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limited to basic information on proceedings and not to the full range
of case documents.62
There is also confusion in actual practice in different states. In
Maryland, for example, a committee appointed by the state judi-
ciary in 2000 proposed sharp restrictions on access to digitized court
records; after an outcry from journalists and businesses, a second
committee was formed that in 2004 recommended more liberal rules
on access. In Florida, by contrast, courts followed a policy of broad
access until the state Supreme Court ordered a moratorium so that
a study of privacy issues could be completed.63 There is confusion,
too, in the question of whether to allow businesses to purchase court
records in bulk form. The 2002 guidelines for state governments sug-
gested that there should be no bar on bulk access to data that is
already accessible at the courthouse.64 A 2003 survey, however, found
several state courts refusing to release bulk data on privacy grounds.65


Monitoring the “paperless of¬ce”
The battle over access to structured data is accompanied by a second
and growing con¬‚ict over access to the “unstructured data” in digi-
tal form that is held by government agencies. “Unstructured data” is
not a familiar term: Loosely, it means the miscellany of documents
within bureaucracies “ e-mails, letters, memoranda, reports, spread-
sheets, presentation ¬les, and so on “ that are not contained in large
databases of standardized records. As Max Weber noted long ago “
in somewhat different language “ this mass of unstructured data
constitutes the working heart of any government agency.66 Most of
the information kept by a government organization is likely held in
unstructured form: In a widely cited 2000 study, the consulting ¬rm
Merrill Lynch estimated that more than 85 percent of all information
in American business organizations exists as unstructured data.67
The de¬nition of unstructured data gives us a sense of one of the
two impacts new information technologies have had on the inven-
tory of documents held by government agencies. The stockpile of
government documents is now more diverse than ever before. Agen-
cies continue to produce memoranda, reports, and paper correspon-
dence that are comparable to those produced by agencies ¬fty years
ago. But there are also many new species of document that are the
result of technological advance “ such as e-mail messages (which

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have supplanted communications once undertaken in nondocumen-
tary form by means of phone or in-person conversation), electronic
spreadsheets, presentation ¬les, web pages, and desktop databases.
Technology has also led to a dramatic increase in the volume
of documents that are added to an agency™s inventory every year.
Archivists responsible for the preservation of signi¬cant records in
the U.S. government say that they have been overwhelmed by a “tidal
wave of electronic records.”68 The ¬‚ow of e-mail messages alone is
daunting: A 2002 study reported that the 14,000 employees of the U.S.
Department of Energy dealt with one million e-mail messages a day;69
in the same year archivists estimated that all U.S. federal employees
handled thirty-seven billion messages annually.70 (The Canadian gov-
ernment™s chief information of¬cer estimated that in 2002 its 150,000
public servants exchanged roughly six million e-mail messages every
working day.71 ) The increase in volume is not only tied to docu-
ments in electronic form. “Hard-copy” documents have also grown in
number. Of¬ce consumption of paper has increased steadily over the
past decade, confounding experts who anticipated the advent of the
“paperless of¬ce.”72 In 2004, the federal government was estimated
to have used about 109,000 tons of paper, 12,000 tons more than in
1996.73
In fact, technology plays an unappreciated role in exaggerating
our perceptions of government secretiveness. It is common for advo-
cates of openness in the United States to point out the dramatic
increase in the number of documents that have been classi¬ed for
national security reasons over the last decade. In August 2004, for
example, Senators Trent Lott and Ron Wyden complained that the
number of classi¬cation decisions taken by federal of¬cials had more
than doubled over ten years, with more than 14.2 million documents
being classi¬ed in 2003.74 The complaint is based on statistics pro-
duced by the federal Information Security Oversight Of¬ce, which
requires that federal agencies report every year on the number of
“original” and “derivative” classi¬cation decisions their of¬cials have
made.
The distinction between the two types of decision is important.
An original classi¬cation decision is made when a federal of¬cial
determines that information that has not previously been classi-
¬ed requires special protection. A derivative classi¬cation decision
is made when a document incorporates information from another

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document that is already classi¬ed, or when it is of a standardized
type that an agency classi¬cation guide says must be classi¬ed.75 The
number of original classi¬cation decisions has changed signi¬cantly “
but not radically “ over the past decade, declining from 246,000 in
1993 to a low of 137,000 in 1998, and then rising again to 234,000
in 2003.76 (In other words, the number of original classi¬cation deci-
sions was actually lower in 2003 than in 1993.)
By contrast, the number of derivative classi¬cation decisions has
grown markedly over the last decade, from 6.4 million in 1993 to
14 million in 2003. Nor was there a marked dip in the number of
derivative decisions in the years of the Clinton presidency, as there
was for original decisions. The result is that the ratio of derivative to
original decisions has jumped as well, from roughly 20:1 in the early
Clinton years to over 60:1 in the early Bush years. One of the forces
driving this trend, says the ISOO, is information technology that
enables the rapid and almost costless duplication of documents, and
which has replaced millions of secure telephone conversations with
e-mail messages that are electronically tabulated and counted as clas-
si¬ed documents.77 “Information technology,” the ISOO concluded in
2005, “has exponentially increased the Government™s ability to pro-
duce information of all sorts, both classi¬ed and unclassi¬ed.”78
The transformation of the stock of unstructured data “ both its
expansion and diversi¬cation in form “ has in some ways improved
governmental transparency. For example, it is frequently argued that
open government laws have a chilling effect on record keeping within
government agencies: Of¬cials, knowing that their documents might
be publicly disclosed, are said to be more reticent about committing
their views to paper. (The extent to which of¬cials become more cir-
cumspect is open to question; one recent Canadian government study
that examined documents produced before and after the adoption of
Canada™s Access To Information Act had found no evidence that the
law had any in¬‚uence on record keeping by government of¬cials.79 )
But technology has had a countervailing effect, by causing millions
of undocumented conversations to be transformed into documents “
all at risk for public disclosure.
Americans had an early illustration of this countervailing effect
in 1987, with the release of the report of the Tower Commission on
the Iran“Contra scandal. The scandal erupted in November 1986 with
revelations that President Ronald Reagan™s National Security Council

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had sold weapons to the government of Iran (which it had publicly
alleged was a sponsor of international terrorism), and then diverted
the pro¬t from those sales to rebels ¬ghting to overthrow Nicaragua,
thereby violating a ban on aid imposed by the U.S. Congress. Investi-
gators quickly demanded access to NSC documents “ and NSC staff,
including its Chief, John Poindexter, responded by destroying the
incriminating records.80
The NSC was eventually trapped by its enthusiasm for new tech-
nology. Only a year before “ and well before other parts of the White
House staff “ the NSC had adopted a new e-mail system, which
Poindexter and his staff used extensively. When the Iran“Contra
investigations began, Poindexter and his subordinate Oliver North
attempted to delete thousands of compromising e-mail messages “
but they could not destroy the system™s back-up tapes. The Tower
Commission™s report on the scandal, published in February 1987,
relied heavily on the e-mail messages, introducing them to readers as
“conversations by computer . . . [that] provide a ¬rst-hand, contempo-
raneous account of events.”81 The e-mail traf¬c, said one of the Com-
mission™s three members, former Senator Edmund Muskie, provided
a “mother lode” of incriminating evidence.82
President Reagan and his successors tried unsuccessfully to block
the disclosure of other compromising White House e-mail. The Rea-
gan White House intended to destroy the backup tapes of all of its e-
mail traf¬c on the evening before President George H. W. Bush™s inau-
guration, but was blocked by last-minute litigation. The George H. W.
Bush administration continued to ¬ght for the right to destroy the
tapes, and President Bush himself attempted to negotiate an agree-
ment with the U.S. National Archives that would allow him to treat
backup tapes as his own property. Later, the Clinton administration
supported the Bush agreement, arguing that it did not want critics
“pawing over its computer memos.” The prolonged litigation resulted
in a defeat for all three Presidents. E-mail would be treated under
the same preservation and disclosure rules that applied to traditional
paper records.83
A former colleague of Poindexter™s argued that the risk of disclo-
sure would “corrupt” e-mail conversations,84 but this fear has proved
to be overstated. E-mail has become too deeply entrenched in contem-
porary work life for self-censorship to be an effective strategy: Writing
elliptically takes time, and undermines the effort to get work done.

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Busy of¬cials, struggling to manage an always expanding in-box, ¬nd
it easier and faster to write candidly.
This means that e-mail continues to provide “mother lodes” of
revealing information about the internal life of large bureaucracies.
The Columbia Accident Investigation Board relied on e-mail to show
how NASA staff had downplayed safety concerns before the January
2003 shuttle disaster.85 The 2003 report of the Joint Congressional
Inquiry into the 9/11 attacks, and the 2004 report of the 9/11 Com-
mission, used e-mail to illustrate how bureaucratic and legal dif¬-
culties compromised the effort to deal with terrorist threats.86 Simi-
larly, the Senate Intelligence Committee in its 2004 report relied on
e-mail to document internal dissent about the reliability of evidence
about the threat posed by weapons of mass destruction in Iraq.87
And in November 2004, Senator John McCain released e-mail traf¬c
in which Air Force Secretary James Roche had privately campaigned
against European defense contractors (“the fools in Paris and Berlin,”
as he called them) while publicly promising a fair competition to sup-
ply new refuelling tankers.88
In the United Kingdom, e-mail was a critical part of the evidence
to the Hutton Inquiry during its probe of the British government™s
conduct before the Iraq war and after the suicide of WMD expert
David Kelly.89 (In one compromising pre-war e-mail, Prime Minister
Tony Blair™s chief of staff conceded there was “no imminent threat”
posed by Iraq.90 ) Earlier, a senior Blair government of¬cial was pres-
sured to resign following the disclosure of an e-mail in which she
had urged public servants to regard the 9/11 attacks as an opportu-
nity to disclose her department™s “unfavorable” news items. “It can
be tempting to regard email as ephemeral,” said the Financial Times
during these controversies,

. . . yet many have come to realise that emails provide a record
more permanent and indestructible than many older forms of
communication. . . . Paper documents can be burnt and conver-
sations held in circumstances that make eavesdropping very dif-
¬cult. But, once sent, an email leaves traces that may return to
haunt the writer, long after the event.91

Paradoxically, however, the usefulness of e-mail as a tool for mon-
itoring the internal life of bureaucracies can be undermined by its
ubiquity. When the National Security Archive, a Washington-based

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nongovernmental organization, succeeded in its litigation to block
the destruction of White House e-mail, it was like the proverbial dog
chasing a ¬re truck: What would it do once it had caught it? The Rea-
gan White House had accumulated seven million e-mail messages
by the end of the presidency, even though working e-mail systems
had been adopted little more than two years before. “The main prob-
lem was too much email,” said the Archive™s director, Tom Blanton;
the job of reviewing each message to determine whether it could be
released would have been massive. Blanton™s organization negotiated
a compromise, in which it obtained a “core sample” of e-mail from
the Reagan years.92
Blanton™s predicament is probably not unique. As technological
change causes the inventory of government documents to expand, the
parts of that inventory that relate to any speci¬c topic must expand
as well. So, too, must the task of searching for, and reviewing, docu-
ments that are requested under an FOI law or by any other inquiry.
It is no longer a matter of retrieving neatly organized manila fold-
ers and reviewing the memoranda within them. Documents are now
in multiple formats; they may be more widely scattered within an
organization; and they are likely more numerous than ever before.
For older digitized documents, there is also the added complication
that the format in which they were stored may have become obsolete.
This means more work for of¬cials who are charged with respond-
ing to document requests. In Montana, media requests for the e-mail
of Governor Judy Martz over one month in 2002 drove state of¬cials
to use a disaster-recovery system to reconstruct the governor™s e-mail
account, and then to review the content of over 3000 messages, at
a cost of $28,000.93 In Canada, one Canadian government depart-
ment reported that it had received “ on a single day in 2002 “ over
100 requests under its FOI law for “all records in the email system”
of different employees. The same individual has since ¬led over one
thousand similar requests; the department said in 2004 that it had
established a special team of employees working full-time to retrieve
information in response to the queries.94
Such complexity may mean that individuals who request docu-
ments will be more likely to face higher fees for processing requests,
and therefore be more likely to abandon or narrow those requests.
If they choose to continue, individuals who receive documents may
face an added problem of interpretation. Traditional paper ¬les had

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the virtue of boundedness and authoritativeness. The labor involved
in producing documents meant that those that were produced were

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