Talking Barr's Redactions of the Mueller Report With the 'Yoda of Official Secrecy'

The attorney general will add four categories of redactions to the special counsel's report on Trump campaign collusion with Russia. Can each be challenged?
Author:
Publish date:
Updated on
Robert Mueller.

Robert Mueller.

After two years of tight-lipped investigation into the Trump campaign's relationship with Russia during the 2016 election, special counsel Robert Mueller's report will finally be made public on Thursday. Its revelations will include [REDACTED], the surprising [REDACTED], and the inevitable confirmation that [REDACTED].

Attorney General William Barr announced in March that some of the information contained in the report would be redacted in the released version—with color-coded explanations for the informational withholdings. Barr outlined four categories of redacted information: information from grand jury proceedings, information that compromises government informants, information whose release could impede ongoing investigations (including, perhaps, the dual federal investigations of the Trump camp in New York), and "information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties."

To shine some light into the mysteriously shrouded abyss of the redaction process past and present, Pacific Standard spoke to Steven Aftergood, who has been called "the Yoda of Official Secrecy." Aftergood directs the Federation of American Scientists' Project on Government Secrecy, an organization that works to reduce unnecessary document classification and redaction.

A physicist and engineer by training, Aftergood began challenging government secrecy in 1991 after discovering and exposing Project Timberwind, a classified program to develop a nuclear reactor-powered military rocket. "Secrecy and concealment are ancient, primordial phenomena," Aftergood says. "Redaction is an expression of that: another way of saying 'I can tell you this but I can't tell you that.'"

section-break

How common has document redaction been throughout U.S. history?

Before the Freedom of Information Act, there would have been redactions of government documents in government archives and and elsewhere, but that wasn't a regular procedure.

Redaction took on a special application with the passage of the Freedom of Information Act in 1966, which gives anyone the right to request and receive government records unless the information falls into one of nine categories that are exempt from disclosure. So if there is a document that includes information that is releasable but also information that is exempt, an agency will typically redact the exempt information—that is, black out or censor it—and then release the document with the rest of the information intact.

So, aside from also making the public release of these documents much easier, the Freedom of Information Act also standardized the process of redaction?

Not exactly. Each agency implemented the Freedom of Information Act in its own way. They all have different practices. Some agencies will review a document on a line-by-line basis and cross out a word or a sentence. Other agencies might look at a similar document and say: "Oh, that contains restricted information. We're not going to give it to you at all." It varies. It also depends on how frequently the agency deals with restricted, classified, personal, or proprietary information. But the Freedom of Information Act brought this practice of redaction to the attention of many more people.

Who is usually making decisions around what is redacted? I imagine most documents are not being redacted by the secretary of that agency.

It varies with the type of information that is being withheld. For example, one of the categories that is going to be withheld from the Mueller report is information having to do with intelligence sources and methods that are that are not public; that information would probably be identified by intelligence agency personnel, not the Department of Justice. Intelligence agencies are saying "Wait a minute, this is our stuff and it needs to be withheld."

One category of Barr's redactions is grand jury information. Why does that information get withheld?

Because it typically involves assertions that have not been validated or rebutted in an adversarial proceeding. Someone might testify that a person robbed a bank. It's fine to say that in a closed grand jury hearing, but it doesn't mean it's true—and it doesn't mean that the person who's accused didn't have evidence to defend himself. And so it's unvetted and un-validated. A person who might be accused in such a context will not have had an opportunity to defend himself.

One of Barr's categories for redaction is information that would "unduly infringe on the personal privacy and reputational interests of peripheral third parties." That seems like the least legally grounded of his categories.

That's correct. The others have a pretty solid legal basis. This one is is much more subjective, and potentially much broader. You can imagine circumstances where it would be appropriate to accept that kind of restriction, and other circumstances where it could be abused.

If someone is not a public figure and they're being associated with something that you know is disreputable, then you could mess up someone's life without actually accusing them of a crime [if their identifying information is not redacted]. And that seems wrong. On the other hand, if someone is a public figure and has advertised his or her own participation in related events, then invoking personal privacy to withhold information about his or her role could be excessive and inappropriate.

How can an excessive or inappropriate redaction be challenged?

It depends on the context for the redaction. If it occurs within a Freedom of Information Act proceeding, you can appeal the redaction and ask the agency to reconsider its position. If they refuse to do so, you can go to court and ask a judge to review whether the information was withheld properly. If it's grand jury information, you can ask a judge to release the information from its restriction.

There is also a hope in Congress that at least some members of Congress, or some committees, could get an unredacted version of the Mueller report, based on their role as overseers and investigators. They would need to either persuade the Department of Justice or subpoena the information and pursue it in court. If persuasion doesn't work then the judicial system would be the next stop.

Have redaction and declassification changed much in the five decades and 10 presidential administrations between the passage of the Freedom of Information Act and the release of the Mueller report?

It has not been consistent. It's shockingly easy to find inconsistencies. Some clever FOIA requesters have requested the same documents from the multiple agencies, and found that different agencies redacted or censored the document in different ways—such that if you combined the different versions you could get something close to the entire document. That doesn't happen all the time, but it has happened quite a few times, because agencies handle documents inconsistently.

Has there been a trend toward or away from government transparency over time?

It's a little hard to generalize because the government is not monolithic, and agencies operate with their own styles and culture. But my experience is that there was a broad increase in openness and disclosure over the course of the Obama administration, and there has been a retreat from that in various ways during the first two years of the Trump administration. There are, however, exceptions on both sides of that equation.

Are there non-self-serving reasons for agencies to redact government documents?

Often it's neither controversial nor objectionable. In many contexts, it is typical to withhold or redact personal information, such as credit card and phone numbers. If you file an official document with a government institution, they may ask for the last four digits of your Social Security number and not all nine. That's something we're all familiar with.

Redaction is also an everyday occurrence at courthouses around the country when attorneys file pleadings and motions. They are instructed to redact personally identifying information that they do not want to be made public—Social Security numbers, phone numbers, home addresses. It is generally the responsibility of the attorney filing the document to redact that information; otherwise it'll become available through through the courthouse and on the Internet. In most cases it's not nefarious, but supports privacy and security.

Is over-redaction going on regularly, since redactions are difficult to challenge?

It's important for me to say that I don't know what I don't know. Sometimes there are reasons for withholding information that are not obvious. Nevertheless, it is my perception that more information is withheld than is necessary.

Having said that: Too often information is inadequately protected. It wasn't too long ago that the files of the Office of Personnel Management, containing the personnel records of everyone with a security clearance, were hacked, reportedly by China. So there the problem was not over-protection but under-protection. And that's a related concern that that has a different kind of solution.

This interview has been lightly edited for length and clarity.

Related