Editor's Note

The FOI Advocate is a compendium of ideas, edited story excerpts and other materials from a variety of Web sites, as well as original concepts and analysis. When the information comes directly from another source, it will be attributed and a link will be provided whenever possible. The blog relies on the accuracy and integrity of the original sources cited. We will correct errors and inaccuracies when we become aware of them.

Tuesday, July 24, 2007

The Times Weighs in on FOIA Reform...

It's always helpful to legislative inertia when the NYT takes a look...

We live in a nakedly transparent age. Celebrities live out loud, companies routinely have their business spilled all over the Web and anybody can find out an awful lot about you or me with a click of the mouse.

Not so in Washington, however, where the mechanism for releasing information has all but ground to a halt.

Four decades ago, President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (F.O.I.A.) into law, requiring federal agencies to respond to any request for documents within 20 days and provide them within a reasonable time afterward. The law held that information gathered on our behalf — paid for and owned by you and me, at least theoretically — should be ours for the asking.

But it hasn’t worked out that way. While the mandate for disclosure is still there, it is overwhelmed by a Rube Goldberg apparatus that clanks and wheezes, but rarely turns up the data.

Freedom of Information requests have been caught in the gears for decades, and journalists working on timely stories about lead in school lunch boxes, FEMA’s response to Hurricane Katrina and delays in the delivery of veterans’ benefits have all been stymied by agencies that flout the law through recalcitrance or ineptitude.

Friday, July 20, 2007

Help us move the FOI reforms...


Let your senators know you want a Senate vote on the OPEN Government Act (S.849) before the August recess. We need to strengthen FOIA to hold our government accountable, especially now when our civil liberties are under assault and when Administration officials seem to value secrecy above openness


The Senate is being stopped dead from voting on a bill that would strengthen our right to obtain information from the federal government. The Openness Promotes Effectiveness in our National Government Act of 2007 – the OPEN Government Act (S.849) would make common-sense reforms to the Freedom of Information Act (FOIA), the law giving John Q. Public the right to obtain government records to make sure our government is acting in the public interest. Time and again information released under FOIA has proven invaluable in discovering government abuses, waste and corruption.

But that doesn’t matter to the Senator blocking the bill (S. 849) – Jon Kyl (R-AZ), the same Senator who first put a secret hold on the bill until uncovered. Kyl admits FOIA has been successful in exposing government abuses, and agrees that after 40 years on the books FOIA needs to be modernized so that requests no longer languish for months, years or even decades.

So, why is Kyl continuing to block the bill? He is dutifully carrying water for Alberto Gonzales’s Department of Justice (DOJ) – that’s why. Gonzales objects to the bill’s provision requiring agencies to pay the attorney fees of individual requesters when requesters are forced to go to court to get agencies to comply with FOIA. But without that provision, there would be no incentive for agencies to release documents before a court orders them to and every incentive to use delay as a tactic to make it costly for the public to use FOIA. Gonzales also is against expanding the right of the new media to use FOIA.

Senator Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas) proposed the OPEN Government Act of 2007 (S. 849). The bill aims to solve some of the FOIA's persistent problems by:

* Creating a tracking system for FOIA requests so they are not lost, forgotten and ignored;
* Clarifying the time limits for agency responses;
* Authorizing the recovery of reasonable attorneys fees for requesters who prevail in FOIA litigation, including when a government agency releases records in response to a lawsuit before a judge rules on the case;
* Requiring reports to Congress on how agencies handle FOIA requests; and
* Creating a FOIA ombudsman to help resolve disputes between members of the public and agencies without litigation.
The bill has strong bipartisan support. The United States House of Representatives passed a similar bill by an overwhelming majority vote (308-117) in March 2007, which included 80 Republican members of Congress.


Call your Senators today and ask them to co-sponsor S. 849 and to let Senate Majority Leader Reid and Senate Minority Leader McConnell know that they want this good government legislation to move forward to passage – before they leave for the August recess – to ensure that the Freedom of Information Act works for the benefit of the American people.

If they have questions about the legislation, please ask them to call Meredith Fuchs at the National Security Archive, 202-994-7059 or Patrice McDermott at OpenTheGovernment.org, 202 332-6736. Or they can call me, at 573-882-5736.

To be connected directly to your Senators’ offices, you may phone the U.S. Capitol Switchboard at (202) 224-3121. Or check your Senators’ web pages at http://www.senate.gov/general/contact_information/senators_cfm.cfm for their district office numbers.

Thanks for your help!

Thursday, July 19, 2007

South Carolina court opens superintendent files...

A school district violated the state's Freedom of Information Act by not releasing information on the finalists for a superintendent job, the South Carolina Supreme Court ruled yesterday.

"FOIA must be construed so as to make it possible for citizens to learn and report fully the activities of public officials," Justice Costa Pleicones wrote in for the unanimous court.

The Spartanburg Herald-Journal, which is owned by the New York Times Co., sued the Spartanburg County School District No. 7 in 2003 after the district refused to release information on the finalists for the job.

Five semifinalists and two finalists were selected from a group of about 30 applicants. State law requires public agencies to release the names of no fewer than the final three applicants in the hiring process. The school board said it wasn't required to release its finalists because there were only two.

The court said in The New York Times Co. v. Spartanburg County School District No. 7 that the school board should have released the names of the five semifinalists.

More here

CIA tweaks definition of "news media" for FOIA fees

GovExec.com had an interesting piece on FOIA fees in the CIA yesterday...

Criticism of proposed rules on fees for obtaining documents under the Freedom of Information Act has prompted the CIA to establish a definition of "news media" that could include bloggers.

The CIA's final rule on FOIA processing fees, from which members of the news media are usually exempt, takes a pass on a more complex fee structure proposed in a draft version. The CIA decided against the complicated structure due to the lack of public support for the change, according to a notice published in the Federal Register Wednesday.

The new rule, effective Wednesday, adopts the definition of "news media" contained in a 1987 Office of Management and Budget FOIA guidebook that includes "alternative media" that would be disseminated electronically "through telecommunications." Under the 1986 FOIA Reform Act, OMB is responsible for promulgating a "uniform schedule of fees" across the government.

The notice stated that while the CIA remains confident in the adequacy of its old interpretation of "news media," officials concluded that it is better to avoid "sterile and unproductive technical litigation" and the "diversion of resources from more productive pursuits."

Meredith Fuchs, general counsel of the National Security Archive, a research institute and library located at The George Washington University, said the CIA changed its definition in an attempt to pre-empt a court ruling that the agency's existing regulations were illegal. The Archive filed a lawsuit in District Court for the District of Columbia in June 2006, challenging a CIA decision that it did not qualify as "news media" and that its request would have to concern "current events" to qualify for the fee waiver.

More here...

The Governor's E-Mail

A great editorial on the Corzine e-mail flap in New Jersey:

There's a subplot with a touch of irony to the story of Gov. Corzine's refusal to release copies of some of his e-mails. The governor claims that because the requested e-mails didn't involve public business, he doesn't have to make them available to anyone. A judge may decide if the governor is right during a hearing scheduled in a Mercer County courtroom Aug. 3.

The irony involves the legislators who created the state's Open Public Records Act (OPRA) five years ago and who built a loophole into the law big enough to accommodate the entire Statehouse. No. 2 on the list of 24 exemptions from OPRA is "Legislative records."

The exemption is so broad it includes all e-mails of state senators and Assembly representatives, whether the messages refer to official business, list items to pick up at the supermarket or ask a significant other to spend the weekend at the Shore.

So, while Corzine fights a law intended to make government more transparent, state legislators are immunized from requests similar to the one that has raised the governor's hackles. Indeed, legislators are entirely outside the provisions of OPRA. With relatively few exceptions, however, e-mails that circulate among members of local governing bodies and other similar public entities are available as public records.

State legislators should be as accountable as everyone else. After he finishes the fight over his own e-mails, Corzine should push the Legislature to make records at all levels of government more available to the public.

Tuesday, July 17, 2007

New FOI Advocate Online...

Hello, FOI warriors!

We have a new ADVOCATE ready for you at


And don’t forget the NFOIC’s blog, at:


Highlights include:

* SECRECY PLAGUES SCRUTINY OF MOUNTAINTOP MINING: Two weeks ago, environmental activists Cindy Rank and Vivian Stockman took a drive through the Logan County hills with Paul Vining, the president of Magnum Coal. From the top of a ridge, Rank and Stockman looked down through the trees, mountain laurel and flame azalea. The stream that runs through Fitzwater Hollow was already buried, they saw. Workers from Magnum subsidiary Apogee Coal Co. had dumped a six-foot-thick layer of rocks into the valley. The damage was done.

* JUDGE DENIES ACCESS TO PRIEST ABUSE RECORDS: A U.S. Bankruptcy Court judge has denied a Spokesman-Review request for access to records detailing millions of dollars in upcoming payouts from a trust to victims of priest sexual abuse in the Spokane Catholic Diocese, saying the claimants were promised confidentiality before agreeing to a legal settlement this spring.

* KEYSTONE REFORMS UNDERWAY: A House advisory panel ... gave a resounding yes to a plan to increase public access to government records but refused to support term limits for legislators. The 24-member House Speaker's Reform Commission wrapped up its work after five months. It recommended a stronger Ethics Committee, a redistribution of power to rank-and-file members, campaign contribution limits and more.

Access those articles, and much, much more, at


If you've missed a recent ADVOCATE, please visit http://nfoic.org/advocate/

Thanks for reading!

Thursday, July 12, 2007

New OpentheGovernment.org Report...

The United States has faced an unprecedented rise in government secrecy over the last six years, according to a report released today by OpenTheGovernment.org and People For the American Way Foundation. Government Secrecy: Decisions Without Democracy 2007 documents how executive power has dramatically expanded while executive accountability has diminished.

Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.

"As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem," said Patrice McDermott, director of OpenTheGovernment.org. "It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."

"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas. "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."

The report includes a preface written by former Congressman Bob Barr and former White House Chief of Staff John Podesta.

The report can be found at http://www.openthegovernment.org/otg/govtsecrecy.pdf

Wednesday, July 11, 2007


A great use of FOI to check the official story...

The heat wave that scorched California a year ago may have contributed to the deaths of three times as many people as the state has officially reported, an Associated Press investigation suggests.

As recently as last month, state officials reported that the two-week period of triple-digit temperatures that began July 14, 2006, killed 143 people. Statistics compiled by the AP from each of California's 58 counties show the number of deaths last July was 466 higher than the average over the previous six years, a spike many health officials attribute to the record heat.

In Sacramento County alone, the July 2006 death toll was more than 100 over the average.

"I cannot account for any event that could have caused that, other than the heat wave," county Health Officer Glennah Trochet said in response to the AP's research.

The discrepancy is important because it suggests an inadequate statewide reporting process and indicates that state and local agencies must do more to monitor and care for those who are most vulnerable.

Frank McCarton, chief deputy director of the Gov.'s Office of Emergency Services, said there is a clear need for state and county health officials to more accurately track heat-related deaths.

"This is something we're going to really try to tighten up," he said.

Tuesday, July 10, 2007

Nice FOIA-driven story in Post...

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

Attorney General Alberto R. Gonzales has said he was unaware of violations in the FBI's use of national security letters ¿ until an internal Justice Department report uncovered them in March 2007. But Gonzales was routinely sent notifications from the FBI when such violations occurred and had to be reported to the president's Intelligence Oversight Board. Look at excerpts from one of the notifications, sent on Dec. 11, 2006.

The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.

The reports also alerted Gonzales in 2005 to problems with the FBI's use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department's inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.

Justice officials said they could not immediately determine whether Gonzales read any of the FBI reports in 2005 and 2006 because the officials who processed them were not available yesterday. But department spokesman Brian Roehrkasse said that when Gonzales testified, he was speaking "in the context" of reports by the department's inspector general before this year that found no misconduct or specific civil liberties abuses related to the Patriot Act.

If You Haven't Seen This Yet...

The National Security Archives' wonderful collection of pending FOI requests...

The oldest Freedom of Information Act (FOIA) requests still pending in the federal government were first filed two decades ago, during the Reagan presidency, according to the Knight Open Government Survey released today by the National Security Archive at George Washington University.

"Forty years after the law went into effect, we're seeing twenty years of delay," said Tom Blanton, the Archive's director, noting the July 4, 1967 implementation date for FOIA. "Sunlight is the best disinfectant, but this kind of inexcusable delay by federal agencies just keeps us in the dark."

In January 2007, the Archive filed FOIA requests with the 87 leading federal agencies and components for copies of their "ten oldest open or pending" FOIA requests. The Department of State, responding to an Archive "ten oldest" request for the first time, reported ten pending requests older than 15 years--the majority of the oldest requests in the entire federal government. Other agencies with the oldest requests include the Air Force, CIA, and two components of the Justice Department, the Criminal Division and the FBI.

"A lot can happen in 20 years. The Internet grew to adulthood in less time than it has taken our federal government to deal with these outstanding Freedom of Information requests," said Eric Newton, vice president of the journalism program at the John S. and James L. Knight Foundation, which supports the Archive's FOIA audits. "Americans once said they had the best open government laws in the world. Is that still true?"

The Knight Open Government Survey also identifies ten federal agencies that misrepresented their FOIA backlogs to Congress. For example, the Justice Department's Office of Information and Privacy--which is leading the opposition to current FOIA reform legislation passed by the U.S. House and pending in the Senate--claimed in its most recent report to Congress that its oldest request was from 2002, but provided the Archive with a package of oldest requests dating back to 2001.

Wednesday, July 04, 2007

Like ketchup...only slower

The AP on FOIA turning 41....

Using the Freedom of Information Act to get information from the government is like waiting for ketchup to flow from a new bottle. Both often take longer than they are supposed to.

The act that gave citizens the power to request information from federal government files celebrates its 40th anniversary on July 4. But those seeking data continue to encounter long delays despite a 2005 order by President Bush to clear the unanswered backlog.

A new study released Monday found one requester has been waiting 20 years for the State Department to produce documents it has about the Church of Scientology.

Two more unanswered requests were made in 1988 and three in 1989, according to the survey by the National Security Archive, a private research group at George Washington University.

Five agencies - the State Department, Air Force, CIA, the Justice Department's criminal division and the FBI - still haven't answered some requests made 15 or more years ago, the Archive found.

The Archive is a heavy user of the act and, with aid from the John S. and James L. Knight Foundation, does periodic audits of how well the law is administered.

The latest study concluded backlogs are "out of control." For most federal agencies, meeting the law's deadline for a response in 20 business days "is an exception rather than a standard practice," the study said.

"Forty years after the law went into effect, we're seeing 20 years of delay," said Archive director Tom Blanton. "This kind of inexcusable delay by federal agencies just keeps us in the dark."

Among the findings from responses by 57 agencies to the Archives' Jan. 29, 2007 FOIA request for data on backlogs:

_Only four agencies reported no backlog: the Small Business Administration, Army Department Materiel Command, Naval Education and Training Command and Labor Department Employee Benefits Security Administration.

_Twelve agencies had requests pending 10 years or more.

_Ten agencies misreported their oldest pending FOIA request to Congress in annual reports required by law: the Agriculture Department Animal and Health Inspection Service, Air Force, Commerce Department, CIA, Director of National Intelligence, FBI, National Science Foundation, State, Treasury, and Justice's Office of Information and Privacy, which is supposed to provide governmentwide guidance on FOIA compliance.

_One-third of the agencies that received the January Archive request on backlogs have not responded. Twelve agencies still have not responded to the Archive's 2005 request for similar data.

OK, one more...a John Moss tribute gets me every time

On this, the 41st anniversary of the federal Freedom of Information Act, I forgot to mention this wonderful piece remembering the great John Moss, without which we would have no federal FOIA...


New from all over....in brief form

OK, here we go, on a brief tour of what's happening out there...

In Washington, a judge ruled that FOI laws do not require government agencies to release information in electronic form if the material is offered on paper.

In Wisconsin,
a newspaper is accusing the Madison Police Department of violating the state's open records law by refusing to release disciplinary records involving a former officer who resigned.

In Arkansas, a judge ruled that the act of sending an email to a government email address means that there is "no expectation of privacy." And, it would seem that you don't need to have your emails released to the public to be completely embarrassed by them in public.

And that's all for this week. I'm going on vacation....


Tuesday, July 03, 2007

Get Grandpa's FBI file...

FOI warrior Mike Ravnitzky has launched a new, automated (noncommercial, educational) web site to help you get FBI Files for any deceased family member, entirely free of charge.

The site is designed to generate a printable letter that asks the FBI to search their files for records concerning a specified deceased family member, or for that matter any other deceased person.

The site is at:


An Independence Day Plea for FOI Reform

For Immediate Release:
July 3, 2007

Groups Urge Senate to Enact FOIA Reform on the Law’s 41st Birthday

Contacts: Meredith Fuchs, National Security Archive, 202-994-7000
Patrice McDermott, OpenTheGovernment.org, 202-332-6736

WASHINGTON, DC – As the 41st birthday of the Freedom of Information Act (FOIA) approaches, a coalition of groups urged the U.S. Congress to pass a bill—currently locked behind a closed door—that would reform the FOIA and make it work better for the public. The OPEN Government Act (S. 849) would enact common-sense reforms to the FOIA and put in place incentives for federal agencies to process FOIA requests from the public in a timely manner.

When President Lyndon Johnson signed the landmark law on July 4, 1966, he declared: “A democracy works best when the people have all the information that the security of the nation will permit.” Indeed, when members of the public have diligently pursued information under the FOIA, they have identified government waste and mismanagement and exposed significant controversies about government programs.

Our government is not at its best, however, when it takes up to 20 years for a FOIA request to be processed, agencies routinely lose FOIA requests because they have no tracking system and the government leads requesters into litigation only to release requested documents on the eve of a judicial decision, as several studies have demonstrated.

Senator Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas) proposed the OPEN Government Act of 2007 (S. 849). The bill aims to solve some of the FOIA’s persistent problems by:
• Creating a tracking system for FOIA requests so they are not lost, forgotten and ignored;
• Clarifying the time limits for agency responses;
• Authorizing the recovery of reasonable attorneys fees for requesters who prevail in FOIA litigation, including when a government agency releases records in response to a lawsuit before a judge rules on the case;
• Requiring reports to Congress on how agencies handle FOIA requests; and
• Creating a FOIA ombudsman to help resolve disputes between members of the public and agencies without litigation.

The bill has strong bipartisan support. The United States House of Representatives passed a similar bill by an overwhelming majority vote (308-117) in March 2007, which included 80 Republican members of Congress.

The concerns raised by some federal agencies have been addressed by the managers’ amendment SA 1147 and lack merit. And a new suggestion—that attorneys fees be permitted only when the person making the FOIA request can prove that the government acted in bad faith—would actually weaken FOIA, making it virtually impossible for FOIA requesters to obtain records under the FOIA. In contrast, the attorneys fees provision currently in the bill, which would restore the ability of FOIA requesters to receive attorneys fees when their cases cause an agency to release records before the court makes a decision, would strengthen FOIA and the democratic principles it promotes.

The OPEN Government Act of 2007 is supported by a wide range of organizations and individuals across the ideological, political, and economic spectrum:
• The United States Chamber of Commerce;
• The National Association of Manufacturers;
• More than 100 public interest organizations, historical groups and associations, including: the American Library Association, the Natural Resources Defense Council, the National Taxpayers Union and the Liberty Coalition;
• The Sunshine in Government Initiative, a coalition comprised of the American Society of Newspaper Editors, the Associated Press, the Association of Alternative Newsweeklies, the Coalition of Journalists for Open Government, the National Association of Broadcasters, the National Newspapers Association, the Newspaper Association of America, the Radio-Television News Directors Association, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists;
• Public Citizen;
• The American Civil Liberties Union;
• The National Security Archive;
• 10 members of the Arizona State Senate;
• The Open Society Policy Center;
• David Keene, Chairman, American Conservative Union;
• John W. Whitehead, President, The Rutherford Institute;
• Thomas R. Pickering, former Undersecretary of State for Political Affairs and United States Ambassador to the United Nations;
• Bob Barr, former member of Congress;
• Veterans for Common Sense;
• The Andrew Jackson Society;
• Americans for Tax Reform; and others.

In addition, editorial and op-ed pages in newspapers across the country have reflected strong public support for the reforms.

The undersigned groups called upon the Senate to permit this good government measure to be brought to the floor for a debate and vote, and not to allow it to be brought down by legislative tactics and poison pill amendments.


Organizations Issuing the Release:

American Association of Law Libraries
American Civil Liberties Union
American Library Association
Association of American Physicians and Surgeons
Citizens for Responsibility and Ethics in Washington (CREW)
Cyber Privacy Project
Doctors for Open Government (DFOG)
Electronic Frontier Foundation
Ethics in Government Group
Georgians for Open Government
Liberty Coalition
National Coalition for History
National Freedom of Information Coalition
National Security Archive
National Taxpayers Union
National Whistleblower Center
Natural Solutions Foundation
OMB Watch
Pain Relief Network
Public Citizen
Reporters Committee for Freedom of the Press
Republican Liberty Caucus
Semmelweis Society International (SSI)
Student Health Integrity Project (SHIP)
The New Grady Coalition
The Pullins Report
The Rutherford Institute
United States Chamber of Commerce
US Bill of Rights Foundation
VA Whistleblowers Coalition

Keep an eye on this...

From the Herndon, Virginia Times:

At least one provision of a newly passed Town of Herndon ordinance addressing Freedom of Information Act requests may be in violation of the Act.

The controversial ordinance will charge fees based upon the hourly rates of town staff fulfilling formal FOIA requests. The Herndon Town Council voted 6-1 to approve the ordinance last Tuesday, June 26, and it is scheduled to go into effect Aug. 1.

Herndon Town Attorney Richard Kaufman has stated that the formal ordinance was "a staff-initiated effort" brought about because of "a recent increase in the intensity and number of requests for information."

"I would argue that is done for two reasons. First to discourage frivolous FOIA requests and second, to force newspaper reporters to do their own research and not expect government employees to do research at taxpayer expense," Husch said.

Whose hourly rate will be charged in Herndon has yet to be determined. The fees will be published prior to the Aug. 1 implementation of the ordinance, according to Kaufman...

"They can't do that," said Frosty Landon, executive director of the Virginia Coalition for Open Government, after reviewing that particular provision, citing a recent opinion by Maria Everett, executive director of the Virginia Freedom of Information Advisory Council.

Well said, Frosty. This is an UGLY policy, one that if repeated would eviscerate FOI as we know it, particularly for citizens.

Monday, July 02, 2007

From Secrecy News

An excellent observation by Steve Aftergood in Secrecy News:

The White House press office and some Bush Administration critics are insisting that the 2003 executive order on classification policy endowed the Vice President with a unique status and classification powers identical to those of the President himself.

But that's not what the executive order says.

"In this executive order the President is saying that the Vice President is not different than him," said White House press secretary Dana Perino on June 25.

"The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes it clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies'," wrote David Addington, the Vice President's chief of staff in a June 26 letter (pdf) to Senator Kerry.

Similarly, New York Times columnist and Bush critic Frank Rich wrote yesterday that in 2003 "every provision [in the executive order] that gave powers to the president over classified documents was amended to give the identical powers to the vice president."

Mr. Rich claimed that "this unprecedented increase in vice-presidential clout" has "special importance" for understanding the Iraq war, the Valerie Plame case and more.

"By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics," wrote Mr. Rich.

From an opposing political perspective, Byron York of the National Review wrote last year that the revised executive order constituted an "enormously consequential expansion of vice-presidential power."

More soberly, the Congressional Research Service reported in a memo to Rep. Henry Waxman (pdf) that "Among the modifications made by the new [executive] order were the vesting of the vice president with authority coequal to that of the President to security classify information originally."

And I myself wrote in Secrecy News last year that the language of the 2003 executive order "dramatically elevates the Vice President's classification authority to that of the President."

On closer examination, none of this appears to be correct.

The text of the 2003 executive order does not grant any new classification authority to the Vice President beyond that which he already possessed as one of some two dozen officials authorized by the President to classify information originally at the Top Secret level. Like those other officials, the Vice President was already authorized to classify information within the scope of the executive order, and to delegate his authority to others. No additional classification powers were provided in the new order.

A line by line comparison of the Bush executive order with the prior order, indicating what was added and what was deleted in 2003, shows that every classification authority granted to the Vice President was also granted to other agency heads, such as the Secretary of Defense or the Secretary of State, and was also possessed by the Vice President himself in the past.

Mr. Addington and the White House press office argue that the mere juxtaposition of references to the President and the Vice President in the text of the 2003 Bush order -- such as in section 1.3(a)(1) -- somehow translates into new status for the Vice President. But again, no such status or new authority is articulated in the order.

To the contrary, the Director of the Information Security Oversight Office, who is charged by the President with implementing and overseeing the executive order, concluded that an interpretation of the order which treats the Office of the Vice President as entirely distinct from other executive branch entities is not consistent with a "plain text reading," as he wrote to the Attorney General (pdf).

Fundamentally, the Vice President's classification authority is not and cannot be identical to that of the President. The President's authority is inherent, stemming from his status as commander in chief of the armed forces; the Vice President's authority is derivative. Likewise, and for the same reason, the President can alter the provisions of the executive order at a moment's notice; the Vice President cannot.