
sorenj @ alumni.rpi.edu
1781 Riverside Drive
New York, NY 10034
PO Box 60
Palo Alto, CA 94302
828 Ormond Ave.
Drexel Hill, PA 19026-2604
Civil Engineering, CMU
5000 Forbes Avenue
Pittsburgh, PA 15213
8086 S.W. 66th Avenue
Portland, OR 97223
steve_biederman @ mentorg.com
PO Box 948436
La Jolla, CA 92037-9402
419 Rigg Street
Santa Cruz, CA 95060
Eric Rehm 7306
Seattle, WA 98117
2921 Terrace Drive
Chevy Chase, MD 20815
Volume 13, No. 2 The CPSR Newsletter Summer 1995
The CPSR Newsletter is published quarterly by Computer Professionals for Social Responsibility, PO
Box 717, Palo Alto, CA 94302, voice: 415-322-3778,
FAX: 415-322-4748, email:
Copyright 1995 by CPSR. Articles may:
be reproduced as long as the copyright
notice is included. The item should be attributed to The CPSR Newsletter, and contact information
should be listed.
The CPSR Newsletter guest edited by CPSR members. Newsletter articles do not necessarily reflect
official CPSR positions on issues.
Chapter News Editor
CPSR Board of Directors
Eric Roberts, President
Doug Schuler, Chair
Tom Thornton, Treasurer
Steve Dever, Secretary
Mary Connors Blaise Liffick
Jim Davis Steven Miller
Jim Grant Aki Namioka
Hans Klein Terry Winograd
David Liddle Marsha Woodbury
CPSR National Office Staff
Kathleen Kells, Managing Director
Susan Evoy, Assistant to the Director
Created before October 2004