Presentation of Steven Garfinkel
Director, Information Security Oversight OfficeBefore the American Society of Access Professionals Tuesday, December 11, 2001
Good morning friends, colleagues, adversaries, perfect strangers and imperfect strangers. I am honored and delighted to be the keynote speaker for the second day of the American Society of Access Professionals 2001 annual symposium.
Some of you may have seen in the newspaper or heard on the radio a short piece about a former high ranking federal official who was overheard on his cell phone while he was traveling on amtrak. He was on his way to give a presentation before a group not unlike this one. According to the press accounts, he was overheard loudly complaining to someone upon learning that he was not giving the keynote address, but instead was simply a member of a panel. Please indulge me as I begin this address by commenting on this episode.
First of all, being overheard and tattled on served this individual right. From my perspective as a person who still refuses to have his own cell phone, in other words, an individual whom time has clearly passed by, this man should not have been imposing his conversation on all the innocent passengers around him. For me, traveling on amtrak has become an exercise in trying to ignore some of the most banal discourse imaginable, made that much worse because it is one-way babble. The only conveyance that I've experienced that is worse than amtrak for this type of auditory assault are the arriving passenger mobile lounges at Dulles Airport. One has to experience that phenomenon to believe it.
Second of all, what's so bad about being a panel member? I've made a living being a panel member. On most of those panels, I have served as the designated bad guy – the government hack defending the right of the government to keep information secret, and out of the hands of the good guys – who just happen to be the other members of the panel.
As a matter of fact, I would likely have been a panel member at this very symposium but for one thing. I decided to retire from federal service at the end of this year. By announcing my retirement, I was somehow promoted off of the panel and into the keynote address. This is, in effect, my valedictory address. I am very grateful to the American Society of Access Professionals for giving me the chance to be the valedictorian. None of the schools I attended was ever so gracious. The quid pro quo, as I understand it, is that I am to leave you with insightful wisdom to take away from my thirty plus years as an access professional.
Before I commence spewing forth wisdom, permit me to share with you the six jobs I have held that enable me to call myself an access professional. The first nine and a half years of my federal career were spent in the office of general counsel of the general services administration. For almost the entirety of those years, I served as the primary legal counsel, indeed for most of that time the only legal counsel for what was then the National Archives and Records Service, or NARS. This was before the National Archives' long-time struggle for independence from GSA actually succeeded. This permitted NARS to emerge into freedom's sunlight as the National Archives and Records Administration or NARA. NARS became NARA. I know, it sure sounds like a sex change operation to me too.
In retrospect, I suppose we at GSA should not have allowed NARS to have custody of that rabble rousing declaration of independence, except that anyone who has seen that document on display during our lifetime knows that it is totally illegible. You can't even make out the words, "four score and seven years ago." Incidentally, for an access professional, no job could have been more exciting than being the Archives counsel during the 1970s. Those were the years of the Nixon tapes and papers, the Kissinger telephone transcripts, the Warren Commission documents, the Watergate Special Prosecutor documents, and the drafting and passage of the Presidential Records Act, whose flaws, so apparent to some of us then, are only now causing a minor uproar.
For most of the years I was counsel to the National Archives, I was simultaneously the freedom of information and privacy act counsel for GSA. This is the second job that enables me to call myself an access professional. As GSA's FOIA attorney, I became very good friends with Exemptions four, five and six. But as one who often advocated disclosure, I became intimate with reverse freedom of information actions.
My third access professional position is the one I have been privileged to hold for the last 21 plus years in government – director of the Information Security Oversight Office, with its awkward acronym ISOO. As some of you know, ISOO is an unusual little executive branch entity that is responsible for overseeing the government-wide security classification and declassification program, or at least the preponderance of the classification program based on executive order. During its existence, ISOO has been funded first through GSA, then OMB, and since 1995, through NARA. Wherever it has been located, ISOO has answered to the president through the assistant to the president for national security affairs and, as a result, has received whatever policy direction it gets from the national security council. Well, now we call it policy guidance instead of policy direction, because about eight years ago freedom of information requester and litigant Scott Armstrong was, to his chagrin, successful in converting the NSC into a non-agency.
It is the declassification component of ISOO that has kept me in the ranks of access professionals, along with three related positions that seem to have come with the territory: one is executive secretary of the Interagency Security Classification Appeals Panel, or ISCAP. Among its other responsibilities, the ISCAP considers and acts on appeals from a final agency determination not to declassify information sought under the mandatory review for declassification provisions of the executive order. I'm also the current chairman of the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, which is thankfully just called the "IWG." The IWG is the product of two of those sometimes aggravating little statutes that call upon the executive branch to devote immediate time, attention and resources to the declassification of information related to a specific subject, often to the detriment of declassification generally. In the IWG's defense, it will, in my judgment, ultimately be responsible for the declassification and public availability of some of the most comprehensive, interesting and revealing information about intelligence activities that has ever been made available for research. Lastly, I am the executive director of the Public Interest Declassification Board, which was allegedly created by the Public Interest Declassification Act of 2000. I say allegedly, since the president and congressional leaders have never gotten around to appointing the members of the Declassification Board.
I hope that you will agree with my contention that all these jobs taken together, running the course of 31 years, allow me to annoint myself access professional extraordinaire. In this capacity, I shall now make a few observations about access professionals that I hereby declare to be insightful and wise. Please do not allow the fact that none of these observations is particularly new nor remarkably perceptive to diminish the insightfulness or wisdom of their stating, lest I fail to fulfill my part of the bargain in getting me off the panel.
Observation number one. No one becomes an access professional by design, only by accident or other unintended circumstance. In my own case, I never really wanted to be a lawyer and I never really wanted to work for the federal government. Nevertheless, at the age of 25, I found myself working in the office of general counsel at GSA. To insulate myself from the regular practice of law at GSA, I eagerly accepted the opportunity to serve as counsel for the National Archives, even though when I arrived at GSA I had no idea that NARS was part of the government's housekeeping agency. None of the other more senior attorneys at GSA, most of whom specialized in government contracts, had any interest in this position. Because I had always loved history, I embraced the National Archives assignment, which I viewed as being an advocate for history more than being an attorney. In a similar way, I jumped at the chance to be GSA's freedom of information act lawyer, another job my more senior associates scorned, just as many of them scorned the new law upon which the job was based. I have never regretted the indirect and unintended path that led me to become an access professional. I know that many of you have become access professionals through even more unlikely circumstances. I hope that you are just as happy as I have been at our mutual fates.
Observation number two: an agency's access profile reflects the personalities of its key access professionals far more than it reflects the language of the law. What do I mean by this? Shortly after I became GSA's FOIA counsel, I discovered that some agencies, like the Department of Defense and the Department of State, were seldom involved in heated FOIA litigation, while other agencies, like the Department of the Treasury and the Department of Agriculture, were constantly defending their actions in court. It hardly seemed likely to me that the information sought from these latter agencies was that much more sensitive than that sought from DOD and State. As I increasingly interacted with my counterparts at the different departments and agencies, I quickly learned the reason for this seeming anachronism. The attorneys and information officers at some agencies clearly believed in the american public's right to know, unless disclosure presented a clear threat to the national interest. They communicated closely with FOIA requesters and, almost always, these actions resolved themselves amicably. At other agencies, the access professionals just as clearly believed that it was their job, in fact their duty, to support and defend the withholding of as much information as was possible. They viewed FOIA requesters as the enemy, and almost never communicated with them in a non-adversarial manner. Within a few years of the enactment of the Freedom of Information Act, most agencies had established a well known FOIA personality, either pro or anti-openness. In most instances, it was not the underlying information that had created these profiles, but rather the individuals inside those agencies who were handling the FOIA requests and appeals. As for me, I quickly placed myself among those who generally believed in the American public's right to know what its government is doing. It is a decision I have never regretted.
Observation number three: being an access professional provides an unparalleled opportunity for expanding your knowledge and your network. If the game show "Jeopardy" only had one category, and that category was "the executive branch of the federal government," I would be the winner of its tournament of champions. 31 years of being an access professional has given me an enormous perspective on how the executive branch operates. You, as an access professional, are receiving the same education I did. Every day, you are exposed to something new within your agency. Within a short period of time, you know its inner workings and its inner workers on a scale that exceeds anyone else's within your agency. Even more impressive, as an access professional you are constantly interacting with people from other agencies, with congressional staff, and with the vast array of individuals and organizations who do business with or are interested in the workings of our federal government. Remember when I said I became counsel to the National Archives so I wouldn't have to be a government contracts lawyer. Well, being GSA's FOIA counsel, I was soon confident enough with government contract law to serve as a government contracts lawyer for some of the small boards and commissions for which GSA provided legal assistance. That is the opportunity you have every day as an access professional – to learn and to grow. To become a valuable asset to your agency and to your government.
Observation number four: access professionals make a difference. You know what? The Janet Reno memorandum is all but meaningless. The John Ashcroft memorandum is all but meaningless. What you do every day on the job is what is truly meaningful in the area of access to government information.
There has not been a single day in my decades as an access professional when I haven't believed that what I do makes a difference. Sure, I've had my good days, my not so good days, and my pathetic days. Just like all of you. But I am leaving the federal government with no regrets. I leave thankful that I have had the opportunity to contribute my small share to one of the primary reasons we live in a great nation – its legacy of open government.
As director of ISOO, my utmost responsibility is to promote and enhance the system that safeguards the secrets that safeguard the American government and its people. I have never wavered in my commitment to this responsibility, and I leave government most proud of having protected every bit of the classified information in which I have been entrusted. But I have always maintained that we cannot have a successful and credible classsification and safeguarding program if we do not also have a credible declassification program. No one can be expected to take secrecy seriously if far too much information that is no longer sensitive remains classified. That is why I leave government equally proud of the unprecedented accomplishments in declassification that we in the executive branch have achieved over the past seven years. Long after all of us have been forgotten, these hundreds of millions of pages of declassified records will still be telling the story of our government and our nation.
A couple of years ago, I was on a panel at a symposium sponsored by the CIA. The other panel members were foreign officials representing their respective governments. The subject was the declassification of intelligence records. I unashamedly bragged of the accomplishments within the United States Government in declassifying historically significant intelligence records. I also spoke of the fact that notwithstanding these accomplishments, the critics of our program continue to berate us for not doing more.
Immediately following the panel session, the panel member from France, an elderly veteran of the French intelligence service, turned to me and called me a fool in both English and French. Well, I think the French word may have meant fool. He angrily questioned why I would boast about declassification, when all it would get me was criticism from the openness fanatics at home, and more criticism from abroad, where other governments felt threatened by our declassification program. He stated that in France the government would never consider declassifying intelligence records, no one complained, and nobody would be hurt by damaging disclosures. I smiled and thanked him for his kind words.
Ironically, just two weeks before that panel session at the CIA, I had gone to the French Embassy in Washington to meet with a visiting official from Paris. He was a recently retired French army general who, during his career, had served a number of years in Washington as the military liaison.
My host told me that the French government had assigned to him the drafting of a new system for the eventual declassification of French military records. The purpose of his visit was to learn more about the American declassification program. At the end of my visit he stated that over the years he had marveled at the level of openness that existed within the American government. It was that feature of our government that he admired most.
His words echoed those of a good number of other foreign diplomats with whom I have met over my years in isoo. Each has been highly complimentary, but each has also noted that for a variety of reasons it was not possible for his government to adopt a similar system.
In fact, the American government stands apart, far apart, from any other government, either now or in the past, in the quality and quantity of information it shares with its citizens and the world. This openness is a defining statement about the kind of democracy we are. It is a defining statement about America. After all, you don't hear anyone bragging about the level of secrecy within his or her government. In fact, the most secret of governments are the very non-democratic regimes that we rightly mistrust the most.
As an access professional, you play a critical role in establishing and maintaining the openness that sets us apart, that defines our democracy. Does what you do make a difference? Damn straight it does. Keep it up.