Harvard Journal of Law & Technology Volume 15, Number 2 Spring 2002 DISCLOSURE OF GOVERNMENT INFORMATION ONLINE: A NEW APPROACH FROM AN EXISTING FRAMEWORK Paul M. Schoenhard* TABLE OF CONTENTS I. INTRODUCTION ............................................................................. 497 II. THE STATUS Quo ....................................................................... 498 A. Background. ........................................................................... 498 B. EFOIA and the Disclosure of Government Information Online ............................................ 501 III. THE NEW ENVIRONMENT .......................................................... 502 A. The Information Clampdown ................................................. 502 B. Proposals for the Future ........................................................ 506 IV. DISCUSSION ............................................................................... 508 A. The New Playing Field Is Not So New ................................... 508 B. The FOIA Prohibits the Removal of Government Web Content ...................................................... 509 V. ANALYSIS ................................................................................... 514 A. Information Can Be Dangerous ............................................. 514 B. What Should Be Disclosed Now and in the Future? .................................................................. 515 VI. CASE STUDIES ........................................................................... 516 A. The Department of Transportation's NPMS Website ........................................................................ 516 B. The Environmental Protection Agency's Risk Management Plans ......................................................... 518 VII. CONCLUSIONS .......................................................................... 520 I. INTRODUCTION Within hours of the September 11 attacks, United States govern- ment ("Government") web content started disappearing from the Internet. In the days and weeks that followed, the Executive Branch * J.D. 2003 (expected), Harvard Law School. The Author would like to thank Professor Jonathan Zittrain for his advice and Amy Ligler for her loving support.498 Harvard Journal of Law & Technology [Vol. 15 clamped down on information at all levels and redefined the require- ments and expectations of Government secrecy. Now, as Congress and the Executive Branch move forward, we must decide if these changes are necessary, or permissible. This Note will address the delicate balance between public awareness and national security on the Internet, a balance that needs to be maintained even in times of crisis and national emergency. Parts II and III will provide the legal framework and motivation for the ar- guments in Parts IV through VI. Part II will discuss the status quo prior to the events of September 11: statutory requirements of Gov- ernment disclosure on the Intemet, their Executive interpretations, and popular consensus. Part III will establish the new status quo and exist- ing proposals for further change. Part IV will argue that the Executive Branch's post-September 11 response effectively ignored the re- quirements of the Freedom of Information Act ("FOIA"). Part V will argue that Government disclosure via the Internet is necessary and that our existing legal framework is functional even in times of crisis. Part VI will apply the conclusions of Parts IV and V to two brief case studies: web pages pulled from the Internet by the Department of Transportation ("DOT") and by the Environmental Protection Agency ("EPA") after September 11. This Note will conclude by arguing that the FOIA requires the Government to continuously offer electronic access to information once it is made available online. II. THE STATUS Quo A. Background The notion that information should be readily available to the public can be traced back to our founding fathers. James Madison wrote, "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or per- haps both.., a people which mean to be their own governors must arm themselves with the power which knowledge gives. ''1 As our so- ciety has evolved, so has the application of this idea. Prior to the passage of the FOIA, the prevailing public access law was Section 3 of the Administrative Procedure Act of 1946 ("APA"). 2 This section was interpreted to limit the amount of information the Government needed to disclose to the public. In 1955, the House Committee on Government Operations established the Special Sub- committee on Government Information. This subcommittee produced 1. Letter from James Madison, to W.T. Barry (Aug. 4, 1822) in 9 THE WRITING OF JAMES MADISON 103 (Galliard Hunt ed., 1910). 2. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified in scattered sections of 5 u.s.c.).No. 2] Government Information Online 499 a 1958 amendment to the APA which stated that it "does not authorize withholding information from the public or limiting the availability of records to the public. ''3 This trend towards openness continued. In 1966, Congress passed the FOIA as an amendment to the APA. Upon signing the FOIA, President Lyndon Johnson stated, "This legislation springs from one of our most essential principles: [a] democracy works best when the people have all the information that the security of the Nation permits. ''4 The FOIA requires agency disclosure of documents in three ways. First, agencies must publish agency contact information, "statements of the general course.., by which its functions are channeled and determined," procedural requirements, and "substantive rules of gen- eral applicability.., and statement of general policy" in the Federal Register. 5 Second, additional information must be placed in Govern- ment reading rooms: 6 final opinions and orders, statements of policy not published in the Federal Register, and administrative staff manu- als and instructions. 7 Third, the public can use a mechanism, estab- lished by the FOIA, to request any non-exempt document directly from a Federal agency (a "FOIA request"). 8 The FOIA authorizes nine exemptions, including