Secrecy Report Card Shows Continued Expansion of Federal Government Secrecy

September 9, 2008

Government secrecy continues to grow across a wide array of indicators, according to‘s annual Secrecy Report Card, released today. Findings of this year’s report, Secrecy Report Card 2008 [correction], include:

  • Freedom of Information Act (FOIA) Requests Continue to Rise; Backlogs Problems Persist

Almost 22 million FOIA requests were received in 2007, an increase of almost 2% over last year. The 25 departments and agencies that handle the bulk of the third-party information requests, however, received 63,000 fewer requests than 2006 — but processed only 2,100 more.

  • 2,371 Orders of the Secretive Foreign Intelligence Surveillance Court (FISC)

While the Foreign Intelligence Surveillance Court does not reveal much about its activities, the Department of Justice reported that, in 2007, the FISC approved 2,371 orders — rejecting three and approving two left over from the previous year.

  • Scientific and Technical Advice Increasingly Closed to Public

In 2007, governmentwide 64% of Federal Advisory Committee Act (FACA) committee hearings were closed to the public. Excluding groups advising three agencies that historically have accounted for the majority of closed meetings,15% of the remainder were closed — a 24% increase over the number closed in 2006. These numbers do not reflect closed meetings of subcommittees and taskforces.

  • Reported Invocations of the State Secrets Privilege Continue to Rise

Invoked only 6 times between 1953 and 1976, the privilege has been used a reported 45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years.

Despite this generally grim look at the expansion of government secrecy, there are some signs of sunshine. One recent victory for openness was the enactment last December of the OPEN Government Act (P.L. 110-175) to reform the Freedom of Information Act. The Secrecy Report Card describes some current legislative initiatives aimed at increasing openness in the executive branch, including the following bills which AALL supports:

  • H.R. 6576, the Reducing Information Control Designations Act, and H.R. 6193, the Improving Public Access to Documents Act of 2008 to limit and standardize the use of control markings of Controlled Unclassified Information (CUI).
  • H.R. 6575, the Over-Classification Reduction Act and H.R. 4806, the Reducing Over-Classification Act of 2008 to reduce overclassification in the federal government.
  • H.R. 985, the Whistleblower Protection Enhancement Act of 2007, and S. 274, the Federal Employee Protection of Disclosures Act to protect public employees who speak out to protect against waste, fraud and abuse.
  • S. 2533, the State Secrets Protection Act and H.R. 5607, the State Secret Protection Act of 2008 to establish standards and procedures to limit the use of the state secrets privilege.
  • S. 3077, the Strengthening Transparency and Accountability in Federal Spending Act, to help strengthen the Federal Accountability and Transparency Act (P.L. 109-282), the law that resulted in, a searchable web site of Federal grants, contracts, loans and other financial assistance.

[Posted by Emily Feldman]

Senate Subcommittee Holds Oversight Hearing of the National Archives

May 16, 2008

On Wednesday, May 14, the Senate Committee on Homeland Security and Governmental Affairs’ Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security held an oversight hearing of the National Archives and Records Administration (NARA). The hearing focused on NARA’s electronic records management system and the preservation of executive branch electronic records, including White House emails.

The hearing featured two panels, the first of which included testimony from Allen Weinstein, Archivist of the United States, NARA; Linda Koontz, Director, Information and Management Issues, U.S. Government Accountability Office; and Paul Brachfeld, Inspector General, NARA. Brachfeld’s testimony provided a harsh critique of NARA’s Electronic Records Archives (ERA), and its plans to manage electronic White House Presidential Records.

The second panel included testimony from Patrice McDermott, Director,; Thomas Blanton, Director, National Security Archive and co-chair of; Dr. Jim Henderson, Former State Archivist, State of Maine; and Dr. Martin Sherwin, Professor of History, George Mason University.

AALL is following many of the issues addressed by Dr. McDermott in her testimony. For example, Dr. McDermott discussed NARA’s role as the site of new public access initiatives, including the Office of Government Information Services mandated by the OPEN Government Act (see the January Edition of the AALL’s Washington E-Bulletin). NARA is also designated as the “Executive Agent” responsible for implementing the White House’s new Designation and Sharing of Controlled Unclassified Information (see our previous blog post). Dr. McDermott also addressed NARA’s electronic records management responsibilities and NARA’s decision to stop taking snapshots of federal agency websites (see the April Edition of the Washington E-Bulletin).

In addition, Dr. McDermott’s testimony addressed NARA’s efforts to increase access to digital records by entering into partnerships with private sector entities to digitize historical holdings. Dr. Weinstein also addressed these partnerships in his testimony. This was a timely discussion, because late last week NARA released its new Strategy for Digitizing Archival Materials for Public Access, 2007-2016, building on its former strategic plans and addressing some of the input NARA received from stakeholders, including AALL. This new document outlines NARA’s approach to digitization projects and includes NARA’s “Principles for Partnerships to Digitize Archival Materials.” We are pleased that the document addresses some of the issues AALL pointed out in the comments we submitted last November, including that free access to digitized materials be available in a timely fashion. In addition, we commend NARA for its commitment to issue calls for comments on proposed partnerships. NARA also published a list of the types of comments they received during the public comment period.

Wednesday’s hearing, the Subcommittee’s first NARA oversight hearing in more than three years, was an important look at NARA’s efforts to manage information in the digital age. We thank the Subcommittee for holding the hearing and hope that the increased oversight and attention will lead to a stronger National Archives.

[Posted by Emily Feldman]

House Hearing on Executive Branch Electronic Communications Preservation

April 23, 2008

The House Oversight and Government Reform’s Subcommittee on Information Policy, Census, and National Archives will hold a hearing today to address the Electronic Communications Preservation Act (H.R. 5811), sponsored by Chairman of the Committee Henry Waxman (D-CA-30), Chairman of the Subcommittee Wm. Lacy Clay (D-MO-1), and Rep. Paul Hodes (D-NH-2). The bill directs the Archivist of the United States to establish standards for the capture, management, retrieval, and preservation of White House e-mails and other electronic communications. The Committee’s Press Release, summary of the bill, and full text of the bill is available here.

Patrice McDermott, Director of, will testify about the state of the preservation of electronic records and the National Archives and Records Administration’s (NARA) oversight responsibilities. recently assisted Citizens for Responsibility and Ethics in Washington (CREW) with data collection for their new report, “Record Chaos: The Deplorable State of Electronic Record Keeping in the Federal Government.” Findings of the report include: federal agencies are not keeping up with modern electronic records management methods; there is widespread confusion among federal employees about their obligations regarding record keeping; and there is a lack of meaningful oversight of the agencies by NARA.

This hearing was originally scheduled for April 16, but canceled at the last minute. Assuming the witness list stays the same, the witnesses will include:

The Honorable Allen Weinstein
Archivist of the United States
National Archives and Records Administration

Dr. Anna K. Nelson
American University – Department of History

Witness to be announced
Government Accountability Office

Patrice McDermott

The hearing will take place at 2pm in 2154 Rayburn House Office Building. According to Committee staff, a live webcast should be available on the Committee website.

[Posted by Emily Feldman]

AALL and Others Urge Public Comment on Guidance for Sensitive But Unclassified Information

April 18, 2008

Last week, AALL signed onto a letter to the White House asking for a public review of proposed new rules governing the designation of Sensitive But Unclassified (SBU) information.

Sensitive But Unclassified information, sometimes referred to as “Pseudo-Classified Information” or Controlled Unclassified Information (CUI), describes unclassified information that is governed by a varying set of restrictions that allow government officials to keep the information out of the public’s reach. As‘s Secrecy Report Card 2007 states, “These designations fall entirely outside the national security classification system, governed by executive order, and are subject to none of its constraints or timelines.” In a 2006 report, the Government Accountability Office identified 56 SBU designations. As the Secrecy Report Card 2007 discusses, there are likely many more of these designations, most of which are not governed by any government-wide policy or procedures.

Opportunities for public comment on proposals dealing with SBU information and information sharing have been promised for several years. In 2003, AALL signed onto a letter urging then-Secretary of the U.S. Department of Homeland Security Tom Ridge to allow public comment on procedures that were being developed that might have restricted the public dissemination of “homeland security information,” including information that is “sensitive but unclassified.” When the process for developing new rules governing SBU information was moved to the Office of the Program Manager for the Information Sharing Environment, interested groups were assured several times that there would be opportunity for public comment.

The SBU designation often acts as an unrestricted barrier to the disclosure of unclassified information. Without clear guidance, the number of SBU designations has skyrocketed. It is important that the plan for guidance of SBU designations be available for public comment so that experts and stakeholders, including state and local government representatives, can have an opportunity to review the plan before it is finalized. AALL joined 33 other groups on this letter to White House Chief of Staff Joshua Bolton, which was organized by

[Posted by Emily Feldman]

Sunshine Week and Open Government Resources

March 25, 2008

On Wednesday, March 19, and AALL co-sponsored the third annual Sunshine Week National Dialogue on Open Government and Secrecy, “Government Secrecy: Censoring Your Right to Know.” The event was a great success! The program was webcast live from the National Press Club in Washington, D.C. to sites and individuals around the country. There were over one hundred attendees at the National Press Club, twenty-two host site events which included hundreds of participants around the country, and over seven hundred registrants for the webcast. You can now watch the archived version of the webcast on the National Press Club site. The webcast will soon be permanently available on’s website.

Thanks to all of the law libraries and chapters that participated in the event: Lake County Law Library (OH); the Lyon County Law Library (KS); the Westminster Law Library at Sturm College of Law, University of Denver; the Law Librarians of Puget Sound (LLOPS) with the Washington State Library; and the Northern California Association of Law Libraries (NOCALL) with the San Francisco Bay Region Chapter of the Special Libraries Association. Many thanks also to all of the volunteers and participants! We are thrilled that so many AALL members took part in the event this year.

To continue the momentum towards sunshine at the local, state, and national levels, put together a fantastic set of resources on open government issues. Resources are organized by subject and include books and articles on Executive privilege, information and democracy, and information technology issues. also put together a list of recent legislation on disclosure and open government with links to more information about the bills.

After this year’s successes, we happily look forward to Sunshine Week 2009!

[Posted by Emily Feldman]

Celebrate Sunshine Week!

March 18, 2008

Now is the time to celebrate Sunshine Week! Sunshine Week is a national initiative to open a dialogue about the importance of open government and freedom of information and there are many ways to participate! Sunshine Week officially began on March 16, James Madison’s birthday.

Although the following events take place in the Washington, D.C. area, many of them will be webcast or podcast and available wherever you are!

Events this week include:

Tonight, Tuesday March 18:

Associated Press President and CEO Tom Curley will address Freedom of Information and other open government issues during a Sunshine Week dinner event at The National Press Club. The dinner is being jointly presented by Sunshine Week and the Eric Friedheim National Journalism Library.

Wednesday, March 19 and AALL are sponsoring the third annual Sunshine Week National Dialogue on Open Government and Secrecy. This year’s panel discussions will focus on “Government Secrecy: Censoring Your Right to Know.” The event will be webcast for free from the National Press Club. Sites around the country will be hosting viewings and discussions.

Thursday, March 20

The Sunlight Foundation and Omidyar Network will host a discussion with Lawrence Lessig, law professor and director of the Stanford Center for Internet and Society. Lessig will introduce a plan called “Change Congress,” designed to increase congressional transparency. The lecture is scheduled for 1:30 p.m. at the National Press Club and will also be available via webcast.

Yesterday, the Washington College of Law’s Collaboration on Government Secrecy held its First Annual Freedom of Information Day Celebration and a podcast of the event will be made available in the near future. In addition, on Friday, March 14, the First Amendment Center hosted the 10th annual National FOI Day Conference at the Newseum. Read about that event here.

Bring More Sunshine to Your State!

March 4, 2008

Sunshine Week 2008 [March 16-22] is quickly approaching and you are invited to participate! AALL is co-sponsoring the National Dialogue on Open Government and Secrecy with for the third year in a row, and we are looking for host sites to show the webcast! This year, the program, “Government Secrecy: Censoring Your Right to Know,” will be webcast live for free (also available via satellite downlink for a fee) from the National Press Club in Washington, D.C. on March 19 from 1-2:30pm EDT. Audience members at all sites will have an opportunity to call in and email questions to the panels. If you are not able to show the program live, you may show it at a later date.

In addition to hosting viewings of the national program, host sites are encouraged to organize audience discussions or panel presentations after the national program on local open government issues. Sites can now register until March 18. If you are interested in hosting or have questions please contact: Chris Green, Program Associate,

We are pleased to report that the following chapters and law libraries are hosting events: the Lake County Law Library (OH); the Lyon County Law Library (KS); the Westminster Law Library at Sturm College of Law, University of Denver; the Law Librarians of Puget Sound (LLOPS) with the Washington State Library; and the Northern California Association of Law Libraries (NOCALL) with the San Francisco Bay Region Chapter of the Special Libraries Association.

Sunshine Week began in 2005 as a national initiative led by the American Society of Newspaper Editors to open a dialogue about the importance of open government and freedom of information.

This year’s program, “Government Secrecy: Censoring Your Right to Know,” will be in 2 parts:

I. The Secret Executive — What Can Congress and the Public Do?

This panel will address executive branch power and secrecy, congressional rights and responsibilities, and the role of the press in combating government secrecy.

Patrice McDermott (Moderator): Director of
Anne Beeson: Director of U.S. Programs at the Open Society Institute and
previously Associate Legal Director of the American Civil Liberties Union.
Mickey Edwards: Director of the Aspen Institute-Rodel Fellowships in Public Leadership and former Republican member of Congress from Oklahoma for 16 years (1977-92)
John Podesta: President and Chief Executive Officer of the Center for American Progress, Chief of Staff to President William J. Clinton from October 1998 until January 2001, and formerly in senior staff positions in Congress

II. Citizen Self-Help: Finding the Information You Need

-We will be visiting and talking with creators of web sites that make hard-to-find government information easy for the public to find and use and hopefully inspire you to do likewise!
-A report will be given on an initiative to develop a 21st Century Right-to-Know agenda and recommendations for the next President and Congress.


-Greg Elin (Sunlight Labs) (Moderator)
-Bill Allison (Sunlight Foundation)
-Sheila Krumholz (Center for Responsive Politics/
-David Moore (
-Sean Moulton (
-Daniel X. O’Neil (EveryBlock)
-Gary Bass (OMB Watch)

In each segment, opportunities will be available for audience questions from all participants.

[Posted by Emily Feldman]

%d bloggers like this: