Bush sends bad message

"I used to be an avid e-mailer, and I e-mailed to my daughters or e-mailed to my father, for example. And I don't want those e-mails to be in public — in the public domain. So I don't e-mail any more, out of concern for freedom of information laws, but also concern for my privacy. But we'll cooperate with the press, unless we think it's a matter of national security or something that's entirely private."

— President Bush, speaking April 5 to the American Society of Newspaper Editors

Over the past few years, there have been several criticisms of the United States' most important law for government transparency and accountability: the Freedom of Information Act. Although those attacks come from different sources, they all mention national security, terrorism, confidential business information and/or individual privacy.

All are also clearly ungrounded. The only difference in the latest criticism of FOIA is that it comes directly from the president regarding executive duties while in office.

FOIA has seven exemptions that address those concerns and more. The first exemption protects all information that "reasonably could be expected to cause damage to the national security." The fourth exempts business information, such as trade secrets and privileged or confidential information. The sixth exempts private information, such as personnel and medical files. The seventh exempts information used in ongoing law enforcement investigations.

Presidential records are also clearly excluded. And personal e-mail messages sent by any government employee with no work details, using a personally owned computer and connected through a personal account, would certainly not be covered. Although Bush's sentiments persuasively convey the sacrifice that elected officials make when serving the public, blaming FOIA is nonsense.

There has been some thought that Bush, who is known to misspeak, was attempting to focus on the subpoena rules that allow investigators wide access to the workings of government with fewer exceptions than FOIA. But this seems more like wishful thinking from civil libertarians, who have similar concerns. The president's statements were delivered at an event of newspaper editors, traditionally some of FOIA's strongest backers, and come on the tail of requests for new laws by business interests to exclude all information voluntarily submitted to the government.

Bush's agreement to "cooperate with the press" misses the point. FOIA is often the only means to tell how our democracy is functioning, and the press is often the only one paying attention. As James Madison wrote, "to the press alone, checkered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression."

Although attacking our right to freedom of information has not topped the Bush agenda, his first statement has put many defenders of government transparency on high alert.

Schwartz is a policy analyst at the Center for Democracy and Technology in Washington, D.C.


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