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The Bush administration won a decisive victory last week when a D.C. federal judge dismissed the General Accounting Office’s suit seeking records related to the vice president’s energy task force. But the administration’s fight to keep a tight hold over government information is far from over. Watchdog groups continue attempts to penetrate the inner sanctum of the executive branch using the Freedom of Information Act and other open government laws. Now, more pressure will be put on these suits to wrangle information from a reluctant administration. At issue in some of the unresolved Freedom of Information Act, or FOIA, cases most closely watched by the Bush administration and advocacy groups is the release of: • Names of those detained as part of the investigation into the Sept. 11 terrorist attacks; • Statistics on the Justice Department’s use of new surveillance powers authorized by the USA Patriot Act; • Information related to the Defense Department’s controversial Total Information Awareness initiative; and • Data maintained by U.S. attorney’s offices that indicate how many investigations are under way in specific categories, such as terrorism or civil rights. “We’re obviously very happy with the result we were able to get for the vice president,” says one senior Justice Department official, referring to the GAO suit. The GAO’s suit had been considered one of the most significant efforts to compel the release of tightly held executive branch information, because it pit the administration against a coequal branch of government. On Dec. 9, U.S. District Judge John Bates ruled that GAO chief David Walker lacked standing to pursue the case because he had not suffered a personal injury. The GAO is likely to appeal the ruling, which erodes its ability to conduct oversight investigations. And the administration is cognizant that the battle over information will continue. “It’s not the end of the road for this stuff,” says the senior DOJ official. “We have other suits we’re defending where there may be different results.” Indeed, government lawyers were back in district court just three days after the GAO suit was dismissed, defending claims by Judicial Watch and the Sierra Club seeking energy task force documents under the Federal Advisory Committee Act, or FACA. In yet another suit, the Natural Resources Defense Council has already obtained more than 13,000 pages of material from the Energy Department using FOIA, and the group awaits a decision that could compel the production of additional records directly related to the energy task force itself. “The bottom line is that the White House is not off the hook,” says NRDC general counsel Sharon Buccino. “Judge Bates’ decision explicitly acknowledges the ability of private parties to go to court to get information, even if the GAO doesn’t have that authority.” FOIA advocates take heart from a footnote in which Bates writes that a private individual does suffer injury when denied information that, by statute, must be disclosed — though the dismissal dealt a blow to GAO’s efforts to obtain the same information. “It’s a completely bizarre state of affairs where an ordinary citizen has superior rights to government information than Congress, and the person Congress has chosen to act in its stead has less rights than anybody else,” says Georgetown University Law Center professor David Vladeck, former litigation director of Public Citizen. In perhaps the most high-profile FOIA action stemming from the events of Sept. 11, a coalition of civil liberties groups led by the Center for National Security Studies and the American Civil Liberties Union won a rare victory. On Aug. 2, U.S. District Judge Gladys Kessler ordered the Justice Department to release the names of those detained after Sept. 11. Kessler stayed the order pending review by the D.C. Circuit, but lead plaintiffs counsel Kate Martin says the effort has already been fruitful. “FOIA forces the government to explain and justify what they are doing,” says Martin, director of the Center for National Security Studies. “In our case, while we haven’t gotten all the information we need, we have learned a lot of significant information from government affidavits about what the basis was for rounding up these people. It gives us some check on what the government is doing.” When it comes to FOIA, the rhetoric and policies of the Bush administration differ starkly from those of the Clinton administration. In October 2001, Attorney General John Ashcroft put out new guidance for agency FOIA officers, pledging a more vigorous defense of decisions to withhold records so long as the decisions have a sound legal basis. In contrast, former Attorney General Janet Reno promoted “a presumption of disclosure” and encouraged agencies to make information available to the public on their own initiative. Reno said the department would defend decisions to withhold records only when the release of the information would cause foreseeable harm. “The White House has instructed the Justice Department to litigate these cases aggressively. It’s absolute trench warfare,” says Vladeck. “We’ve had to litigate cases that we would never have brought before because the information ordinarily would have been disclosed.” Other FOIA experts say it’s simply too soon to tell conclusively whether information requests are receiving more scrutiny. After all, every administration and executive branch agency is loath to turn over embarrassing or sensitive information. Justice Department officials point out that Reno’s policy raised the bar for FOIA refusals, and the Ashcroft policy simply reverts to the standard that had existed previously. David Sobel, general counsel of the Electronic Privacy Information Center, points out jokingly that, even under Reno, he never had a case in which the Justice Department refused to represent an agency. “I think this administration is every bit as bad as previous administrations. I think it’s still early in their tenure to yet be able to say that they’re any worse, though they’re clearly contending for that distinction,” Sobel says. He notes that the Electronic Privacy Information Center has faced at least one new form of resistance to its FOIA requests. For the first time since it was created in 1994, the group — which operates a Web site and publishes an electronic newsletter — has been denied expedited service and fee waivers on the basis that it is not technically a news organization and, thus, not entitled to preferential treatment. “Since we came into existence in ’94, we have had no problem with agencies acknowledging our status as a news media requester,” he says. “It’s very clear there is no legal basis for the position that they are taking, but they have dug in their heels.”

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