Principles and Practice*
Mitchell W. Pearlman is former executive director of the Connecticut Freedom of Information Commission and is now a lecturer in media law at the University of Connecticut.
On January 21, 2009—his first day as President of the United States—Barack Obama wrote:
“The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.”
In this age of powerful computers and communications systems, governments all over the world still have not yet figured out how best to proactively and efficiently disseminate important information to their citizens. Notwithstanding President Obama’s statement, this is the case in the United States. And I strongly suspect that this is the case elsewhere as well.
So, in this essay I will discuss how governments can best decide what information they should proactively disclose, and how they can best go about doing so.
In this regard, it is first necessary to go back to the fundamental principles underlying all access to government information (i.e., Freedom of Information) laws. I will then address the issue of what must—or should—be proactively disclosed.
I will also look at some categories of government information that are typically proactively disclosed, as well as some considerations that should go into determining what may be proactively disclosed. And before concluding, I will look critically at some of the platforms for proactively disseminating government information, their benefits and limitations.
The purpose of all access to government information laws is to provide “transparency” so that people can see and understand what their government is doing. Thus, the presumption is that government information is open, unless specifically exempt from disclosure.
President Obama has also stated that government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. He says that nondisclosure should never be based on an effort to protect the personal interests of government officials at the expense of those they are supposed to serve.
Obama’s statement goes to the heart of what access to government information laws are about: accountability to the people government serves. For citizens need to know not only about government successes, but also about their failures, and about the misfeasance and malfeasance of government officials. In this way, public pressure can be brought to correct, remedy, and, if necessary, punish those responsible for the failures, errors or wrongdoing.
That is why it is important to note that one of the principal foundations of the rule of law is that people need to understand what conduct is required or permitted, and what is not. Therefore, they must know not only what laws, regulations and procedures govern them, they need to know how those provisions are being applied in particular situations.
Consequently, society as a whole—in addition to those immediately affected—has a significant interest in knowing all final decisions and actions of government officials and bodies, as well as the processes they used to arrive at their decisions and actions.
For example, Connecticut states in its administrative procedure act that no final decision may be relied on as precedent, until it has been indexed by name and subject matter, and made publically available. Connecticut also defines “regulations” (which must be proactively disclosed) to include internal management documents—such as internal agency manuals and guidance documents—that affect the rights of citizens or relate to agency procedures.
As a corollary to the presumption of openness, exceptions to public disclosure are to be interpreted narrowly. While some exceptions to disclosure are mandatory by law, and the subject information mustbe kept confidential, other exemptions to disclosure are merely discretionary. Information that is discretionarily exempt can be disclosed—and should be disclosed—unless there is a good reason not to disclose it.
It is not uncommon for government officials to forget that some exemptions are indeed discretionary and need not apply in a given case. They should be reminded of this fact often. Perhaps most important, officials should be encouraged and commended for their good faith efforts to disclose government information. They should not be reprimanded, punished or held liable for decisions to disclose government information made in good faith.
At the end of the day, governments have essentially two basic responsibilities under access to government information laws. First, they must disclose non-exempt information onrequest. Second, they must—or should—disseminate proactively the non-exempt information that their citizens need or want to know.
Officials everywhere often decide not to disclose information, precisely because of some vague or ill-defined notion that disclosure might be harmful to the government, society or particular persons.
To counter this all-too-common phenomenon, a “Foreseeable Harms” standard has been developed to help officials considering whether to proactively disclose government information.
The standard has three parts:
- Whether there is a foreseeable harm to the government, society or particular citizens, legal persons or other organizations in proactively disclosing the information
- If there may be such a harm, whether it can be clearly articulated and supported by facts—not just speculation or general fears and
- If parts 1 and 2 are met, whether there nonetheless is an overriding benefit to society as a whole in the proactive disclosure of the information
This “Harms” standard contemplates not only a rigorous analysis, but also a balancing of real—not imagined—harm against a perhaps greater public interest in the proactive disclosure of the information in question.
What Must or Should Be Proactively Disclosed
Mass dissemination of government information is an efficient and cost-effective means of providing citizens with information to which they are entitled. It often dramatically reduces the number of individual requests for that information by citizens, legal persons and other organizations.
For instance, when the United States Government placed on its websites vast quantities of information about “Unidentified Flying Objects” (UFOs), the number of Freedom of Information requests for such information reportedly fell by a magnitude of thousands per year.
Categories of OGI That Typically Must Be Proactively Disclosed
Access to government information laws often list broad, general categories of records or data that must be proactively disclosed.
For example, under Mexico’s Transparency and Access to Public Government Information Law, all applicable government bodies must proactively disclose—and make available on-line—among other things:
- A directory of their public servants and their remuneration
- The services they offer and
- Budget information
Also, access to government information laws often obligate government agencies to determine what information falls within the broad categories listed for proactive disclosure. In some instances, government bodies are even directed to add specific information to be proactively disclosed if there is a relatively large number of individual requests for that information. And many access to government information regimes authorize agencies to specificity additional information to be proactively disclosed through the promulgation of agency regulations.
Thus, the Federal Freedom of Information Act requires applicable government agencies to publish in the Federal Register such information as:
- The places where the public may obtain information, make requests and obtain decisions and
- Their substantive and procedural rules, statements of general policy, and interpretations of general applicability
In addition, each agency must also make available for public inspection and copying:
- Final opinions and orders made in the adjudication of cases
- Statements of policy and interpretations that are not published in the Federal Register
- Administrative staff manuals and instructions to staff that affect a member of the public
- Copies of all records which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records and
- A general index of the records that an agency has determined are likely to become the subject of subsequent requests for substantially the same records
These examples illustrate that modern access to government informationlaws now require government agencies both to proactively make certain records available for public inspection at their offices or in public reading rooms and to proactively disclose broad categories of information in printed documents and on government websites.
Considerations in Determining What May Be Proactively Disclosed
In making decisions as to what non-exempt government information should be proactively disclosed, here are some general considerations based on fundamental access to government information principles and international best practices:
- Is proactive disclosure required by law, regulation or policy?
- Is there an interest in the information by a significant number of people?
- Will the proactive disclosure likely prevent numerous individual requests for the same information?
- Is there a governmental or societal interest in the proactive disclosure of the information?
- Is there any foreseeable harm to the government, society or particular persons in proactively disclosing the information?
- If there is a foreseeable harm, is there nonetheless a greater benefit to society as a whole in the proactive disclosure of the information?
- If a portion of a record or collection of information is exempt from disclosure, can that portion simply be redacted?
The “Deliberative” Exemption
Some of the foregoing considerations require further discussion.
Many access to government information laws contain an exemption for pre-decisional information and documents. These are called “deliberative” exemptions to disclosure.
The primary reason for this exemption is to theoretically encourage full and frank pre-decisional discussions among government officials, and among those officials and their staffs.
Once the decision is made, however, the reason for the exemption is often obviated. While pre-decisional discussions may, in an agency’s discretion, remain confidential, those discussions should be made public if they help the public—and the government officials responsible for implementing the decision—better understand the decision.
In any event, the facts the agency relied on in making its decision—as well as the reasons underlying the decision itself—should be made public to help the public and government officials better understand the decision.
Consequently, the best OGI practices include provisions making a “deliberative” exemption:
- “Temporal”—that is, limited to the pre-decisional time frame, and
- Discretionary, or
- Subject to a “public interest override”
Redaction of Exempt Information
The word “redaction” is an old publishing term. It means the deletion of some material before publication. In the access to government information context, it means the removal, deletion or masking of information that is exempt from disclosure before disclosing the remaining non-exempt information.
Redaction is a long established—and internationally recognized—means of complying with the underlying principle of maximum public disclosure without violating any provisions requiring confidentiality. An example of redaction would be the proactive disclosure of a government report listing the hazardous chemicals stored near a population center, but deleting the portion of the report that describes the secret manufacturing process in which those chemicals are used.
Notwithstanding the legal requirements mandating redaction—and the concept’s obvious benefits in complying with access to government information laws—officials everywhere often fail to utilize the technique. It seems that they either do not understand the concept itself, or they simply choose not to disclose the information, and use an exemption applicable to one portion of the information as an excuse to withhold the entire document from the public—including the non-exempt portion of the document.
Indeed, the public itself may not understand the requirement for redaction and therefore may not insist on its use.
So what can be done to address this problem?
First, government officials need to be made aware of what redaction means and their obligation to redact only the exempt information from a document, while disclosing the remainder of the document. Consequently, educational material and training need to be made available to all officials responsible for proactively disclosing government information, as well as those responsible for providing that information on request. Educational materials and training should also be made available to the general public, so that people can insist on its use where appropriate.
These efforts not only need to be undertaken by government information personnel, they need to be strongly supported by government leaders at all levels—not just with words, but in concrete ways.
Platforms for Proactive Disclosure of OGI
In theory, the availability of vast quantities of data in government databanks and on-line is a good thing. It remains to be seen, however, whether—and to what extent—the proactive disclosure of government information actually aids or hinders the process of accessibility to important information by creating the metaphorical equivalent of finding a needle in a haystack.
Governments at all levels now have computer systems that can store and make available enormous amounts of data. But is government really performing its essential role of providing needed public information if it merely places that data on-line, knowing full well that a person must have a computer, a degree of technical expertise, and perhaps a significant understanding of government records and operations, to be able to locate specific information in the “electronic haystack” of government information?
The obvious answer is that “data dumps” are only useful to the few who have the time, the hardware and software, and the expertise, to “mine” what is useful, and to disregard the rest.
While data dumping is certainly a problem, the far more serious problem is government not proactively disclosing important government information through media—and in venues—easily accessible to the vast majority of its people.
Mexico—which many consider to have the finest OGI regime anywhere in the world—presents perhaps the most interesting case.
Mexico is a large country with a dispersed population. Its transportation and communication systems outside the capital of Mexico City are often unreliable and relatively expensive. For this reason, Mexico’s Transparency and Access to Public Government Information Law relies heavily of the Internet for the proactive disclosure of government information.
All government information requests and responses are handled electronically through a computer network called “SiSi” (meaning “Yes, Yes” in Spanish).
Through the SiSi system, anyone can research and have electronic access to all government information provided through individual requests. In addition, Mexico’s Federal Access to Information Institute (IFAI) monitors requests for government information through SiSi, and if it discovers repeated requests for the same information, it can order the relevant government agencies to proactively post that information on-line.
However, consistent Internet access in Mexico is available to only about 20% of the population. Consequently, the benefits of Mexico’s brilliant centralized Internet platform for the proactive disclosure of government information is far from being fully and effectively utilized.
Thus the question becomes, what platforms are best suited for the proactive disclosure of government information?
The answer, to my mind, is simple: the more platforms the better and different platforms may be advisable for different needs and different communities.
Here are some of the principal benefits and limitations of the most common platforms for the proactive disclosure of government information.
- Can potentially reach a large audience at a relatively inexpensive cost
- Can provide quickly and in a user-friendly way important government information, such as emergency information, draft and final versions of laws, regulations and decisions, and notices and schedules of public meetings and hearings
- Can provide timely notice of government meetings and public hearings, facilitating public participation and comment
- Can apprise the public of the existence and location of voluminous reports and other material that may be of interest to only a relatively small number of people
- Significant initial startup costs for development, equipment and personnel
- Significant personnel time to keep web sites updated
- Availability of adequate Internet bandwidth
- Accessibility of Internet and competent usage by target population
- Data dumping of unimportant and unuseful information
Official Registers and Other Compilations of Government Documents
- Can be published both electronically and in hardcopy
- Can be distributed where Internet access is not available or limited
- Can include voluminous material that may be of interest to only a relatively small number of people
- Can be voluminous and difficult to find important information
- Relatively expensive to publish in significant numbers in hardcopy
- Usually have limited readership
Government Reading Rooms and Libraries
- Traditional places where citizens expect government information to be made available to them (e.g., government offices, public libraries, community centers, etc.)
- Facilities for reading rooms in government buildings and public libraries are available in many areas, including areas where Internet access is not available or limited
- Can be used for access to proactively-disclosed OGI either in hardcopy or electronically through the use of public computer terminals
- Relatively inexpensive to establish and operate
- Usually serve a limited number of visitors
- Can potentially reach a large audience at little or no cost
- Reaches citizens who utilize print, broadcast and Internet as their primary sources for information
- Some news media may misconstrue or improperly edit the information provided
For the reasons mentioned, proactively disclosing government information is both a legal obligation of government and undoubtedly the most efficient and cost-effective means of providing important and useful information to citizens.
Unfortunately, many government officials shy away from disclosing information because they fear they might inadvertently reveal secret or confidential information. And that, of course, is a legitimate concern.
But in most instances, their fears have proven to be ill-conceived, speculative and unfounded, if not outright disingenuous. That is why officials have to be constantly reminded of their duty to abide by the guiding principles underlying all access to government information regimes—that is, there is an overriding presumption that all government information is open to the public unless specifically exempt from disclosure.
Consequently, exceptions to the disclosure of government information are to be interpreted narrowly—not broadly. In addition, some exceptions to disclosure are mandatory by law—and the subject information must be kept confidential. Other exemptions to disclosure, however—such as the “deliberative” exemption—can be merely discretionary, in which case the information may be disclosed—and should be disclosed—unless there is a good reason (e.g., a “foreseeable harm”) not to disclose it.
Educating and training government officials of their responsibilities under access to government information laws is often a difficult and arduous task. But it is a critical one if there is going to be real transparency and a government that is truly accountable to the people it serves.
In the final analysis, although the active support of government leaders and government information personnel at all levels is essential to the success of every access to government information regime, it is ultimately a shared responsibility of all government officials and all members of civil society.
*This essay is based on lectures the author presented in September 2012 at Peking University Law School and China University of Political Science and Law and co-sponsored by Yale Law School’s China Law Center.
Mitchell Pearlman currently serves on the NFOIC board of directors. In 2009, he was inducted into the State Open Government Hall of Fame.