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After 18 years amassing the world’s largest collection of declassified government documents and spreading the public access gospel, the National Security Archive is finding its job getting tougher rather than easier. Post-9/11, federal agencies are stepping up resistance to releasing their files, in the name of national security. They’re also not averse to blaming their antiquated record-keeping systems when they say they can’t retrieve public records. The new Archive general counsel, Meredith Fuchs, spoke to Heather Smith about the George Washington University-based group’s efforts to unlock Washington’s secrets — and about her own role reversal, from defender of corporate privacy (prior to joining the Archive, the 36-year-old carved out an Internet and e-commerce privacy niche at Wiley Rein & Fielding) to total-access champion. Q: What is the main difference between your private practice and the Archive? A: [At Wiley] I was always looking for a way to advance my clients’ commercial interests and to minimize any negative impact, [so at times] their business interests may require them to settle a case just to have the case done with. … [At the Archive] our legal agenda is mission-driven … so if we bring a lawsuit, we’re not going to settle it by compromising any basic principles regarding access to government information. Q: Do you have any sympathy for a government right to privacy? A: No. We live in a democracy, [and] we have a right to know what our government is doing. … There certainly are circumstances when national security might provide a reason for the government to withhold information, [but] I want the people who make the decision about what is harmful to our national security to closely look at it before they decide to withhold information. Q: What do you say when agencies claim that outdated technology prevents document retrieval? A: I don’t think it’s a valid excuse at all. First of all, it’s tremendously troubling that they can’t find documents. If they can’t find documents in order to respond to a FOIA [Freedom of Information Act] request, what does that say about their ability to find the documents to do the work that they’re supposed to do? … The only conclusion that you can draw from that [excuse] is that the agencies are using record keeping as a way to avoid seriously searching for the documents. Q: How successful are the Archive’s FOIA requests? A: In our 18-year history, we’ve made more than 25,000 FOIA requests, [and] we’re probably on average more successful than your average Joe. … To the extent we do have to litigate [requests], the litigation along the way often creates what in our minds is really a victory. … One example of that related to the Iran rescue mission in 1980. What happened there is that we requested information about the mission, and the Department of Defense said that all [documents] were secret. Over the course of the suit, 9,000 of the almost 12,000 pages were released to us. … So really it’s hard to measure success simply by the number of lawsuits that you’ve won, or numbers of requests for which there was no exemption or withholding asserted. Q: How much harder is it to get access now? A: We don’t have enough post-9/11 history yet to really assess whether there has been an impact on the way the courts deal with FOIA requests. … There may be changes in the way the agencies handle requests, and that’s something we’re trying right now to assess, whether the guidance that’s been given to the agencies by the attorney general and the White House has any impact on what’s actually being released. One thing we have seen is that the government appears to be trying to use measures like [search fees] to control the number of FOIA requests that they have to respond to. Q: Would the courts today allow the Pentagon Papers to be published? A: We are definitely concerned about the courts being more deferential to the government. … People may overreact and fear disclosure whenever it touches on national security, [but] we can’t always know whether the government’s decision to invoke exemptions is made out of fear, or confusion about whether information should be protected or not. Q: How would you improve the FOIA process? A: We would like to see the FOIA have an even broader recognition of public interest and disclosure, and the possibility that the public interest can override identified harms. [And] there’s really not much penalty in our law for noncompliance by government agencies. Delays are persistent problems, and you can bring a lawsuit, but there’s not a whole lot else you can do. Q: Have you ever submitted a FOIA request for your own files? A: I have not, actually, [but] an official from the Justice Department … assured me that the making of a request does not in and of itself lead to the creation of an FBI file on you. So I’m thinking about it.

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