Fixing FOIA: Over-classification and Arbitrary Redaction

by Matthew L. Schafer

WikiLeaks has transformed the way secret information is made public.  In the process, it has altered the course of investigative journalism to some degree.  While WikiLeaks provides whistleblowers with anonymous access to upload information, journalists, in the past, have had to rely on their own sources and Freedom of Information requests to dig up stories.

With Wikileaks, there is little “digging” occurring.  Instead, it operates by the creedo “If you build it, they will come.”  (Some contest whether WikiLeaks is as hands-off as it suggests, however.)  WikiLeaks’ entrance onto the world stage comes at a time when traditional news gathering tools may be faltering.

The Freedom of Information Act, signed by President Lyndon Johnson in 1966, allows news organizations and citizens alike to request the disclosure of classified information.  The government is not required to disclose information if it relates to the national defense, among other exceptions.

“A democracy requires accountability, and accountability requires transparency,” President Barack Obama wrote in a memo to executive department heads.  “In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government.”

It appears that the FOIA system is, in some respects, damaged by both over-classification and a lack of continuity in redacting information that is released.  In a recent House of Representatives committee meeting, several witnesses cited the problem of over-classification as one in need of a solution before considering stricter laws to prevent leaks like that of the WikiLeaks’ diplomatic cables leak.

“The reality of massive over-classification also points us towards remedies for leaks that are the opposite of those on the front burners such as criminalizing leaks,” Tom Blanton of the National Security Archive said.  “The only remedies that will genuinely curb leaks are ones that force the government to disgorge most of the information it holds rather than hold more information more tightly.”

EFF made two FOIA requests for the same documents. Instead of receiving similarly redacted material, there seemed to be arbitrary redaction.

During the 111th Congress, the Congress passed, and Obama signed into law, H.R. 553, “Reducing Over-Classification Act.”  The Act, which creates a Classified Information Advisory Officer to oversee and challenge classification, found that the over-classification of information unnecessarily prevented the public from accessing information.  It also found that over-classification resulted in a culture of confusion, where it is unclear who has clearance to view certain documents.

“Today’s classification system, however, provides insufficient guidance and support to individuals who are making classification decisions, and often leads them to err on the side of over-classifying information,” a report accompany H.R. 553 indicated.

It is not only over-classification that prevents barriers to FOIA requests.  The Electronic Frontier Foundation recently provided evidence of arbitrary redaction when it filed two separate FOIA requests for the same documents.  In April of 2010, the Associated Press discovered that political advisors as opposed to career public servants were screening its FOIA requests.  The AP also found that the Department of Homeland Security was asking for personal information about the reporters who made FOIA requests.

“[The Wikileaks’ documents] tell us what the government is up to, and also fuel an educated public debate about government activities,” Jennifer Lynch at EFF wrote.  “These are the goals of FOIA, and when the FOIA process works properly… all Americans benefit. However, when federal agencies arbitrarily withhold information and don’t play by the rules, it makes it more likely that entities like WikiLeaks will feel the need to work around a broken system that seems to encourage unnecessary secrecy.”

We have a system in FOIA that has been successful, in spite of its various drawbacks.  It should be a priority, as the WikiLeaks’ saga unfolds, to remedy the problems afflicting FOIA.  The controversy around WikiLeaks aside, it is clear that WikiLeaks’ presence has ignited a much need conversation.  Hopefully that conversation will result in solutions to a broken FOIA system and the over-classification of information.


Photo: The White House (Pete Souza)

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
This entry was posted in First Amendment, Media Policy, Political Communication and tagged , , , , , . Bookmark the permalink.

One Response to Fixing FOIA: Over-classification and Arbitrary Redaction

  1. AH says:

    i dont understand what this has to do with the freedom of information act. this is about security.

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