Going private

~ The fight to obtain government records is getting harder, even for small cities and "regular guys,"after Sept. 11, 2001.

FALL RIVER, Mass. -- Ed Lambert, Al Lima and Mike Miozza never thought of themselves as activists, just regular guys.

Then an energy company announced plans to build a liquefied natural gas terminal in this small community on the Taunton River. The men -- the mayor, a city planner and an engineer -- had nightmare visions of gas igniting into a huge fireball on the river, and asked for government-held reports that studied the threat to the town if the plant or a tanker were attacked.

But like many people who ask for government records these days, they didn't get what they were looking for. "It's a farce," Miozza said.

And it's happening across the country. To a Virginia homeowner seeking plans for a gas pipeline near his home. To Wyoming politicians worried about local dams. To an environmental group that wants the studies on 100-year floods and dam failures in a Southwest river canyon.

All asked for records, and all were turned down.

Behind the rejections is a transformation of the nation's Freedom of Information Act -- a federal law that allows public access to government reports, documents and other records. That freedom is supposed to be balanced by the needs of national defense and privacy, and government officials argue that America's war on terror has made a new, more closely guarded approach necessary.

The law itself hasn't been changed, but the balance shifted after the Sept. 11, 2001, attacks with a series of actions by the Bush administration and Congress. The creation of the Homeland Security Department effectively added another reason government doesn't have to open its books. States and local governments followed suit, moving more information out of public view.

"We're denied information that could put our community at risk," Lambert said during an interview in his sixth-floor office, the granite mills, sea gulls and steep hills of Fall River spread out below the windows. "It seems to us like a bad movie ... yet we're all living it."

Originally passed in 1966, the Freedom of Information Act grew out of a backlash to the Cold War-culture of government secrecy that flourished amid the nation's worries about communism.

The Watergate scandals spurred a strengthening of the law, giving it teeth for the first time, and it's since been revised -- most recently in 1996 when it was updated to make more information available over the Internet.

The American policy has inspired governments across the globe. Slowly at first, but increasingly in the last decade, nation after nation -- from Japan to South Africa to Armenia -- have opened their government information to citizens.

While the U.S. law is often associated with journalists and government watchdog groups, private citizens actually use it far more frequently. Individuals with questions for Social Security or Veterans Affairs, usually about their own personal records, are the biggest users. Prison inmates frequently make FOIA requests, as do businesses, since documents can reveal details about government contracts and their competitors.

In all, more than 3.2 million FOIA requests were made to the federal government in fiscal year 2003, the last year with complete figures, the Justice Department said. That's up from 1.9 million in 1999.

Staff time on such requests equaled a full year's work of more than 5,000 employees.

The CIA's Web site, where information requests can be made online, offers a glimpse into the public's obsessions. January's top information searches? "UFO" (2,019 times) and "Vietnam" (1,889 times). Other searches in the top 25 included "Iraq," "mind control," "Bay of Pigs" and "mapping the global future."

While many requests are for personal records and some might be pointless, in the end, the idea is to help people keep an eye on how they are being governed, invigorating American democracy. But the changes in the last few years have raised alarms from journalists and public interest and civil liberties groups.

"Instead of government officials being considered public servants, they are now more and more like gatekeepers who can determine what the public can know," said Steven Aftergood, a Washington-based government watchdog who runs the Federation of American Scientists. "And that's a profound change."

A month and a day after the terrorist attacks, former Attorney General John Ashcroft issued a memo as part of the guidance the Justice Department provides to all federal agencies as they consider whether to grant requests for information or deny them.

Shifting from the Clinton administration's standard that experts say emphasized "maximum responsible disclosure," Ashcroft encouraged staff to consider "institutional, commercial, and personal privacy interests" and said the Justice Department would defend any rejections unless they lacked a "sound legal basis."

Another memo followed five months later from White House Chief of Staff Andrew Card, urging agencies to "safeguard" information that could help in the development or use of weapons of mass destruction, and other information that could be used "to harm the security of our nation."

Following that note, thousands of documents were removed from public access, according to government watchdog groups and federal agencies.

Finally, with the creation of the Homeland Security Department, the administration and Congress created an exemption to FOIA that allows private companies to give the agency information that can then be kept secret if it is considered "critical infrastructure." The idea is to get companies to share more information with the promise it won't be made public.

"Unquestionably, agencies do look at information now through a post-9/11 lens," said Daniel J. Metcalfe, co-director of the Justice Department's Office of Information and Privacy. He helped Ashcroft draft his Oct. 12 memo, though he noted work on it started long before the terrorist attacks.

The Card memo that followed and the provision in the Homeland Security Act all helped create a new tone for handling information requests, but Metcalfe stressed they did not change the law.

In Fall River, that tone meant the denial of information. "We're trying to balance the public's need to know with the need to keep this information from getting into the hands of those who would kill our citizens," said Bryan Lee at the Federal Energy Regulatory Commission, which holds the reports.

"Nobody here wants to be the equivalent of the State Department administrator who gave the visas to the terrorists who came into this country," Lee said.

His agency would allow Lambert, Lima and Miozza to see the records regarding the Fall River plant only if they promised not to speak about them. Lambert refused, figuring as mayor it would limit his ability to address the subject in public. Lima and Miozza agreed, but said so much of the material they saw was blacked out that it was useless.

"What's the use of the information if we can't talk about it?" Lima said. "It's this surreal, Kafka-esque situation."

The terminal, if approved, would hold 58 million gallons of gas, with aircraft carrier-sized tankers coming up the narrow river roughly once a week. Residents say it's an unacceptable risk, with homes and schools all within a mile -- the range for second-degree burns if the fuel ignited, according to government studies.

The federal regulatory agency has yet to decide whether to let the plant be constructed; the opposition includes the governors and congressmen from both Massachusetts and nearby Rhode Island.

Cases such as Fall River's are helping fuel the sentiment behind a bipartisan Senate bill that would revisit FOIA and the exemption created under the Homeland Security Act.

"As American citizens, we have a right to know the good, bad and ugly," said Sen. John Cornyn, a Texan Republican who emphasized he isn't trying to counteract the Bush administration as much as government bureaucracy's tendency to protect itself at the public's expense. The co-sponsor is Vermont Sen. Patrick Leahy, a Democrat.

"This is an issue that conservatives and liberals alike, Republicans and Democrats and independents, can and should support," Cornyn said. "What we're trying to do is nothing less than a restoration of the people's power to control the instruments of government."