Less Access to Less Information - Administration Actions

Sensitive but Unclassified Information

Retroactive Classification of Information The Department of Justice has blocked former FBI translator Sibel Edmonds from testifying in a lawsuit related to September 11 and has classified records she gave to Congress in 2002 retroactively concerning documents relevant to the September 11 attacks that were available to the FBI prior to the attacks. F.B.I. officials gave Senate staff members two briefings in June and July of 2002 concerning Ms. Edmonds, who said the FBI's system for translating intelligence was so flawed that the bureau missed chances to spot terrorist warnings.

The FBI now maintains that some of the information discussed was so potentially damaging if released publicly that it is now considered classified, according to a memorandum distributed in May 2004 within the Senate Judiciary Committee. According to that memo, "Any staffer who attended those briefings, or who learns about those briefings, should be aware that the FBI now considers the information classified and should therefore avoid further dissemination.” Even routine and widely disseminated information - like where she worked - is now classified.

The decision was apparently made by the Department of Justice, not the FBI. According to a report in the New York Times on May 20th, an FBI official claimed that they are "not imposing a gag order. The problem is that while these pieces of information may look innocuous on their own, you put them all together and it reveals a picture of sensitive intelligence collection, and that's a security problem.''

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Classification Of Compilations Of Unclassified Information

The classification of a collection of unclassified items, while counterintuitive, is authorized in the governing executive order on classification:

"Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information." (Executive Order 13292, sect. 1.7e).

See also: "Classification of Compilations of Information" (1.3 MB PDF file)

Sensitive Homeland Security Information

The Homeland Security Act requires procedures to promulgate for "safeguarding" a vaguely defined set of information, “Sensitive Homeland Security Information,” and sharing it among firefighters, police officers, public health researchers and federal, state, and local governments. These procedures are likely to also provide guidelines for Sensitive But Unclassified information (see Card Memorandum below).

In the fall of 2002, ALA and others met with the Office of Management and Budget (OMB) about their plans to issue guidance on the "sensitive but unclassified" category presented in a March 19, 2002 memorandum from the Department of Justice and the Information Security Oversight Office (ISOO).On August 27, 2003, seventy-five organizations representing librarians, journalists, scientists, environmental groups, privacy advocates, and others sent a letter to Homeland Security Secretary Tom Ridge calling on the Department of Homeland Security to allow public input on the procedures.

The letter expresses concern that the procedures may cut out of the public domain a broad swath of information that is not classified but which may be perceived as "helpful to a terrorist or potentially helpful in responding to or preventing an unknown future attack." - including such items as maps of environmental contamination. The signatories are also concerned that the procedures would subject millions of persons inside and outside of government to non-disclosure agreements and impose criminal penalties for disclosing information improperly. The procedures could, moreover, cut out the ability of journalists, community groups, and others to inform the public of activities of federal, state and local governments.

Read the letter (pdf) to Secretary Ridge.

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Assistant to the President and Chief of Staff, Andrew H. Card Jr., Memorandum

On March 19, 2002, a memorandum "regarding the safeguarding and protection of sensitive homeland security information was issued to the heads of all federal departments and agencies by the White House Chief of Staff," Andrew H. Card, Jr. Along with the  "Card memo" was a memorandum from the  Information Security Oversight Office and the Office of Information and Privacy providing guidance on taking action to "Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security."

This second memorandum resurrects a category of information first proposed by Adm. John Poindexter during the Reagan Administration, "sensitive but unclassified."  (Link to report,  "'Sensitive But Unclassified' and Other Federal Security Controls on Scientific and Technical Information: History and Current Controversy" by Genevieve J. Knezo, Congressional Research Service, April 2.)

As yet, no explicit definition has been given to this category. This will, however, occur in the guidelines for Sensitive Homeland Security Information.In the absence of specific guidelines, agencies are likely to err on the side of caution and withhold or decline to disseminate information that could conceivably be related to "homeland security" (which is similarly defined).

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Freedom of Information

Attorney General Ashcroft's FOIA Memorandum

On October 12, 2001, Attorney General John D. Ashcroft issued a new policy statement, on behalf of the Bush Administration, directing federal agency heads to exercise "full and deliberate consideration of the institutional, commercial, and personal privacy interests" before disclosing information, and careful consideration of threats to national security and the effectiveness of law enforcement in responding to FOIA requests in releasing records to journalists and others under provisions of the Freedom of Information Act (FOIA). 

The policy supercedes a 1993 memorandum issued by Attorney General Janet Reno, which ordered that agencies should make allowable discretionary disclosures except where there was demonstrable harm. Ashcroft promised the full backing of the Department of Justice to those agencies that legitimately decide to turn down requests made under FOIA.



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Executive Orders

Executive Order 13233, November 1, 2001 Further Implementation of the Presidential Records Act

On March 27, 2003, Rep. Doug Ose (R-CA) introduced H.R. 1493, "To revoke an Executive Order relating to procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records."The PRA was crafted by Congress to create a careful balance between a president's ability to withhold certain records for a limited period of time and the right of the public to have access to them. As amended by Executive Order 12,667 issued by President Reagan in 1989, the Act provides for a period of 12 years during which presidential records under the custody of the US Archivist - including confidential communications between a former president and his advisors - could be withheld from public access.

At the end of the 12-year period, FOIA requests could be made to the Archivist for access to view these records.The PRA provides for an exception to this presumption of openness only if providing access would violate a constitutionally based executive privilege of the former or incumbent president, in which case public access could be denied.Executive Order 13,233 effectively denies the public’s legitimate right of access under the PRA by giving an incumbent or former president veto power over any public release of materials by the Archivist even after the 12-year restriction period had expired. Specifically, it:

Expands the former president's asserted constitutional privileges. [Section 2(a)]

States that the former president's constitutional privileges include not only the privilege for confidential communications with his advisers that has been recognized by the Supreme Court, but also the state secrets privilege, the attorney-client privilege and attorney work product privileges, and the deliberative process privilege.

The attorney-client and attorney work product privileges are clearly common-law, not constitutional privileges, as is the deliberative process privilege (to the extent it would go beyond the privilege for confidential communications between the president and his advisors). Additionally, there is no precedent for invocation of the state secrets privilege by a former president, as opposed to the incumbent.

Requires a party seeking access to presidential records to assert a "demonstrated, specific need" for those records, even after the end of the 12-year period, in order to overcome the former president's privilege. [Section 2(b)]

This provision is contrary to the PRA, which makes access to these records available under FOIA standards. These standards require no such showing of need. The concept that the constitutional executive privilege requires a person seeking access to historical presidential records to make a showing of need was rejected by the US Court of Appeals for the D.C. Circuit in Nixon v. Freeman, 670 F.2d 346 (DC Cir.), cert. denied, 459 US 1035 (1982).

Provides both a former president and the incumbent president an unlimited amount of time to review records to determine whether to object to their release to the public. [Sections 3(a) and 3(c)]

These provisions are contrary to the PRA's requirement that the Archivist make such materials available to the public at the earliest possible date.

Requires the incumbent president to "concur in" and support in court an assertion of privilege by the former president, regardless of whether it is legally valid, unless there are compelling circumstances. [Sections 3(d) and 4]

Even if the incumbent president does not concur in a former president's assertion of privilege, the order requires the Archivist to bow to the former president's claim and withhold public access to any records to whose release the former president objects.These provisions are contrary to the PRA insofar as they require the Archivist to withhold documents from the public without determining the validity of the former president's claim of privilege. See Public Citizen v. Burke, 843 F.2d 1473 (DC Cir. 1988).

Empowers the incumbent president to order the Archivist to withhold access to the former president's records on grounds of privilege even if the former president does not object to their being made public, and even in the absence of any claim that national security would be affected by public release. [Section 3(d)(2)]

Outside of the realm of national security, there is no precedent for an assertion of executive privilege by a sitting president as to 12-year-old records of a former president.

Permits a former president (or his family) to designate a "representative" to assert constitutionally based executive privileges in the event of the former president's death or disability. [Section 10]

This provision allows for potentially eternal withholding of records. There is no precedent supporting the notion that a private citizen "representing" a deceased or disabled president can assert the constitutional executive privilege.

Allows a former vice president to assert constitutionally based privileges to bar release of records after the end of the 12-year restriction period applicable to his records under the PRA.

There is no precedent supporting the concept that there is a constitutional privilege protecting vice presidential communications (except insofar as they may fall within the president's executive privilege).The Executive Order was issued on November 1 st. Representative Stephen Horn held a hearing on November 6 th. The American Historical Association and others filed suit against the National Archives on November 28, 2001. As this issue is important to libraries, it is likely, should this suit go to an appeals process, that ALA would consider filing a “friend of the court” ( amicus curiae) brief. The suit is still pending.In October 2002, the House Committee on Government Reform unanimously approved legislation first introduced by Rep. Stephen Horn and co-sponsored by 44 other legislators, including 37 Democrats, 1 Independent, and 6 Republicans (including House Government Reform Committee Chairman Dan Burton) that reinforces implementation of the Presidential Records Act of 1978.In a letter to the Committee, the White House attacked the bill as "unnecessary and inappropriate, and, more importantly, unconstitutional."

The Administration claimed that the Reagan Presidential records have been released, showing the bill is not needed. While the Administration is correct about the Reagan-era records, the records of the first Bush Administration are scheduled to be released in less than two years. Policy papers and "confidential advice" offered to the President by a number of high-profile public officials in the current Administration, including Vice President Dick Cheney, Deputy Defense Secretary Paul Wolfowitz, and Secretary of State Colin Powell will be subject to release.In a letter to Representative Stephen Horn (see below for pdf version), dated November 20, 2001, ALA, AALL, ARL and the National Humanities Alliance noted that Congress enacted the Presidential Records Act (PRA) of 1978 to ensure that the public records of our presidents are government property and, therefore, belong to the American people.We also anticipate that legislation will be introduced in 2002 to address the Executive Order's impact on the PRA.For further information, go to the following links:

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EPA Library Update

On September 25, 2006, the ALA Washington Office sent a letter to the U.S. House of Representatives urging them to restore the proposed $2.5 Million cut in the FY 2007 budget for the U.S. Environmental Protection Agency (EPA). The proposed cut would likely result in the closure of the Headquarters Library as well as many of its 27 regional and laboratory libraries. Read the letter and accompanying “Resolution on EPA Libraries”  here (Word).

FY 2007 EPA budget proposes a $2 million cut to the libraries of the EPA

A statement from ALA President Michael Gorman in response to the proposed closing of the EPA’s libraries:

“The American Library Association is deeply concerned about the very negative impact on public access to environmental information that will result if the proposed 80 % cuts to funding for the Environmental Protection Administration’s (EPA) libraries are made.

“ALA has a long-standing commitment to promoting free public access to government information and we are troubled by what seems to be an accelerating trend in increased restrictions on access to government information. Individuals and communities need to be able to find high quality, accurate information about issues that concern them, such as the health and safety of their families and communities. EPA has, since its creation in the early 1970s, been a key source of such information. We fear that the drastic budget cuts proposed in the FY 2007 EPA budget will have severely deleterious effects on the ability of the EPA libraries to continue their essential role in ensuring public access to critical health and safety information.

“We encourage members of Congress to maintain the funding necessary to support key government information programs such as the EPA libraries and to ensure adequate future funding for this purpose.”

  • Michael Gorman's full letter (PDF) to the Subcommittee on Interior, Environment, and Related Agencies,Committee on Appropriations
  • Library Associations' letter (PDF) to the Subcommittee


The Cuts:

  • $.5 million of the $2 million, twenty-five percent (25%) of the budget reduction would be to the EPA Headquarters Library and Library Network coordination projects, managed by the Office of Environmental Information (OEI).
  • The remaining $1.5 million would come as a reduction in the regional support budget for EPA’s ten Regions with the cut specifically targeted at the 10 Regional libraries.

The EPA libraries:

  • Handle more than 134,000 research requests each year from the Agency’s scientific and enforcement staff.
  • House and catalog an estimated 50,000 documents on environmental issues that are available nowhere else.
  • Serve as the institutional repositories for internal documentation and commercially published literature about a broad array of environmental topics including the Clean Air Act, mercury and pesticides, and global climate change.
  • Operate public reading rooms that provide access to EPA publications and databases.

The EPA Headquarters Library

  • provides all the core services for staff of most program offices based in the Washington, D.C. area; and,
  • provides the Online Library System electronic catalogue, and other coordinating functions..

The Regional libraries:

  • Are a series of very diverse, very specific collections tailored to meet the needs of constituents by geographic area.
  • Maintain public reading rooms required by law, such as the Risk Management Plan’s Office of Consequence Analysis reading rooms (which exist to help communities to plan for environmental disasters and deal with their consequences), the Superfund dockets (on toxic waste clean-up), and FACA or FOIA reading rooms.
  • Serve as public information centers for environmental data that is specifically tailored to the issues faced in each library’s geographic region—such as mining in Colorado and wetlands in Maryland.
  • Coordinate publication of the EPA Region’s technical reports.

A $2 Million cut in the FY 2007 budget of the U.S. Environmental Protection Agency (EPA) will likely:

  • Result in the closure of the Headquarters Library as well as many of the EPA’s 27 regional and laboratory libraries, making it extremely difficult—and in some cases impossible—for constituents and even EPA staff to find reliable information on sensitive environmental issues.
  • Put the collections and services of these libraries at risk. Many documents housed in EPA libraries are housed nowhere else. If EPA’s library collections are put at risk, essential information about the environment will no longer be available.
  • Compromise the public’s health by making it excessively difficult—and sometimes impossible—for the Agency's policymakers and the public to find and use accurate and high-quality information to make decisions about health and safety environmental concerns.

The EPA Libraries

Headquarters Libraries - Washington, DC

  1. Headquarters Library
  2. Legislative Reference Library
  3. Office of General Counsel Law Library
  4. Office of Prevention, Pesticides and Toxic Substances Library
  5. Office of Water Resource Center

Libraries in Research Triangle Park, North Carolina

  1. NERL - Atmospheric Sciences Modeling Division Library
  2. RTP Library Services

Regional Libraries

  1. Region 1 Library, Boston
  2. Region 1 RCRA Research Library, Boston
  3. Region 2 Library, New York City
  4. Region 3 Regional Center for Environmental Information, Philadelphia
  5. Region 4 Library, Atlanta
  6. Region 5 Library, Chicago
  7. Region 6 Library, Dallas
  8. Region 7 Information Resource Center, Kansas City
  9. Region 8 Environmental Information Service Center, Denver
  10. Region 8 Technical Library, Denver
  11. Region 9 Library, San Francisco
  12. Region 10 Library, Seattle

Laboratory Libraries

  1. Andrew W. Breidenbach Environmental Research Center Library, Cincinnati, OH
  2. Environmental Science Center Library, Fort Meade, MD
  3. NERL - Atmospheric Sciences Modeling Division Library, RTP, NC
  4. NERL - Environmental Sciences Division Technical Research Center, Las Vegas, NV
  5. NERL - Ecosystem Research Division Library, Athens, GA
  6. NHEERL - Atlantic Ecology Division Library, Narragansett, RI
  7. NHEERL - Gulf Ecology Division Library, Gulf Breeze, FL
  8. NHEERL - Mid-continent Ecology Division Library, Duluth, MN
  9. NHEERL - Western Ecology Division Library, Corvallis, OR
  10. NRMRL - Ground Water and Ecosystems Restoration Division Library, Ada, OK
  11. National Vehicle & Fuel Emissions Laboratory Library, Ann Arbor, MI
  12. RTP Library Services, RTP, NC

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