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Access and technology: Change as an excuse for closure

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

03.13.00

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Information is the currency of democracy. The dilemma arising out of that truism now that technology has become the medium of exchange is whether some "currency" must be taken out of circulation to keep it from falling into too many hands too easily.

The increasing role that computer technology and the Internet play in information collection, dissemination and manipulation worries those who make policy on access to government information. These officials peer through the electronic mists and make out the looming shape of danger. Their fears focus primarily on threats to personal privacy and national security, which they promptly translate into rationales for new restrictions on access to government information.

As for those who just a few years ago hailed the digital age as the harbinger of a truly open society, they have quickly sobered to the reality that old habits and attitudes die hard for those who guard the gates to government information.

The First Amendment, the federal Freedom of Information Act, and state sunshine laws all enshrine the Jeffersonian principle of an informed citizenry as essential to a working democracy. These constitutional and legal guarantees form the hallmarks of an open society. They ensure access by the public and the press to information the government gathers and uses, ostensibly for our benefit. Without maximum access to government information, citizens have no way to effectively evaluate and monitor the processes by which laws and policies get made and enforced.

Even so, government officials continue to find it difficult to share the power that information represents with the people they represent. The ease and speed of access to information promised by computers and the Internet are harnessed as new excuses for not sharing the information. In reality, they are asserting that information in electronic form differs in essence from that in paper form, thus new rules and restrictions must apply.

This formulation has become increasingly acute since 1989, when the Supreme Court ruled in U.S. Department of Justice v. Reporters Committee that criminal rap-sheet information routinely available to the public in scattered local files acquired some sort of ominous power when collected in a central file at the federal level. The court essentially adopted the view of then-Judge Kenneth Starr, dissenting from a Court of Appeals decision in the case: "As I see it, computerized data banks of the sort involved here present issues considerably more difficult than, and certainly very different from, a case involving the source records themselves."

Thus spooked, public officials have year by year ratcheted upward their resistance to digital magic. Some measure of that resistance can be seen in a few recent developments.

  • Last summer, Congress reversed the 1990 amendments to the Clean Air Act and the requirements of the 1996 Electronic FOI Act by banning the posting to the Internet of the off-site consequences reports of 30,000 facilities manufacturing and storing dangerous chemicals. Millions of citizens living next door to these facilities thus were denied crucial information about those operations and their own safety because the lawmakers worried that criminals or terrorists might access the information, too.
  • A committee of the Judicial Conference ruled that an online news organization could not have access to financial disclosure reports for federal judges, information routinely and readily available to the public and the traditional press.
  • Two members of Congress have proposed legislation that would allow corporations to skirt FOIA requirements in order to share information about the nation's critical infrastructure.
  • Following the national panic, dozens of states are proposing new online privacy laws this session to protect financial records, medical files and accident reports, among other categories.
  • These actions in many instances not only defy common sense but also ignore laws and policies that already address the individual privacy and public safety supposedly at risk. And they come against a backdrop of a generally dismissive attitude toward the public's right to know.

    United Press International reported last week that tens of thousands of Freedom of Information Act requests to federal agencies were languishing in government in-boxes far past the required response time of 20 days — months or years afterward. For example, most of the 5,349 requests filed with the State Department in 1998 were more than a year old.

    Fulfillment policies and priorities vary widely from one agency to another. The Labor Department completely or partially denies 68% of the requests it receives while the comparable percentage at the Agriculture Department is only 5%. And federal agencies are not even in sync with their own policies. The appeals panels within departments often reverse the majority of original denials. For example, the rate of reversal in Labor, Interior, Commerce and State is more than 60%.

    "The fact that some agencies aren't coming close to meeting the time requirements in the law is completely unacceptable and obviously contributes to the public's lack of faith in the management of their government," said Sen. Fred Thompson, R-Tenn., who chairs the Senate committee that oversees FOIA request compliance. UPI reported that a House committee would hold a hearing on compliance with FOI laws soon.

    But ever since the Freedom of Information Act was signed into law in 1966, members of Congress, the press and citizen groups have had a difficult time of changing the culture of control and secrecy permeating the federal bureaucracy.

    The courts in general are loath to second-guess government officials who say that serious problems will arise if certain information is released. Scant attention is paid to the real damage that is done to public confidence and participation by shutting citizens out of the governing process.

    This deferential attitude is reflected in the Supreme Court's recent decisions upholding the legality of a California law that differentiates between users of government information and the federal Drivers Privacy Protection Act.

    While he was still a law professor, Supreme Court Justice Antonin Scalia wrote that the FOI Act was "the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit analysis ignored. ... We must, alas, set some priorities — and unless the world is mad the usual Freedom of information Act request should not be high on the list."

    Official attitudes like these, joined with inattention from the press and indifference from the public, create real barriers to full participation by the citizenry in their own governance. That, in turn, creates real barriers to good government and supported policies.

    There can be no denying that there are real risks that critical information could fall into the wrong hands. But there can be no denying, either, that there also is a risk in accepting unthinkingly the idea that only elected and appointed officials, and national security agencies, know best what the rest of us should know.

    At the least, these issues should be decided in a deliberate and open manner and with due deference to the principles of openness that have distinguished the United States from others for more than two centuries.

    "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both," James Madison wrote in 1822. That is why the access and right-to-know communities each year observe National Freedom of Information Day on March 16, the anniversary of Madison's birthday. One such observance will be held at The Freedom Forum's World Center in Arlington, Va., that day.

    Ironically, while government officials in the United States embrace ways to constrict the flow of information to citizens, a number of other countries have been using our laws as models for drafting their own guarantees of access to government information. Inevitably, they link access to government information as a fundamental adjunct to freedom of expression.

    They seem to recognize what too many of our own leaders do not: If the people are denied maximum access to the currency of information, then democracy is not only devalued, it is damaged.

    Paul McMasters may be contacted at pmcmasters@freedomforum.org.

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