2012 Secrecy Report: Indicators of Secrecy in the Federal Government

This week, OpentheGovernment.org released its annual 2012 Secrecy Report. The pro-transparency group’s overview of FY2011 government secrecy statistics reinforces many of the findings of their 2011 Secrecy Report, generally highlighting a continued mixed-bag of secrecy indicators.

What a year. A few months after his Department of Justice won the infamous Rosemary Award, Eric Holder had the distinction of being the first sitting AG to be held in contempt by Congress.

While the 2012 Secrecy Report provides new information, most notably that federal circuit courts rule overwhelmingly against whistleblowers (3-226 since 1994), and that President Obama evoked Executive Privilege for the first time in his administration during the Operation Fast and Furious investigation, the majority of the Report’s findings echo those from last year.

One of the most frustrating statistics underscored is the unrelenting rising cost of government secrecy; in FY2011, the government spent $215 to keep its records classified for every $1 it spent on declassification (up from $201 to $1 in FY2010). Keeping this in mind, it shouldn’t be too surprising that both Foreign Intelligence Surveillance Court applications (which allow domestic electronic surveillance and physical search of suspected terrorists and foreign intelligence agents), and Invention Secrecy orders (federally imposed secrecy on new patents), also saw an upsurge.

Accompanying a continued rise in many secrecy statistics was the news that the government-wide FOIA backlog, which had shrunk by 10% in FY 2010, grew by 20% in FY2011. Despite the National Declassification Center’s claim that it will fulfill its mandate and fully assess its nearly 400 million page backlog by December 31, 2013, it has failed at its assigned task.  This is because President Obama created the NDC to declassify, not assess, records.  When the government body, whose sole purpose is to declassify and release documents in a timely fashion, considers a document “assessed” even though a final decision –to say nothing of a release– may be months or years away, its hard to imagine the overall FOIA backlog shrinking anytime soon.

The Report does contain some seemingly good news, however. National Security Letters, which the FBI sends to credit card companies, financial institutions, and internet service providers to demand they hand over records about their customers, declined by 32% from 2010, presumably because district courts continually declared these letters unconstitutional. There was also a steep drop in Original Classification (OC) decisions, though the Report is careful to note that some of the agencies (namely the CIA) are reporting smaller numbers of OCs that seem artificially low.

These numbers, while revealing, can only tell us part of the story. As the Report takes pains to emphasize, a quantitative analysis of government-wide FOIA statistics doesn’t provide any indication of the quality of the secrets being kept. It is imperative that the public is granted more substantive access to government records, not just statistics, for a comprehensive assessment of government secrecy.

Read the full 2012 Secrecy Report here.