R. Sean Evans
Cline Library, Northern Arizona University, Flagstaff,
AZ., 86011-6022
Internet:<sean.evans@nau.edu>
Brad Vogus
Hayden Library, Arizona State University, Tempe,
AZ., 85287-1006
Internet:<vogus@asu.edu>
Abstract:
Despite a rich history of federal
government information access, the executive branch of the Bush administration,
and Congress have embarked on an unprecedented array of policies and procedures
which will have far-reaching impact on federal information access. Some of
these policies can be traced to shortly after the administration came into
office, but the growth of information curtailment has accelerated since the
events known as collectively as 9/11 occurred. At issue clearly are the concepts
involving (public) information access, and the needs to secure information
that might be of use to terrorists.
Keywords: government information, terrorism, 9/11
The United States has had as policy open access to government produced information and data throughout its history. This openness accelerated with the transition to the Internet environment. In the normal course of things, evaluating the effects of such a shift now going on 8 years would be interesting and prudent. However, the events of September 11, 2001, thrust our nation into a protective posture, causing a rapid shift and evaluation of information access policies. The images of the events of 9/11 create a searing vision that support the huge growth of protective, anti-terrorist activities undertaken by government of the United States (at all levels) since 9/11. Listed below are 7 road signs which are markers for changing federal information access policies. These items, and their effects are at this point quite fluid, and changing almost daily. Many of these activities below are bound to wind up under legal scrutiny, with inevitable interpretive evolution ongoing.
Federal Information Distribution History
The one form of federal government information access that is probably best known among librarians and information specialists is the material distributed to libraries by the Government Printing Office (GPO) through the Federal Depository Library Program (FDLP). The history of government printing and information distribution is a lengthy one, stretching back into the early 1800s. The underlying philosophy which GPO has adopted for the dissemination of federal information can be seen early in the quote from James Madison :
"A popular government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives" (1).While government publications were distributed to various libraries and learned societies as early as 1813, the modern and familiar version of government information distribution system is rooted in post-Civil War American history (2). In 1869, the position of Superintendent of Documents was created within the Department of the Interior, under the Secretary of the Interior who had the authority to grant libraries depository status and distribute materials (3). By the close of the Nineteenth century, the Monthly Catalog had begun to publish citations to the publications of the United States printed by the Government Printing Office, and by 1903, the modern Superintendent of Documents Classification system (SuDocs) came into being (4). From 1923-1978, a number of significant events finished the creation of the modern depository library system: the ability to select against a representative list of documents (as opposed to getting all items published); the ability of Congressmen to add a depository library for their district; the addition of law schools and court libraries to the program; and the establishment of procedures for libraries to weed their collections (5). The significant event is the dramatic rise in the number of depository libraries, from just over 400 in 1895 to more than 1,200 by 1978 (6). This represents and enormous increase not only in access to federal publications, but this time frame also witnessed the expansion of the program, and the material distributed.
Modernization of the Program
While the FDLP grew to include
more libraries, and allow libraries greater freedoms in what materials they
collected and kept, the introduction of new , non-paper formats came late.
It was not until 1977 that microfiche was selectively used in place of paper
materials, eventually replacing many paper titles entirely. The reliance
upon devices to access information (in this case fiche reader printers) created
a degree of controversy involving the equipment libraries would need to make
such documents available to the public. This controversy was re-lived in
1989 when the first GPO-derived CD-ROM products began to appear in shipping
boxes (7). The CD-ROM products created opportunities for
libraries to provide public access to very large files and data sets previously
unimagined. Some of the early CDs were quite good. Census CD-ROMs by example
were often clear, easy to use, and allowed users to find and construct very
specialized data. Other CDs were victims of their operating software, often
contracted by the issuing agencies, and with little support information for
libraries to access.
In 1993, the Government
Printing Office Electronic Information Enhancement Act of 1993 (Public Law
103-40) created the foundation and funding for the creation of GPO Access,
GPO's web site where official electronic versions of many publications could
be located free by the public (8). Clearly, the move
to the Internet as a platform for federal government information distribution
dramatically increased access of such information, even if such access occasionally
was accompanied by the intervention of a librarian, or information professional.
This information shift was not a casual undertaking. GPO had to examine how
the shift to electronic format for an ever increasing number of titles and
data sets would impact fundamental and historic goals of : "equitable, no-fee,
local public access"; "improved access"; "formats appropriate for the needs
of users"; how to "enable the public to locate government information regardless
of format"; "ensure timely current public access, and permanent, future public
access"; and finally "ensure that the program is cost-effective" (9). Currently GPO indicates that more than 60% of the
material available to libraries by the FDLP are available online. Many more
titles and databases are available outside of the FDLP and GPO directly from
individual agency web sites.
Shift in Direction from the Bush Administration and Congress
To some extent, information
policies shift and change from one administration to the next. Some of this
is due to the political philosophy of the administration in office being
played out; philosophies unique to the Public Printer ; and the inevitable
ongoing tension between the Legislative and Executive branches of government.
Listed below are 7 significant events and policy actions (in chronological
order) which will shape the public information access policy of the Bush administration,
especially since 9/11. Currently, these items may only indicate trends
which we may see over the remainder of this administration. Events are occurring
and shifting very quickly, and may not indicate with any certainty the future
of government information distribution.
Freedom of Information Act Administration policy (Department of Justice , October 12, 2001)
"I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.Ashcroft in this memo is calling for a greater degree of deliberation on the part of federal agencies before granting information under FOIA requests, and is announcing that the full weight of the Justice Department will be available to defend the agencies' decisions should they elect to not fill FOIA requests. Given the political landscape after 9/11, such announcements certainly reflect a desire to provide a higher degree of security to sensitive information, but just as likely it also indicates to a certain extent that agencies are being encouraged to be unresponsive to FOIA requests, even to the extent of going to court. The document while framed in the current wartime national security environment, makes specific broad mention of the need for agency heads to be mindful of "institutional, commercial, and personal privacy interests" before granting FOIA requests (11). This particular action will likely have little direct effect upon government information accessed via the FDLP, but could have a far greater if not chilling effect upon information normally obtained via FOIA by researchers and scholars.In making these decisions, you should consult with the Department of Justice's Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." (10)
GPO, and the removal of select documents issues (October 12, 2001)
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) (P.L. 107-56) (United States Congress, October 26, 2001)
These areas expand upon current
legal tradition. For example according to the AALL, "business" records Under
P.L. 107-56 is now expanded include patron use records in libraries, and
the inclusion of copyright violation and fraud into the general realm of
terrorism. This will considerably widen the number of individuals who may
face legal action as "terrorists" under P.L. 107-56. The American Library
Association issued a "Library Community Statement on Proposed Anti-Terrorism
Measures" (at: http://www.ala.org/washoff/terrorism.pdf)
that details the concerns of the library community. Some of these concerns
are technical in nature: how to track individual public computer use by user
for example; or proposals to add law enforcement software to library PCs
given the current goals to provide modern access to the Internet; other concerns
involve the lowering of legal standards which will permit law enforcement
access to patron and circulation records without Judicial review (18).
Executive Order 13233 Further Implementation of the Presidential Records Act (White House November 1, 2001)
E.O. 13233 is perhaps the
single greatest restrictive action on this list. Prior to E.O. 13233, Presidential
papers were made available out of the National Archives after 12 years as
prescribed by the 1978 Presidential Records Act (19).
Under E.O. 13233, Presidential Papers may be withheld from public scrutiny
if either the President under whose administration the material was
generated or the current sitting President disagree with their release (20). This effectively means that any past, current or future
President will have the ability to keep Presidential papers away from public
examination and research for the indefinite future. The Justice Department
has already signaled that it will support the administration on FOIA requests,
further enhancing the probability that such information will likely
not be disclosed (see the section on Freedom of Information Act Administration
policy, above). As NARA archival products are not part of
the FDLP, the effect of E.O. 13233 really is more an impact on historical
or political researchers and journalists who would tend to utilize former
Presidential material.
At this point, one bill (H.
R. 4187 entitled "(An Act) To amend chapter 22 of title 44, United
States Code, popularly known as the Presidential Records Act, to
establish procedures for the consideration of claims of constitutionally based
privilege against disclosure of Presidential records") was proposed during
the 107th Congress. H.R. 4187 wad designed to curtail the ability of a President
(or designate) to single-handedly block access to Presidential Papers scheduled
for release by the National Archives by placing a 20 day review period in
place wherein only a Judge could prevent disclosure of the information requested,
or alter the 20 day period for further analysis by modifying the current
Title 44, chapter 22 of the U.S. Code. The act also states that once passed,
E.O. 13233 "shall have no force or effect" (21). Scheduled
for mark up during the week of May 22, 2002 the bill was on hold pending
White House pressure on Republican bill sponsors to withdraw their
support (22). With the closure of the 107th Congress,
and the Republican majority in the incoming 108th, it would seem unlikely
that any action will be taken on this issue in the near future.
Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security (White House, March 19, 2002)
This memo outlines three goals:
First, to extend when appropriate, the length of time material remains classified
from ten to twenty five years; Second, to classify previously unclassified,
non-public material when appropriate; Third, to create a new category of
material called "Sensitive but Unclassified Information". The goal
overall is to prevent public access to material which might "reveal information
that would assist in the development or use of weapons of mass destruction"
(23). Clearly in the last category many government technical
reports could be interpreted as providing information which could be used
for such information gathering either directly, or in combination with other
publications and data sets. As the 90 days period of review is ongoing, it
is as yet unknown what the specific effects of this memo will be on existing,
public documents. The memo directs agencies to review the FOIA memo of the
Justice Department from October 19, 2001 for clarity. Given the tremendous
degree of openness from agencies like the Central Intelligence over the last
decade on materials pertaining to the Cold War for example, or the Department
of Energy in making available thousands of full-text reports through its
Information Bridge, such documentary reclassification will certainly
slow the release of much historical information and lead potentially to the
recall, destruction and loss of access to many titles already in libraries
and data sets. (24).
OMB Memorandum M-02-07 Procurement of Printing and Duplicating through the Government Printing Office (White House, May 3, 2002)
This is late breaking news.
In early May, the Executive Office of Management and Budget issued a memo
(# M-02-07) calling for the end of the mandate that the Executive branch agencies
use the Government Printing Office (a Congressional agency) for their print
needs. The memo states: "The time has come for the Executive Branch to liberate
its agencies from a monopoly that unfairly penalizes both taxpayers and efficient
would-be competitors" (25). Specifically OMB M-02-07 calls
for Executive branch agencies to select printing and duplicating services
based upon best quality, cost and time of delivery. This infers that agencies
will begin to bid out regular documentary printing to commercial print houses
and GPO. Exceptions to the bidding process are the Central Intelligence
Agency, Defense Intelligence Agency, National Image and Mapping Agency, National
Security Agency, or any other printing subject to the rubric of national
security restrictions (26). Agencies are required to produce
an annual report to the Director of the Office of Management and Budget on
the overall cost of their printing operations, detailing work produced by
GPO and commercial contractors. The memo further mandates changes to the
U.S. Code and Code of Federal regulations to accommodate these policy changes.
This implies at the moment that these changes are not compliant with current
law and regulation and will likely be subject to lawsuit. While clearly not
security related, this memo could have far-reaching effects on the ability
of the GPO to collect and distribute information created by the government
with taxpayer derived funds.
In many regards this is very
reminiscent of a similar situation from the 1870s. In 1876 the House
of Representatives completed an exhaustive study on the cost effectiveness
of the GPO. This study seems to have been largely driven by the former publisher
of the Congressional Globe, Rives and Bailey. The minority report claimed
huge excesses on the part of the GPO, but the report was not adopted, although
the printer's wages were cut the following year (27).
In a lengthy response to OMB
M-02-07, GPO faults that memo on several points. OMB M-02-07 would likely
have the following negative impacts:
Since the release of OMB M-02-07, the White House has forwarded an interesting argument regarding the violation of the U.S. Code and CFR that the memo promotes. The logic forwarded seems to revolve around the fact that as the use of GPO is probably unconstitutional, they are advocating the process of bidding out print jobs to private print firms, a sort of declaration of action prior to the determination of constitutionality, usurping the role of Congress and the Court. OMB has moved forward specifically ignoring Congress with plans to publish the 2004 FY Federal Budget outside of the GPO(29).
- In a decentralized system of printing, if there are delays in payments by agencies, the cost of future printing orders with contractors could increase.
- It can be has much as 50% more expensive for agencies to print in-house than to procure their printing through GPO.
- GPO would no longer be able to apply uniform standards of print quality to Government work.
- The public's access to Government publications and information would be significantly impaired. (28)
Commercialization and Material shifting at Departments of Energy and Education
Conclusion
Clearly, the events of 9/11
have caused the government of the United States as a whole to think about
information access and related policies. It is obvious that federal information,
whether that made available via the FDLP, agency web sites, or FOIA requests
has the potential for use against the United States by foreign or domestic
terrorist groups or individuals, and as such the federal government re-evaluating
access and distribution policies makes a degree of sense. The problem
with such a philosophy is making the determination as to what exactly constitutes
harmful information. In other words, while few would argue the merits
of curtailing certain forms of information, the uncertainty as to just what
sort of publications and Web sites will constitute "dangerous" information
leaves the impacts of these actions unpredictable. Additionally, as it appears
the administration seems to indicate this "War on Terrorism" may go on without
end, these policies and actions seemingly have no effective end date. Many
of the actions listed above could have the potential of reaching far beyond
limiting potentially harmful information to damaging the freedom of information
access overall. Compounding this situation are ill conceived notions
such as those outlined in OMB M-02-07 which may privatize print government
material and make the distribution of federal information in the context
of the FDLP much more difficult, and likely result in the loss of public
access to that information, especially as the White House begins implementation
of OMB M-02-07 with the publication of the U.S. Budget going out for bid.
Additionally, the administration's support of commercial fee-based information
providers over the free products produced by agencies would seem to indicate
that other databases like Argricola, ERIC, or PubMed could come under similar
attacks by SIIA, or other self-interested bodies, further reducing public
access to information.
Clearly, the Internet is also
a huge consideration. Material which might become classified, or "Sensitive
but Unclassified", will not automatically become unavailable simply because
the links are removed, or even if the file is removed. Likewise, the fact
that much more than single titles can disappear with web site redactions
is very troubling. Quoting Francis Buckley jr. :
"Security concerns also have great implications
in the online environment. Government information on the web in electronic
format is widely accessible, heretofore considered a good thing, but now it
is being reconsidered." (35)
A. Lost Information
"Access to Government Information Post September
11th"., OMB Watch, 2/01/02 at: http://www.ombwatch.org/article/articleview/213/1/1/
This page is regularly updated
to include more websites as they are taken down. See the section entitled:
Information removed from agency web sites.
B. Past FOIA Policy
October 1993 Freedom of Information Act Memo
from the Department of Justice outlining Clinton Administration policy
at: http://www.fas.org/sgp/clinton/reno.html
"About GPO Access", http://www.access.gpo.gov/su_docs/whatis.html (5/09/02)
American Library Association., Library Community
Statement on Proposed Anti-Terrorism Measures, http://www.ala.org/washoff/terrorism.pdf
(5/15/02)
ALA Office of Government Relations., "Government Information-What's New?" Accesses 11/26/02 http://www.ala.org/washoff/governmentinfo.html
Ashcroft, John., Memorandum for Heads of all Federal Departments and Agencies. posted 10/15/01 at: http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm (5/15/02)
Buckley ,Francis., "Security, State Plans, Promotion, and Sales Remarks by Francis J. Buckley, Jr.", Administrative Notes., Vol. 23, No. 6, pp. 1-6. http://www.access.gpo.gov/su_docs/fdlp/pubs/adnotes/ad050502.html#1 (5/10/02)
Craig, Bruce., " Horn Bill Mark-up "ON HOLD" Due to White House Pressure"., NCC Washington Update, Vol. 8, #20, May 21, 2002
Depository Library Council., Fulfilling Madison's Vision: The Federal Depository Library Program., Washington, D.C., U.S. Government Printing Office, 1996, 107 pp.
Drake, Miriam A., "Is the GPO Endangered?", Information Today, September 2002, Vol. 19 Issue 8, p 1.
Drake, Mariam A., "Cost Cutting or Access Control: OMB Dismantling GPO?", Searcher, October 2002, Vol. 10 Issue 9, p 65.
Friel,Brian., " OMB ignores Congress, may bypass printing office". GovExec.Com Daily Briefing, October 30, 2002 http://207.27.3.29/dailyfed/1002/103002b1.htm
Halstuk, Martin E, "In Review: The Threat to Freedom of Information.", Columbia Journalism Review, Jan/Feb2002, Vol. 40, no. 5, p 8.
Harrison, James L. (ed.)., 100 GPO Years 1861-1961: A History of United States Public Printing., Washington D.C., U.S. Government Printing Office, 1961. 164 pp.
Hensen, Steven L., "The President's Papers Are the People's Business", Washington Post, Sunday, December 16, 2001; p. B01.
Hughes, Robert., "Free Libraries, Free Society", American Libraries, August 2002; p. 50-2
Jobe, Margaret M., "What a Difference a Year Makes"., Library Journal Digital., May 15, 2002. http://libraryjournal.reviewsnews.com/index.asp?layout=article&articleid=CA216313 (5/28/02)
McGarr, Sheila M. "Snapshots of the Federal Depository Library Program", http://www.access.gpo.gov/su_docs/fdlp/history/snapshot.html (5/08/02)
Matthews, William., "More sites targeted for shutdown". FCW.COM., Nov. 13, 2002 http://www.fcw.com/fcw/articles/2002/1111/web-science-11-13-02.asp
National Archives and Records Administration, Executive Order 13233--Further Implementation of the Presidential Records Act, http://www.nara.gov/nara/vision/presidential_records/eo13233.txt (5/13/02)
Nelson, Anna K. , "Now, More Than Ever, We Need to Know the History Of Our Recent Past". Academe, July 2002, Vol. 88 Issue 4, p59
Notess, Greg R., "PubScience: Evolution or devolution". EContent, February 2000.
Office of Congressional and Public Affairs, Statement on Request to Withdraw USGS Source-Water CD-ROM from Depository Libraries., Washington, D.C., U.S. Government Printing Office, January 16, 2002. http://ww1.access.gpo.gov/GPOAccess/public-affairs/news/02news04.html (5/10/02)
Office of Management and Budget., Procurement of Printing and Duplicating through the Government Printing Office., May 3, 2002, at: http://www.whitehouse.gov/omb/memoranda/m02-07.pdf (5/15/02)
Ojala, Marydee., "PubSCIENCE Joins the Endangered Species List". NewsBreaks and Conference Reports, August 19, 2002. http://www.infotoday.com/newsbreaks/nb020819-2.htm
Parker,Laura; Kevin Johnson., "Secure often means secret Post-9/11, government stingy with information"., USA Today., May 16, 2002, p. 1A http://www.usatoday.com/usatonline/20020516/4116384s.htm (5/28/02)
Parks, Wanda., "PubScience- New Desktop Access to Journals". Energy Science News., November/December 1999, Volume 9, Number 6 http://www.pnl.gov/energyscience/11-99/art2.htm
Quint, Barbara., "Documents? What Documents?", Information Today, September 2002, Vol. 19 Issue 8, p8
Reeves, Richard., "Hiding History", American Heritage, Aug/Sep2002, Vol. 53 Issue 4, p 64.
Sherman, Andrew M., "Response from Andrew M.
Sherman, Director - Office of Congressional and
Public Affairs, GPO "., What They Think.,
May 15, 2002 at: http://members.whattheythink.com/home/gpo.cfm
(5/23/02)
U.S. Government Printing Office., Study to Identify Measures Necessary for a Successful Transition to a more Electronic Federal Depository Library Program., Washington, D.C., U.S. Government Printing Office, 1996.