Access tight for electronic records

President Clinton's FOIA guidelines and congressional efforts have begun to expand public access to federal electronic records, but significant gaps remain as most government documents will soon exist only in digital form.

By David H. Morrissey Colorado State University

President Clinton issued Freedom of Information Act guidelines in 1993 that he said would expand public access to federal computerized data.

A year later, Congress initiated on-line access to thousands of federal documents by passing the General Printing Office Electronic Information Access Enhancement Act.

Both actions were responses to the fact that- within five years - 75 percent of Washington's vast storehouse of documents will be created, stored and disseminated electronically.

Without electronic access, the public will have little ability to check what Washington does. A key question now is: How much access do we have?

The answer halfway through the Clinton administration is clearly "not enough."

Clinton policies

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

Clinton's policy also limits when the Justice Department can defend agencies withholding documents requested under FOIA. Prior to this, Reagan/Bush FOIA guidelines established in 1981 required the Justice Department to defend agencies if there was "a substantial legal basis" for secrecy. In effect, agencies were told "when in doubt, deny requests."

Clinton changed that. He requires agencies to cite specific "foreseeable harm" before the Justice Department will defend them, a policy often called, "When in doubt, release."

Unless this new standard is overturned by a new president, Clinton's policy should eventually increase public access to electronic records.

In addition, the president ordered in 1993 a review of the security classification system. A draft executive order from this review expands national security information releasable under the FOIA - expanding electronic access in the process - and overturns a Reagan-era executive order encouraging secrecy.

On April 17, the order was issued, and it expands the amount of information available.

Congress, meanwhile, has twice recently attempted to address electronic records. In 1994, the House killed a Senate bill that would define FOIA-releasable records to include "computer programs, machine readable materials, and computerized, digitized, and electronic information..."

The bill, which may be reintroduced, would require agencies to make reasonable efforts to create or modify computer programs to retrieve records; create computer programs to separate disclosable from non-disclosable information; and provide information in formats specified by requesters.

Meanwhile, in 1994, Congress did pass the GPO Access Act. The GPO now provides on-line access to several thousand government documents.

While useful, the act remains fundamentally flawed. Congress left agencies in control of what records will be available electronically - not the requesters. The measure covers only some of Washington's electronic information. No agency is required to release electronic records; their compliance is voluntary.

Few real changes

Despite the president's call for openness, and congressional encouragement, few agencies are rushing into the electronic future. I surveyed 70 federal agencies after the Clinton FOIA policy was announced, and found not one had changed policies to make access to electronic records easier. Some called the president's policy too vague. Others claimed they already practiced maximum disclosure and saw no need to change policies.

Detailed presidential or congressional action may increase public access to Washington's information. Passing the FOIA demonstrated this change. But as responses from the 70 agencies suggest, broad policy statements produce only minimal agency change. Many electronic records remain difficult to obtain. The agencies — not the public — still set most policies guiding release of electronic federal records.