Following the Sept. 11, 2001, terrorist attacks, the Bush administration moved to broadly restrict public access to information in the name of security. Federal agencies began summarily removing tens of thousands of documents from their web sites, purportedly because they might be useful in preparing another attack. White House Chief of Staff Andrew Card affirmed this action in a March 2002 memo ordering agencies to “safeguard” information that is “sensitive but unclassified.” This new category broadly includes, in each agency’s judgment, “information that could be misused to harm the security of our nation and the safety of our people” -- a virtual catchall since most information (even the phone book, for instance) at least carries the potential to be used for harm. Shortly after Card’s memo, a provision codifying the “sensitive but unclassified” category was slipped into the Homeland Security Act (which created the Department of Homeland Security), drawing little attention and no debate. Specifically, the act instructs the executive branch to "identify" and "safeguard" "homeland security information that is sensitive but unclassified" (often called Sensitive Homland Security Information (SHSI)), which includes any information about terrorist threats, potential vulnerabilities, and disaster response. This applies to information that has previously been disclosed, which is particularly disturbing because it could lead to the withdrawal of vast amounts of information. The law also gives the administration legal authority to “prescribe and implement procedures” for sharing classified or protected information with federal, state, and local government agencies. Developing a System of Secrecy … in Secret? President Bush recently charged the Department of Homeland Security with determining how sensitive but unclassified information will be identified, shared, and safeguarded. The Homeland Security Act, however, does not detail how these procedures are to be developed -- leaving open the possibility that DHS could establish a system of secrecy without public input or congressional oversight. In response, OMB Watch and 75 other organizations -- representing journalists, scientists, librarians, environmental concerns, privacy advocates, and other interests -- recently sent a letter to Secretary Tom Ridge calling for the department to allow public comment on the matter. Total Information Control The Homeland Security Act allows sensitive but unclassified information to be shared with “appropriate state and local personnel.” Yet the administration can direct these personnel how to handle this information and force them to sign nondisclosure agreements -- which are to be the primary mechanism for enforcing information-sharing restrictions. It is still unclear how restrictive these agreements will be or whether state and local personnel will have much choice in signing them. Potentially, refusal to do so could lead to termination, and violation of these agreements could carry heavy penalties including some criminal liability, according to Scott Armstrong of Information Trust. Those who are authorized to receive sensitive but unclassified information include: state governors, mayors, and other locally elected officials; state and local law enforcement personnel; firefighters; public health and medical professionals; regional, state, and local emergency management agency personnel; employees of private-sector entities that affect critical infrastructure, cyber, economic, or public health security; and anyone else DHS chooses to designate. Keeping state and local officials in the loop regarding terrorist threats, potential vulnerabilities, and issues of disaster response is certainly desirable. In this case, however, the four million people who could be granted access to sensitive but unclassified information may view this privilege as a burden due to the corresponding restrictions. What Could be Withheld? This new power to restrict information could be used to justify withholding almost any kind of information with little or no review. There is even worry that the “sensitive but unclassified” provision could override laws that mandate disclosure because it includes no exemption for such laws -- unlike a similar section of the Homeland Security Act governing “critical infrastructure information.” In fact, policies for safeguarding sensitive but unclassified information could potentially affect the manner in which agencies implement the Freedom of Information Act (FOIA) -- a cornerstone of open government -- infringing on the public’s ability to obtain information. At this point, it is impossible to know what ultimately will be affected, but considering information already restricted in the aftermath of 9/11, there is room for speculation. Any and all of the following examples could disappear under this policy.

• Chemical Toxicity Studies. Toxicity studies enable the public to understand the risks associated with chemicals and push for stronger health and safety protections. DHS might eliminate public access to studies on the toxicity and health effects of chemicals, claiming that a terrorist could use the information to target deadly chemicals for theft.
• Accident Reports. Detailed reports of major accidents, spills, and explosions allow everyone to understand what happened and how to avoid similar events in the future. However, these mandatory accident reports could disappear under the assumption that the information would enable terrorists to intentionally duplicate a deadly accident.
• Transportation Safety. The nation’s transportation infrastructure receives regular safety examinations to identify problem areas and warn the public of risks. DHS could restrict these safety analyses from the public, claiming that terrorists could use them to target weak bridges, tunnels, or overpasses.
• Plant Siting. The government requires public notification and input whenever a company plans to build a dangerous plant, such as a nuclear reactor, waste treatment facility, chemical manufacturing plant, or oil refinery. However, DHS could restrict this information as sensitive but unclassified, leaving communities unaware of plants until they crop up next to their homes, schools, and workplaces.
• First Responders. The attacks of 9/11 demonstrated the importance of our first responders -- police, fire fighters, and paramedics. Around the country efforts are underway to increase the number of first responders and improve the training and resources available to them. However, through use of the sensitive but unclassified categorization, the Bush administration could eliminate vital information for addressing problem areas, claiming reports on budgets, preparedness, and current equipment are potentially useful to terrorists in picking a vulnerable target.
• Gagged Health Officials. According to the law, recipients of sensitive but unclassified information, including health care officials, would be required to sign agreements of non-disclosure. This means that doctors and hospital administrators could be informed of serious health threats, such as missing virus samples, and be unable to warn communities of the risk, symptoms of exposure, or treatment steps.

What’s the Problem? The information described above can be scary, to be sure, but its removal doesn’t solve the problem. In fact, it removes important incentives for change -- namely public pressure and embarrassment -- and deprives communities of critical information to protect themselves. This may invite complacency and a false sense of security, which is exactly what we don’t need. In this way, disclosure can be a tool to fight terrorism (along with everyday health and safety concerns), while upholding our democratic values. Of course, in some cases, it may make sense to withhold information for security reasons. For instance, there may be no compelling reason to provide detailed floor plans of chemical or nuclear facilities. Yet where health and safety are concerned, the presumption should lie with disclosure. Unfortunately, the Bush administration is moving in the other direction, keeping the public in the dark and potentially making us less safe as a result.