Metropolis: Wednesday, August 25, 2004
UNT librarians Arlene Weible, Cathy Hartman, and Valerie Glenn, with the documents the government wanted destroyed.
Defending Dusty Records

Librarians win one in defense of public information.


The e-mail with the alarming subject line appeared in Cathy Hartman’s inbox early one Thursday afternoon in late July. The terse message was from Judith Russell, superintendent of documents in the Government Printing Office in Washington, and had been sent out to hundreds of librarians across the country.

“Destroy DOJ documents,’’ Russell had written in the e-mail’s subject line. The U.S. Department of Justice, Russell explained, had asked her office to instruct librarians to destroy “by any means” all copies of five government publications, to “prevent disclosure of their contents.”

“Please withdraw these materials immediately,’’ Russell wrote.

The UNT library is among some 1,300 libraries around the country where Uncle Sam makes government documents and publications available to the public. It wasn’t unusual for so-called Federal Depository Libraries to get e-mails like the one Hartman got from the feds. And though it was rare, it wasn’t unheard-of to get a notice saying a particular publication should be withdrawn, usually because it was outdated, contained errors, or, very rarely, had information that had become sensitive.

But this request was as odd as J. Edgar Hoover’s private wardrobe. The justice department wanted librarians to remove publications that contained information no one thought should ever be secret — the text of laws written by Congress, the legal rulings written by federal judges, blank forms used by government attorneys in courthouses across the nation.

Even in the post-9/11 world of secret prisoners, secret intelligence courts, and secret search warrants, the idea that something as public as a copy of a law could be ordered destroyed by a bureaucratic gnome seemed absurd. In a democracy, how could the law itself be considered a secret?

“It just seemed to us that there was nothing here that would not be just fine for the public to see and might be of interest,’’ Hartman said. She wasn’t alone in her concerns. Word spread about the unusual request, and librarians across the country began to wonder just what John Ashcroft’s justice department was up to. Soon, the issue was being debated among various library and information science organizations.

“The e-mails started flying,’’ said Patrice McDermott, deputy director of the American Library Association. No one could understand why the justice department wanted to destroy the text of laws. That, she said, “was the most outrageous and egregious aspect of it. Public law? That’s just over the top. We couldn’t grasp what the rationale was.’’

The four brochures and one set of microfiche identified on the destruction order all involved federal asset forfeiture — laws the government uses to seize private property that officials believe was used or purchased by suspected criminals ranging from dope dealers to terrorists. Russell’s e-mail said the reason cited for destroying the records, some of which had been distributed to libraries just months before, was they had been intended for “internal use only.’’ An oops, perhaps.

But the language in Russell’s e-mail was troublesome as well. “Destroy them by any means’’ was interpreted by some to “presumably include burning or shredding,’’ said Michael Gorman, president elect of the ALA. A typical librarian is no more eager to participate in a book-burning that Ashcroft is to attend an ACLU rally.

Even if the documents were intended for “internal use only,’’ librarians believed the publications were not only benign but quite possibly useful to the public. “Government information belongs to the people who pay for it and it should not be withdrawn on such a flimsy reason,’’ Gorman said. The publications, he said, “told people how to challenge forfeiture of assets. If these weren’t available to you, you would probably have to hire a lawyer or have access to a decent law library, which a lot of people don’t [have].’’

The five documents on the destruction list aren’t the only contentious issue between librarians and the justice department. The USA Patriot Act, which gave federal officials expanded power to access patron records, has had librarians worried about being forced to release information they consider private. Ashcroft has been dismissive of their concerns, describing librarians as hysterical.

Their concerns, however, aren’t without merit. In June, the ACLU released records it had obtained under the Freedom of Information Act that showed the justice department had applied to use the expanded snooping powers of the Patriot Act less than a month after Ashcroft assured ALA members that the new powers had never been used.

Further, the FBI sent agents out to libraries on at least one prior occasion to make sure that orders to destroy other records had been followed. That incident took place after the U.S. Geological Survey asked the government printing office in October 2001 to have depository libraries destroy a CD-ROM containing detailed information on large bodies of surface water.

After the CD-ROM incident, librarians began researching the law to determine how to handle future demands. Because the records in question belong to the federal government and are merely on loan to the libraries, librarians learned they had no right to appeal destruction orders and only one real option — to challenge future destruction orders with the Freedom of Information Act.

But even the lawyer who suggested the FOIA challenge said the chances of success seemed slim. Shortly after 9/11, Ashcroft revised justice department policies to make it much tougher to obtain records, telling agencies that they can “rest assured’’ that his department will back them up when they refuse to release sensitive materials under the new guidelines.

“As a consequence,’’ attorney Thomas Susman advised another information sciences organization, the Association of Research Libraries, in March 2002, “it seems unlikely that a FOIA request for a withdrawn document would succeed.’’

In a roundabout way, the librarians eventually proved the attorney wrong. As concern about the newest destruction order grew, the ALA filed an FOIA request with the justice department for copies of the records it wanted destroyed — and they enlisted the help of the author of the destruction memo. The superintendent of documents had little choice legally to pass along the justice department destruction order, but her office was sympathetic to the librarians’ concerns, Hartman said. “They understand our issues,’’ Hartman said. “Judith was working very hard internally to get the people at DOJ to change their minds.’’

Apparently, whoever it was in the justice department who wanted the records destroyed was overruled when the agency’s lawyers examined the librarian’s FOIA request. “What they did internally at DOJ was have legal counsel do a review and they said they [the documents] were FOIA-able publications’’ and would have to be released.

On July 30, just eight days after the destruction order went out, Russell sent another e-mail. The justice department, she wrote, has “requested that I advise depository libraries to disregard the previous instructions to withdraw these publications.’’ The “hysterical’’ librarians had won. The documents would not be destroyed.

Fort Worth Weekly’s telephone calls to the justice department and the Government Printing Office about the flap were not returned. But a check of three area depository libraries that had the records — at UNT, TCU, and UTA — found that although the records had either been temporarily removed from the shelves or tagged for removal, none had actually been destroyed during the order’s eight-day life. Thanks to a group of librarians in North Texas and elsewhere, the publications that the justice department wanted destroyed are back on the bookshelves where they belong.

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