The federal judge who ordered the Bush administration to turn over some records related to Vice President Cheney's energy task force wondered "what in the world" the Energy Department was doing, acting at such a "glacial pace" in response to Freedom of Information Act requests.
"The government can offer no legal or practical excuse for its excessive delay," Judge Gladys Kessler of the U.S. District Court in Washington wrote in an order made public on Wednesday.
But while Kessler expressed amazement at the Energy Department's response to information requests under FOIA, the 36-year-old cornerstone law for government transparency, the reluctance to provide information has become routine throughout the administration, liberal and conservative public interest groups say. They say it is a gathering trend, fed by, but not rooted in, the Sept. 11 terrorist attacks.
They point to a memo issued in October by Attorney General John D. Ashcroft, which they say is an indication of the administration's drive to restrict access to information. The memo -- in the works long before the terrorist attacks -- assures agencies that "when you carefully consider FOIA requests and decide to withhold records . . . you can be assured that the Department of Justice will defend your decisions."
They also cite President Bush's executive order in November limiting the disclosure of past presidents' records. And Cheney's refusal last spring to release energy task force records prompted FOIA requests from at least a dozen organizations, including Judicial Watch, a conservative watchdog group that sued both the task force and the individual agencies for the data. In response, a federal judge in one case said last week that he would order the nine federal agencies making up the task force to release their records on the task force meetings.
The high-profile fight continues as the General Accounting Office, Congress's investigative arm, has sued Cheney to force the release of energy task force documents, though not under FOIA.
"If you look at the steady drumbeat of anti-openness measures taken by this administration, it's sobering," said David Vladeck, director of the Public Citizen Litigation Group, which went to court on Thursday over farm subsidy records for an administration nominee that the Agriculture Department has refused to disclose on the grounds that the request is an "unwarranted invasion" of the nominee's privacy.
On Wednesday, the Natural Resources Defense Council (NRDC) was informed that Kessler had ordered the Energy Department to release a portion of the records being sought after the group went to court in December to force compliance with an eight-month-old FOIA request. It is unclear how many documents the agency will release. Though the Energy Department has told the court that 7,500 pages are "responsive" to the NRDC's request, it can withhold some by claiming that they are exempt, for instance, because they are deliberative documents.
NRDC attorney Sharon Buccino said the GAO suit is important because the NRDC, unlike the GAO, did not sue Cheney. There may well be documents relating to Cheney meetings in which the Energy Department did not participate. Another important distinction, she noted, is that the GAO is suing under a law that gives it oversight of the executive branch but does not require disclosure.
A top official in the office that oversees FOIA policy for the entire government said that fears about the Bush administration's secretiveness are overblown.
Things have not changed under FOIA nearly as much as one might have thought, said Daniel J. Metcalfe, co-director of the Justice Department's Office of Information and Privacy.
Metcalfe acknowledged that there is a shift from the Clinton administration, which placed greater emphasis on the discretionary disclosure of information. "The Ashcroft memorandum places more emphasis on an agency being careful, on giving full and careful consideration of the interests that are being protected under the FOIA exemptions," he said. "That's its primary focus."
The Freedom of Information Act was passed in 1966 and amended several times, most significantly in 1974, when Congress gave the courts power to review agency decisions. It is grounded in the belief that a democracy functions best with an informed public.
The law gives citizens the right to petition agencies for information and offers nine exemptions, including the need to protect national security, trade secrets, deliberative processes and personal privacy.
Openness advocates say that Ashcroft's memo will have a chilling effect on about 5,300 federal officials who handle 2 million FOIA requests a year.
"The cumulative message from the White House and from Ashcroft is: Stall. Don't release," said Tom Blanton, executive director of the National Security Archive, an access advocacy group. "They believe that the trend for 30 years has been to make the White House too open."
Groups that have long experience filing FOIA requests are beginning to worry. It took a lawsuit under the first Bush administration to get things moving, but Public Citizen, a liberal watchdog group founded by Ralph Nader, had become accustomed over the past decade to routine disclosures from the Drug Enforcement Administration about doctors whose licenses to prescribe controlled substances had been withdrawn or limited because of misconduct.
Under the current Bush administration, Public Citizen got the records, but they were so heavily redacted as to be unusable. The DEA has promised a clean copy, but if it doesn't deliver, it's back to court, Vladeck said. "We've just had a devil of a time getting those records," he said.
The perception that the Bush administration has drawn the curtains tight holds not just among liberal groups. Judicial Watch, which gained prominence for its tireless campaign to pry information from the Clinton administration, said this week that it will join Public Citizen in its legal battle. Executive Director Larry Klayman, who noted that Judicial Watch has close to 100 federal FOIA actions pending, said the Bush administration's attitude is one of "arrogance throughout -- that the government is not to be questioned."
In its defense, the administration asserts that the powers of the executive branch have been eroded over the years. White House deputy press secretary Anne Womack, echoing earlier statements by White House counsel Alberto R. Gonzales, said that Cheney and Bush "came in here with the attitude that they would leave it a better, stronger place."
There needs to be a balance, Womack said, between disclosure and protecting national security, between disclosure and protecting executive powers.
Though concerned about the restrictions, some openness advocates say that, so far, there seems to be little difference between the Clinton and Bush administrations when it comes to FOIA requests.
"I can only tell you in my 20- or 30-something-year experience in FOIA, the Clinton administration was not a bright spot," said Mike McGraw, a Kansas City Star reporter and American Society of Access Professionals member.
Others disagree, noting that from 1995 through last year, as a result of a Clinton executive order, more than 800 million pages of documents were declassified, more than four times as many as in the previous 15-year period.
The effects of the Ashcroft memo will appear over time, public interest groups say. Mark Zaid, executive director of the James Madison Project, a group promoting government accountability, said the memo "puts the fear of God" in FOIA officers, an "informal threat that secrecy should reign . . . because your job is on the line."
One FOIA officer, who asked that his name not be used, said much essentially depends on the individual. "There are pro-disclosure FOIA officers, there are anti-disclosure FOIA officers," he said.
Database editor Sarah Cohen contributed to this report.