Woodbury, Marsha --- "A Difficult Decade: Continuing Freedom of Information Challenges for the United States and its Universities" [2003] MurdochUeJlLaw 36; (2003) 10(4) Murdoch University Electronic Journal of Law

The first casualty when war comes is truth.
Senator Hiram Johnson, 1917

The World Trade Center towers crumbled, as did the Berlin Wall, burying the past in the rubble, marking a turning point, a division in time. For FOIA advocates, the change is symbolized by the "Desaparecidos", or "Disappeared", as will be discussed below.

However, the push for security and secrecy post-9/11 is part of the larger picture in the U.S, a philosophical retreat from FOI after the election of a new President and Congress, with the accompanying philosophical differences.

A month after 9/11, Attorney General Ashcroft issued a memo, "Freedom of Information Act Administration Policy." Though the timing of the statement made it appear to be a reaction to a terrorist attack, it had been written before 9/11.[47] The memo reversed the openness sponsored by President Clinton and Attorney General Janet Reno in their Memoranda of 1993[48] Ashcroft sent it to the heads of Executive departments and all federal agencies. Ashcroft wrote to the 5, 300 federal officials who handle about 2 million FOIA requests a year:

I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. 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 disclosure of the information.

In making these decisions, you should consult with the Department of Justice's Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. 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 legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records". [49]

Observers worried that the memo "could have a far greater if not chilling effect upon information normally obtained via FOIA by researchers and scholars". [50] In 2003, the National Security Archive at Georgetown University did an audit of the FOIA system after the Ashcroft memo, and found the federal FOIA system in "extreme disarray. Agency contact information on the web was often inaccurate; response times largely failed to meet the statutory standard; only a few agencies performed thorough searches including e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress…the administrative system that makes FOIA a reality is in grave disrepair, plagued with delays, and byzantine in its complexity for the ordinary requester; and Attorney General Ashcroft seems only to have thrown sand in the gears".[51]

Changing the Presidential Records Act

Another development with major ramifications came from President George W. Bush. Originally, the Presidential Records Act (PRA) of 1978 stated that Presidential papers became available out of the National Archives after 12 years. Specifically, the PRA allows for public access to Presidential records through FOIA beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years.[52] The act was designed to shift power over White House documents from former presidents to government archivists and the public.

Again, in the aftermath of 9/11, President Bush issued an executive order limiting public access to presidential records, Executive Order 13233, Further Implementation of the PRA. Under E.O. 13233, the President who generated the papers can decide to hold them back, or the current sitting President can do so. Thus any past, current or future U. S. President can keep the papers from public examination and research indefinitely.[53]

The PATRIOT ACT

The USA PATRIOT Act (P.L. 107-56) is a hastily passed piece of legislation that had no Congressional hearings. The acronym stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." The unfortunately distorted post-9/11 climate made this unusually intrusive act possible. The act passed so quickly that many members of Congress had little time to study the 342-page bill before voting on it. As universities and colleges house some of the greatest libraries in the U.S., the PATRIOT Act affects them directly. The act removes many of the checks and balances that prevented both police and the foreign intelligence agencies from improperly conducting surveillance on U.S. citizens who are not involved in criminal or terrorist activity. For Internet users, it opens the door for widespread surveillance of web surfing, e-mails and peer-to-peer systems. In addition, the protections against the misuse of these authorities by foreign intelligence agencies to spy on U.S. citizens and by law enforcement to use foreign intelligence authority to exceed their domestic surveillance authority have been greatly reduced. [54]

The following are key provisions of the USA PATRIOT Act that affect college technology systems. The law:

• Permits federal agents to obtain stored voice mail without wiretap authorization.

• Compels internet service providers to turn over to federal agents who have a subpoena: subscriber's telephone connection records, the subscriber's identity, the length of service, and how it was paid for.

• Allows federal agents to use a "trap and trace" device to obtain dialing, routing, addressing, or signaling data sent by wire or electronic communication.

• Allows federal agents to install technological tools to intercept and collect information from internet traffic.

• Allows internet service providers to call in federal agents, who do not have a search warrant, to help them intercept the communications of a computer hacker.

• Increases penalties for computer crimes, including transmitting viruses. If the network damage exceeds $5, 000, the hacker may be sued. [55]

The American Library Association issued the "Library Community Statement on Proposed Anti-Terrorism Measures" that details the concerns of the university library community. [56] The ALA "opposes any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry…ALA considers that sections of the USA PATRIOT ACT are a present danger to the constitutional rights and privacy rights of library users".[57] The law makes it a felony for librarians to tell anyone that federal agents have asked for information. Many librarians feel so strongly about this law that they are willing to commit civil disobedience to protest it.[58]

In August of 2002, the ACLU and other groups filed an FOIA request with the Justice Department in an effort to learn how the government uses the new powers granted to it under the USA/PATRIOT Act. The government employs "National Security Letters" that are signed by Attorney General Ashcroft or a delegate – with no judicial approval – to "compel the production of a substantial amount of relevant information". The government can use this power to obtain records about people living in the U.S. , including American citizens, without probable cause that the person has committed any crime.[59]

The PATRIOT Act also alters privacy protections under FERPA. Investigators still need court orders to request information, but they can require colleges not to record the requests and forbid colleges to tell people, including students, that they are being investigated.

At the time of this writing, Attorney General Ashcroft informed the ALA that he would declassify data showing how often the Justice Department sought the records of libraries, bookstores, and other businesses under Section 215 of the PATRIOT Act.[60] However, the PATRIOT Act has not been amended, and nothing prevents broad use of the act, unrelated to terrorist threats.

The Justice Department has drafted the Domestic Security Enhancement Act of 2003, informally known as PATRIOT ACT II. Building on the original, the legislation would foster even more sharing of information among government agencies and would increase their access to credit reports and other personal data without the need for subpoenas. It would also grant the U.S. Attorney General unlimited authority to approve wiretaps and physical searches of property, without judicial approval, for up to 15 days after the U.S. suffered an "attack creating a national emergency."[61]

More important, the legislation would broaden the definition of terrorism and stiffen punishments for terror-related crimes. A striking provision would enable the government to strip the citizenship from and deport any American citizen who, knowingly or not, helped groups seen as supporting terrorism. Naturally, such an act would have a profound effect on universities and their international communities.

The Office of Homeland Security

The U. S. Congress created the Department of Homeland Security in 2002. Any information voluntarily submitted to the department about terrorist threats to the nation’s infrastructure are exempt from FOIA disclosure, drastically limiting the agency’s responsibility to answer public questions about how well it is addressing these threats.[62] Many businesses have been reluctant to share information on their own computer vulnerabilities, for example, fearing that such confidential information could be obtained by the public, or by its competitors, under the FOIA. On the other hand, the act creating the Office of Homeland Security is poorly worded and may be used to hide environmental information such as oil spills, safety violations, hazards to consumers, and other abuses. "Under the law, businesses need merely report the information about their behavior – even totally unclassified activities – to the federal government, and claim it's related to homeland security. In the parlance of the Homeland Security Act, they declare the data to be "CII, " or Critical Infrastructure Information".[63]

The U.S. Congress traditionally supported legislation defending whistleblowers. However, in the Office of Homeland Security, if a government employee "blows the whistle" and releases any CII data without the permission of the company that submitted it, regardless of its importance to the public, he or she could be subject to a jail sentence.[64] Lobbying and directives to extend CII coverage to the Department of Defense and other departments are also ongoing.[65]

The Restore FOIA Act

The Restore FOIA Act (S609)[66] was introduced in the House and Senate, to clarify which records would be admitted for CII, preventing widespread abuse by businesses.[67] The legislation would give a much more focused definition of the term "critical infrastructure information" using language derived from court cases under the original FOIA legislation, so that only records that actually dealt with critical infrastructure vulnerabilities would be exempt from FOIA. The bill would also restore protection for federal whistle blowers working for the vast Department of Homeland Security.[68]

Right to Know Versus Need to Know

As stated in the earlier article, when Lyndon Johnson signed the 1967 FOIA, it changed the old standard of having to produce a reason for requesting data. People were only asked why they were seeking data if it affected the fees that they would be changed. Thus, the requesters had a presumed "right to know" After the FOIA, the government had to justify a need for withholding information, and requesters could freely ask for any documents that they wanted to see.

That freedom was curtailed in 2002, when Congress passed the Intelligence Authorization Act (Public Law 107-306) that amended the FOIA significantly. The amendment only applies to requests to "the intelligence community".[69] For any FOIA request that appears as if it might have been made by, or on behalf of, a non-U.S. governmental entity, the agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision. This ruling applies to any requester who seems suspicious, including a foreign-born U.S. resident and members of international press and aid organizations. Thus, the requester applying for a file can immediately be generating a new file about the request and requester.

According to the Office of Management and Budget (OMB) Watch Group, such practices demonstrate an erosion of public access. "But they are part a larger mosaic that represents a huge shift from policies premised on the belief that the public has a right-to-know to one based on need-to-know. Increasingly agencies are requiring the public to justify how they would use the information in order to determine whether public access should be granted. From our perspective, this trend is very disturbing".[70]

National Security as a Reason for Denial

After 9/11, the Nuclear Regulatory Commission completely shut down its website. Federal agencies proactively removed information from their websites that they deemed too sensitive for public scrutiny, including maps of the U.S. transportation infrastructure and information on nuclear power plants. The loss of this data to the public means that people who worry about environmental pollution and water purity, for example, cannot access data that they once could.[71] For example, the American Chemistry Council (actually, the Chemical Manufacturers Association) made the threat of terrorism the centerpiece of its campaign to roll back "public right-to-know" policies. As one author wrote, "This information is only useful to groups that want to scare the public about chemical risks, or those who might use it for selecting targets."[72]

In March of 2002, the White House released a memo providing guidance on "Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security".[73] The memo allows officials to extend the length of time material remains classified from ten to twenty five years, to classify previously unclassified, non-public material, and to create a new category of material called "Sensitive but Unclassified Information".[74]

A year later, President Bush issued Executive Order 13, 292 on classifying documents for reasons of national security. The policy makes it easier for officials to reclassify information that has already been declassified, puts off the date of declassification for millions of documents, and encourages classification by eliminating President Clinton's instruction to classifiers that directed them, "When in doubt, do not classify."[75]

Under Exemption 1 of the FOIA, the government may protect "national security information" from disclosure to the public. This exemption has blocked some reasonable requests for accountability, particularly in the area of government contracts with the private sector. Ordinarily, the bidding for government contracts is an open process. If the bidders are seek contracts behind closed doors, the public will never know how much influence was peddled and at what price. Later, if the winners are shielded from public scrutiny in the execution of their contracts, the people may not be able to hold them accountable for their performance. In September of 2003, the U.S. Army Corps of Engineers denied a FOIA request to learn the details of one such bid, worth $7 billion over five years. The Corps granted the enormous "sole source" (non-competitive) contract to a Halliburton subsidiary known as Kellogg, Brown and Root, a corporation with a checkered past.[76] The Corps cited National Security as the reason for denial.[77]

Wary of campus crime, universities and colleges installed security cameras and other devises to keep campuses safe, and, not surprisingly, students wanted to know where these devices were. They used FOIA requests to ask when and why were they being watched.

At the University of Texas at Austin, officials tried to block a FOI request by a student newspaper for the locations of the campus's security cameras. The state's attorney general ruled that the university must hand over camera information; however, officials appealed that ruling, arguing that details about electronic surveillance must remain secret for the system to be effective, and that security cameras on campuses are a matter of national security. On the other hand, the University of Pennsylvania goes out of its way to identify its cameras, by placing signs by each camera and publishing the locations of cameras.[78]

Desaparecidos

Desaparecidos is the Spanish word for "The Disappeared."[79] The U.S. has its own Disappeared. Since 9/11, hundreds of people have been arrested, detained and virtually disappeared from public sight in the U.S. Unfortunately, organizations such as the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC) have had to file FOIA lawsuits in order to try to find out who has been arrested, where and why they are detained, the condition of their confinement, and whether they are being given proper access to counsel and the judicial process.[80] At this writing, the plaintiffs in the lawsuit, Center for National Security Studies v. Ashcroft, are contesting that decision and are urging the U.S. Supreme Court to hear the case on FOIA, First Amendment, and common law grounds.

One area of intense concern is the position of universities in what has been a reasonably open society. The national atmosphere of patriotism along with the invasions of Afghanistan and Iraq have made post-secondary academic institutions targets, for, in the eyes of wary federal officials, colleges and universities are home to thousands of international students and professors, some of whom may be potential terrorists.

For universities, the implications about international students and professors are enormous. International students have been arrested and deported, as illustrated by the "disappearance" of University of Arizona linguistics student Muhammad Al-Qudhai'een. His wife, friends and Islamic leaders had difficulty gleaning information about the reasons behind his detention in 2003. Al-Qudhai'een's wife returned to Saudi Arabia with their children afterwards, still perplexed by the sudden deportation. Federal officials did not disclose why Al-Qudhai'een was detained or sent home.[81]

Universities earn revenue from overseas students who pay millions of dollars in tuition. On a higher note, universities value the importance of free inquiry, and they fear that the intrusive tracking of students and faculty could chill research and dialog. FBI activity has increased at colleges and universities since 9/11 and the PATRIOT ACT. Sometimes the government activity is loud and visual, as when the FBI flew a Cessna over the University of Indiana, Bloomington, for more than a week in February, 2003, to conduct visual surveillance of the campus "as part of the fight against terrorism."[82] The agency said it was watching specific individuals, vehicles, and businesses, particularly people who sent faxes or e-mail late at night. Agents also interviewed several international students on the campus.

In the 1950s, '60s, the FBI investigated, infiltrated, and disrupted campus activities. Today, faculty members, students, and some administrators are increasingly worried that the agency may again be curtailing and interfering with their civil liberties. [83]

The FBI and other federal law-enforcement authorities mounted an operation at the University of Idaho, in Moscow. Dozens of agents made an early morning raid into the university's graduate-student housing and arrested a Saudi graduate student with alleged terrorist ties and interrogated more than 20 other international students for more than four hours. [84]

Hazardous Substances and Universities

After 9/11, U.S. government officials had no idea how many lethal agents were being studied in U.S. laboratories, or how many scientists had the ability to manipulate them into weapons. Laws and regulations have tightened significantly since then. The federal government regulates more than 60 deadly "select agents" in scientific laboratories, including those on college campuses. The labs must keep federal agencies aware of which and how much of these deadly toxins and pathogens they have, the labs must also provide a list of all of the people, who will have access to them, including the workers' nationalities,. The U.S. Department of Justice will determine whether any of those individuals pose a threat to national security and will bar from the labs some "restricted persons" – those who are from countries that sponsor terrorism, who have drug convictions, or who have histories of serious mental illness. Labs must monitor all staff, including plumbers, cleaners, graduate students, and carpenters. If laboratories do not comply with the law, the people who run them could face severe fines or jail sentences.[85] Some university researchers and administrators have noticed an increase in other restrictive clauses in government research contracts in the post-9/11 era.[86]

The picture is not appealing: piles of papers to fill in, delays over security clearances, large investments in physical security, and the loss of international workers. Some schools will drop out of this area of scientific study due to these impediments.[87]

"Foreign Nationals"

International students and faculty are populating U.S. universities. The Institute of International Education[88] reports that close to 550,000 foreign students are in the U.S., an increase of about 50 percent in the last 15 years. In several departments at major universities, international graduate students are in the majority.

On the other hand, after 9/11 federal and state officials are openly and methodically tracking and investigating foreign nationals. Unfortunately for international students, one of the 9/11 hijackers entered the country on a student visa. In February, 2003, the FBI announced that it wanted to interview all Iraqis, perhaps 50,000 people, living in the U. S. International students and scholars especially if they are Arab or Muslim—worry that they will be arrested and deported for minor visa infractions, or won't be allowed back into the U.S. if they leave.[89]

The federal government requires universities and colleges to update their entries in the Student and Exchange Visitor Information System, a database of international students. Officials must photograph and fingerprint men from 25 Arab and Muslim countries under the National Security Entry-Exit Registration System.[90]

All this activity discourages valuable international students from feeling welcome in the U.S. and continuing to pay tuition and to work on U.S. campuses. One scholar summed up the issue thus: " There are two questions colleges need to face: the legitimate needs of law enforcement to do investigations properly authorized by federal law, and that targets of inquiry are adequately protected, advised, counseled, and reassured through the process."[91]

What are the financial and research consequences of these requirements? MIT turned down a million-dollar grant, and other universities are negotiating with the government about clauses prohibiting non-U.S. citizens from "all or certain aspects" of research. Universities must submit "employment eligibility documentation" for any foreign researcher who may work on unclassified research projects, and a government agency must approve those researchers before they are allowed to work on a project.[92]

Universities are concerned about the effect the restrictions could have on science. International graduate students and postdoctoral researchers are a driving force in major universities. More background checks could deter some of them from working in the U.S., providing a chilling effect on overall research. As a result, the U.S. could lose talented people to other countries. To cite just one example, an assistant professor of electrical engineering at Tulane University, lost six months of work when he took a trip to his home in Pakistan and encountered delays in receiving his return visa, due to an FBI background check. During that time, his research on sharpening the images captured by infrared surveillance cameras came to a halt. Upon his return, he had to double his teaching load to make up for the lost semester, and his research has been set back by a full year.[93]

New provisions require more pre-publication review by the government (with the threat of censorship), a condition that clashes with the policies of several universities, and that could deter faculty members from participating, because publishing is seen as an essential component of academic freedom. Delays caused by complex negotiations and censorship of research might cripple the development of important discoveries.[94]

FERPA Amendments

Often the tension between rights to privacy and rights to FOI come into conflict. Under FERPA, the U.S. Department of Education may withhold federal funding to schools to punish for abuses in violating the act.[95] As first written, FERPA protected students' academic and financial information, but schools did not limit the definition of "education records" to grade transcripts, teacher evaluations, standardized test scores, and the like.[96] They used FERPA as an excuse for denying access to campus crime records, and the courts agreed with them.[97]

That interpretation led to another set of rules, the Federal Student Right to Know and Campus Security Act of 1990[98] wherein Congress excluded campus crime records from FERPA's "education records" definition, giving some students the opportunity to gain a clearer picture of crime on their campus.[99] The 1990 Act also requires publication of graduation rates of certain classes of students (in particular, athletes) and other information that lawmakers considered worthy of public scrutiny.

All recent changes to FERPA impose harsh penalties for noncompliance.[100] The Solomon Amendment in 1996 gave the military privileged access to student information for recruitment purposes. The Taxpayer Relief Act of 1997 gave the U.S. Internal Revenue Service access to certain personal information about students.

The U.S.A. PATRIOT ACT of 2001 lowered the oversight that federal judges have over requests that the U.S. Department of Justice makes for court orders to acquire information in student records. Agents can now require colleges not to record requests and keep colleges from notifying people that they are being investigated. Currently, the FBI is testing the limits of FERPA and other laws when it requests information about large classes of people according to gender, nationality, or race, when the data are not needed for an investigation into a particular incident or crime.[101]

The amended FERPA also allows the post-secondary institutions to release the identity of students who violate campus codes of conduct. However, colleges that reveal private records without permission can lose their federal financial-aid funds. If another amendment is passed, HR 1848, then FERPA would give parents and students the right to sue institutions for releasing information that ends up harming a student. HR 1848 would extended FERPA to protect college applicants and third parties, such as business partners, who might be hurt by divulged information. The change in FERPA could make schools defend more civil suits or settle complaints to avoid court costs and negative publicity.[102]

How does FERPA affect university information release? The Recording Industry Association of America (RIAA) has been tracking music copyright abuse, and it seeks internet records about students who download copyrighted files. Boston College, Boston University, and the Massachusetts Institute of Technology questioned the legality of RIAA subpoenas, arguing that the recording industry must give them time to notify students that someone is requesting information about the students before it can be released. [103] An RIAA lawyer claimed the provisions of FERPA do not trump the university's obligation to respond to the subpoenas.[104]

Conclusion

Thus the study of universities and how they react to requests for information has led to a broader examination, one of the forces at work in the U.S. and of the enormous pressures on the institutions.

The year 2004 finds a post-9/11 United States of America, still developing coping mechanisms for its new sense of vulnerability. Those mechanisms include curtailing the openness previously enjoyed on university campuses, creating more paperwork and surveillance for the students and faculty and administrators. The new millennium also ushers in more electronically transmitted and stored information, and more possibilities for dispensing knowledge, either intentionally or unintentionally. Corporate funding and political pressure groups influence what universities can do, what they can teach and research, and what they can and cannot publish and share. Keeping research projects free of corporate bias will be a challenge, as universities need corporate funds.

Laws abound, and they are constantly being created and amended. Those who can keep up to date on all the legislation are attempting to educate their campus colleagues. None of this is easy.

Should these trends continue, some schools will have to seriously examine what they have to sacrifice in order to continue operating. Some schools, as we have seen, are divesting themselves of laboratories that handle hazardous substances. Some colleges could limit graduate students from countries that have nagging visa problems, countries such as China and Pakistan and Iran. Fear of lawsuits and pressure groups could delay or stop the release of research results. University libraries will cope with the PATRIOT Act and other legislation as it evolves.

Ten years from now information may be harder, not easier, to obtain. It all depends on the strength of traditional U.S. values about higher education, research, and freedom. If they can survive this era, then citizens can prevent their government from acting in secret and ensure transparency from all its institutions.

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Notes

[1] Woodbury, Marsha (1994) E Law - Murdoch University Electronic Journal of Law, vol. 1/ 4, http://www.murdoch.edu.au/elaw/indices/title/woodbury_abstract.html

[2] Today the "United States" is the preferred usage, particularly in international publications. "American" does not firmly define the subject matter that the article covered, as in their view, Canada and Mexico also occupy North America, and so on. Many Canadians and Mexicans may disagree, referring to the U.S. as America.

[3] The Student Press Law Center works with the Reporters Committee for Freedom of the Press. Its website is http://www.splc.org/

[4] Tapscott, Mark and Taylor, Nicole, Few Journalists Use the Federal Freedom of Information Act http://new.heritage.org/Press/MediaCenter/FOIA.cfm

[5] The National Security Archive collects and publishes declassified documents acquired through the FOIA

[6] Fuchs, Meredith, Elias, Barbara, and Blanton, Thomas. The Freedom of Information Act on its 37th Birthday http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB93/index.html

[7] See the exhaustive listing at Open Records Surveys, Open Records: For Many States, A Closed Subject, http://web.missouri.edu/~foiwww/openrecseries.html

[8] Judicial Watch, a public interest group, sought these documents under FOIA in April 19, 2001. It filed a lawsuit (Cheney Energy Task Force Documents Feature Map Of Iraqi Oilfields, http://www.judicialwatch.org/071703.b_PR.shtml, Judicial Watch) when the government failed to comply with the provisions of the FOIA law. A U.S. District Court Judge ordered the government to produce the documents on March 5, 2002.

[9] The documents, which are dated March 2001, are available on the internet at: www.JudicialWatch.org.

[10] Schmidt, Peter (2003, April 11) Behind the Fight Over Race-Conscious Admissions, The Chronicle of Higher Education http://chronicle.com/prm/weekly/v49/i30/30a02201.htm

[11] Mangan, Katherine, Indiana U. Law School Defends Affirmative Action, The Chronicle of Higher Education, vol. 49/39, p. A12 http://chronicle.com/prm/weekly/v49/i39/39a01203.htm

[12] Schmidt, Peter (2003, April 4) "Center for Equal Opportunity Shines Spotlight on Preferences." The Chronicle of Higher Education, http://chronicle.com/prm/weekly/v49/i30/30a02501.htm

[13] EFOIA Legislative History, House Committee Report, H. Rept. 795, Sept. 17, 1996 http://www.citizen.org/litigation/free_info/foic_lr/leghist/articles.cfm?ID=6388"

[14] The Fact Book, Federal Civilian Workforce Statistics at the Office of Personnel Management website (http://www.opm.gov)

[15] Quarterman, John. Internet User Measurement Methods and a New Estimate Matrix News, http://www.mids.org/forisoc9412.html,

[16] http://cyberatlas.internet.com/big_picture/geographics/article/0,,5911_151151,00.html, Jupitermedia Corporation,

[17] H.R.3802, An Act to amend section 552 of title 5, United States Code, popularly known as the Freedom of Information Act, to provide for public access to information in an electronic format, and for other purposes, 104 Cong. 2nd Sess. 1996.

[18] See http://www.enquirer.com/editions/2003/10/01/loc_recordsfight01.html, for example, Domestic court judges block info by Janice Morse in The Cincinnati Enquirer, for an understanding of the dimensions of the problem.

[19] The 1994 article mentioned university and college foundations and their lists of donors, and that the Ohio Supreme Court ruled that the University of Toledo Foundation, a fundraising body which is separate and distinct from the public university, is nonetheless a public body which must make its donor lists public. In _State ex re. Toledo Blade Co. v. University of Toledo Foundation_, 91-1785 (Ohio Supreme Court 1993)

[20] Carol Livingstone, Associate Provost, University of Illinois at Urbana-Champaign, provided background material for the mailing list paragraphs.

[21] Illinois Compiled Statutes, General Provisions, Freedom of Information Act, 5 ILCS 140/ posted at http://www.legis.state.il.us/legislation/ilcs/ilcs3.asp?ActID=85&ChapAct=5 ILCS 140/&ChapterID=2&ChapterName=GENERAL+PROVISIONS&ActName=Freedom+of+Information+Act%2E

[22] Ibid.

[23] One of the most telling bits of evidence against Microsoft turned out to be its own internal email. Wilson, D. Delete that email, Business 2.0, January 1. http://www.business2.com/content/magazine/ebusiness/1999/01/01/1334

[24] Foster, Andrea. Your E-Mail Message to a Colleague Could Be Tomorrow's Headline, Section: Information Technology Chronicle of Higher Education, p. A31, http://chronicle.com/prm/weekly/v48/i41/41a03101.htm

[25] Ibid.

[26] FERPA U.S.C. 1232 (g) pre-empts state law as regards access to student records. Congress enacted FERPA in response to parents having to resort to the judiciary to inspect and control the information that schools recorded about their own children. Fischer, L. & Sorenson, Gail P. "School Law for Counselors Psychologists and Social Workers" (Second ed.) 73 (1991) wrote: With FERPA, "an educational philosophy emerged that acknowledged the right of the parents (and students 18 or over) to be involved in the educational process by having access to educational records, to challenge the accuracy of those records, and to have some authority over their dissemination."

[27] See http://www.ed.gov/offices/OII/fpco/FERPA, and the article by Foster, Andrea. Rule Change Would Let Students Approve Release of Data Online, Chronicle of Higher Education, vol. 50, iss. 2, p. A40, http://chronicle.com/prm/weekly/v50/i02/02a04001.htm

[28] Glantz, S., Slade, J., Bero, L., Hanauer, P., Barnes, D. (1996) Cigarette Papers, University of California Press.

[29] Rampton, Sheldon and Stauber, John. 2002, "Trust Us, We're Experts: How Industry Manipulates Science and Gambles with Your Future, " Tarcher/Penguin

[30] Ibid

[31] See: Schulman KA, et al, Provisions in Clinical-Trial Agreements, New England Journal of Medicine, vol. 347, no. 17, Oct 24, 2002, pp. 1335-1341

[32] Duke Survey Clinical trials: Research Conflicts of Interest Violate ethical Guidelines http://www.researchprotection.org/infomail/1002/27.html

[33] See Debate Over FOIA Disclosure of Research Data Continues, Delay Fails in House Action, http://www.aai.org/committees/public/99_articles/jun_jul.htm

[34] See the NIH interpretation at http://grants.nih.gov/grants/policy/a110/a110_guidance_dec1999.htm

[35] See the memo issued by the University of California Office of the President for their analysis: http://www.ucop.edu/raohome/cgmemos/00-02.html

[36] The NIH was Forced to Release Information on Unfunded Grant Applicants, http://www.iupui.edu/~rspcommu/nl-january-02.htm

[37] See the extensive site set up by Rep. Henry Waxman, the Ranking Minority Member of the Committee on Government Reform and a member of the Committee on Energy and Commerce. http://www.house.gov/reform/min/politicsandscience/index.htm

[38] Michaels, D., Bingham, E., Boden, L., Clapp, R., Goldman, L.R., Hoppin, P., Krimsky, S., Monforton, C., Ozonoff., & Robbins, A. (2002). Advice without dissent. Science, 298, 703.

[39] Parasuraman, R., Hancock, P., Radwin, R., and Marras W. "Defending the Independence of the Science of Human Factors and Ergonomics, " to be published in the Bulletin of the Human factors and Ergonomics Society, 2003, http://hfes.org/Publications/HFJournal.html

[40] Goode, Erica. Certain Words Can Trip up AIDS Grants, Scientists Say, New York Times (Apr. 18, 2003), http://www.hivdent.org/researcht/resnewsCWCTUA04203.htm

[41] Ibid.

[42] To learn more about CRE, see http://www.thecre.com/quality/Background.html

[43] Amendments to the Treasury and General Government Appropriations Act for FY 2001, p. L . 106, Sec.515

[44] See: "Industry Targets University Research Under Data Quality Act" at http://www.thecre.com/pdf/sledgehammer.pdf, April 25, 2003.

[45] Analysis was done by Tony DeCrappeo of the Council On Governmental Relations http://www.cogr.edu/

[46] Brainard, Jeffrey , Another Record Year for Academic Pork, Chronicle of Higher Education, vol. 49, iss. 5, p. A20. http://chronicle.com/prm/weekly/v49/i05/05a02001.htm

[47] Halstuk, Martin E. Shielding private lives from prying eyes: the escalating conflict between constitutional privacy and the accountability principle of democracy. 11 CommLaw Conspectus 71-96 (2003). See also Berkowitz, Bill, (2002, October 11) Freedom of Information Act on the ropes http://foi.missouri.edu/federalfoia/foiactonropes.html

[48] President and the Attorney General iss. New FOIA Policy Memoranda, http://www.usdoj.gov/oip/foia_updates/Vol_XIV_3/page1.htm When William Clinton took office, he inherited a federal government with an enormous backlog of FOIA requests. He set a new tone, and Attorney General Janet Reno rescinded a 1981 rule that encouraged federal agencies to withhold information requested under the FOIA whenever there was "a substantial legal basis" for doing so. In its place, agencies were directed to apply a "presumption of disclosure."

[49] http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm , New Attorney General FOIA Memorandum Issued , Guidance on Homeland Security Information Issued, FOIA Post, Office of Information and Privacy

[50] http://jan.ucc.nau.edu/~rse/FederalAccess.htm Federal Government Information Access in the Wake of 9/11 by R. Sean Evans and Brad Vogus

[51] Memo: "Drastic" Change or "More Thunder Than Lightning"? The National Security Archive; Freedom of Information Act Audit, by Thomas Blanton, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB84/press.htm

[52] Clinton Presidential Materials Project, http://clinton.archives.gov/project_overview/presidential_records_act.html

[53] See a stern condemnation of this action by the Society of American Archivists at http://www.archivists.org/statements/stephenhorn.asp

[54] EFF Analysis Of The Provisions Of The USA PATRIOT Act, updated in October, 2003, http://www.eff.org/Privacy/Surveillance/Terrorism/20011031_eff_usa_patriot_analysis.php

[55] Compiled by Law firm of Hogan & Hartson, found in Scott Carlson and Andrea L. Foster, Colleges Fear Anti-Terrorism Law Could Turn Them Into Big Brother, Chronicle of Higher Education, March 1, 2002 http://chronicle.com/prm/weekly/v48/i25/25a03101.htm

[56] American Library Association., Library Community Statement on Proposed Anti-Terrorism Measures, October 2, 2001, at: http://www.ala.org/ala/washoff/WOissues/civilliberties/theusapatriotact/terrorism.pdf

[57] American Library Association, Resolution on the USA PATRIOT ACT and Related Measures That Infringe on the Rights of Library Users http://www.ala.org/Template.cfm?Section=IF_Resolutions&Template=/ContentManagement/ContentDisplay.cfm&ContentID=21668

[58] Wheeler, David. Alarm Bell in the Library, Chronicle of Higher Education, vol. 49, iss. 31, p. A18, http://chronicle.com/prm/weekly/v49/i31/31a01901.htm

[59] Documents Show Ashcroft is Bypassing Courts With New Spy Powers, ACLU Says, http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12166&c=206

[60] Bookselling This Week, September 18, 2003 http://news.bookweb.org/freeexpression/1821.html

[61] Arnone, Michael. Watchful Eyes: The FBI steps up its work on campuses, spurring fear and anger among many academics, Chronicle of Higher Education, April 11, 2003, vol. 49, iss. 31, p. A14 http://chronicle.com/prm/weekly/v49/i31/31a01401.htm

[62] Homeland Security Act of 2002, http://www.whitehouse.gov/deptofhomeland/bill/hsl-bill.pdf

[63] Weinstein, Lauren. "Taking Liberties With Our Freedom, " Wired News, http://www.wired.com/news/politics/0,1283,56600,00.html

[64] Ibid.

[65] Efforts Made to Expand Critical Infrastructure Information, May 5, 2003 vol. 4 no. 9 http://www.ombwatch.org/article/articleview/1491/1/174/

[66] For a sectional analysis, see http://leahy.senate.gov/press/200303/031203c.html

[67] According to some senators and representatives, the Homeland Security Act might be the most severe weakening of the Freedom of Information Act in its 36-year history. See: Sarah Lesher. Senators attempt to close ‘secrecy’ hole The Hill July 8, 2003. http://www.hillnews.com/news/070803/secrecy.aspx

[68] The act has a weak chance to become law in the current political climate as politicians are striving to be "tough on security."

[69] The agencies are those that are part of, or contain an element of, the "intelligence community." They consist of the Central Intelligence Agency; the National Security Agency; the Defense Intelligence Agency; the National Imagery and Mapping Agency; the National Reconnaissance Office; certain other reconnaissance offices within the Department of Defense; "the intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Federal Bureau of Investigation, the Department of the Treasury, the Department of Energy, and the Coast Guard [or, by statutory succession, of the soon-to-exist Department of Homeland Security]"; the Bureau of Intelligence and Research in the Department of State; and "such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and the head of the department or agency concerned, as an element of the intelligence community." 50 U.S.C. § 401a(4) (2000).

[70] Whitehouse Memo Orders Review of Information Procedures, Published On: 04/01/2002 07:18 PM, OMB Watcher, http://www.ombwatch.org/article/articleview/658/1/108/

[71] See Access to Government Information Post September 11th http://www.ombwatch.org/article/articleview/213/1/104/#agency

[72] Rampton, Sheldon. "Terrorism to End Terrorism" http://www.prwatch.org/prwissues/2001Q4/end_terror.html

[73] http://www.usdoj.gov/oip/foiapost/2002foiapost10.htm, Guidance on Homeland Security Information Issued, FOIA Post, Office of Information and Privacy

[74] Evans, R.S. and Vogus, Brad. Federal Government Information Access in the Wake of 9/11, http://jan.ucc.nau.edu/~rse/FederalAccess.htm

[75] See the order at Executive Order 13292, Further Amendment to Executive Order 12958, as Amended, Classified National Security Information http://www.fas.org/sgp/bush/eoamend.html

[76] See http://www.judicialwatch.org/091203_PR.shtml, "National Security" Claimed for Withholding Justification, Approval and E-Mails Concerning "Sole Source" Contract to KBR

[77] See Pentagon Stonewalls Release of Kellogg, Brown & Root Documents on Iraqi Oil Contracts http://publish.portland.indymedia.org/en/2003/09/271867.shtml

[78] Young, Jeffrey, Smile! You're on Campus Camera, Chronicle of Higher Education, vol. 49, iss. 40, p. A36 http://chronicle.com/prm/weekly/v49/i40/40a03601.htm

[79] In a coup on March 24, 1976, a military junta seized power in Argentina. Between 1976 and 1983, thousands of people, most of them dissidents or innocent civilians unconnected with terrorism, were arrested and then vanished without a trace. See http://www.yendor.com/vanished/

[80] http://www.aclu.org/ImmigrantsRights/ImmigrantsRights.cfm?ID=9853&c=95 ACLU Joins Coalition in Filing FOIA Lawsuit on Detainees, by Steven R. Shapiro

[81] http://www.azcentral.com/arizonarepublic/local/articles/0905studentreleased.html UA grad student is released from federal custody by Associated Press, Sept 5, 2003

[82] Arnone, Michael. Watchful Eyes The FBI steps up its work on campuses, spurring fear and anger among many academics, Chronicle of Higher Education, vol. 49/31, p. A14, http://chronicle.com/prm/weekly/v49/i31/31a01401.htm

[83] Ibid.

[84] Ibid.

[85] Borrego, Anne Marie "Regulatory Overkill?" The Chronicle of Higher Education, January 31, 2003,vol. 49/21, p. A25 http://chronicle.com/prm/weekly/v49/i21/21a02501.htm

[86] Colleges See More Federal Limits on Research, Chronicle of Higher Education, http://chronicle.com/prm/weekly/v49/i10/10a02401.htm Section: Government & Politics vol. 49/10, p. A24

[87] Borrego, Anne Marie "Regulatory Overkill?" The Chronicle of Higher Education, January 31, 2003, vol. 49/21, p. A25 http://chronicle.com/prm/weekly/v49/i21/21a02501.htm

[88] See their site: http://www.iie.org/

[89] Arnone, Michael (2003, April 11) Watchful Eyes The FBI steps up its work on campuses, spurring fear and anger among many academics, Chronicle of Higher Education, vol. 49/31, p. A14, http://chronicle.com/prm/weekly/v49/i31/31a01401.htm

[90] Ibid.

[91] Michael Greenberger, a law professor at the University of Maryland at Baltimore, Ibid.

[92] Ibid.

[93] Guterman, Lila. "Stalled at the Border", The Chronicle of Higher Education, vol. 49, iss. 31 p. A20, http://chronicle.com/prm/weekly/v49/i31/31a02001.htm

[94] Borrego, Anne Marie "Colleges See More Federal Limits on Research" The Chronicle of Higher Education, vol. 49/10, p. A24, http://chronicle.com/prm/weekly/v49/i10/10a02401.htm

[95] U.S.C. 1232 (g) _Family Educational Rights and Privacy Act_ of 1974. 20 Section 1221 NT.

[96] For example, _Arkansas Gazette C. v Southern State College_ 1981, 620 S.W. 2d 258, 273 Ark. 248. Records maintained by and intercollegiate athletic conference about the amount of money given out to student athletes were not "student records" required to be closed to the public.

[97] See the decision of August 7, 2003, at http://www.nacua.org/nacualert/memberversion/Peer_to_Peer/RIAA-v-bc-order-to-quash.pdf

[98] Pub. L 101-542, Title I, Nov. 8, 1990, 104 Stat. 2381 (20 Section 1232g)

[99] The Department of Education now has a web site where campus crime statistics can be studied, http://ope.ed.gov/security/

[100] Ibid.

[101] Arnone, Michael. "Colleges Debate Sharing Personal Information on Foreign Students With the FBI," Chronicle of Higher Education, vol. 49, iss. 16, p. A27 http://chronicle.com/prm/weekly/v49/i16/16a02701.htm

[102] Arnone, Michael. "Congress Weighs Changes in Key Student-Privacy Law, " Chronicle of Higher Education, vol. 50, iss. 6, p. A22 http://chronicle.com/prm/weekly/v50/i06/06a02202.htm

[103] Foster, Andrea. "Rule Change Would Let Students Approve Release of Data Online, " Chronicle of Higher Education, vol. 50, iss. 2, p. A40 http://chronicle.com/prm/weekly/v50/i02/02a04001.htm

[104] Ibid.