Saturday, January 24, 2009

Presuming the American people has a right to know about the workings of their government

Transparency and openness are crucial to democratic government. Information generated by public agencies is not the private property of bureaucrats and politicians to hide from the public. Restrictions on information keep the public in the dark as to what their government is doing and can cover up incompetence and wrong doing. With the possible exceptions of certain information pertaining to criminal investigations, national security, and individual privacy the public should have complete and timely access to all government documentation. That certainly was the intention of the passage of the Freedom of Information Act (FOIA).

However, control of information is power and that power has not been given up without a struggle. Since the passage of the original FOIA successive administrations have swayed back and forth on how to interpret the requirements of the law. The Bush administration took an extremely restrictive view of what the American people should be allowed to know about the workings of their government. Fortunately, President Obama believes the American people can be trusted with that knowledge and has instructed federal agencies to err on the side of openness.

This is from Fred Kaplan in Slate:
It has received the least attention of his first-day decisions, but President Barack Obama's memorandum on reviving the Freedom of Information Act stands as the clearest signal yet that his campaign talk about "a new era of open government" wasn't just rhetoric; it's for real.

The key phrase comes right at the top: "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails."

Later in the memo: "All agencies should adopt a presumption of disclosure. … The presumption of disclosure should be applied to all decisions involving FOIA."

Furthermore, "In responding to requests under the FOIA, executive branch agencies should act properly and in a spirit of cooperation, recognizing that such agencies are servants of the public." In fact, "All agencies should take affirmative steps to make information public. They should not wait for specific requests from the public."

This could not be clearer. The new president was calling for a complete reversal of the Bush administration's directives on this matter—and a restoration of the Freedom of Information Act's original purpose.

The Bush era's tone was set in October 2001, when then-Attorney General John Ashcroft issued a memo to all federal agencies, assuring them that if they were sued for refusing to release documents under the FOIA, the Justice Department would defend them in court as long as their decision had a "sound legal basis." This reversed a guideline, signed by President Bill Clinton in 1993, noting that the Justice Department would defend agencies' refusals only if releasing the documents would cause "foreseeable harm."

Ashcroft's guidance was reinforced in March 2002, when Bush's chief of staff, Andrew Card, issued a memo urging agencies to protect information that was "sensitive," even if it was unclassified.

Both memos were written in the aftermath of Sept. 11; the impulse behind them was, up to a point, understandable. However, the bureaucrats who control the documents—cautious by nature and sensitive to signals from on high—took the memos as cues to tighten the lid not just on legitimate national-security secrets (which the FOIA had always exempted from routine disclosure) but on everything.

The consequences were dramatic. From 1995 to 2001, federal agencies declassified 1.15 billion pages of documents under the Freedom of Information Act—an average of 190 million per year. From 2002 to 2006, after Ashcroft issued his memo, agencies declassified 182 million pages in total—an average of just 36 million per year, less than one-fifth the volume.

Even these statistics understate the stranglehold because, in many cases, even after the documents were declassified, the relevant agencies—the Pentagon, the CIA, the SEC, or whatever—refused to release them.


The Obama memo doesn't lay down new law. But it does order his attorney general and his budget director to devise new guidelines and regulations, which will have the force of new law—guidelines based on a presumption of disclosure, the exact opposite of the Bush-Ashcroft guidance.

Again, a presumption is not a requirement; the statute's exemptions covering genuine national-security secrets will no doubt remain in place. But presumptions matter to bureaucrats; they lay down what is expected; they set the boundaries of safe behavior. Under Bush-Ashcroft, the presumption was: When in doubt, classify and lock the archives down. Bureaucrats are always in some doubt, so they slammed the vaults and hid the keys. Obama is saying: When in doubt, if there's no demonstrable harm, open the gates. …
The bottom line -- democratic government should not be conducted behind closed curtains. This is a good beginning for the new administration.

You can read Kaplan’s entire piece here.

1 comment:

Jim said...

Indeed, we need to open up those government curtains. There are other curtains that need to be opened up. For example, a financial institution needs to make clear what is happening to a customer's or investor's money; many statements leave stuff out or don't tell the whole story. The same with computer programs, the legal system and many other things.