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FOI UPDATE 2000: The Clinton years

By Kate Martin

The legacy of the Clinton administration on Freedom of Information matters, in particular on declassification of national security information, is lengthy and mixed.

Some of the administration's actions favoring access:

Support for openness
The Oct. 4, 1993, announcement by President Clinton embraced the Freedom of Information Act and promised to enhance its effectiveness. Simultaneously Attorney General Reno rescinded the Reagan administration's 1981 Justice Department guidelines for defending FOI lawsuits and announced that the department would apply a presumption of disclosure.

Executive order on declassification
In April 1995, President Clinton issued a new Executive Order setting standards for classification of national security information. The last such order, issued by President Reagan in 1982, had been a disaster for the public's right to know. The Clinton order contained some important reforms, long advocated by the openness community. Some of those reforms survive five years later.

The order reversed the presumption in favor of classification and required specific identification of feared harm to the national security. It also provided for automatic declassification of information more than 25 years old, with exceptions limited to only especially sensitive information described in the order.

It was later revealed that the FBI was given an almost wholesale exemption from the automatic declassification requirements. As the five-year deadline for compliance with the 25-year rule approached, other agencies obtained piece-meal extensions and exemptions. At the same time, Congress attacked and seriously weakened the concept of automatic declassification in the name of protecting nuclear secrets.

The final version of the Executive Order dropped the key provision sought by the openness community, which had appeared in an earlier draft: a requirement that in deciding whether to declassify information, the public interest in knowing the information be weighed against the harm to the national security from disclosure.

Human rights information
The Clinton administration ordered unprecedented release of recent CIA and other records concerning human rights abuses in Guatemala. The administration then issued a sweeping order to declassify records on years of human rights abuses in Chile, including still unacknowledged CIA covert actions there.

The administration's record is more mixed in the following areas:

Electronic records
In 1996, Electronic Freedom of Information Act amendments were finally passed. While the commitment was made to make information available electronically, four years later, implementation is spotty at best. The National Archives is currently undertaking a massive effort to move record keeping, preservation and disclosure into the electronic age. But some in the access community are worried that this is too little, too late.

Intelligence budget
In April 1996, President Clinton announced that in his view the intelligence budget may safely be declassified without harming the national security. Instead of releasing the number, however, he invited Congress to do so. In October 1997, after being sued by Steven Aftergood at the Federation of American Scientists, the CIA director released the FY 97 intelligence budget; the FY 98 budget was released six months later after Aftergood threatened a second lawsuit. But when Aftergood requested the FY 99 budget, the CIA reversed itself — in the middle of impeachment proceedings — and refused to release the information; the White House acquiesced and the number is again an official secret.

Some of the Clinton administration actions detrimental to access:

NSC records
In response to a lawsuit seeking access to the electronic records at the White House, the administration reversed a 25-year-old policy and announced that National Security Council records are not subject to the Freedom of Information Act, a position ultimately sustained by the courts.

Government secrecy
The administration killed Sen. Moynihan's government secrecy reform legislation that included a requirement that the public interest balancing test be considered by judges when reviewing agency decisions to withhold classified information sought under the Freedom of Information Act.

The administration's objection to strengthening judicial oversight of refusals to declassify information under the Freedom of Information Act was not limited to attempting to preserve the status quo. In the Weatherhead case, the administration sought to eviscerate any semblance of judicial review, even suggesting that the Pentagon Papers case was wrongly decided. In that instance, the administration made the extraordinary and extreme argument that any rule that results in the disclosure of classified documents under the FOI over the objection of the government is unconstitutional. Two days after the FOI plaintiff and the openness community filed briefs, the government suddenly released the document and mooted the case.

Actions still pending:

Critical infrastructure information
In early 2000, the administration floated a wide-ranging proposal that would reverse fundamental principles of Freedom of Information in the name of protecting against threats to critical infrastructures.

Kate Martin is general counsel for the National Security Archive and director of the Center for National Security Studies.

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