Senior Vice President/Executive Director, First Amendment Center
Saturday, May 12, 2012
As prepared for delivery
Good afternoon … it’s good to be with you.
There is of course great affinity between the First Amendment and freedom of information … FOI is the fuel that drives the engine of America’s core freedoms ... the rights contained in those remarkable 45 words – particularly the right to speak and write freely, and to assemble and petition the government for change – depend on information freely available and freely obtainable, so that we – the citizens who are the ultimate authority -- can hold informed opinion and offer informed advice to our elected officials, make informed choices about candidates and proposals … and at times, hold strictly accountable those officials and others in power.
Of course, I am aware that I am speaking to the choir with such words. … But that’s ok. Sometimes, with the daily chores involved in preserving, protecting, extending and using freedom of information laws, we need summits to take time to look up from the tasks at hand and consider the larger purpose and value of that work.
In that vein, let’s spend a few moments not so much on the details but the atmospherics about freedom of information in today’s society.
In so many ways, as some of your opening panelists have said, we live in a time when information is more available, easier, than ever before. We have laws now nearing a half-century on the books that safeguard our rights to basic information and access to the records and details of how our government functions.
But there are other trends wafting through our society:
- National Security, a catch-all circumstance that has sheltered illegal wars overseas, criminal conspiracies more than a few times, simple incompetency, holds sway in a post-911 era … keeping information out of the hands of Americans on subjects as diverse as historical data about 1961 Bay of Pigs invasion of Cuba, arrests and trials of terrorists that really do threaten our nation’s security, and today’s relationship between Google and the National Security Agency;
- Privacy, a legitimate concern in a world where the mere swipe of a card or tap of a keyboard can expose one’s life … but also an excuse for secrecy by those who turn legitimate public interest into some kind of invasive specter … and in the process keep citizens from tracking the actions, decisions and outcomes of bureaucrats and those with agendas having nothing to do with public interest.
- A fear of new technology, which ought to be empowering a new generation of Americans to track the actions of those to whom we grant temporary authority, from police on the streets to those who keep the nation’s file cabinets … but which instead has prompted spasms of arrests and intimidation – think camera phones and police – or new techniques of delay and denial with it comes to opening up those file drawers.
Lest I get too negative, too soon anyway, let’s consider some of the victories:
- There are those in Congress who are pushing for faster, better responses to FOIA requests. Taking a longer view, there are new systems to bring information over the Web directly to those requesting it, in fuller fashion than when FOIA came into being in 1966.
- In states, even as some information … gun registrations … are closed to public view, advocates and officials are pushing for more openness:
The public good that open information and access does cannot be questioned:
- From advocacy groups such as OMB Watch and OpentheGoverment.org, comes oversight, legislation and information that otherwise never would see the light of day.
- From journalists and bloggers and citizen videographers come disclosures of police impropriety and misconduct, and stories that hold our public institutions accountable, as my colleague Ken Paulson noted in a commentary on our Web site during Sunshine week a few weeks ago.
- In Sarasota, Florida – and I would note, in Milwaukee as well – newspaper reporters reviewing thousands of documents exposed officers with extensive records of public complaints, often a series of minor reprimands … still on the job;
- A Los Angeles Times report showed that its review of official records showed tens of millions of dollars of waste on inadequate flood planning, cost overruns and poor construction;
- A New York Times investigation showed 13,000 allegations of abuse in ONE year in some 2000 state-run group homes … with fewer than 5% of those incidents reported to police.
A Bloomberg News investigation of thousands and thousands of documents about the Federal Reserve … talk about a secret agency … to produce a stunning report, the “Fed’s Trillion Dollar Secret” that exposed for the first time what happened in those opening months of the government’s response to our fiscal collapse a few years ago.
There’s one more example of the power of access to information that I want to note before moving on …. And it’s one I suspect is closer to the heart of those in this room than some other mega-disclosures.
Jonathan and Susan Austin run a small newspaper … and I mean small newspaper … in Burnsville, North Carolina, the Yancey County News.
They recently were chosen, by me and others, over some of the news operations mentioned earlier, to receive the 2012 Edward Willis Scripps Award for Distinguished Service to the First Amendment, for their work in 2011 exposing the activities of a closely-held, secretive and politically incestuous county government.
Though the use of public records (and good reporting) they found a pattern of deception and fraud in absentee balloting. Even their methods were newsworthy, in my view: Picture this: absentee ballot records spread over the kitchen and living room floor.
The paper also has reported on a deputy pawning official weapons in nearby counties -- apparently not a new practice.
Despite roundabout threats to the economic health of their newspaper, and direct threats to their personal safety, access to records and inherent danger in that town of – perhaps for the first time – holding public officials accountable to the public, Jonathan and Susan Austin are making a difference for their fellow citizens.
Freedom of Information fueled the Yancey County News. And it benefited many citizens there who could not or would not stand up for themselves and their rights.
Back to atmospherics … and to a bit of irony of the information age brings us to the era of what may be FOI 2.0 though perhaps for some of you, it’s 32.0.
As I and others have noted, never before has so much been available to so many, in such detail and with such ease.
But two months ago, the Society of Professional Journalists surveyed Washington DC based reporters about FOI. The headline on that survey: “Overwhelming frustration from journalists trying to interview federal employees or get basic information for the public.”
Among the reasons for that overwhelming frustration:
- Pre-approval: Three-quarters of the working journalists reported that they have to get approval from public affairs officers before interviewing agency employees.
- Prohibition: Two-thirds of reporters said agencies outright prohibit reporters from interviewing agency employees some or most of the time.
- Monitoring: About 84 percent said their interviews have been monitored in person or over the phone by government public information officers. “They sit right next to the person I am interviewing and oftentimes jump in to make a comment or interfere with the conversation,” one respondent stated.
Just yesterday, a federal judge upheld a CIA determination that a volume of the CIA’s history of the Bay of Pigs attempted invasion of Cuba would remain secret … simply because that internal assessment was simply a “draft” … frankly, a mere dodge, using a technicality to hide what the agency itself said would support a book by former CIA officers about the incompetency they saw first-hand in this operation.
Embarrassment ought not be a reason for secrecy.
And also yesterday, a federal appeals court sided with the NSA in rejecting a FOIA request from the Electronic Privacy Information Center seeking information about communications between Google and the spy agency.
The NSA is prohibited from domestic operations. The appeals court said that even confirming or denying such communications was beyond the reach of FOIA.
In its opinion, the court noted that by law, the agency is not even required to make a specific showing of harm to national security to justify withholding information.
Surely there is an interim step possible, in which an appropriate judicial body – as we have in other areas – could review such a showing of harm, to determine if the agency is protecting national security or, to be blunt about it, its own backside.
Back to the topics at hand:
Is it so much to ask that the very experts we pay with public funds speak openly to the public? Is it reasonable to deny their expertise to us … for what, frankly, far too often has to do with political convenience or ideology than anything else?
You and I may be concerned about clean water in our community, and capable of making choices on technology, funding and goals … but we likely will need that expert to talk with us about the meaning of daily results of sampling, about the latest scientific standards and thinking about the quality and extent of filtering, levels of chemicals and elements and the like.
The world of FOI 2.0 -- an increasingly complex world – is about access to experts as much as information.
And from SPJ to the Union of Concerned Scientists to the Environmental Journalism Association to groups like the Reporters Committee, this newest battleline is being drawn.
Our public experts and officials should expect tough questions and provide detailed answers. That can only happen when we – the public and its representatives and advocates outside government – have the information necessary to ask those tough questions.
The Obama campaign promised to loosen restrictions on the use of FOIA from earlier administrations. On Day One of the president’s term, he signed a document pledging more openness.
But meetings to discuss open government have been closed to the public. So-called “leakers” of information are sought and prosecuted with breathtaking enthusiasm. And a government ombudsman empowered to recommend new ways to open federal records produces those tepid advisories only under the threat of congressional committee action.
Despite more information and data being placed online, it just seems more of the same …
All of this is not to say that the First Amendment and FOI community always speaks with the same voice -- just look at the varied reaction to the Citizen’s United decision by the U.S. Supreme Court.
Dare I say there are divisions in this very room and at this Summit over whether that decision advances or harms the public interest. From my First Amendment perspective, I must say that I think the court got it right: The court held that citizens – united in whatever way – have a right to speak out on the election of certain federal officeholders.
The court acknowledged the decision might well open a floodgate of spending, but that corporate voices were not to be denied a spot in the marketplace of ideas simply because those voices were well-funded or particularly effective.
My issue with Citizens United is not with the immediate effect, but with the system that permits me and you to see its impact, to trace and track the sources of the spending unleashed.
Once again, the antidote to speech you or I might not like is not less speech, but more … and in this case, that rests with more transparency, more accountability.
I continue not to understand that when it’s a fact that a personal check I might write here in Madison today will show up in my checking account at home almost immediately, including an image along with the information, why it takes so long to get a report on who is giving what to whom in a political election.
The answer, of course, is not in the technology, but the political will to make that happen.
Harnessing transparency technology to well-crafted FOI legislation requiring specific information would let us know if that “grass-roots” campaign or petition is really rooted in our home town or state sod, or merely the creation of the equivalent of filmmaker Mel Brooks’ multinational conglomerate “Engulf and Devour.”
In this new era of FOI 2.0, we need to:
- Take back the public image of FOI. Keeping public information held by our government, whether it’s new business startup data or drivers’ license information, or autopsy results, or water quality standards … or the multi-national agreements being crafted in the Trans-Pacific Partnership talks … is not invasive, harmful or destructive of personal privacy. It is the only way we can assess how well or not government is doing its job, and root out the careless, the incompetent or corrupt.
- Access to information must also mean access to the information experts … those most-well-informed about important information must feel a duty to tell us what they know;
And freedom of information laws need to be observed in practice as well as simply noted on the record books.
I would urge all of you … at a time when the debate focuses on how much Big Brother knows about us, from official records to Facebook entries or twitter tweets, to be even more focused on reminding our fellow citizens of what our founders knew: That even government of the people may not always be for the people, that transparency and open government may at times be inconvenient for the governors, but always is essential for the governed.
I salute all of you gathered here to consider the fate and future of freedom of information. It is not hyperbole to say that you also are considering the fate and future of your hometowns, your states and the Republic.