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Kyl-Lott continues to throw roadblocks to open government

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For another piece of evidence that the Kyl-Lott amendment continues even a decade later to throw up roadblocks to open government, look no further than an April 12 post on the National Security Archive.

Kyl-Lott is a part of the fiscal 1999 national defense authorization act named after its two main Senate champions, Sens. Jon Kyl (R-Ariz.) and Trent Lott (R-Miss.). In reaction to a concerted archival declassification push undertaken during the Clinton administration, Kyl and Lott pushed through language requiring the Energy Department to examine already publicly-released documents to see if they might have inadvertently revealed nuclear secrets.

This, of course, resulted in black comedies such the reclassification of information that had long been put into the mainstream public record. As a May 19, 2001 Washington Post story recorded, DOE officials reclassified U.S. nuclear stockpile information that Henry Kissinger, while he was national security adviser, disclosed in a 1972 press conference (right after he divulged Soviet stockpile information, in the context of nuclear arms limitation treaty negotiations).

This most recent example on the National Security Archive's blog doesn't come from the direct reclassification of information that should be publicly open, but the collateral effects that Kyl-Lott continues to have.

Specifically, Larry Berman, a Georgia State University academic, recounts the difficult time he had accessing documents at the Naval History and Heritage Command in the Washington Naval Yard, due to the fact that Kyl-Lott has created a backlog of documents requiring review even after being previously declassified.

Says Berman, Naval archives staff "cut off my access to the unclassified files altogether because they had to undergo a page-by-page review in the event they included a nuclear secret."

It is possible for federal agencies to waive Kyl-Lott for material highly unlikely to contain nuclear secrets (such as the subjects Berman says he was researching, including race relations, retention studies and racial incidents at sea), but archives staff refused to do so.

Berman then unspools a black comedy of his own, whereby he put through a Freedom of Information Act request, was informed that the cost of conducting his requested review would be $44,235, and had to appeal to the Navy Judge Advocate General in order for a more sensible approach to be finally undertaken.

That Berman prevailed is a victory, of sorts, but it's really an indication of how long bad legislation can reverberate as a threat to open government. - Dave