Justice Department Withholds Information
Needed for Judging
Clinton Administration Enforcement Effort
Syracuse, October 4 -- The Justice Department is denying news organizations, public interest groups and the general public access to comprehensive information about how the Clinton Administration has enforced the nations laws.
The department's action became known when the Executive Office for United States Attorneys (EOUSA) repudiated its agreement to release comprehensive records describing the criminal and civil cases handled by federal prosecutors nationwide. During the course of litigation brought by the Transactional Records Access Clearinghouse (TRAC), the EOUSA had acknowledged that the Freedom of Information Act (FOIA) requires that all of the case records and the vast majority of fields in these databases must be disclosed to the public. These critical records, however, have not been released because the agency refused to follow its own position on public access and is withholding material that it previously had agreed to release to TRAC.
The Justice Department has not fully explained the reasons for clamping down on the data it previously had promised to provide TRAC, or its reasons for withholding information for current periods it had routinely released in the past.
EOUSA's reversal on releasing the data contradicts repeated statements by President Clinton and the Justice Department about the administrations strong belief in the importance of the Freedom of Information Act. While signing a public information law several years ago, for example, President Clinton said his administration was 'committed to ensuring the widest possible disclosure of government documents, adding that he believed "our democratic principles require that the American people be informed of the activities of their government.
More recently, on June 14, Ethan Posner, the Deputy Associate Attorney General, told a House Subcommittee that Attorney General Janet Reno had repeatedly stated that the FOIA laws "are at the heart of open government and democracy and that under her leadership the department has "placed a sustained priority on improving our FOIA service to the American people.
The co-directors of TRAC, challenging the departments withholding action as unlawful under the provisions of the FOIA, have sued the EOUSA in federal court. TRAC is represented in this, as in two earlier suits, by the Public Citizen Litigation Group.
The blocking of the flow of government data means that the public is unable to obtain information required to accurately judge how the Clinton administration, federal prosecutors and the federal investigative agencies actually are dealing with such subjects as protecting the environment, reducing gun violence, prosecuting pornographers and defending the American people against spies and terrorists.
While withholding the full data from the public, the Justice Department itself has used some of the information in carefully restricted press releases and submissions to Congress to advance Clinton administration policies and to respond to criticism from several House and Senate committees and elsewhere.
TRAC is a non-partisan data gathering research organization associated with Syracuse University. Since 1989, it has been receiving the same information on an annual basis and distributing it to the public. Six years ago, TRAC greatly expanded general access to the data by making the information available on the world wide web with the help of a series of sites (htttp://trac.syr.edu) that are now widely used by the public.
The FOIA lays down the principle that records in the possession of the executive branch of the federal government are public. Partly because of agency foot dragging, however, many potential users have become discouraged about taking advantage of this law. A study in the May issue of The Washington Monthly by Michael Doyle found that only a small fraction of information requests received by government now comes from news organizations. In 1998, for example, the Public Health Service received about 520 FOIA requests, only 25 from journalists. During the same period, the Drug Enforcement Administration received about 2,000 requests -- many from criminal defense lawyers and prisoners. Only 57 of the FOIA requests to the DEA came from news people.
The broad failure of news organizations, public interest groups, scholars, lawyers and the public at large to make FOIA requests on their own hook, has meant that in recent years TRACs public and subscription web sites have become a basic source of information for the American people about how the agencies actually are enforcing the law. Here are three examples:
In August of 2000, TRAC put up a new edition of its FBI web site that spotlighted the agencys internal security and counter terrorism activities. The FBI itself releases almost no information about this important aspect of its overall responsibilities. But data obtained from the Office of Personnel Management, an obscure report filed each year by the Attorney General and the Executive Office of U.S. Attorneys provided unique new insights. The data show, for example, that from 1992 to 1999 the number of FBI intelligence officers have almost quintupled, that special warrants for surveillance activities against spies and terrorists are at an all time high and that in 1998 only 45 of the FBIs 12,730 convictions concerned such problems. Because of the recent reversal in the Justice Department's FOIA policy, however, 1999 data on convictions were withheld from TRAC.
In August of 1999, after careful study of Justice Department data tapes, TRAC put up a new edition of its web site focusing on the Bureau of Alcohol, Tobacco and Firearm. The key finding: ATF referrals for the prosecution of weapons cases had declined by 44% from 1992 to 1998. The documentation of this sharp and previously unnoticed decline immediately resulted in numerous news articles and became the focus for criticism of the Clinton Administration by the National Rife Association and Senate and House Committees. It also has better informed public debate about the basic purpose of federal gun control efforts. The administration now claims that weapons referrals are sharply up in FY 1999, but has refused to provide TRAC the underlying data to support these claims.
In July of 1999, again after extensive analysis of referral-by-referral data obtained under the FOIA, TRAC mounted a special site focusing on the Immigration and Naturalization Service. It showed that INS criminal prosecutions had doubled from 1992 to 1998 while the median sentence resulting from an INS conviction has gone from two to 12 months. The findings made the front pages of many news papers and were extensively quoted during a continuing congressional debate on a Republican-backed proposal to reorganize the agency. Comparable FY 1999 and FY 2000 data to update these trends are, however, being withheld.
One clear sign of TRACs growing role as a neutral data provider is that its six public sites on the FBI, IRS, DEA, ATF, INS and Customs are now getting about 3 million hits a year on an annualized basis. A second sign is that more than 260 news organizations, public interest groups, lawyers and congressional staff members currently subscribe to TRACs more sophisticated web sites, TRACFED and FEDPROBE. Access to these dynamic sites allows users to examine criminal and civil enforcement activities under any law or by any agency in any federal judicial district or for the nation as a whole.
The most recent improper withholding action by the government -- now being challenged in court by TRAC -- came on May 23 and June 1. In its release on those dates, the EOUSA removed almost 50 percent of the criminal records and 12% of the civil records from the copies it released. The EOUSA had not withheld any records from these data in the past. Furthermore, while required by law to affirmatively justify any withholding, the government so far has not provided an explanation for its wholesale withholding of these records.
This abrupt withholding means that for the time being it will be impossible for users to compare the criminal enforcement actions in the last full fiscal year of the Clinton Administration with those of actions taken during fiscal years 1992 to 1998. Assuming a prompt favorable ruling on TRACs pending law suit, it is hoped that this blinding of the public will soon be rectified.
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