Access to information: Delivering on democracy’s promise

Friday, March 20, 1998

Earlier this week, on March 16, we celebrated National FOI Day, an unofficial observance each year on the birthday of James Madison, who is revered for his efforts on behalf of First Amendment freedoms and the ideal of an open society. But it was Madison’s mentor and colleague, Thomas Jefferson, who put forth the proposition that an informed citizenry is the cornerstone of democracy.

One of the better impulses of that principle resides in the federal Freedom of Information Act, signed into law July 4, 1966. Unfortunately, that better impulse is still struggling for recognition three decades later.

I was asked to complement the focus of this conference on state and local issues with a few bulletins from the national freedom of information front, just to provide some context for your own deliberations. Here a few recent headlines:

  • The Congressional Research Service, which produces a mountain of authoritative reports on a wide variety of public policy topics, is lobbying hard to defeat legislation that would require CRS to make the reports available to the public on the Internet. During a recent Senate Rules Committee hearing, Chairman John Warner of Virginia warned that if the public had access to these reports – the same as members of Congress and lobbyists do – citizens might ask for more reports, which would over-burden the service.
  • Tomorrow (March 20), U.S. Archivist John Carlin goes back to the U.S. Courthouse in Washington, D.C., to try to explain to U.S. District Judge Paul L. Friedman why he continues to advise federal agencies that the destruction of federal records in electronic format is OK. On Oct. 27, 1997, in a suit brought by Public Citizen and others, Judge Friedman had ruled that such destruction was not authorized under General Records Schedule 20.
  • Perhaps you are wondering whatever happened to the Government Secrecy Act, a bill introduced last year after a long and exhaustive study of secrecy by the Moynihan Commission and designed to reduce unnecessary classification and to speed up declassification, among other things. “In an odd display of political contortionism,” wrote Steven Aftergood in the Secrecy & Government Bulletin, “Senate leaders endorsed the Government Secrecy Act even as they attacked its central provisions.” During the Senate Intelligence Committee hearing on the bill earlier this month, Chairman Richard C. Shelby said, “We need to consider new and unique categories of secrecy for our most sensitive intelligence operations, perhaps to include very serious penalties for public discussion of these activities.”

And so it goes. In essence, these news flashes just add up to the same old story. What that story boils down to is an atmosphere in which the citizen seeking access is considered an irritant and an interloper, in which secrets are made many times faster than they are unmade, in which withholding is the norm and ready access a rarity.

Too many public officials view sunshine in government as some sort of carcinogen to be warded off by a home-remedy sunscreen made up of secrecy, delay and denial.

And too many citizens view a secretive government as an enemy that can’t be defeated so they retreat into paranoia, rumors and conspiracy theories.

All of us in this room know that this shouldn’t be, this can’t be, if democracy is to realize its full potential. But there are some powerful obstacles to realizing that goal.

  • A passion for personal privacy bordering on a national panic.
  • A trend toward the privatization of public records that puts access farther from our reach.
  • Weak laws.
  • Adverse court decisions.
  • Public officials who don’t recognize the need.
  • And private citizens who don’t demand that the need be met.

Public officials rationalize their restrictions by saying, “It’s a press thing. Besides the people don’t care about access. They care about their privacy.”

The journalists rationalize their inattention by saying, “It’s an inside-baseball thing. Besides our publishers and general managers don’t care about access. They care about avoiding legal fees.”

And the people rationalize their inaction by saying – well, not very much.

Despite all this, there is good news. Ever so often, the sun shines through. For example:

  • This conference, a symbol of the unique leadership role Connecticut has assumed in structure it has set up to monitor FOI efforts.
  • In Indiana, seven newspapers cooperated in a remarkable effort to “audit” access performance by public officials in all 92 counties.
  • On Monday, two universities announced the results of a statewide “audit” of public officials’ performance in Rhode Island.
  • And on this very day, the public and press for the first time are getting to examine thousands of pages of records of the notorious Mississippi Sovereignty Commission, the now defunct segregation watchdog agency that targeted civil rights workers and leaders for surveillance. A federal judge had ruled in January that the commission records, some of which already had been destroyed, could not be sealed away for 50 years.
  • At the national level, the most significant good news, of course, is that the Electronic Freedom of Information Act now has been on the books for more than a year. Unfortunately, implementation by agencies is slow.

Even though there is good news, it frequently gets smothered by constant denial of access at all levels.

In September of 1996, there was a gathering of the eagles of Freedom of Information to observe the 30th anniversary of the federal FOIA. During two days of discussion and strategizing, the participants in the conference decided that the overarching issue for access today is the need to stir the public, the press and policy-makers from apathy and ignorance about how essential an informed citizenry is to a democratic society.

A number of concerns emerged from the deliberations:

  • A “culture of secrecy” permeates the federal government. Many government employees have a proprietary attitude toward information that creates over-classification, delayed declassification, end-runs around FOIA, and other active and passive resistance to citizen requests for access.
  • Too often, officials cite personal privacy considerations to thwart legitimate access requests.
  • Federal policies lag behind technology, as society shifts from paper records to electronic information.
  • Impediments to effective, efficient systems and policies include: Outdated and inadequate records management, insufficient resources, incompatible standards and formats for data, and inconsistent, incomplete indexes to databases and other information.

Here are some of the things that need to be done at the federal level. I suspect that they need to be done at the local and state levels, too:

Change the public atmosphere. Educating the public, press and policy-makers about good information policy is the primary strategy that FOI and right-to-know advocates can adopt. Toward that end:

  • Help citizens understand how important openness and accountability are to good governance and a democracy that works.
  • Motivate and mobilize the press and public to demand access. Insist that elected officials and political candidates take a stand, and responsibility, for openness.
  • Urge the media and allied organizations to raise the profile of information access by covering and commenting on access and right-to-know issues as they arise in the public arena.
  • Take legal action when necessary.

Change the government atmosphere. Helpful and lasting change in information policy will not come without the dismantling of the “culture of secrecy” in government. To improve official attitudes toward access:

  • Remind federal officials and employees that releasing information should be the norm – through the Internet, when appropriate – so that FOIA requests become the exception rather than the routine.
  • Push for concrete action: greater congressional oversight, incentives for government workers to make information available, reducing disincentives for responding fully to requests, making more kinds of records accessible, and making FOIA compliance part of the job-performance rating for those charged with handling requests.

Reduce conflicts between privacy and access. We all agree that individual privacy is a very important matter, but when privacy and access concerns collide, common sense can create some common ground. Legitimate privacy concerns must be separated from those used merely to obstruct access. Some things to do:

  • Seek technological and other means to discourage and prevent accidental disclosure of personal information.
  • Instead of restricting access for all, penalize the conduct of those who misuse personal information.
  • Require government agencies to justify the need for personal data they collect.
  • Help citizens monitor and control information the government holds about them by promoting and improving access.

Control the cost of access. The increasing tendency of government agencies to view public information, paid for by taxpayer funds, as a revenue source is a significant barrier to access. Private vendors are pressing for exclusive rights to government databases, which they can then sell to the public – and in some cases even sell back to the government. Policy-makers must be persuaded:

  • To keep access costs to a minimum.
  • To scrutinize the impact of privatization on access.
  • To assure that privately held government records remain subject to access laws.

I have no doubt that you have many other ideas about how to further the goal of public access to government information. What all of us must keep uppermost in our minds is that the FOIA carries within its provisions the seeds of its own destruction. It gives un-elected, over-burdened, under-incentived agency employees wide latitude to interpret its nine exemptions and the Privacy Act to withhold records. And by giving them the power to assess fees, they have a powerful tool with which to discourage access. The Freedom of Information Act is never more than a bureaucratic decision, new legislation, or a court decision away from becoming the License to Withhold Information Act.

To guard against that eventuality, we need to constantly remind ourselves and others that no matter how inconvenient, expensive, embarrassing, or even invasive, the principle of maximum access to government information remains at the heart of this society’s ability to monitor and measure government performance.

We must remember that freedom of information is the action clause of the First Amendment contract between the government and the people. Unless and until private citizens are accorded equal status with public officials in that contract, democracy falls short of its marvelous promise.

Freedom of information defines democracy in the same way the First Amendment defines freedom.