On the Edge: Secrecy Still Reigns

At this writing, U.S. President George W. Bush has little more than 10 months left in office. But the effect of his decisions regarding government records may prove to be long-lasting.

According to open-government groups, the U.S. government has become more secretive over the past seven years and, unless Congress or the next president changes the current culture in Washington regarding the openness of government records, that trend may continue.

Nikki Swartz

PRA Revised

In November 2001, Bush issued Executive Order 13233, giving former presidents – and, for the first time, vice presidents – and their families the authority to withhold the release of presidential records in perpetuity. The order essentially overturned the Presidential Records Act of 1978 (PRA), allowing a sitting president to block the release of a former president’s records, even if that former president has approved the release. The only recourse of those who may oppose the action of a president is a lawsuit; however, even then, the president or former president can delay the release of records.

The PRA allowed former presidents to withhold records relating to their term in office up to 12 years after leaving office and granted several exceptions after that time expired for which records could continue to be withheld. When a president’s term ends, the PRA gave the U.S. archivist custody of the records and ultimate authority over whether to release them.

In response to vociferous protests over Bush’s order, a government watchdog group filed a lawsuit, and the House passed The Presidential Records Act Amendments of 2007 by a veto-proof margin and with the support of 104 Republicans. The legislation, which would void Bush’s order and re-establish procedures to ensure the timely release of presidential records, received broad bipartisan support in the Senate and cleared the Senate Homeland Security and Government Affairs Committee by voice vote last year.

But in September 2007, it hit a roadblock – Sen. Jim Bunning (R-Ky.). Bunning objected to the bill and since has held up a vote on it.Despite requests from the media, open government groups, and historians, Bunning has refused to fully explain his opposition. However, last year the Dallas Morning News quoted him as saying, “The president ought to have the right to withhold any records he chooses” and that former presidents should have “a reasonable amount of time” to release their records.

The White House has said that if the bill does eventually pass Congress, Bush will veto it.

However, part of Bush’s order has been invalidated in court. In October 2007, a federal judge ruled that the National Archives, in fact, should have the final say on when presidential papers are publicly released. In her ruling, U.S. District Judge Colleen Kollar-Kotelly invalidated the part of Executive Order 13233 that broadened former presidents’ rights to indefinitely withhold or delay the release of their records.

Her ruling came in response to a lawsuit brought by government watchdog group Public Citizen soon after Bush’s order was issued in 2001 on behalf of itself and several historian and press groups. The lawsuit asked the courts to strike down the executive order, but Kollar-Kotelly’s ruling provided only a partial victory for the plantiff. She did not rule on the constitutionality of the order itself and, instead, focused on the provision related to former presidents.

In addition, the judge did not rule on the legality of the sections giving the family and designees of former presidents and vice presidents control over the release of presidential records, calling them “unripe” because those provisions have not yet been used to withhold records. This means the broad privilege established by the order to withhold presidential records remains intact.

In late November 2007, the Bush administration decided not to appeal the judge’s decision regarding former presidents’ rights.

Judge: Visitor Logs Are Public

However, the White House did challenge a U.S. District Court’s December 2007 ruling that the visitor logs for the White House and Vice President Dick Cheney’s residence are public records. In response to a lawsuit brought in October 2006 by Citizens for Responsibility and Ethics in Washington (CREW), Judge Royce C. Lamberth ruled that these documents can be released to the public under the Freedom of Information Act (FOIA), the United States’ open record law.

The nonpartisan CREW sought information regarding visits from nine conservative leaders, including James Dobson of Focus on the Family and Gary Bauer of American Values, according to the Associated Press (AP). The Bush administration had refused to release the information and, in May 2006, the president and Secret Service signed an agreement stating that visitor logs were no longer open to the public.

CREW argued that visitor records are created by the Secret Service, which is subject to the FOIA. According to an AP report, the Bush administration had ordered the visitor data turned over to the White House, where they were treated as presidential records – and not subject to public records law.

Lamberth, though, noted that the logs did not damage the confidentiality of presidential and vice presidential policy deliberations. In fact, he said, the logs provide information only about who visits the administration’s top officials; they do not reveal the nature or the purpose of such visits.

Lamberth ordered the White House to produce the records within 20 days of his December 17 ruling. The Bush administration later asked the court not to force the release of the visitor logs until it can appeal the ruling.

Missing E-mail Sought

The government’s e-mail retention procedures have also come under fire. According to one government watchdog group that has sued the White House, 10 million e-mails are missing. A 2005 study from the White House itself has revealed that 473 days’ worth of e-mail were not archived and may be gone forever.

As a result, the Bush administration is the target of several lawsuits seeking information about missing data and efforts to preserve electronic records.

In January, House Oversight and Government Reform Committee Chairman Henry Waxman (D-Calif.) disclosed an internal White House study showing that the administration did not archive e-mails for many of its offices, including the president and vice president’s offices, for 473 days over a 20-month period between 2003 and 2005 – a time period that includes significant events such as the Valerie Plame CIA leak, lobbyist Jack Abramoff ’s dealings, and the administration’s rationale for going to war in Iraq.

According to the Washington Post, the study, produced in 2005 by the Office of Administration, revealed that for Bush’s office, no e-mails were archived on 12 separate days between December 2003 and February 2004. The study shows no e-mails for the vice president’s office on 16 occasions between September 2003 and May 2005.

No archived e-mails could be found for even more days in other parts of the White House, according to the study. For example, the Council on Environmental Quality and the Council of Economic Advisers had no archived e-mails for more than two months beginning in November 2003. The Office of Management and Budget showed no messages for 59 days, and the Office of the U.S. Trade Representative showed no e-mails for 73 days, the Post reported.

The administration has questioned the reliability of the study but has refused to release it and several related documents. Waxman disclosed the study after the White House’s admission that it recycled e-mail backup tapes until sometime in October 2003, taping over existing data repeatedly.

The admission came in response to a court-ordered deadline in early January that forced the administration to reveal whether copies of missing e-mails written between 2003 and 2005 during an investigation into the disclosure of a CIA operative (Plame) are stored in computer backup files. The order stemmed from lawsuits from two private groups – the National Security Archive and CREW – who had sought the information. In their lawsuits, the AP said, the groups suggest that the e-mails were improperly deleted from White House computer servers.

The White House had tried to get the suits dismissed on the grounds that the president’s recordkeeping practices under PRA are not subject to court review and the Federal Records Act does not allow such far-reaching action as demanded by the groups in the suits, according to the AP.

Instead, the federal magistrate, John Facciola, gave the White House five business days to determine whether computer backup files contained the missing e-mails, and this led to the administration’s acknowledgement that recycling backup tapes had been a common practice before 2003, meaning that millions of critical messages likely were deleted and may be lost forever.

In November 2007, CREW obtained a court order directing the White House to preserve its backup tapes.

Theresa Payton, chief information officer in the White House Office of Administration, said the White House ended the practice of recycling backup tapes in October 2003, when it “began preserving and storing all backup tapes and continues to do so.”

But questions persist about whether any e-mails dating from before that time were archived or can be found, as various administration staff members have provided confusing and, at times, contradictory statements.

For example, Payton, whose staff is responsible for the White House e-mail system, has said e-mails sent or received
during the 2003-2005 time period should be contained on existing backup tapes. In a sworn statement filed in January in response to Facciola’s federal court order, she said the White House “does not know if any e-mails were not properly preserved in the archiving process.”

However, White House spokesman Tony Fratto said in January that e-mails were inadvertently deleted, and their number is uncertain. “It was a problem we announced, admitted to, and will remedy,” he told the AP. He added: “There is no basis to say that the White House has destroyed any evidence or engaged in any misconduct.”

CREW has said up to 10 million e-mails could be missing or deleted. The White House has neither confirmed
nor denied that claim.

The issue of missing e-mails first arose when Patrick Fitzgerald, the prosecutor in the Plame investigation, disclosed in a letter to defense counsel in January 2006 that some e-mails in the offices of Bush and Cheney were not preserved through “the normal archiving process” for certain periods in 2003.

If the e-mails were not properly archived, the White House might have violated two federal laws requiring preservation of documents, including e-mails that fall into the categories of federal records or presidential records.

Openess Encouraged

A few significant laws passed recently should encourage increased government openness.

For example, on December 31, 2007, Bush signed into law revised legislation designed to improve and strengthen the FOIA. The Openness Promotes Effectiveness in our National (OPEN) Government Act (S. 2488) will speed the release of millions of government documents requested by Americans under the FOIA. The law penalizes agencies that take months or years to meet FOIA requests by denying them the right to charge research or copy fees for documents released after the 20-day deadline, among other provisions. Bush had initially opposed the bill because of the resources it would require, according to the White House.

In 2006, Bush signed a bipartisan bill co-sponsored by Sen. Barack Obama (D-Ill.) and Sen. Tom Coburn (R-Okla.) that requires the White House budget office to put government contract information online. The result – USASpending.gov – went online in December 2007 to provide information about government contract and grant spending.

 

Sidebar: Panel: U.S. Lags in Declassifying Records

A joint presidential-congressional advisory panel report says President George W.Bush should take immediate action to step up the process of declassifying government records. The panel found that the United States is lagging in efforts to declassify its secrets – and the fact that government agencies are creating billions of electronic records containing sensitive information is only exacerbating the situation.

“Too little has been done with regard to ... the truly monumental problem looming on the horizon: the review of classified information contained in electronic records,” the report states.

In the report released in January, the Public Interest Declassification Board urged Bush to act to allow greater openness, according to an AP report. For example, the report suggests that the president should immediately create a national declassification program under U.S. Archivist Allen Weinstein to increase efficiency. Under such a program, all federal agencies would report declassification decisions on one computerized system.

The report says more than a billion pages have been declassified since 1995, the year President Bill Clinton signed an executive order stating that records would be presumed declassified when they turn 25 years old. According to the AP, many assumed the order would spur agencies to declassify records in bulk. But instead, it caused agencies to hire additional staff to review records, a process that took 12 years.

The report is not optimistic when it comes to agencies’future declassification efforts. It predicts the government will miss the December 31, 2011, deadline for reviewing classified information on microfilm, microfiche, motion pictures, and sound recordings. In addition, it states that the government is not prepared to handle electronic records now or in the future.

The report offers the following recommendations:

• The president should create a system to identify historically significant classified records so they get priority in reviews for possible public disclosure.
• The U.S. archivist should establish a single center in Washington, D.C., to house all future classified presidential records from the end of an administration until their eventual declassification, when they would be transferred to the appropriate presidential library and made public.
• The president should create a National Declassification Center and require it to issue uniform guidelines to govern declassification government-wide.

According to the AP, the report has been sent to heads of relevant government departments for review and comment.

 

Nikki Swartz can be contacted at nikkiswartz@hotmail.com.

 From March - April 2008