Beware regulatory creep as secrecy shrouds records

Investigative Reporters and Editors, Inc. The IRE Journal, Nov/Dec 2004 by Weitzel, Pete

FOI REPORT

I'm still trying to find my way around Washington, D.C., a city of circles and squares and main streets that go off on an angle. Travels are made even more difficult for those of us who are direction-impaired by the high number of partisan streets. Don't even try the two-way streets; they're as deadlocked as Congress.

Coming back into the city on a recent weekend, my wife suggested a scenic route around the U.S. Capitol. At one intersection, a portable sign told me to go right. That led to a concrete barricade, forcing a detour to the left. Halfway down the block, a cop stopped us for a look-see. A block later, a trio of police officers made it clear I needed to try some other route across town.

Coincidentally, a story in The Washington Post that day described how district and federal police, responding to heightened threat warnings, had proceeded to safeguard the city. One morning earlier in the week, a street had been closed without notice; a few days later, another. So it went, one by one by one, with no one street closing seeming particularly consequential. Suddenly people, and the Post, realized: You can't get there anymore.

Since this is not a travel magazine, you may have guessed there's a metaphor lurking somewhere.

I'm also still trying to find my way around government in Washington, and coming to realize that the paths of information are not unlike the city's streets. The access routes are irregular, often cut on the bias, frequently partisan, made difficult to navigate by bureaucratic round-a-bouts, and increasingly, blocked by barricades and thought patrols.

In far too many cases - more than ever before - you can't get there.

National security is the given reason for much of the sealing of both roads and records. And the stealth approach to implementation of the respective barricades is remarkably similar.

Anyone seeking information from the Department of Homeland security knows how D.C. drivers must now feel. The department has perfected the craft of regulatory creep in putting a secrecy shroud over a vast array of records. The only criteria seem to be that the information have some relation to infrastructure and other security concerns.

DHS takes its secrecy seriously. In May, the department's Transportation Security Administration implemented new regulations closing transportation-related records without the usual notice and comment period. It said it would accept comment de facto. About the same time, DHS sent staff a directive outlining procedures to be followed in closing records that were "sensitive but unclassified." The directive was itself labeled "For Official Use Only," which means not to be shown to anyone outside the department. It became public when an open government advocacy group learned of it and submitted an FOIA request.

A month later, DHS sent out notice of new environmental review procedures - potentially eliminating much of the public input and information sharing built into the National Environmental Protection Act. The DHS notice initially allowed 30 days for response, one-third the normal comment time.

"Government secrecy is being ratcheted up, sometimes conspicuously, sometimes imperceptibly," Sen. Patrick Leahy, D-Vt., one of the administration's strongest critics on transparency issues, wrote recently.

Secrecy classification system

The increased secrecy comes in areas such as officiai classification of information, a structured process with statutory accountability built in. That rose 25 percent last year, following a 14 percent increase the year before. The imperceptible, and more serious, ratcheting comes in executive orders, regulations, directives that take documents off the declassification table, Web site modifications, restricting of FOIA access and establishment of new, broad-ranging categories of closure.

Records are now being "safeguarded" by DHS and other agencies under such secrecy designations as critical infrastructure information (CII), sensitive security information (SSI) and sensitive but unclassified (SBU). The first two are extrapolated from language in the Homeland security Act, little noticed at the time, to automatically exempt vast amounts of information from public review under the Freedom of Information Act. If you request a document with sensitive but unclassified information, someone will be required to actually look at it before telling you "no."

In effect, these designations form a new, fourth level of classification within the federal government, one that is not constrained by statute or formal oversight, as is the classification system. There are no established standards of experience, training or level of responsibility for the decision makers. There are no criteria for determining if information is "critical" or "sensitive."

The information docs not have to be related to defense and intelligence matters, as are documents subject to classification. In the case of SSI, it has only to have a connection to any kind of transportation, including pipelines. In the case of CII, it needs only be related to infrastructure, whether that's a telephone line, or a bridge or a football stadium.