Key Points: Too many secrets, secret-keepers

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By Stephen Key

While the impact of Wikileaks’ dissemination of 250,000 diplomatic cables is yet to be determined, one fact emerges: The materials labeled as secret by the U.S. government has exploded.

According to the U.S. Information Security Oversight Office, American secrets expanded from 105,163 in 1996 to 183,224 in 2009 – that’s 75 percent in 13 years.

Massimo Calabresi in a December Time magazine article reports the documents created involving those secrets have increased by more than 10 times during the same time period – from 5,685,462 to 54,651,765.

Meanwhile, the number of government officials with access to these secrets has also exploded. The Pentagon alone gave clearances to see secret documents to 630,000 people in 2008, according to the Government Accountability Office.

Calabresi wrote that a 1997 congressional report of a committee chaired by Sen. Daniel Patrick Moynihan, D-New York, found that two million government officials and another million civilian contractors had the power to declare records “top secret.”

With that many people deciding what is top secret – information whose disclosure would likely “cause exceptionally grave damage to the national security” – is it no wonder that classified documents would include information that Libyan leader Muammar Gaddafi surrounds himself with four blonde Ukranian nurses?

The tendency to expand government secrecy isn’t limited to national government officials.

Indiana’s Open Door Law lists 12 subject areas that governing bodies have the discretion to discuss behind closed doors, and the Access to Public Records Act lists 23 subjects that public agencies have the discretion to apply the tag “confidential” to documents concerning those subjects.

“Discretion” usually is an unseen word to public officials who read these statutes.

I often have reporters tell me that a public official has denied a request because law requires it to be kept secret when in fact it’s at the discretion of the public agency whether or not the document is released.

The problem with runaway secrecy is that it erodes the confidence of the public in the credibility of those officials who routinely hide behind the public access law’s discretionary provisions.

In his Time article concerning Wikileaks, Calabresi appropriately quotes the late Supreme Court Justice Potter Stewart: “When everything is classified, then nothing is classified. … [T]he system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”

Justice Stewart’s quotes are from his opinion in the Pentagon papers case of 1971, when documents detailing the U.S. government’s actions concerning Vietnam were leaked. They ring true today.

Government secrecy should be limited.

Stephen Key is executive director and general counsel of HSPA. Contact him at skey@hspa.com or (317) 624-4427.