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When to redact, when to withhold, and when to share: the battle over access to information

When to redact, when to withhold, and when to share: the battle over access to information

By John Glynn

With Edward Snowden fleeing the United States with troves of confidential information and transparency advocates demanding to see who gains access to the White House, many legal issues surrounding the protection and release of government information have been under scrutiny this year.

Experts in administrative law and regulatory practice detailed the extent of information freedom during a panel at the recent American Bar Association Administrative Law Conference in Washington. The discussion reviewed the rights of the public to information produced by the government and the restrictions the government must follow when uncovering information about private citizens.

For more than 40 years, the Freedom of Information Act has allowed citizens the right to access information from federal government records. When a FOIA request is made, the designated agency must provide the information or explain why it cannot make the information public.

Some FOIA requests are easy, like asking for the White House beer recipe. Others have a security or privacy element to them, making the release of the information more complicated.

According to foia.gov, the federal government received over 650,000 FOIA requests in 2012. The government released information for 234,049 requests, provided some information for 200,209 requests and denied to release information for 30,727 requests. Some requests are not completed in the year they are received, and there is a consistent backlog of tens of thousands of requests each year.

Bernard W. Bell, professor of law at Rutgers University School of Law, identified the four factors that help determine which FOIA requests are granted:
  1. The intent of the document’s creator to retain or relinquish control over the records.
  2. The ability of the repository (source) agency to use and dispose of records as it sees fit.
  3. The extent to which the repository agency personnel have relied upon the document.
  4. The degree to which the documents are integrated into the repositories’ systems of records or files.

These four factors came into play when Judicial Watch, a government watchdog group, presented a FOIA request for White House visitor logs. These logs originate from the Secret Service’s White House Access System. Eventually these records are handed over when they are no longer needed for security purposes.

“Giving access to White House logs through the WHAC system would put the president to a choice,” Bell said.  “Either surrender his constitutional prerogatives to maintaining secrecy regarding his choice of visitors — including foreign leaders, agency officials or members of the public — or essentially not cooperating with the agency tasked with protecting his safety.”

Judicial Watch sued the Secret Service for access to the logs, and won in district court, but the decision was later overturned by the U.S. Court of Appeals for the District of Columbia, which ruled that the WHAC’s records “do not fall within the scope of FOIA, but are instead subject to the regime established by the (Presidential Records Act).”

Fifteen minutes before the ABA panel began, the White House released visitor records to the public, but for records from January 20 to September 15, 2009, a separate protocol remains.

While the White House records issue appears to have been settled, the case of surveillance is far from being closed. The release of National Security Agency documents revealing the vast scope of some of the agency’s intelligence programs in June attracted a significant amount of public attention.

Alan Butler, appellate advocacy counsel at the Electronic Privacy Information Center, studied these programs and the laws associated with them.  According to Section 215 of the USA Patriot Act, the government has to provide evidence that establishes reasonable grounds for an investigation, Butler said. But according to the new details behind these secret programs, “this is not an order for particular records. This is literally an order for all telephone records,” Butler said. He described it as the government looking at “the haystack to find the needle.”

Regarding the data collection conducted under the PRISM program, Butler argued that a change to the Foreign Intelligence Surveillance Act made it so that the government can query and acquire communications that are “reasonably believed to be foreign” from all major Internet service providers.

Section 702 “created a new system whereby the attorney general and director of national intelligence could go every year on an annual basis to the foreign intelligence court and apply for the authority to conduct targeted electronic surveillance without prior individualized court approval,” rather than having to go to court every time they want to target something, Butler explained. “Instead they go to the court once a year, explain how they plan to target communications and what other procedures they will use to process that data, and then they can, on their own, issue directives to service providers for assistance with surveillance.” Butler said that a number of groups have challenged Section 702 and that in 2013 alone, 250 million communications are being observed.

The next year is sure to involve the ongoing legal evaluation of what information is available to the public as well as what information is accessible to intelligence agencies.

The panel “The Year in Government Information: NSA Surveillance, Bin Laden Photos, White House Logs and More” was sponsored by the ABA Section of Administrative Law and Regulatory Practice.

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