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Collaboration on Government Secrecy

Collaboration on Government Secrecy ("CGS")


Mission Statement

The Collaboration on Government Secrecy ("CGS") is a non-partisan educational project devoted to openness in government, freedom of information, government transparency, and the study of "government secrecy" in the United States and internationally. Its mission is to, among other things:

About

The Collaboration on Government Secrecy ("CGS") was created in 2007 as a non-partisan academic project devoted to the study of government openness and secrecy. Formed under the auspices of the Program on Law and Government in the Washington College of Law ("WCL"), at American University in Washington, D.C., and led by Law and Government Fellow Daniel J. Metcalfe, it stands as the first such entity of its kind at any law school in the United States. It operates this year in conjunction with both the JD and LLM/SJD degree programs at WCL and is designed to afford law students interested in this area of legal specialization the opportunity to gain both scholarly and practical experience, including in the growing field of international transparency. CGS is headed by former Department of Justice Office of Information and Privacy Director Dan Metcalfe, who is a Faculty Fellow in Law and Government at WCL and also serves as CGS's executive director.

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Sunshine Week 2008

Sunshine Week 2009

Holder FOIA Memorandum

CGS in the News

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Federal Access Statutes

TRANSPARENCY IN THE OBAMA ADMINISTRATION

In a sweeping "Day One" memorandum to the heads of all executive branch departments and agencies that has the effect of an executive order, President Barack H. Obama declared his firm commitment to government transparency: "My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. . . . Government should be transparent." Entitled "Transparency and Open Government," this unprecedented presidential directive calls upon federal agencies to "harness new technologies" to make information about their operations "readily available to the public" and to "provide[] information for citizens about what their Government is doing" in their name. Toward that end, and the prompt end of an era of secrecy, President Obama directed his incoming Chief Technology Officer (an Associate Director of the White House's Office of Science and Technology Policy) to coordinate the development of a set of "recommendations for an Open Government Directive," within the next 120 days (i.e., by May 21) -- as the basis for a directive "that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum." And in a companion directive on the Freedom of Information Act directly, the White House announced, President Obama "instruct[ed] the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context."

In other words, on January 21 two 120-day clocks began ticking toward action required by May 21, and then well into the Obama Administration thereafter -- all of which provides a unique opportunity for those who are most interested in and concerned about government transparency and secrecy (as two sides of the same coin), and government information policy more broadly, to involve themselves in these areas of public policy development and implementation. And they may do so, as President Obama has put it, in a manner that is both "participatory" and "collaborative" with federal government agencies.

On May 21, the Obama Administration did not meet this deadline, but rather established a process by which further work will be done, with public participation, toward that end. (This process can be tracked through the following link: http://www.whitehouse.gov/open/blog/.) Details and up-to-date status information are below.

Amendment of the FOIA

The history of the Freedom of Information Act traces back more than six decades, with major legislative developments occurring with remarkable regularity approximately every ten years. The FOIA was presaged by the enactment of the Administrative Procedure Act, 5 U.S.C. § 1002, in 1946. A decade later, in 1955 and 1956, Congress began the legislative process that culminated in the FOIA's enactment in 1966. Slightly less than a decade after that, and spurred by what came to be known as the "Watergate scandal," Congress enacted major FOIA amendments at the end of 1974. And then in 1986 and again in 1996, on what became a decade-long cycle, the FOIA was the subject of further major revisions. The FOIA Amendments of 2007, delayed perhaps by an unprecedented presidential executive order issued in 2005 (see below), now have continued that pattern of legislative activity.

Several bills were considered during the 110th Congress prior to enactment of the 2007 FOIA Amendments. One, H.R. 1309, was passed by the House on March 14. Another, S. 849, was passed by the Senate on August 3. It was reintroduced in revised form as S. 2427 on December 6 and then was modified and introduced on December 14 as S. 2488 -- which was passed by the Senate on that same day and then was passed by the House on December 18. This bill was signed into law on the last possible day before it would have become law automatically under Art. I, Sec. 7 of the Constitution, on December 31, 2007. Details of the amendments' legislative history and implementation are below.

FOIA Executive Order

In December 2005, an unprecedented presidential executive order was issued regarding the Freedom of Information Act. Entitled "Improving Agency Disclosure of Information," Executive Order 13,392 called upon all federal agencies to improve their handling of FOIA requests in multiple ways, including though the appointment of a "Chief FOIA Officer" and the development of a "FOIA Improvement Plan" at each agency, and to regularly report on their progress through the Department of Justice. According to multiple recent reports, including by the Government Accountability Office, the promise of this Executive Order's strong initial governmentwide implementation has not been met. Details and up-to-date status information are below.

FOIA in the Supreme Court

In the more than four decades since its enactment, the Freedom of Information Act has been the subject of nearly thirty major decisions by the United States Supreme Court. From 1973 to 1985 alone, the Supreme Court issued nineteen FOIA decisions, often at a rate of two or more per year, as the interpretation of the Act's provisions developed extensively through the evolution of case law. Over the past two decades, as the FOIA has matured, the pace has slowed, with only ten FOIA decisions issued by the Court during this period. There have been several "near misses" over the years, in which a FOIA case has reached the Supreme Court but the Court's consideration of the case has fallen through, sometimes at the last minute, due to external events such as withdrawal of the underlying FOIA request or a legislative enactment. In a handful of instances, the Court has declined to take a FOIA case even though the party seeking certiorari was the government agency. Additionally, the Court has had occasion to address the need for the issuance of a stay in a FOIA case, in order to preserve the status quo pending further appeal, and it has done so through opinions written by its members in their Circuit Justice capacity. Details and up-to-date status information are below.

JANUARY 11, 2008 UPDATE: Today the Supreme Court granted certiorari in Taylor v. Sturgell, a FOIA case that presents the question of whether a FOIA requester can properly be precluded, under the principles of res judicata and "virtual representation," from pursuing a FOIA request for the same records that were unsuccessfully sued for by a "close associate" who was represented by the same attorney. The Court of Appeals for the District of Columbia Circuit, in an opinion authored by Chief Circuit Judge Douglas H. Ginsburg, ruled against the requester on that basis in June 2007. This is the first FOIA case to be taken by the Court in four years, albeit on a procedural issue that transcends the statute, and it is expected to be decided before the end of the Court's current Term. The D.C. Circuit's decision, certiorari petition, and all briefs filed with the Court are below.

JUNE 12, 2008 UPDATE: Today the Supreme Court issued its decision in Taylor v. Sturgell, in which it reversed the lower court's decision (written by Circuit Judge Douglas H. Ginsburg of the Court of Appeals for the District of Columbia Circuit) and ruled that, as a sound general rule, courts "should not proscribe or confine successive FOIA suits [i.e., for the same records] by different requesters." Writing for a unanimous Court, Justice Ruth Bader Ginsburg rejected the D.C. Circuit's "broad theory of virtual representation," concluding that while "it is theoretically possible that several persons could coordinate to mount a series of repetitive [FOIA] lawsuits," there is insufficient "risk" of "vexatious litigation" or "abusive FOIA suits" to warrant such a harsh preclusive rule for successive lawsuits brought under the FOIA. This is the thirtieth FOIA case decided at the Supreme Court level (and, putting aside the commonality of the two jurists' names, might be the first time in which the Supreme Court has reversed a decision written by a failed nominee to the Court.)

"Post-9/11" FOIA Litigation

In the years since the terrorist attacks of September 11, 2001, a new category of Freedom of Information Act litigation cases has arisen in the wake of those events and their aftermath. Such cases involve new fact patterns and issues that are distinctly "post-9/11" in character, as they deal with information consisting of or bearing upon matters of "homeland security" that prior to 2001 were barely part of the national landscape. While many such cases are adjudicated under Exemption 2 of the FOIA, a comprehensive compilation includes cases decided under other FOIA exemptions as well. Details and up-to-date status information are below.

Pseudosecrecy

A relatively little-known part of the government secrecy realm is the growing use by federal agencies of document labels to "safeguard" unclassified records and information. Such labels -- most notably, "Sensitive But Unclassified (SBU)," "For Official Use Only (FOUO)," and "Law Enforcement Sensitive (LES)" -- have proliferated largely since 9/11, to the point at which they are the cause of widespread "secrecy" concerns (and often misperceptions) both inside and outside of government. Simply put, the use of a label such as "SBU" to safeguard a document within an agency (or when shared with other governmental counterparts) does not necessarily mean that it falls within a FOIA exemption or is "secret" in the commonly understood sense of that word. To be sure, there are some such designations that are connected to the disclosure prohibitions of certain Exemption 3 statutes -- such as "Sensitive Security Information (SSI)" and "Protected Critical Infrastructure Information (PCII)" -- but these few are exceptions to the rule, with more than 100 different safeguarding labels now in use throughout the executive branch. This area of federal information policy, which can be referred to as "pseudosecrecy," has been the subject of protracted efforts within the executive branch to improve the clarity and consistency of agency information-safeguarding practices for unclassified records over the past half-dozen years.

Shortly after 9/11, an initiative was begun, under the auspices of the newly created White House Office of Homeland Security, to establish a standard category of homeland security-related information that could be "safeguarded" by federal agencies and possibly protected by Exemption 2 of the FOIA as well. Known as "Sensitive Homeland Security Information (SHSI)," this incipient designation subsequently was included within Section 892 of the Homeland Security Act of 2002, 6 U.S.C. § 482, as a basis for its potential use throughout the executive branch. That same year, though, the White House issued a memorandum, in conjunction with the Department of Justice, that addressed both classified information and "sensitive but unclassified" information pertaining to "weapons of mass destruction" such as anthrax-related materials. As the use of the broader designation "SBU" subsequently proliferated widely, and in the continued critical absence of any governmentwide standardization, a presidential directive ultimately was issued late in 2005 that required the Attorney General and the Director of National Intelligence to prepare and submit for presidential approval specific recommendations for "the standardization of SBU procedures" within one year. The fact that this explicit requirement remained unmet more than two years later was one of the subjects addressed at CGS's FOI Day program on March 17, 2008, and it has been the subject of congressional attention as well. Details and up-to-date status information are below.

MAY 9, 2008 UPDATE: Today the White House issued a memorandum to the heads of all executive departments and agencies entitled, "Designation and Sharing of Controlled Unclassified Information (CUI)," which establishes "CUI" as a new standard safeguarding label of choice for unclassified information, defines CUI with little limitation, delegates case-by-case CUI designation authority to the heads of all departments and agencies, and requires the National Archives and Records Administration (NARA) to serve as the "Executive Agent" responsible for "overseeing and managing implementation of this CUI Framework."

MAY 27, 2009 UPDATE: Today the White House issued a memorandum to the heads of all executive departments and agencies entitled, "Classified Information and Controlled Unclassified Information," in which President Obama observed that the existing process for implementing a "CUI framework" under the Bush CUI memorandum of May 9, 2008 now "is not expected to be completed until 2013" -- despite the fact that "the persistence of multiple categories of SBU, together with institutional and perceived technological obstacles . . . continue to impede collaboration and the otherwise authorized sharing of SBU information." He therefore concluded that "new measures should be considered to further and expedite agencies' implementation of appropriate frameworks for standardized treatment of SBU information and information sharing." Toward that end, he established, under the joint leadership of the Attorney General and the Secretary of Homeland Security, "an Interagency Task Force on CUI," which among other things will "review current procedures for categorizing and sharing SBU information in order to determine whether such procedures strike the proper balance among the relevant imperatives." This task force is charged with making recommendations on "how the executive branch should proceed" regarding CUI/SBU within ninety days (i.e., by August 25, 2009).

Transparency Worldwide

The enactment of the Freedom of Information Act in 1966 was a landmark development, but it was not the first of its kind. Such a law was adopted in Sweden two centuries earlier, in 1766, and it continued to apply in Finland when it became an independent nation in 1919. Once enacted and comprehensively amended, though, the FOIA became a model for other nations of the world as they embraced its underlying democratic principles and recognized its strength as an anti-corruption measure. Today, more than seventy-five nations of the world have FOIA-like laws, in addition to several international governing bodies, with dozens more nations now poised to join the international transparency community. Details and up-to-date status information are below.

International Right-to-Know Day

In the United States, "Freedom of Information Day" is celebrated each year on March 16, the birthday of James Madison. Since 2002, the international transparency community has likewise celebrated annual "International Right-to-Know Day" on September 28, with similar programs, Web site postings, articles, and activities. In 2007, CGS coordinated the first-ever event held to commemorate this day in the United States, which was held at the Washington College of Law and included participants in London, Paris, and Wellington, New Zealand. In 2008, CGS's Second Annual International Right-to-Know Day Celebration was an expanded, day-long program that featured nine speakers who surveyed the state of transparency worldwide.

For 2008, CGS also prepared the only compilation of all such recognition of "International Right-to-Know Day" worldwide. Details and up-to-date status information are below.

Presidential Candidates and Openness in Government

In past presidential election cycles, it was the exception rather than the rule for candidates to be asked about freedom of information and government openness, let alone take formal positions on openness-in-government issues. In the current presidential campaign, however, several candidates have stated positions on the overall subject of transparency versus secrecy, recognizing that it has become a subject of growing concern. It also has been the subject of ongoing efforts by a coalition of non-government organizations to urge presidential candidates to pledge to have "the most transparent Administration in American history." Details and up-to-date status information are below.

Directory Assistance

To assist this Web site's variety of different users, the following specific directory information is provided:

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Contact: 202-274-4126

Quote of the Month

"White House spokesman Ben LaBolt says Obama 'has backed up his promise' with actions including the broadcast of White House meetings on the Web." Statement of White House when asked to identify any concrete example of increased FOIA disclosure under Holder FOIA Memorandum of March 19 in implementation of Obama FOIA Policy Memorandum of January 21. Newsweek, "Obama Closes Doors on Openness," June 29, 2009.


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