The Freedom of Information Act and the Ecology of Transparency

2012

Regardless of whether it comes under the guise of news management, the credibility gap, or government secrecy the basic question at issue is the control of information. The conflict over who is going to gain information and when it shall be made available arises in various contexts. A prime example of this problem is the Watergate scandal. In addition to the alleged concealment of information pertaining to criminal activity within the White House, the most serious aspects of Watergate revolve around the testimony regarding domestic surveillance and public opinion manipulation. N.Y. Times, May 21, 1973, at 1, col. 8. These charges represent serious challenges to our Constitutional structure and will only be resolved by a complete airing of all the facts. Questions concerning information and control of its dissemination have been posed to the courts in a number of cases. The two most significant are the trial of Daniel Ellsberg and Anthony Russo for releasing the Pentagon Papers, United States v. Russo, Criminal No. 9373-CD (C.D. Cal., Dec. 29, 1971), and the recent Supreme Court decision holding that newspapermen do not have a constitutional privilege to withold their sources of information, Branzburg v. Hayes, 408 U.S. 665 (1972). It should be noted that the charges against Ellsberg and Russo were subsequently dismissed. N.Y. Times, May 12, 1973, at 1, col. 8. These controversies highlight the fundamental constitutional considerations involved in the use of information and emphasize an unspoken premise of our system: the people have a right both to receive and to distribute information. 2 Gettysburg Address by Abraham Lincoln, Nov. 19, 1863. 694 FREEDOM OF INFORMATION of the governmental powers among three departments to save the people from autocracy. 3 In order to assure a government of laws and not of men they embodied their political philosophies into one great document, the Constitution of the United States. The first principle upon which this newly-formed government was to function was the basic concept of accountability. The Founding Fathers realized that only an informed populace could preserve the principle of accountability and thereby prevent concentration of power within any one branch. This concept was profoundly expressed by James Madison: Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. 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. 4 As government regulates daily life to a greater degree, the people's right to be more dearly informed about the activities and decisionmaking processes of government increases proportionately. The emergence of the United States as a world power after World War I, the Depression, and the subsequent technological and economic expansion led to greater governmental control and regulation. To meet these challenges effectively, a hybrid creature of authority evolved, viz, the administrative agency. Since these agencies were answerable primarily to the Executive and were not subject to the normal checks and balances of the three major branches of government, a problem developed regarding their lack of accountability. Many agencies were operated like miniature baronies and developed protective mechanisms in order to frustrate possible inquiry. In order to eliminate the paper curtain of bureaucracy, Congress attempted the formulation of a general statutory scheme to aid free access to knowledge of agency operations by enacting section three of the Administrative Procedure Act (APA). 5 Soon after its enactment it became apparent that, despite the clear intent of Congress, this statute was often being used as a justifica

Society, 1975

Wm. & Mary L. Rev., 1984

Radical History Review, 1982

For the past half century the tension between our constitutional freedoms and our over-achieving presidency has affected historians most deeply in the area of freedom of information. Now that the Reagan Administration has sought to tip the balance in favor of government secrecy, there is new cause for alarm. Historians, journalists, activists-indeed all citizens-count on an informed public opinion and a government accountable to its citizens. The Supreme Court has consistently held that an informed public opinion is a paramount public interest to be protected through the free flow of information to the people. (Thornhill u. Alabama, 1904; Garrison u. Louisiana, 1964; Time, Inc. u. Hill, 1967.) The court has repeatedly criticized the prior restraint of information except during wartime emergencies, when the survival of the polity demands secrecy. (Schenckv. US., 1919; Near u. Minnesota, 1931.) During World War I1 secrecy was codified for military purposes. Subsequently, President Eisenhower expanded the military classification system to include all government documents. But Eisenhower also believed that far too much material was classified and sought "to insure that no information is withheld from the people of the U.S. which they have a right to know." In response to popular efforts to make government more accountable and to the single-minded determination of Representative John Moss (D-Calif.), Congress passed the Freedom of Information Act in 1966. It soon became apparent, however, that the FBI, the CIA, and other government agencies were employing tactics of delay, evasion, and even outright defiance to frustrate users of the Act. In 1974, in the wake of the Pentagon Papers and Watergate, Congress strengthened the Freedom of Information Act. In its introduction to A Citizen's Guide on How to Use

Lewis & Clark L. Rev., 2007

Public Administration Review, 2011

The International Library of Ethics, Law and Technology, 2016

Advanced ICTs and biometry in mass-surveillance and border control is integral to the securitization agenda which emerged in the early 2000s. This agenda has been particularly instrumental in cultivating migration anxieties and framing the problem of threat as an imperative to identify those who are dangerous to public safety. As well founded as that may be, this framing masks the pivotal role ICTs have in the supervision and surveillance of industries and markets. ICTs are essential to achieve all four freedoms of movement in European market integration, i.e., of goods, services, capital and persons. They are essential to EU-US trade and investment relations which are increasingly underpinned by cross-border data flows. Drawing on mobilities research, this chapter explores how the mobilities of materials, commodities, markets and labour are simultaneously constrained and facilitated in reference to the obligation in Europe to protect yet another freedom of movement, that of data. Against efforts to better protect personal data in these flows, narratives of threat and emergency call for immediate action, whereby any data that can be intercepted can also be gathered for investigative purposes on the basis of exceptional circumstance. The securitization agenda finds its practical utility here in the hands of executive powers, avoiding the legislature and the judiciary. There is no evidence that authorities catch terrorists and criminals because of advanced ICTs in data intercept. The practical utility lies in the ability to target and investigate any individual, any political opposition or exercise in citizen rights to challenge the socio-economic and moral order. Under the circumstances, the only immediate defence available is self-censorship. Publics have no meaningful way of objecting to states of exception in which illiberal practices are legitimized, and neither does the legislature and the judiciary unless the checks on executive powers are adequately reined in.

Law and Contemporary Problems, 1976

Journal of Law And Politics, 1989

The various initiatives undertaken by the Reagan Administration in what has come to be known as the Iran-Contra affair have reignited an old struggle for control over foreign policy.' While the circumstances of this particular controversy are somewhat unusual, the strife between Congress and the Executive has endured, within certain boundaries, since the inception of the Republic. The contours of this debate are well known to anyone with a passing knowledge of the Constitution. Indeed, their familiarity risks obscuring the important principles which are at stake. Yet the sight of a rear admiral and a lieutenant colonel claiming exemption from the law and from political accountability in pursuit of national security goals" helped focus attention on the fundamental constitutional values implicit in the recent political furor. These values are nothing less than the political accountability of the military and the intelligence services, democratic control of foreign policy, and the rule of law. The assertion by President Reagan and his associates of remarkable executive prerogatives in the area of national security requires us to reconsider who, under the Constitution, is entitled to participate in the creation and implementation of foreign policy and how the distribution of this power between the branches of government preserves the delicate balance between secrecy and democracy.