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Congress must champion access

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center

07.11.02

(Editor's note: This is an edited text of a speech Paul McMasters delivered on July 9 at the U.S. Capitol during the presentation of the annual John E. Moss Award to a current or former member of Congress “who has demonstrated integrity, courage and dedication to the public interest.” Rep. David Obey, D-Wis., is this year’s recipient of the Moss award.)

On Independence Day, 1966, President Johnson took time out from holiday festivities at his ranch on the Pedernales to sign the Freedom of Information Act into law. If he had waited only a few hours more, a pocket veto of the legislation automatically would have gone into effect.

There was no press release, no ceremony, no special pens struck for the occasion. The chief sponsors were not invited.

It had taken 11 arduous years for Congressman John Moss of California to coax into existence a law that few in government liked or wanted. But the legislation finally made it through. This law providing meaningful access to government information embraced three democratic ideals:

• The First Amendment guarantees of freedom of speech and the press.
• Creation of a proper environment for the people to function as full partners in their own governance.
• The checks-and-balances role of Congress.

That was 36 years ago. But we never quite escape the clutches of history. It has a way of landing on us suddenly and hard when we forget it. And when it comes to the conditions that created the great need for the FOIA back then, the past has caught up with us.

The reason that Congressman Moss and his colleagues worked so hard and endured so much getting FOIA passed was that it had become next to impossible for members of Congress and their staffs to obtain access to even the most routine of information in the custody of federal agencies or the White House.

Today, the federal government, while attending to the formidable responsibility of waging a war on terrorism, has allowed itself to slide backward into history with an ever-widening array of restrictions on access. These new restrictions in effect have demoted both the public and the Congress as partners in the democratic process.

Once more, Congress is summoned to the crucial task of championing access to government information — a role mandated by tradition, by law and by the Constitution.

There is no question that in the world we live in today, there is some information that must remain secret to protect our national security. Beyond that narrow but important spectrum, however, the Congress, the public and the press should have maximum access to government information.

It is essential to the public so that we have true democratic decision-making.

It is essential to the press so that it can facilitate the flow of information among the three branches of government and the public.

It is essential to Congress so that it can provide proper oversight and accountability.

There always has been what some describe as a "culture of secrecy" in government. It is a natural thing because information is power; in some instances it is dangerous; in other instances, it may violate personal privacy or compromise an ongoing law-enforcement investigation. Responding to FOIA requests also is a drain on scarce resources.

But many restrictions on the flow of information in recent months have gone well beyond those considerations.

In addition, there is a theory afoot these days that to share information is to weaken the executive. That theory, in practice, may well be responsible for many of the current restrictions on access.

Finally, there is another reason for some restrictions: The horrors of Sept. 11. That tragedy provoked a serious re-examination of our information policies — a re-examination that was legitimate and necessary. There are some secrets that must be kept.

But many of the changes in access policies that have come out in the wake of Sept. 11 are not truly related to the war on terrorism; in many cases, they seem designed more to increase the comfort level of government leaders than the security level of the nation.

What has emerged is an environment where government is providing increasingly less information to U.S. citizens while demanding increasingly more information about them.

Many of these new restrictions impact directly on public access and in many instances the ability of members of Congress to participate in the making of policy and to represent their constituencies properly. To list a few:

• Just as it was to go into effect, the law providing access to presidential records was severely compromised by an executive order.
• Many in Congress had to learn about the formation of an emergency government by reading about it in the newspapers.
• The White House dramatically reduced the number of intelligence briefings for Congress and the number of members who could attend.
• The executive branch has resisted congressional attempts to obtain information on a variety of vital topics, including the energy task force hearings, the FBI's relations with mob informants, and the decision to relax restrictions on emissions from older coal-fired power plants and refineries.
• The attorney general's memo on implementation of the FOIA turned a presumption of openness on its head.
• The Justice Department has stonewalled attempts to get information about the detainees rounded up in the aftermath of the Sept. 11 attacks.

In addition, Congress increasingly is pressured to "incentivize" compliance with old laws and to spice up new laws by granting exemptions to the FOI and whistleblower laws. Examples include legislative proposals concerning critical infrastructure, the Transportation Security Administration and the proposed Homeland Security Department.

These developments raise several important questions:

• Do new laws, policies and executive actions live up to democratic principles, constitutional requirements and the true needs of national security?
• Are members of Congress providing insight as well as oversight in the formulation and implementation of access policies?
• How do we best affirm and ensure checks and balances among the executive, the legislative and the judicial branches and include the public and the press in the equation?

There are a number of ways Congress can address such questions: By commissioning a definitive study and public report calling for specific action, by creating a bipartisan caucus on access and accountability, by conducting hearings, or by establishing a joint select committee with FOIA oversight.

There are other things Congress can and should do to make access to information a priority in governmental life:

• Demand information from federal agencies and officials.
• Make information-sharing a priority.
• Conduct real oversight of FOIA compliance.
• Make federal agencies' FOIA performance a part of the budget process.
• Provide incentives for disclosure and penalties for non-compliance.
• Insist on discipline and rationality in classification authority.
• Harness technology to make government more transparent.

The key to bringing about change, however, is that the members of Congress themselves must care; if it's not important to them, it's not important at other levels and in other branches. Government information must be branded as crucial to democracy, to responsible governance and to freedom.

It really is up to Congress to create ways to protect access and to raise its value as a democratic principle.

It must embrace the idea that, except for very specific areas, information, not secrecy, is the best guarantor of the nation's security. There is danger in the dark.

And it must recognize that there always will be loud and persuasive voices raised on behalf of security, privacy and the protection of commercial interests — especially during times of national crisis — but there are no natural constituencies with the resources and organization to make the case for access and accountability.

That role falls rightly to Congress.

Democracy depends above all on public trust. Public trust depends on the sharing of power. And the sharing of power depends on the sharing of information.

That time-honored principle assuring the success of this ongoing adventure in democratic governance suffers mightily when the system of checks and balances becomes unbalanced and the role of Congress as guardian of access and accountability is compromised.