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Vol. 11 No. 5 — May 2003

This article is the first of two dealing with government information activities after September 11, 2001. This article will cover regulations and actions related to government withholding, suppressing, and altering information. The next article will cover the gathering and disseminating of information about citizens authorized by the USA Patriot Act, the proposed Patriot II, and the Homeland Security Act.

Concerned Professionals Librarians and the information community share many concerns about the government removing information from Web sites, failing to post information to Web sites, and moving toward greater limitations on access to taxpayer-funded research and information. The comments below were given in telephone interviews. Susan Tulis, associate dean, Southern Illinois University Libraries, expressed two major concerns: our lack of knowledge about material no longer available from the government and preservation. She observed, "It is hard to know what we do not know. We do not know what used to be available and is no longer available." She also stated that lack of preservation and archiving of missing information means that the information is gone forever. Patrice McDermott, Washington Office, American Library Association, also expressed unease about not knowing about information that has disappeared from Web sites or information that agencies have not posted to Web sites. She indicated that federal agencies are becoming more risk averse about posting new information. When asked about the effects of the E-Government Act, Ms McDermott opined that it could take years to implement the Act. Gary Cornwell, head of reference for Humanities and Social Sciences, University of Florida, and chair of the ALA Task Force on Restrictions to Government Information, worries about information disappearing and points out that we have a new category of fugitive documents. He said, "There is no guarantee of long-term public access. There are no protocols for determining information to be removed. The balance between the public right to know and national security is a tough issue." The Task Force that Mr. Cornwell chairs will recommend actions by the information community. Steve Gass, associate director for public services, Massachusetts Institute of Technology Libraries, is concerned with the difficult issue of science publishing and national security. He said, "Scientists collaborating to explore solutions is the most appropriate path. The scientific community acting responsibly and agreeing to a reasonable approach is preferable to government-imposed solutions." Mr. Gass talked about the MIT Faculty Ad Hoc Committee Report on Access and Disclosure to Scientific Information [http://web.mit.edu/faculty /reports/publicinterest.pdf]. Gary Bass, executive director, OMB Watch, commented on the change in culture in the administration of the Freedom of Information Act (FOIA). Clinton administration Attorney General Janet Reno encouraged openness, transparency, and disclosure. John Ashcroft encourages secrecy and nondisclosure of information considered sensitive though unclassified. There is no definition, at this time, of sensitive but unclassified information. Information professionals are uneasy about removal of information, failure to post new information, lack of knowledge about information guidelines, lack of preservation, and erosion of the FOIA safety net. They fear that the progress made in recent years in expanding government information accessibility may be irretrievably lost in support of national security and administration politics.

Access to government information and decisions to withhold and/or alter such information raise tensions between equally laudable, but sometimes conflicting, goals: an informed citizenry and national security; the progress of science and technology and protection of sensitive information; and public health and ideology. What are the trade-offs between an informed citizenry and national security? How can people gauge risks to their lives and property if they are denied access to vital information about these risks? How can science and technology maintain traditions of information sharing in an environment in which sensitive information cannot be published? How can we reconcile the need to circulate information about disease prevention when political agendas alter or remove such data from government Web sites? These questions are only a few of the issues created by current government information policies, in particular, those deriving from September 11, 2001, and the ongoing (at press time) war with Iraq.

Destruction of our democratic government and changing the way we live are among the goals of our terrorist enemies. Unfettered and open access to information is basic to the preservation of our democratic government. Open access to information gives our citizens the opportunity to learn about what government is and is not doing. With the Internet now becoming the vehicle of choice for dissemination of government information, the investment made by taxpayers in information activities is returned many-fold to the people.

Globally, science, medicine, business, and education rely on the Internet for communication with colleagues around the world. This communication nurtures collaboration that results in economic advances, learning, and productivity. People in some nations are restricted in sites they can view, as well as available television and radio broadcasts. Other nations offer open access with information available both to people wanting to learn and people wanting to do harm. Suppression of information in the short run, whether for security or ideological reasons, will likely have unknown, long-run consequences.

Government information funded by taxpayers belongs to the taxpayers and should be readily available for taxpayer use. In 1990, the National Commission on Libraries and Information Science in the Principles of Public Information stated, "We assert that public information is information owned by the people, held in trust by their government, and should be available to people except where restricted by law." Government uses this information to carry out its work, preserve our history, inform the citizenry, and provide vital information to citizens. Government information is essential for business, education, research, and the health and well-being of our democratic government and our people.

The government has had policies in place for many years that define criteria for classifying information important to our national security. Access to classified information is limited to a small percent of government officials and contractors who have received clearances. Confidentiality of classified information is essential to our security.

Our freedom to access unclassified government information and use that information for research, learning, or just to satisfy curiosity is being compromised currently under the aegis of national security and ideology. Unclassified information that may be considered sensitive is being removed from government Web sites. While many people will not notice the absence of information on government Web sites or in federal depository libraries, other people may find the lack of access a major obstacle to completing projects, writing dissertations, or performing their work. In addition, an environment that hides information disregards history and the need to preserve government information for future generations.

According to OMB Watch [http://www.ombwatch.org/article/articleprint/213/-1/104] in a list published in 2002, the following agencies have removed information from their Web sites: Agency for Toxic and Disease Registry; Bureau of Transportation Statistics, Department of Transportation; Department of Energy; Environmental Protection Agency; Federal Aviation Administration; Internal Revenue Service; National Archives and Records Administration; National Aeronautics and Space Administration (NASA); National Imagery and Mapping Agency; Nuclear Regulatory Agency; and U.S. Geological Survey. In addition, the Centers for Disease Control and Prevention (CDC) and the National Cancer Institute have removed or modified Web-based information on HIV, cancer, sexually transmitted diseases, abortion, and condoms. The Department of Labor has removed its data on massive layoffs in the U.S. The Los Alamos National Laboratory has removed many unclassified reports from its Web site.

National security is only one of many reasons government information is being withheld from public access. Other reasons range from lack of money, e.g., in the case of the Bureau of Labor Statistics Mass Layoff Statistics, to political pressure, e.g., on the CDC, and pressure from private industry to shut down the DoE's PubScience.

Geographic information (GIS) removed by the Bureau of Transportation Statistics has been partially restored. The Bureau of Transportation Statistics announced that it plans to provide one-stop service for geospatial data through an e-gov initiative. The GIS is a major resource for industry, academe, and state and local governments. Transportation spatial data, mapping, and GIS state data are essential for many programs and projects ranging from transportation planning to construction.

Sensitive Information

The Environmental Protection Agency's Risk Management plans contain important information about chemical accidents and their prevention. These plans are collected under the Clean Air Act and contain information on hazard assessment, prevention programs, and emergency response plans for chemicals used in 15,000 sites. Lack of this information to companies using chemicals could result in inappropriate responses to emergencies and obstacles to effective planning with potentially dire consequences to people living within the vicinity of these sites and employees working at the site.

The Department of Transportation [http://www.npms.rspa.dot.gov] has limited access to its pipeline mapping, under the Pipeline Integrity Management Mapping Application, to operators and officials of federal, state, and local governments. Access must be given from the Office of Pipeline Security. The Web site contains the statement that the Office of Pipeline Security monitors user activity. Again the potential for dire consequences is increased because some planners and construction companies are prohibited from accessing information they need to prevent accidents, hazardous conditions, or unintentional damage.

The U.S. Geological Survey notified all Federal Depository Libraries to destroy a CD-ROM containing data on the characteristics of public surface water supplies. Withholding this information affects local government water agencies and people concerned with stream flow data.

E-Gov Irony On December 17, 2002, President Bush signed the E-Government Act (PL 107-347) into law. The Act provides programs, activities, and money to use information technology to improve the delivery of government information and services to citizens. Among the purposes of the Act, specified in section 2, are "to promote use of the Internet and other information technologies to provide increased opportunities for citizen participation in government; to promote the use of the Internet and emerging information technologies within and across government agencies to provide citizen-centric government information and services; and to promote access to high-quality government information and services across multiple channels." The Act calls for the establishment of the Office of Electronic Government, Chief Information Officers Council, and several committees to implement the Act. The Act states, "Electronic government means the use by the government of Web-based Internet applications and other technologies, combined with processes and implement these technologies to (A) enhance access to and delivery of government information and services to the public, other agencies, and other government entities; or (B) bring about improvements in government operations that may include effectiveness, efficiency, service quality, or transformation."

These sites contain information considered sensitive by a government agency. It is not clear who decides what information is sensitive or what criteria are used to determine sensitivity. The administration is drafting guidelines for "sensitive homeland security" information. Withholding "sensitive but unclassified" information is not new. In October 1986, the Reagan administration tried to restrict access to and dissemination of unclassified information. Rear Adm. John M. Poindexter, then President Reagan's national security advisor, developed the policy. The National Security Council defines sensitive information as follows:

Sensitive but unclassified information is information the disclosure, loss, misuse, alteration or destruction of which could adversely affect national security or other federal government interests. Other government interests are those related, but not limited, to the wide range of government or government-derived economic, human, financial, industrial, agricultural, technological, law-enforcement information, as well as the privacy or confidentiality of personal or commercial proprietary information provided to the United States government by its citizens.¹

In other words, anything that the government did not want to release could be deemed sensitive and withheld. The policy was rescinded in March 1987 because of pressure from the Congress and the public.

Vigilance is needed! The Homeland Security Act (PL-107-296) directs the President to "describe and implement procedures" to "identify and safeguard" homeland security information that is sensitive but unclassified. The Act further states, "It is the sense of the Congress" that procedures include authorization to enter into nondisclosure agreements with state and local personnel with respect to sensitive but unclassified information.

Science Under Stress

The San Francisco Chronicle reported in January 2003 that the University of California was experiencing increased pressure from the federal government to not publish research because the results may "fall into the hands of terrorists."¹ Science relies on open literature to learn about research methods and results, avoid redundancy, and stay updated about new developments. Science is global. It is does not stop at our boarders. Charles Vest, president of MIT, observed, "Science is a collective endeavor. Science increasingly is an international endeavor. The weight of these statements is compounding at lightning speed as the complexity of science increases, and because, like all of society, scientists are tied together through the Internet. Science progresses not just by singular discoveries, but also by the independent verification and interactive discussion of discoveries. Knowledge is honed through ongoing dialogue that takes unexpected twists and turns. It thrives in openness, and suffers in isolation" [http://www.mit.edu/president/communications/rpt01-02.html].

In more peaceful times, international publication, discussion, and communication among scientists and engineers would be welcome, because the results enrich the health and well-being of the world's people. In times of strife and war, open publication may compromise our security and safety by allowing enemies to access information for harmful purposes. The Congressional Research Service describes the heart of the problem: "A fundamental trade-off between scientific progress and security concerns is crux of the policy debate. The scientific enterprise is based upon open and full exchange of information and thrives on the ability of scientists to collaborate and communicate their results. On the other hand, this very openness provides potential enemies with information that allow them to harm U.S. interests."²

The National Academy of Sciences held discussions about issues associated with publishing in response to concerns voiced by microbiologists on research results being used by terrorists.³ At the annual meeting of the American Association for the Advancement of Science (AAAS), editors of major science journals announced that they would be vigilant. "Few, if any, of the thousands of research papers reviewed annually for publication would be rejected outright. Papers would still contain sufficient details to allow other scientists to independently duplicate experiments — a vital step in validating discoveries" [http//www.wired.com/news/print/0,1294,57698,00.html]. There is genuine concern for protecting the integrity of scientific process. The trade-off between open publication and protection of the nation will pose dilemmas and difficulty for scientists, editors, teachers, and others involved in science, technology, and publishing. Self-regulation by responsible scientists, editors, and publishers is more likely to preserve the integrity of science and protect national interests than regulation by the government.

Political Pressure

More egregious activity involves health data, the Centers for Disease Control and Prevention (CDC), and the National Cancer Institute (NCI). The CDC has removed information on the methods of preventing HIV/AIDS from its Web sites. The NCI changed information on its Web site dealing with the relationship between abortion and breast cancer. "Staff members [CDC] point to the recent removal from CDC Web sites of information on methods to prevent AIDS, while groups that receive grants for AIDS education have been hit by audits they believe are intended to have a chilling effect."⁴ The removal of HIV/AIDS prevention information was aimed at pleasing pressure groups that would prefer to suppress information on alternatives to abstinence as a prevention measure at the risk of endangering public health.

Critics have accused the Bush administration of censoring medical information and altering research reports in order to promote the agenda of abstinence. On October 21, 2002, Representative Henry Waxman and 11 colleagues wrote to Tommy Thompson, Secretary of Health and Human Services, protesting these actions. The letter stated. "The alterations are certainly not in the interests of public health and they appear to have been made for political rather than scientific reasons." In their conclusion the Representatives said, "Simply put, information that used to be based on science is being systematically removed from the public when it conflicts with the administration's political agenda." HHS responded by saying that the information had been removed so that it could be replaced with "newer scientific information." ⁵ The goals of these groups are cloaked in language aimed at reducing sexual activity among teenagers. The people most likely to be harmed by removing information about disease prevention and altering language describing research results are teenagers, the very people the administration wants to help.

Anyone with any experience in a public or academic library knows that many teenagers need authoritative information about a variety of medical subjects, especially sexually transmitted diseases, and many are reluctant to ask parents or teachers. Access to authoritative and accurate Web sites presenting methods of prevention will save many teenagers from lifelong battles with disease. It appears that the pressure groups and the administration believe that education and knowledge are more harmful than ignorance.

Industry Pressure

The administration has not limited its largesse to groups suppressing health information. It has extended its gifts to the members of the Software and Information Industry Association (SIIA) and other publishers. Science and technology are the drivers of the U.S. economy. The basic research of scientists translates into new products and innovation produced by private industry. Scientists rely on the previous and current work of colleagues. "Eureka!" discoveries occur only in comic books and movies.

In 1999, the Office of Scientific and Technical Information, Department of Energy launched PubScience to provide access to abstracts of journal articles in the physical sciences. The database grew to 1,200 journal titles from 35 publishers including professional societies and private publishers. The service linked the abstracts to full-text articles available from commercial fee-based services. Taxpayer cost was $200,000 per year, a small price for a valuable service.

The service was especially useful to scientists not having ready access to research libraries or commercial bibliographic databases. These scientists could search PubScience, select articles of interest, link to publishers, and pay for articles they needed while increasing revenue for publishers. Students around the world could access the database and learn about research in their fields. These students were less likely to pay for access to commercial bibliographic databases but might be able to pay for articles required for their studies.

The SIIA was not satisfied. It viewed PubScience as unfair competition and brought pressure to have it taken down. SIIA succeeded. The service was taken down on November 4, 2002. The SIIA in a press release [www.siia.net/sharedcontent/press/2002/11-15-02.html] stated, "Since the inception of PubScience in 1999, SIIA has argued that DOE should discontinue PubScience because it provides access to a database of bibliographic information that duplicates and competes with databases made available by private-sector publishers."

The federal government funds 80 to 90 percent of research in the physical sciences. At $200,000 per year, PubScience was a bargain for taxpayers. The return on investment was significant. It provided needed information to students, scholars, and people interested in science who could not afford access to expensive commercial databases. The success of SIIA and its members in bringing down PubScience may be a prelude to increased privatization of government and government-funded research.

Privatizing government information would make information inaccessible to the taxpayers who have funded the gathering, processing, and publication of the information. This action would represent a flagrant disregard for the taxpayers' interests.

OMB Fights On

In another example of attempts to limit access to and distribution of government information, the battle between the executive branch and Congress continues. On May 3, 2002, the Office of Management and Budget (OMB) issued a memorandum directing executive branch agencies to bypass the Government Printing Office (GPO) and contract directly with printers in the private sector. This directive violated the mandate contained in Title 44 (44 USC 501) that all agencies, except the Judiciary, use GPO. A draft Federal Acquisition Regulation (FAR) was issued on November 13, 2002, specifyinghow agencies should implement the directive. The FAR clearly violated Title 44. The administration has not indicated that it intends to ask Congress to change the law. Near the end of 2002, Congress became actively involved in the dispute and issued several resolutions prohibiting agencies from bypassing the GPO [https://www.infotoday.com/newsbreaks/nb021209-2.htm].

The GPO is responsible for the operations of the Federal Depository Library Program (FDLP). By printing, publishing, cataloging, and distributing government documents and online information to depository libraries, GPO assures the availability of government information to the public in 1,300 libraries. The public has relied on depository libraries for more than 190 years. The FDLP program was established to ensure that people could have information about their government. Today, the program provides expert help to people seeking government information, as well as a safety net that assures access. The GPO also has a strong policy of offering permanent archives to government information published on the Web.

The Congressional Joint Committee on Printing may grant exemptions to Title 44 for individual agencies. Experience demonstrates that agencies with exemptions routinely fail to send copies of documents to the GPO for distribution to the depository libraries. The result is fugitive documents left uncataloged and difficult to locate and obtain. Finding and obtaining fugitive documents take knowledge, time, and patience. The draft version of the FAR [http://www.arl.org/infor/frn/gov/OMBFARCOMMENTS.html] indicates that a copy of each document should be provided to GPO for reproduction and distribution to the libraries. Title 44, section 1903 states that issuing agencies must pay the cost of printing and binding depository library copies. Providing a single copy to GPO for printing and distribution at GPO's expense violates the law.

If OMB succeeds in this effort, it will mean less access at higher cost. The OMB argues that agencies contracting directly with private printers will save money and provide increased business for private printers that primarily are small businesses. Since GPO currently contracts 85 percent of its printing work, it is difficult to see how more business would go to private industry. GPO has qualified more than 10,000 private companies. Most of the work done in-house is so mandated by Congress. If each agency were to contract with private companies, it would require that printers qualify with hundreds of agencies in order to get the work. It also would mean adding several hundred positions in the agencies to handle printing procurement.

OMB's plan ignores the law and denies information to the people who funded it.

No Money

The Department of Labor distributed a database of mass layoff statistics. The Web site states, "Mass Layoff Statistics (MLS) Program has been discontinued" [http://www.bls.gov/mls/home.htm]. Funding ended on December 31, 2002. With the large number of layoffs in the current economy, it is not surprising that the administration would want to hide the numbers. Labor historians, economists, and others studying labor trends can no longer access the database.

Freedom of Information Act

The Freedom of Information Act (FOIA) (5 USC 552) was passed to provide a safety net for people needing government information. In responding to FOIA requests, agencies must make "reasonable efforts" to find the requested information and provide it. The goal of FOIA is to make information available, not suppress it.

Attorney General John Ashcroft issued a memorandum to agency heads on October 12, 2001, stating, "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 the disclosure of the information." He added, "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 basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect records."

Clearly, the rules have changed from encouraging cooperation and positive responses to implying that negative decisions will be supported and defended. The provisions of the Homeland Security Act with regard to sensitive but unclassified information further cloud the issue of taxpayer rights to information the government judges sensitive.

Conclusion

The intentions expressed in the E-Government Act are in sharp contrast with the actions of the administration. The provisions of the Homeland Security Act, withdrawing information from Web sites, altering science and health information, and changing the rules on FOIA, are not in keeping with "citizen-centric" government services and information. George Orwell in 1984 wrote of doublethink — simultaneous belief in contradictory ideas. The administration's version of doublethink is the good intentions of e-government announcements juxtaposed with the removal of sensitive but unclassified information from government-operated Web sites and removing methods for disease prevention for ideological reasons.

There is great concern in the information community not only about the removal of information from Web sites but also about not knowing what is available but not posted. Agencies may be reluctant to post new material because of lack of guidelines. Failure to post new information means that its existence will be known only to the agencies involved and their immediate circles. Failure to notify GPO or the information community about the existence of information, failure to catalog the material, and failure to preserve the information means, among other things, the loss of part of our history.

Legislation and the actions of the government raise disturbing questions. What are the criteria for deeming information sensitive but unclassified? Does the sensitive but unclassified label apply only to national security information or does it apply to other information that the government does not want published or made available? When do public health and disease prevention take precedence over politics and ideology? What is the trade-off between the public's right to know and national security interests? What is the balance between the advancement of science and technology and the need to suppress research findings for national security reasons? Once the government has established information controls based on the 9-11 and war condition crises, will Congress and/or future administrations ever be willing to give up the controls?

The long-run interests of the nation and the people of the world are not served by barring access to information. The notion of the public interest underlying many pieces of existing legislation seems to have floated away. The efforts of the government to suppress information on the one hand and gather private data about our citizens on the other are the building blocks to an Orwellian dystopia of control and fear. The American Library Association through its Task Force on Restrictions on Access to Government Information has formulated draft recommendations [http://www.library.unr.edu/dept/bgic/duncan/RAGI.html] to deal with the problems. The Task Force report will be presented at ALA's annual meeting in June.

Footnotes

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¹ Wyatt, Buchanan. "Post-9/11 Researchers Fear Muzzle from U.S.," San Francisco Chronicle, January 3, 2003.

² Shea, Dana. Balancing Scientific Publication and National Security Concerns: Issues for Congress. Congressional Research Service, January 10, 2003.

³ Schemo, Diana Jean. "Scientists Discuss Balance of Research and Security," New York Times, January 10, 2003.

⁴ McKenna, J. A. J. "Political Shift Felt as CDC Endures Change," Atlanta Journal Constitution, November 23. 2002.

⁵ Clymer, Adam. "Critics Say Government Deleted Sexual Material from a Web Site to Push Abstinence." New York Times, November 26, 2002.