FOI After 30 Years: Time for More Sunshine
FREEDOM OF INFORMATION AFTER THIRTY YEARS:
TIME FOR MORE SUNSHINE
By Robert J. Freeman
Executive Director, NYS Committee on Open Government
Having worked for a New York state agency for less than six months, I was surprised to receive a call in which I was asked whether I would consider being loaned temporarily to a new office created to oversee the state’s recently enacted Freedom of Information Law (also known as “FOIL”). When I said that I didn’t know anything about that law, I was told, “that’s ok, nobody else does, either.”
That was August of 1974, just before FOIL went into effect. The passage of FOIL came on the heels of Watergate. It was a time of reform and change. Congress that year passed a series of sweeping amendments to the federal Freedom of Information Act (FOIA). The legislation was vetoed by President Ford, and his veto was overridden. The override indicates just how serious Congress and the public were about guaranteeing the public’s right to know what the government is doing. Within a few years, every state had enacted some sort of an open records law, and now, in 2005, FOI laws have become integral to the relationship between the government and the public.
The federal FOIA receives a great deal of attention, both positive and negative. It has been used by members of the public, the news media and the private sector to acquire millions of records relating to myriad subjects, such as consumer products, government contracts, environmental tests and closed criminal cases. Perhaps more important to the average person, however, are FOI laws that apply to state and local government. Most of us have few real connections with the federal government; our only direct activity may involve filing tax forms with the IRS. In contrast, most of us at some point in our lives have a need to obtain records from the government agencies closest to us. We may need access to records to challenge the tax assessment on our homes, to find out whether our child’s math teacher is in fact certified to teach math, to learn of the effects of the new proposed development in our community relative to traffic, tax breaks or burdens, overcrowding in our schools or the use of our resources.
Our FOI laws clearly provide us with rights of access to innumerable records that contain information important to our well being. But as we celebrate Sunshine Sunday, we should ask: are they adequate? Probably not, and as we study newer FOI laws enacted in other countries, we learn that we are falling behind.
For years, FOI laws were, for the most part, unique to the United States. In the past decade, however, they have proliferated. At last count, nearly sixty nations had enacted some sort of law granting public access to government information. An event held in February in Mexico, the Third Annual International Conference of Information Commissioners, included government officials responsible for the implementation of FOI laws from approximately forty-five nations. Also in attendance were representatives from numerous interest groups, non-governmental organizations (NGO’s). All told, 420 people from every corner of the world gathered to discuss issues involving FOI. No one in 1974, 1984 or even 1994 could have dreamed that so many would come together to focus on FOI, and the event was exciting and exhilarating.
The conference served as a showcase for the Mexican FOI law. Mexicans and others have studied our laws, gained from our experience, and learned from our mistakes. In many ways, they have jumped ahead of us in the United States. When our FOI laws were enacted in the 70's, high tech was an electric typewriter, and we used carbon paper to make copies. While our laws have in some instances accommodated change, Mexico, for example, has built information technology into its law. During the first year of its implementation, 40,000 requests were made, and among them, 36,000 were made and answered via email. Moreover, federal agencies in Mexico receive requests anonymously; they cannot make judgments based on the identity of the person seeking records, or his or her status or interest. Rather, they have ensured that a determination to grant or deny access is unbiased and based on the presumption that records are accessible, unless a legal exception to rights of access can be asserted.
The Mexican law also requires that a variety of records critical to guaranteeing transparency are available on government websites and accessible without ever submitting a request. In a nation known for corruption, a decision has been made to make all government contracts awarded, as well as the bids, available online. Its leaders clearly recognize that secrecy conceals mistakes and that a strong FOI law deters bad behavior and enhances the integrity of government.
One commentator at the conference described our American FOI laws as being in a “decadent phase.” Too often, requests are ignored or answered months or years following their submission. Also disturbing is the fallout from 9/11 and the irony that federal agencies answered three million FOIA requests last year, but during the same period, that fourteen million new records were determined to be classified national security secrets.
How do we enforce our FOI laws and challenge foot-dragging and claims of secrecy? In the U.S., we go to court. The problem, though, that it takes time and money to initiate a judicial proceeding, and most people are simply unwilling or unable to do so. Our colleagues abroad know that court review may not be the best answer, and they have created alternative enforcement mechanisms that work. In Mexico, the FOI law includes the creation of a five member commission that has the duty to train, educate, decide disputes and determine rights of access. After seventy-five years of one party rule, the commissioners know that this is the time for reform, and that their decisions must be apolitical and straightforward. Otherwise, they know that their credibility will be lost and they will fail. In Canada, an information commissioner has the power to mediate, subpoena records, hear arguments in private for and against disclosure, and recommend a decision regarding access. Although his recommendations are not binding, they are accepted and approved in nearly all cases, thereby greatly reducing litigation.
The time has come for Americans to realize that our FOI laws, while unquestionably valuable, are not as strong as they should be. We must insist that our leaders distinguish between the likelihood of real harm as opposed to mere embarrassment when determining which records should be classified. We must acknowledge the need for independent review of government claims of secrecy. We must modernize our laws so that everyone can take advantage of technology that can enhance the public’s right to know. And we must to provide realistic means of enforcing our laws so that average people can assert their rights in a meaningful way.
At the end of the conference in Mexico, a Declaration of Cooperation was signed by information commissioners representing forty-five nations. One element of the Declaration asserts that “Participation in the knowledge of public entities is a legal right of the information society....A transparent public administration, open to citizen participation in its decisions, is prerequisite of a modern democratic society.”
That message should serve as a reminder of our principles and a catalyst to strengthen our laws.
