Balancing the public's right to gain access to government documents with the government's need to restrict the release of information which could injure society in general is almost by definition one of those areas of policy where confrontation and sharp differences of opinion are inevitable. The public necessarily wants to prevent the type of inordinate official secrecy that in part led to Watergate. The government, on the other hand, needs to preserve the nation's security.
Earlier this week Attorney General William French Smith announced an important change in the way federal agencies will now deal with requests for documents and other materials under the Freedom of Information Act. Mr. Smith cancelled a memorandum by former Attorney General Griffin Bell that in effect established a new test not written into the act.Mr. Bell was seeking to expedite requests for information.At the time, in 1977, some 600 lawsuits were pending under the act. To hold down the number of cases, Mr. Bell announced that the Justice Department would defend freedom of information suits only when disclosure would be demonstrably harmful, even if the release of the information technically fell within one of the categories of exemption listed in the act.
Press groups understandably are concerned that, by making the change, the Reagan administration is sending a signal to federal agencies to move away from the post-Watergate trend towards more open government. Yet many departments, particularly intelligence, drug-related, and law-enforcement agencies, argue that there have been clear abuses of the act and that compliance has proven costly (amounting to an estimated $48 million or so a year), administratively cumbersome, and time-consuming.
The FBI, for example, contends that criminals use the Information Act to gain access to records that can lead to disclosure of informants or undercover agents. The CIA says that the act allows release of documents which can identify foreign agents or pinpoint intelligence-gathering methods.
Addressing the concerns of the press, however, Jack Landau, director of the Reporter's Committee for Freedom of the Press, maintains that the new administration policy encourages coverups, delays, and secrecy.
It would be regrettable if the White House was in fact seeking to restore pre-Watergate disclosure practices. Whether that is the case is not yet clear. And, of course, it remains to be seen whether the changes announced by Mr. Smith actually inhibit legitimate requests for information. Time will tell on that score.
The Freedom of Information Act, despite the change announced by Mr. Smith, is still in place. Reporters and others can still seek information. In fact, some 1,100 information suits are underway. The administration, meantime, is pressing ahead with a Justice Department review of the act by its Office of Legal Policy. Any proposed changes would have to face congressional scrutiny.
Nor is the Griffin Bell requirement necessarily lost forever. Legislation has been introduced this week to make Mr. Bell's "demonstrable harm" test a part of the act. Thus, all parties to the act -- Congress, federal agencies, journalists private citizens -- have time in the months ahead to take a hard look at exactly how well the legislation is actually working, as well as to seek consensus on what changes (if any) might be in order to protect not only the public but the Republic.