and public trust
In a democracy, citizens are the governors and the governed. Nothing
is more essential to the concept of self-governance than access
to government information. Yet, the pathways for access have been
shaped historically into a maze of channels, created by none other
than citizens at the controls of our own democratic government.
People are not the only ones lost in this maze. It obscures the
central importance of openness of transparency to
the furtherance of democratic ideals. What is needed is a blueprint
for transparency that fosters the vital flow of information between
the governors and the governed in our democracy and which heightens
awareness of the necessary link between transparency and public
is not disclosed to the public, government has failed to exercise
the best means of maintaining public trust and dispelling distrust.
When government activity is conducted in secret or access to relevant
information is denied, than public support for and confidence in
the resultant laws and policies is compromised.
It is difficult to disagree with the ethic of public trust in a
democracy, and it may seem most evident that the blueprint for transparency
we need already exists in the United States Constitution. After
all, the Constitution establishes the three branches of government,
serves to elect, as Abraham Lincoln described it, a "government
of the people, by the people," and amply empowers Congress with
authority to provide "checks and balances," as James Madison described
it, over the executive branch.
Indeed, it would
also appear that the First Amendment guarantees interaction
positive and negative between the governed with the governors.
This is not limited to the freedoms of speech and press, but importantly
includes the right to petition government for change. In order to
be a full partner in the governing process, however, citizens must
have access to sufficient information to determine whether a change
is needed and, if so, how to most persuasively make the argument
for that change.
of the Constitution grasped the need and desired the advantage of
secrecy. Article One allows Congress to keep a secret journal and
contains the immunity clause that prevents Members of Congress from
being questioned about their legislative activities outside of the
Congress. So, while the Constitution provides an invaluable and
irreplaceable governing framework, it does not guarantee transparency
in its governing activities. In fact, transparency can only be ensured
if elected representatives recognize and embrace the inherent value
of their constituents' access to government information.
The framers of the Constitution could not have ever imagined the
revolution in information technology that has transformed society
into information hungry masses that, together with the ease of implementation
and access to such technology, have rapidly transformed how government
conducts business. This includes many aspects of sharing valuable
knowledge and services with the public. The speed and extent to
which Internet technology and the World Wide Web have been integrated
into government would shock even the most ardent reformer with its
enhancements to the quality and effectiveness of our government.
If the Constitution
operates more as a framework than a blueprint, surely the Internet
and World Wide Web provide the information infrastructure that obviates
the need for such a blueprint does it not? Clearly technology has
both created and ensured transparency for now and the future. Clearly
technology depends upon transparency to continue its lightning-fast
federal departments and agencies now provide a welcome largess of
information and services through the World Wide Web. That is a significant
contribution to government in the sunshine. While some sites are
what Web designers merely call "brochureware," others truly advance
the public missions not just the public relations mission
of our government. Transactions are conducted more efficiently
(from procurement to passports) and computer technology creates
stronger systems for tracking and storing information.
transparency however boosted by new technology, information
systems, and public demand for electronic information requires
the effective operation of many longstanding laws, regulations,
and policies relating to the accountability of the federal government.
The Constitution may be considered an early framework, but it remains
the foundation on which to build.
in the realm of technology raises more questions than it answers.
Not surprising, a government that has become larger and increasingly
insular, has also rushed to regulate, creating, among other things,
a mudslide in cyberspace over speech, privacy, and access that has
only added to the layers of difficult issues.
and characteristic of our democracy, the difference in the quality
of transparency in government has been made by people. Our leaders
can make a positive difference by making public access and respect
for and implementation of the laws, by making access a priority
for everyone who works for them, and by making policies comply with
the principle of openness. Elected and appointed leaders can make
a difference that harms if they discourage transparency, reduce
the tools and resources for access and accountability, diminish
the value of public inquiry and the free press, and enact laws that
sweep too broadly in attempts to prevent harmful release of information.
The president, agency heads and members of Congress share a responsibility
for setting the right example and policies for transparency in government.
intensity with which individuals are now involved with technology
as a tool for access, the government has utilized this tool in ways
that are not always very systematic, well organized, or advanced.
Most importantly, the combination of technology and the responsiveness
of government and businesses to the demand for Internet access have
raised the public's expectations for access to government information.
is a healthy beginning for improved transparency in the 21st century.
The executive branch has historically been the greatest source of
difficulty and struggle, yet its authority, structure, and processes
are relatively easy targets for prescription. Congress, which appears
more closely aligned to the interests of the public, has declined
dramatically in its commitment and capacity to fulfill its constitutional
checks and balances responsibilities. The public, particularly the
constituencies that have the most at stake, such as the media, researchers,
public advocacy groups and other concerned information specialists
and policy professionals, must work more strategically and systematically
to ensure improved access.
President George W. Bush has an enormous opportunity to fulfill
the ideal of strengthening the link between transparency and public
trust in the federal government. There is virtually no subject matter
that will pass before the president, his Cabinet, or the agencies
they lead that will not benefit from placing transparency and furtherance
of the public trust at the very top of how they and their organizations
conduct themselves. Often overlooked is that the tone that the president
and the government set for access in the nation's capital significantly
influences how state and local authorities treat information access
There a number
of things the president can and should consider to further the principle
of maximum access to information and enhance the role of citizens
in their own governance, among them:
- Make sure
that the Freedom of Information Act has executive and congressional
support and that the Department of Justice takes a leadership
role in administering the law so as to insure maximum public access
to government information.
the current executive order on security classification. Carefully
study and obtain a wide range of views on information needs, inside
and outside government, before considering changes to the management
of security classified information.
- Support the
ongoing efforts by the National Archives and Records Administration
and other agencies to address and solve the federal government's
online record-keeping and records preservation problem as part
of the president's commitment and investment in "e-government."
This involves developing technology that saves cost and time and
addresses the long-term "migration" problem of ensuring that an
electronic record preserved today can be read by the technology
being used in the future even the near future.
- Review the
responsibilities of the OMB Office of Information and Regulatory
Affairs (OIRA) and seek an OIRA Administrator with knowledge and
skills in the full range of government information law, policy,
The longstanding authority of the president of the United States
to direct the handling of classified information by executive branch
agencies sets the strongest government-wide signal for access to
government information. The executive branch controls how classification
and declassification decisions are made, including the application
of the Freedom of Information Act, and affects congressional oversight
and judicial access.
authority, Executive Order 12958, issued by President Clinton, made
significant progress in placing the government back on track with
historical trends to address the problems of the unmanageable volume
and overclassification of national security information. Since the
end of World War II, executive orders largely narrowed the basis
and discretion for classifying information, accompanied by periodic
declassification schedules. This approach was suspended by President
Reagan with Executive Order 12356, which continued in force through
the administration of President George H.W. Bush. President Clinton
and his administration closely studied and listened to a wide range
of views inside and outside the federal government before issuing
the existing order in April 1995.
emphasis on secrecy from previous administrations continued to reverberate,
and such a framework, once in place, is difficult to reverse. In
1997, three years into the Clinton administration, the congressionally
chartered Commission on Protecting and Reducing Government Secrecy,
known as the Moynihan Commission for its chair, Sen. Daniel Patrick
Moynihan, detailed the looming declassification problem. The commission's
final report stated that "over 1.5 billion pages of records 25 years
old and older are still classified by the Federal Government. Of
this amount, agencies currently plan to review less than one-half
approximately 719 million pages under the automatic
declassification provisions of the Order, meaning that agencies
are exempting from automatic declassification over three-quarters
of a billion pages." President Clinton's executive order was subsequently
amended in November 1999 in extending the automatic declassification
deadlines another 18 months until October 2001.
of the effects of longstanding problems of the classification system,
hampered by the bottleneck resulting from previous administrations'
policies, has been the need for statutes targeting subject specific
agency records. Costly, yet prodigious, these efforts have released
millions of pages of material and led to new and often innovative
oversight panels in areas including: the President John F. Kennedy
Records Collect Act, radiation victims of government testing and
mining, and Nazi and Japanese war crimes, as well as Holocaust assets.
need for appropriate and effective management and protection of
national security information includes improved management of the
people and the information involved in classified work. Balancing
these national security responsibilities against managing the volume,
overclassification and declassification of information cannot be
overstated in its importance. Arguably, the well publicized espionage
cases in recent years, several of which were rooted in the years
governed by the previous executive order, display the extent to
which overclassification obscures both the protection of real secrets
and scrutiny of intelligence personnel.
George Bush decides to issue a new executive order on security-classified
information, it should remain on the historical track established
by the Clinton order.
be made, they should made with these purposes in mind:
- Narrow the
criteria for classification.
- Reduce the
discretionary classification authority of government personnel.
- Reduce the
volume of classified information.
- Place equal
emphasis upon declassification.
- Create, maintain,
and monitor schedules for systematic declassification
- Retain the
balancing test for the public's interest in access to information
against the need for national security.
- Retain administrative
appeals program established to enable the public to seek an independent
review of a request for classified information that has been denied
authority for reclassification.
- Create greater
accountability and information security management standards for
all classified information, including compartmentalized and special
Freedom of Information Act
The importance of the personal commitment of the president and Cabinet
officials to government transparency and accountability is most
clearly demonstrated with regard to implementing several crucial
laws. These include the Freedom of Information Act and the Privacy
Act, the Government in the Sunshine Act, and the Federal Advisory
While no one
agency can control how others implement these laws, former Attorney
General Janet Reno set an important standard by establishing the
importance of complying with the Freedom of Information Act. The
attorney general placed a priority in her own department by including
compliance by departmental information managers with information
laws as part of their annual performance evaluations. In addition,
the attorney general emphasized to all in government that FOIA exemptions
are not mandatory, that the law is a disclosure law not a withholding
law, and, in that light, the law permitted exemptions to be invoked
when necessary, not automatically.
and the attorney general of the United States should act to:
- Support the
Freedom of Information Act as a positive value and affirmative
responsibility of federal agency managers to achieve transparency
the implementation of existing law, particularly the "EFOIA" and
state clearly the intent of Congress to treat paper and electronic
the former Attorney General's use of personnel performance criteria
to highlight and reward positive implementation of the Freedom
of Information Act and related laws.
- Narrow the
restrictive claim that the Privacy Act precludes disclosures for
requests made by the media.
the functions of FOIA appeals and FOIA policy from inside the
office of the Department of Justice's Information and Privacy
and pursue standards and time schedules for resolving and settling
all outstanding FOIA litigation.
- Direct federal
agencies to comply with the disclosure policy intent of the FOIA.
- Adopt a policy
of limiting FOIA denials, and defense of such denials, to demonstrable
Congress serves as one of the best examples of how Internet technology
provides more direct access and the appearance of a closer link
of government to the public. Even so, that example belies a troubled
transparency mission. The forcefulness of the Internet as a disclosure
and reform mechanism continues in Congress, notably with the recent
introduction of legislation to provide Internet access to committee
transcripts, gift disclosure reports, lobbying reports and Congressional
Research Service reports.
however, nowhere has the potential for achieving "checks and balances"
to strengthen transparency been more dramatically underserved than
its commitment to oversight and accountability, Congress has diminished
its strength as an institution. The impact on access to government
information, whether extracted and reported on by Congress, or sought
privately and directly from federal agencies, has been significant.
It is the very lapse in this regard, that has diminished the public's
understanding of the fundamental role played by Congress in freedom
of information matters.
need to examine the implementation of new laws, ranging from the
electronic amendments to the Freedom of Information Act to the qualifications
of the Chief Information Officers, little oversight has prevailed.
There has not been a hearing on the administration of the Freedom
of Information Act since 1996. Efforts to broaden the criminalization
of leaks of intelligence information have been pursued with a crisis
fervor. Ironically, these have been sought at the same time that
some of our government's intelligence and counterintelligence agents
have continued to sell valuable secrets in the face of espionage
laws that carry the death penalty.
It is vital
that Congress attend to the laws that in many cases have been written
as a blueprint for transparency but are being interpreted as a blueprint
for secrecy. Congress must fulfill the checks and balances responsibilities
of the Constitution in the exercise of its fundamental duties, including
probing deeper to produce more information about government activities
as part of the appropriations, authorization, and oversight functions.
it has been the politicization of the "power to probe," including
by committees historically associated with strengthening transparency
through oversight, investigation and legislation, that has instead
heightened intrabranch tensions between Congress and the eecutive
banch. Information access by congressional committees has increasingly
served as a fulcrum for investigations and partisan confrontations.
In recent years such access battles signal the first stage of congressional
inquiries in such areas as:
- White House
operations (travel office, security clearances).
- Federal intervention
at the Branch Davidian compound in Waco, Texas.
of the president of the United States.
style of probing, particularly in the absence of more substantive
programmatic oversight, has fostered resistance throughout the government.
increasingly on the defensive, whether responding to a request directly
from Congress or an investigative arm such as GAO, that information
being sought may be related to lurking congressional oversight or
public relations problems for the agencies. Withholding the requested
information is often viewed by agencies as a best defense. Indeed,
key agencies, including the departments of state and defense, have
formalized and restricted the availability of information by establishing
policies or authorizing officials to block, or, politely, but indefinitely
to restore its commitment to the checks and balances function and
recognize that its own efforts to the contrary undermine the proper
implementation of access laws on behalf of the public. Further,
they damage their own trustworthiness and transparency in the eyes
of federal agencies and the public.
The checks and
balances function necessary to create greater transparency of the
federal government requires that information access must be:
by congressional leadership and committee and subcommittee chairs
as a priority.
as a necessary commitment by agency heads and officials at the
outset of congressional requests for information, investigations,
as a singular and defined area of strategic importance to Congress
in fulfilling the checks and balances function.
as a singular and defined area for constructive engagement between
committee and subcommittee chairs with federal agency heads to
ensure communication, understanding, and responsiveness to Congress.
in confirmation hearings of new agency and department heads.
with the blueprint
While the above discussion of both the larger need for transparency,
together with specific recommendations and changes in the executive
and legislative branches of government, may only highlight some
of the core issues and needs, perhaps the larger question, from
the public's perspective, is how can something be built with this
and fulfillment is the province of those who have the most at stake,
including the media, access and right-to-know groups, and policy
specialists. Its success will depend on communicating directly with
the president, the executive branch, and the Congress to create
note to you:
The Blueprint for Transparency is a work in progress. We have presented
a draft at the National FOI Day Conference so that you can be a
part of the process. We want this report to serve as a statement
of principles, a strategy and resource document for those working
on improving and expanding access to information, and as an informational
and educational resource.
We would like
to hear from you about this statement, what should be added, what
should be changed, how it should be used, etc.
to the drafting committee through Paul
McMasters, First Amendment Ombudsman, The Freedom Forum, 1101 Wilson
Blvd., Arlington, VA 22209 or
We are eager to hear your comments.