PPA 573 – Emergency Management and Homeland Security

1. PPA 573 – Emergency Management and Homeland Security Homeland Security: Implications for Information Policy and Practice – Lecture 9b

2. Introduction • Assessing information policy in a post-9/11 world presents the analyst with extraordinary challenges, beginning with the difficulty of trying to identify the parameters of the field. • The traditional concerns for balancing access, privacy, and secrecy are not in play.

3. Introduction • Many key decisions are being made by law enforcement, military, and a small group of executive branch officials.

4. Introduction • Some responses are a realistic response to the attack and its aftermath. Others seem more like opportunistic moves to match an ideological agenda to an overarching event. • There is also a heightened tension between the executive and legislative branches crossing party lines on the information to be shared.

5. Introduction • There is now a nationwide effort to reevaluate all aspects of information policy from the data collected to the data made publicly available. • Basic concern: limit access to material that may compromise the public safety. • Changing definitions of public safety and national security. • Changing roles of state and local government.

6. Introduction • In addition, the stated goals of many executive orders and statutes is increased communication and coordination between federal agencies and among federal, state, and local governments. • Implementation is still uneven.

7. Access to Government Records • Two categories of access policy. • That which the governments wants the public to know. • The right of the public to request records in order to know what the government is doing.

8. Access to Government Records • Federal freedom of information has been diminished since 9/11, but the courts are still ruling on FOIA policy. • All levels of government have restricted access while at the same time increasing centralization and availability of information on homeland security.

9. Access to Government Records • Historical perspective. • The degree of support for information access seems related to whether the official is in the executive or legislative branch. • Legislators are proponents, executive branch is opponent. • Case of Donald Rumsfeld.

10. Access to Government Records • FOIA management roles of the Attorney General and Congress • FOIA guidance. • Agency response to FOIA has been guided by the Department of Justice, especially on passage in 1966, and on amendment in 1974 and 1986. • The Attorney General has also served as point person when an administration wished to change policy. • Reagan, more restrictive. • Clinton, more permissive.

11. Access to Government Records • FOIA Guidance (contd.). • John Ashcroft memo (October 12, 2001). • Committed to full compliance, but balanced against national security and effective law enforcement. • Access officers are to disclose information only after full and deliberate consideration. SOP except that reiteration may be signal to withhold. • Old standard: substantial legal basis to withhold. • New standard: sound legal basis (less stringent). • Clinton standard exactly the opposite. Presumption of disclosure. • Ashcroft standards disputed by House Committee on Government Reform.

12. Removing or Expanding Information on Government Web Site • Expanding internet access. • Over the last several years, federal, state, and local governments have moved information to the WEB to comply with statutes and to increase responsiveness. • Sept. 11 has set up countervailing pressures. • Increased information on homeland security and government operations. • Removal of information that may threaten the public safety. • Patchwork approach. • Limits on scientific research. • Government operations (Energy, Transportation, Nuclear Regulatory Commission, U.S. Geological Survey, EPA, FAA, Commerce, NARA, FEMA.)

13. State Actions • Similar restrictions occurring at the state level (17 states have enacted legislation to restrict access to government records considered risks for national security). • Some require restriction, some require traditional balancing.

14. State Actions • Types of information. • Public utilities, location of nuclear power plants, blueprints for public buildings, design structures of bridges and tunnels, storage of chemical and hazardous materials, drug stockpiles, closure of public meetings when discussing homeland security. • No consistent definition of sensitive information. • Frequently unilateral, violating state disclosure policies, no remedies.

15. Homeland Security – Coordination versus Secrecy • The need for better information concerning terrorist attacks is one of the underlying themes of the current move toward homeland security. • Office of Homeland Security is required to coordinate and communicate.

16. Homeland Security – Coordination versus Secrecy • Secrecy. • Continuity of Operations Plan. • Maintain continuity of government. • Little publicity. • Incomplete briefing of Congress. • Threats on New York City. • Kept quiet (even from New York City). • Delay in warning NYC on anthrax attacks.

17. Homeland Security – Coordination versus Secrecy • Institutional and statutory changes affecting information policy. • The U.S.A. Patriot Act. • Aviation and Transportation Security Act. • Bioterrorism Preparedness and Response.

18. Homeland Security – Coordination versus Secrecy • New executive offices and positions. • Office of Homeland Security. • Special Advisor on Cyber Security. • National Director and Deputy NSA for Combating Terrorism. • National Infrastructure Advisory Committee. • Office of Strategic Influence (Pentagon). • Disinformation. • National Security Coordinating Council.

19. Federal Information Policy – Patterns and Trends • Two contradictory trends. • Sharp decrease in access across a broad range of decisions and records, whether or not related to homeland security. • Increase of transparency in very restricted areas. • Intense attacks on critics of administration decisions.

20. Federal Information Policy – Patterns and Trends • More elected officials and watchdog groups are challenging administration decisions and in some cases winning.

21. Federal Information Policy – Patterns and Trends • Nevertheless, White House efforts to restrict access have covered a wide range of issues. • Presidential Records Act of 1978. • VP Cheney versus GAO on energy task forces. • Congressional oversight of OHS. • Information on DOJ detainees. • Military tribunals. • Restrictions on war reporting.

22. State Information Policies – Patterns and Trends • Contradictory trends are also apparent at the state level. • Centralization of homeland security public information. • Criminalization of some kinds of terrorist acts. • Restrictions on information access in some cases. • Exemptions from disclosure for emergency personnel and law enforcement.

23. Conclusion • The problem is the proper balance among security, liberty, and accountability.