Transparency

From Cyberlaw

While the collapse of the Soviet Union heralded the global triumph of the democratic values, among which openness is one of the most prominent, terrorism, business pressures and privacy protection remind that confidentiality is still holding out surprisingly well. And both—transparency and confidentiality—though opposite in details, boil down to the same aim—securing well-being of the society.

Before turning to the contours of the dark side, we shall explore the bright one first. It is universally recognized among the free nations that the sunlight in the public field eliminates corruption and unrests which government secretiveness ensues. It educates and comforts citizenry. As James Madison put it aptly "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. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives." (Quoted in Glen O. Robinson and Ernest Gellhorn, The Administrative Process, St. Paul: West Publishing 1974, pp. 791). The main component of the power given by the clarity comprises of self-restrain of the government, a prime mover of discipline and honesty among public actors. In somewhat different context (of malfeasances in the financial sector) Louis Brandeis, one of the most awed U.S. Supreme Court Justices ever, wrote in 1914 “publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman” (Louis Brandeis, Other People’s Money, and How the Bankers Use It, Chapter V: What Publicity Can Do, 1914, available at http://library.louisville.edu/law/brandeis/opm-ch5.html). None is, however, more outspoken on the matter than Aristotle himself. He noticed “above all, in every state it is necessary, both by the laws and every other method possible, to prevent those who are employed by the public from being venal (...) for then the people will not be so much displeased from seeing themselves excluded from a share in the government (nay, they will rather be glad to have leisure to attend their private affairs) as at suspecting that the officers of the state steal the public money, then indeed they are afflicted with double concern, both because they are deprived of the honours of the state, and pillaged by those who enjoy them.” ((Aristotle, 2004): 1308b). Having said that Aristotle proposes: "To prevent the exchequer from being defrauded, let all public money be delivered out openly in the face of the whole city” ((Aristotle, 2004): 1309a). Now, nearly 2500 years later, when the recipe of the great philosopher is turning into practice, the global web is on its way to assume the shape of the “face of the whole city”.

Even if it’s true that the web is not where the story of a free access to public information begins, before technologically propelled circulation and multiplication made sharing the public information feasible, before stampede towards freedom of information (FOI) acts surged in the last three decades of the XX century, there had been only two countries with the right to access public documents legally anchored and respected. It was Sweden, with an unbeatably long tradition of FOI legislation dating back to the Freedom of Press and the Right of Access to Public Records Act 1766, and the United States. In the third country – Colombia—the right was proclaimed by Code of Political and Municipal Organisation of 1888 (S. Lamble, Freedom of information, a Finnish clergyman’s gift to democracy, Freedom of Information Review 97 (2002): 2-8, http://members.optusnet.com.au/~slamble/freedom_of_information.htm) but in fact it was only a toothless declaration couched in legal terms and inconsistent with the everyday practice, a phenomenon pertinent to FOI acts in many places around the world.

I will get back to the Scandinavian approach towards transparency. But first the U.S. law in that field will be inspected, for in no other country FOI rights have been exercised by the broad society so extensively (According to a 2005 study by the Coalition of Journalists for Open Government only about 6 percent of requests came from the media). Nowhere have they been so heavily disputed in courts and interpreted by judges.

Freedom of Information Act of 1966 (FOIA), codified as 5 U.S.C. § 552, was much more than an expansion of previous common law or constitutional principle of the freedom of speech. In fact it was turning the previous pattern upside-down.

In 1965, just a year before FOIA was enacted, the US Supreme Court announced that “the right to speak and publish does not carry with it the unrestrained right to gather information” (Zemel v. Rusk, 381 U.S. 1, 17 (1965)). Pursuant to the US Constitution you can clamor over the government, but you can’t investigate it (“the First Amendment was seen as a means by which the public could confront its government, not necessarily report on its activities” - D.R. Pember, C. Calvert, Mass Media Law, McGraw-Hill 2004, pp. 308). More comprehensively the reasoning why the First Amendment has not been treated by courts as a validated basis for the right to access public information was neatly presented by the Supreme Court Justice Potter Stewart in his article published three decades ago: “So far as the Constitution goes, the autonomous press may publish what it knows, and may seek to learn what it can. But this autonomy cuts both ways. The press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. The Constitution, in other words, establishes the contest, not its resolution.” (P. Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975).

FOIA in fact was devised to produce the resolution. As the Supreme Court noticed, a "crystal clear" objective of the FOIA is ‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny’ (Department of Air Force v. Rose 425 U.S. 352, 372 (1976)). It is to “promote honesty and reduce waste in government by exposing official conduct to public scrutiny" (Anthony T. Kronman, The Privacy Exemption to the Freedom of Information Act, 9 J. Legal Studies 727, 733 (1980)). There is a major conceptual reason for promoting transparency at the expense of confidentiality in the public space, an issue which turned out to be the central theme of the statute. In a dissent to EPA v. Mink, 410 U.S. 73 (1973) (the case regarded a disclosure request of documents prepared for the President concerning a scheduled underground nuclear test; the majority esposed a broad confidentiality discretion of classified and inter-agency or intra-agency documents) Justice Douglas characterized the philosophy of FOIA by quoting Henry Steele Commager, a well-known historian "`The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.'" Id., at 105, quoting The New York Review of Books, Oct. 5, 1972, p. 7).

First, therefore, FOIA is about the knowledge “what the government is up to”. And second, “Congress "clearly intended" the FOIA "to give any member of the public as much right to disclosure as one with a special interest [in a particular document]." (NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978); FBI v. Abramson, 456 U.S. 615 (1982)). Honesty, which transparency brings about, is so socially important, even if general, that it alone provides legitimacy for the free access. Even though FOIA was devised to cover government (executive branch and all regulatory agencies), it also may encompass private actors. In 2002 the Supreme Court of Tennessee reversed a ruling of the Court of Appeals stating that a nonprofit corporation that contracted with the state to help administer a state-subsidized day-care program was not a state agency in the meaning of the state’s public records act. The Supreme Court concluded that the corporation operates as the functional equivalent of a government agency, so “all of its records are subject to the Tennessee Public Records Act and therefore are accessible by the public” (Memphis Publishing Co. et al. v. Cherokee Children&Family Service, Inc., 87 S.W. 3d 67 (2002), cited after D.R. Pember, C. Calvert, Mass Media Law, McGraw-Hill 2004, pp. 356).

Among its most important provisions FOIA establishes mechanisms disciplining officers or employees responsible for handling FOIA requests. Pursuant to 5 USC 552a.4.F “Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding (...)”.

Yet, nine exceptions that FOIA establishes are pliable enough to mould the main aim and enforcement guarantees according to current political climate, among which the post-September 11 cooling is the most striking. The Reporters Committee for Freedom of the Press summarised the trend by saying that “the atmosphere of terror induced public officials to abandon this country's culture of openness and opt for secrecy as a way of ensuring safety and security” („Homefront Confidential. How the War on Terrorism Affects Access to Information and the Public's Right to Know”, Reporters Committee for Freedom of the Press, foreword, 6th edition, http://www.rcfp.org/homefrontconfidential/foreword.html).

In consequence “government agencies began after Sept. 11, 2001, to remove information from their official web-sites, sites that are accessible to any Internet user. The kinds of data expunged included the location and operating status of nuclear power plants, maps of the nation’s transportation infrastructure, and information about chemicals used at industrial sites. This action stirred debate even among advocates of greater access to government-held data” (D.R. Pember, C. Calvert, Mass Media Law, McGraw-Hill 2004, pp. 326-327).

The process was propelled by the Critical Information Infrastructure Act of 2002 (CII Act of 2002), which excludes public acces rights to information that is voluntarily submitted to agencies covered by the act. The information can not be invoked in any civil action against the entity submitting it, and persons “leaking" any elements of CII can be prosecuted as criminals. Purportedly the CII Act of 2002 aims at removing from the public space the information most vulnerable to terrorist expoloitation. Yet, as a public interest organization ‘Public Citizen’ alarms, “the restrictions on access created by this new law create opportunities for abuse. Businesses may submit information under the Act to avoid being held accountable for regulatory violations that the government was about to discover. The law may also keep the public from learning about and debating how to address hazards that exist in facilities like nuclear power plants or chemical plants. Government officials and businesses that fail to address vulnerabilities in computer systems, telephone networks and other critical infrastructures cannot be held accountable if the information necessary to understand these problems is systematically withheld from the government.” (Public Citizen, FOIA and Homeland Security Issues, http://www.citizen.org/litigation/free_info/foic_lr/otherstatues/).

The CII Act of 2002 exception to FOIA (6 U.S.C. § 133a.1.A) corresoponds with the broadest of all the nine allowed by FOIA, i.e. Exemption 3: matters specifically exemped by another statute (the provision establishing FOIA Exception 3—5 U.S.C. § 552b.3—subjects its availability to one of two alternative conditions an exempting statute must fulfill: (1) no discretion on the manner the matters be withheld from the public or (2) establishment of particular criteria for withholding or reference to particular types of matters to be withheld).