Although they usually lack the intrigue and visibility of some of the latest clashes between the press and gov- ernment, journalists' ongoing battles for federal data are felt in newsrooms across the United States. The increased concern about terror- ism sparked by the 9/11 attacks, and the more recent devastation of the Gulf Coast by a series of hurricanes have prompted legislators to pour billions of dollars into programs designed to speed recovery and better protect the country.
At the same time, officials at all levels of government are attempting to rein in the efforts of journalists to scrutinize these programs. Trends suggest that Freedom of Information Act officers have been given greater latitude to deny requests, particularly when they position them behind the spacious pro- tections of the right to privacy. Two battles over the use of the privacy exemption are happening in Florida, where Gannett Newspapers and the South Florida Sun-Sentinel are seeking data to help shed light on the Federal Emergency Management Agency's response to four hurricanes that struck the state in 2004.
The Gannett newspapers and the Sun-Sentinel independently have sued FEMA and asked judges to force the agency to release records that detail the names and addresses of aid recipients. FEMA is withholding them by citing privacy laws. Consid- ering the agency's documented poor performance, and the spending of even more aid money after hurricanes Katrina and Rita, how FEMA responds after a disaster is a newsworthy ques- tion.
Privacy outbreak At the federal level, use of the privacy exemption to deny FOIA requests for documents and data has skyrocketed. A study of the annual reports filed by government agencies by Jennifer LaFleur, CAR editor for The Dallas Morning News and a former fellow at The Reporters Committee for Freedom of the Press, found the use of privacy exemptions to deny FOIA requests increased more than 600 percent between 1998 and 2002, rising from 55,000 to 380,000.
After the passage of the USA Patriot Act and formation of the massive Homeland Security Department, a number of com- mentators predicted a crackdown on public disclosure through the national security exemption. But a report is- sued by The Coalition of Journalists for Open Government in November found otherwise. The group's analysis of re- quests handled by 22 federal agencies between 2000 and 2004 discovered the number of privacy denials has shot upwards as the number of national se- curity denials decreased.
(Investigative Reporters and Editors is a member of the coalition.) "The national security exemption is just one way that they can withhold in- formation," says LaFleur, former train- ing director for IRE and NICAR. "The rulemaking is very complex. There are hundreds of ways in which things can be withheld." Overall, the coalition report concluded the use of exemptions to deny FOIA requests increased 22 percent, despite a 13 percent drop in the total number of requests answered.
However, the study omitted requests made to the Depart- ment of Veteran Affairs, the Social Se- curity Administration and the Depart- ment of Health and Human Services on the grounds that they process millions of routine requests which the coalition said would cloud the results. Now closed What sparked the spike in privacy ex- emptions? A study into homeland secu- rity policy conducted by The Reporters Committee for Freedom of the Press points to a policy statement issued from the highest ranks of the Justice Depart- ment on Oct.
12, 2001, now known as "The Ashcroft Memorandum." Then-Attorney General John Ashcroft sent a notice to government agencies altering legal policy on FOIA requests to support withholding information on security or privacy grounds if "sound legal basis" could be found. FOIA of- ficials were "assured" that government lawyers were ready to go to court. The order revoked the standard established by former Attorney General Janet Reno that encouraged "maximum responsi- ble disclosure." The Justice Department instructed FOIA officers to withhold access to any information that might expose the government's vulnerabilities or that could be construed as possibly aiding terrorists in attacking American interests.
"What is happening is that the govern- ment has moved from a presumption of openness - unless they can claim a privacy interest worth protecting to one of presumptive closure," says Charles Davis, executive director of the Freedom of Information Coalition at the University of Missouri. From the start, pundits, columnists and press advocates have criticized the memo. The American Society of Newspaper Editors has even provided two ready-made "stump speeches" on their Web sites for editors to use.
The Ashcroft language was repudiated in a subsequent editing of the FOIA manual by Rep. Henry Waxman, D-Ca- lif., and Rep. Dan Burton, R-Ind., but its influence can still be felt. Evidence can be found in a September 2003 audit by the Government Accountability Of- fice. While its survey of federal FOIA officers found that 48 percent said they had not noticed any changes in how their agency deals with requests, about one-third said they were less likely to disclose information.
And 75 percent of that one-third cited the memo as encouraging their change in behavior. The inconsistency captured by those results is often a source of frustration for journalists working with different departments. In response to a FOIA request made by the IRE and NICAR Database Library, the Department of Defense declined to release a master list of the unique identifiers attached to businesses in the federal contracting database.
This is despite the fact that those numbers are readily released piecemeal by other government agencies, including another arm of the defense department. The DOD uses business numbers pro- vided by the private company Dun and Bradstreet, which are now considered a private trade secret despite their use as a primary identifier in public records. "It makes no sense to me," says Jeff Porter, Database Library director.
Porter has run into similar problems with other agencies. The Department of Transportation will release the HAZMAT database containing a list of accidents involving hazardous materials, including plane crashes. But the Federal Aviation Administration, an organization under the umbrella of the DOT, omits all en- forcement actions involving hazardous materials from its database. The result is that an accident like the 1996 crash of Valujet Flight 592, which is believed to have been caused by oxygen canisters that burst into flame, will be included in the DOT's HAZMAT database but not the FAA's database.
The U.S. Citizenship and Immigration Services, formerly known as Immigra- tion and Naturalization Services, is balking at releasing "public use files" of legal residency. The database, col- lected by the Database Library, has no names and, in its current version, goes to the metropolitan statistical area at the smallest. It includes country of origin, age, marital status, sex, OC- cupation and other somewhat benign information.
The agency cites its new "confidentiality" policy. President George W. Bush took action on FOIA on Dec. 14 when he signed an executive order instructing each federal agency to hire a FOIA chief and increase efficiency by streamlin- ing requests. It did not address the Ashcroft memo. "The executive order is a nice political move in that it gets the administration in front of the Cornyn-Leahy bill," Davis says.
The legislation, working its way through Congress, would enact penalties on in- compliant FOIA officers. "And it essen- tially adds little or nothing to FOIA." Fighting back So what is a journalist to do when con- fronted by a FOIA exemption he or she feels is unjustified? How can the press strike back? Some journalists, like The Des Moines Register's Bert Dalmer, have found ways to cover homeland security spending from the bottom-up by fer- reting out the local numbers.
"It's last resort to go through the feds for anything," Dalmer says. "The feds almost always channel their money through the states and the locals. It's the capture there that should give re- porters a way of entry. In lowa they often don't mind sharing that stuff if they're a pass-through. It's the path of least resistance and most opportunity." But the big solution, LaFleur, Davis and others experts say, will only come through congressional action or orga- nized legal opposition.
"I don't think the media is aggressive enough," LaFleur said. "Some of the big pushes for things [like the names of Guantanamo Bay captives] have come from other groups." It took more than a year of legal wran- gling, but the group of Gannett papers in Florida fighting with FEMA recently won many of the documents they sought, including agency memos and other internal communications. But their effort to procure a database with the names and addresses of aid recipients was denied by U.S.
District Court Judge John Steele for exposing citizens to "predictable and obtrusive invasions of privacy." The case brought by the Sun-Sentinel was pending, but FEMA has agreed to release the names and wages of disaster assistance inspectors. Still in question is the database containing the names and addresses of aid recipients as well as the comments about each claim recorded by FEMA inspectors. The Gannett papers plan to challenge Steele's ruling with an appeal.
And the line drawn between privacy rights and the public's right to know, particularly when it comes to detailed information like names and addresses, is sure to be the central issue. Contact Ben Welsh by e-mail at ben.welsh@gmail.com