The People's Right to Know: Transparency in Government Insti
American Corner | 2013-01-25 17:09

"The power to withhold the facts of government is the power to destroy that government."
                 -- U.S. House of Representatives
                     Committee Report on Freedom of Information
                     (1976)
 
The phrase "the people's right to know" is frequently repeated as a political and legal slogan. These words are often associated with media requests for government information, and invoked by journalists who wish to justify the dissemination of controversial material. "The people's right to know," however, can also have a different meaning, separate from the notion of freedom of the press, a meaning that is truly grounded in the people, and directed toward the right of the people to know about the actions of their own government. It is this variation of the phrase "people's right to know," focusing on what in modern times is often referred to as transparency in government, that concerns us.
 
This opening up of the business of government, this exercise in increasing transparency, is frequently a difficult and complex process, a process that often requires the careful balancing of competing interests. On the side of an open government are the values of accountability and democratic participation. Yet, open government may at times be costly, may sacrifice certain legitimate interests in candor or efficiency within government, and may jeopardize other laudable social values, such as the protection of individual privacy, national security, and law enforcement. Democratic governments should be largely open and transparent governments. Yet even the most open and democratic government will in certain settings require some measure of secrecy or confidentiality to function appropriately.
 
The United States, in its struggle to deal with these competing interests, has focused on three principal problems: (1) access to public records and documents, in which the "business of the people" is stored in some tangible form; (2) access to the deliberative institutions of government, such as meetings and forums in which public business is debated and resolved; and (3) access to places that conduct routine non-deliberative government business, such as government-managed prisons, hospitals, or schools.

Freedom of information: access to records and documents
In the United States, experience with "freedom of information," with the notion of a strong legal right of access to government records and documents, is a relatively recent phenomenon, one that only began in earnest in the 1960s. The U.S. Congress passed the federal Freedom of Information Act (commonly referred to as the FOIA) in 1967 in response to a growing sense that prior federal law was usually invoked as a justification for withholding information, rather than as an affirmative spur to the disclosure of information. The FOIA created a broad command that official information shall be made available to the public, for public inspection. This is the norm, the "default" rule, and American courts have repeatedly emphasized that under the FOIA, federal agencies must respond expeditiously and conscientiously to requests by citizens for information.
 
The FOIA creates nine exemptions from compelled disclosures. These exemptions, the only ones the law allows, are plainly intended to set up concrete standards for determining whether particular material may be withheld or must be disclosed. Aggrieved citizens are given a speedy remedy in courts when an agency refuses to disclose material by invoking one of these exemptions. If the courts find that the agency was wrong in not disclosing the material, it will order the material released, and may punish the agency with fines.

The FOIA is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. The nine exceptions contained in the law are designed to provide a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure. They are:
 
(1) national security secrets relating to national defense or foreign policy;
 
(2) materials relating solely to the internal personnel rules and practices of an agency;
 
(3) materials that are specifically exempted from disclosure by some other federal law;
 
(4) trade secrets and commercial or financial information that is privileged or confidential;
 
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
 
(6) personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
 
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, or could reasonably be expected to disclose the identity of a confidential source. In the case of information compiled by a law enforcement authority in the course of a criminal investigation or by an agency conducting a national security intelligence investigation, FOIA exempts from public disclosure information furnished by a confidential source that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or could reasonably be expected to endanger the life or physical safety of any individual;
 
(8) materials relating to examinations and regulation of banks and financial institutions; or
 
(9) geological and geophysical information and data, including maps, concerning wells.
Some of these exemptions require balancing major competing policy concerns, others involve relatively specific and narrowly applicable matters, such as the location of wells or the regulation of banks. The three principal areas of major policy debate and litigation in the administration of the FOIA have involved the exemption for national security and defense matters, the law enforcement exemptions, and the exemptions designed to protect individual privacy.
 
The tension between the values of an open government and the values of privacy are especially acute. Particularly with the onset of modern electronic databases, almost no one in contemporary society can keep entirely secret very many facts about himself or herself. Many facts about individuals come into the hands of government agencies for legitimate reasons, and are stored in databases controlled by the government. For there to be any meaningful protection of privacy, therefore, it must be recognized that while complete secrecy is an impossibility in modern times, laws designed to insure that disclosure will be highly selective are possible, and such laws will go a significant way toward creating at least some protection for individual privacy.
 
Supplementing the federal FOIA are various state freedom of information laws. All American states have state laws designed to provide public access to the records of state and local governments. These laws vary from state to state. Many follow quite closely the federal FOIA model, creating a broad command of access to government materials, and then listing exceptions.
 
The costs of the freedom of information laws, at the national and local level, have long been a matter of intense public debate. Some of the direct cost of a FOIA request is normally passed on to the requester -- charges such as search and photocopy fees, for example, are typically set forth in uniform fee schedules maintained by agencies. Much of the indirect cost of the FOIA, however, the "overhead of openness," if you will, is simply absorbed by the agency as part of its operating budget. Freedom of information undoubtedly makes government more expensive, because government employees must be hired to index, organize, store, and retrieve data, creating an administrative machinery enabling the agency to respond properly to FOIA requests.
 
Americans have learned that it is one thing to enact the value of freedom of information into formal law, and another to attempt to change the culture of government so that officials will comply with the spirit of open government, working to facilitate access to public records, instead of frustrating or undermining such openness. In the years immediately following enactment of the FOIA, many agencies treated it as an annoyance, as something to be gotten around or frustrated whenever possible. Attitudes, however, have gradually changed, and a newer generation of public officials appears much more open and receptive to the notion of easy and generous access to public records.
 
To some degree the shift in culture is attributable to the new computer technologies of the 1990s. Wholly aside from the question of access to government data, the Internet has created an "information culture" in which people all over the world are increasingly accustomed to being able to quickly and cheaply obtain a wide range of information merely by searching databases from their own computer. An entire generation of people throughout the world is beginning to see easy access to information on the Internet as virtually an entitlement, as natural as breathing the surrounding air. In democratic nations, people naturally tend to extend this sense of entitlement to the government. Making government records easily accessible online is increasingly perceived as one of the basic obligations of a democratic government. Thus, citizens not only expect freedom of information; they now expect freedom of information on-line. This growing perception found its way into American federal law in 1996 with the passage of the Electronic Freedom of Information Act, a law that made it clear that the concept of "public records" included records kept in electronic form and required that federal agencies permit electronic access to their records.
 
As the Internet has matured, and become so much a part of mass culture, with virtually all businesses and organizations in the private sector touting Web pages that contain substantial information and opportunity for interaction on-line, governments have been pressured to compete in the electronic marketplace, and make themselves "Internet friendly." At the national and local level, government agencies are increasingly adding to their on-line databases, providing public records in a manner that is easily accessible to any citizen with a computer and a modem. Ultimately, this may also solve one of the major cost concerns posed by freedom of information laws. Because government data is often in electronic form, agencies may find that it is relatively easy to provide open access to public record data by simply using software that makes such data easily identifiable and retrievable by ordinary citizens using the Internet.
 
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