Transparency and public trust
In a democracy, citizens are the governors and the governed. Nothing is more essential to the concept of self-governance than access to government information. Yet, the pathways for access have been shaped historically into a maze of channels, created by none other than citizens at the controls of our own democratic government. People are not the only ones lost in this maze. It obscures the central importance of openness of transparency to the furtherance of democratic ideals. What is needed is a blueprint for transparency that fosters the vital flow of information between the governors and the governed in our democracy and which heightens awareness of the necessary link between transparency and public trust.
Where information is not disclosed to the public, government has failed to exercise the best means of maintaining public trust and dispelling distrust. When government activity is conducted in secret or access to relevant information is denied, than public support for and confidence in the resultant laws and policies is compromised.
The constitutional solution
It is difficult to disagree with the ethic of public trust in a democracy, and it may seem most evident that the blueprint for transparency we need already exists in the United States Constitution. After all, the Constitution establishes the three branches of government, serves to elect, as Abraham Lincoln described it, a "government of the people, by the people," and amply empowers Congress with authority to provide "checks and balances," as James Madison described it, over the executive branch.
Indeed, it would also appear that the First Amendment guarantees interaction positive and negative between the governed with the governors. This is not limited to the freedoms of speech and press, but importantly includes the right to petition government for change. In order to be a full partner in the governing process, however, citizens must have access to sufficient information to determine whether a change is needed and, if so, how to most persuasively make the argument for that change.
The drafters of the Constitution grasped the need and desired the advantage of secrecy. Article One allows Congress to keep a secret journal and contains the immunity clause that prevents Members of Congress from being questioned about their legislative activities outside of the Congress. So, while the Constitution provides an invaluable and irreplaceable governing framework, it does not guarantee transparency in its governing activities. In fact, transparency can only be ensured if elected representatives recognize and embrace the inherent value of their constituents' access to government information.
Technology and transparency
The framers of the Constitution could not have ever imagined the revolution in information technology that has transformed society into information hungry masses that, together with the ease of implementation and access to such technology, have rapidly transformed how government conducts business. This includes many aspects of sharing valuable knowledge and services with the public. The speed and extent to which Internet technology and the World Wide Web have been integrated into government would shock even the most ardent reformer with its enhancements to the quality and effectiveness of our government.
If the Constitution operates more as a framework than a blueprint, surely the Internet and World Wide Web provide the information infrastructure that obviates the need for such a blueprint does it not? Clearly technology has both created and ensured transparency for now and the future. Clearly technology depends upon transparency to continue its lightning-fast growth.
Congress and federal departments and agencies now provide a welcome largess of information and services through the World Wide Web. That is a significant contribution to government in the sunshine. While some sites are what Web designers merely call "brochureware," others truly advance the public missions not just the public relations mission of our government. Transactions are conducted more efficiently (from procurement to passports) and computer technology creates stronger systems for tracking and storing information.
Nevertheless, transparency however boosted by new technology, information systems, and public demand for electronic information requires the effective operation of many longstanding laws, regulations, and policies relating to the accountability of the federal government. The Constitution may be considered an early framework, but it remains the foundation on which to build.
Arguably, transparency in the realm of technology raises more questions than it answers. Not surprising, a government that has become larger and increasingly insular, has also rushed to regulate, creating, among other things, a mudslide in cyberspace over speech, privacy, and access that has only added to the layers of difficult issues.
Consistent with and characteristic of our democracy, the difference in the quality of transparency in government has been made by people. Our leaders can make a positive difference by making public access and respect for and implementation of the laws, by making access a priority for everyone who works for them, and by making policies comply with the principle of openness. Elected and appointed leaders can make a difference that harms if they discourage transparency, reduce the tools and resources for access and accountability, diminish the value of public inquiry and the free press, and enact laws that sweep too broadly in attempts to prevent harmful release of information. The president, agency heads and members of Congress share a responsibility for setting the right example and policies for transparency in government.
Despite the intensity with which individuals are now involved with technology as a tool for access, the government has utilized this tool in ways that are not always very systematic, well organized, or advanced. Most importantly, the combination of technology and the responsiveness of government and businesses to the demand for Internet access have raised the public's expectations for access to government information.
Such demand is a healthy beginning for improved transparency in the 21st century. The executive branch has historically been the greatest source of difficulty and struggle, yet its authority, structure, and processes are relatively easy targets for prescription. Congress, which appears more closely aligned to the interests of the public, has declined dramatically in its commitment and capacity to fulfill its constitutional checks and balances responsibilities. The public, particularly the constituencies that have the most at stake, such as the media, researchers, public advocacy groups and other concerned information specialists and policy professionals, must work more strategically and systematically to ensure improved access.
The executive branch
President George W. Bush has an enormous opportunity to fulfill the ideal of strengthening the link between transparency and public trust in the federal government. There is virtually no subject matter that will pass before the president, his Cabinet, or the agencies they lead that will not benefit from placing transparency and furtherance of the public trust at the very top of how they and their organizations conduct themselves. Often overlooked is that the tone that the president and the government set for access in the nation's capital significantly influences how state and local authorities treat information access as well.
There a number of things the president can and should consider to further the principle of maximum access to information and enhance the role of citizens in their own governance, among them:
- Make sure that the Freedom of Information Act has executive and congressional support and that the Department of Justice takes a leadership role in administering the law so as to insure maximum public access to government information.
- Maintain the current executive order on security classification. Carefully study and obtain a wide range of views on information needs, inside and outside government, before considering changes to the management of security classified information.
- Support the ongoing efforts by the National Archives and Records Administration and other agencies to address and solve the federal government's online record-keeping and records preservation problem as part of the president's commitment and investment in "e-government."
This involves developing technology that saves cost and time and addresses the long-term "migration" problem of ensuring that an electronic record preserved today can be read by the technology being used in the future even the near future.
- Review the responsibilities of the OMB Office of Information and Regulatory Affairs (OIRA) and seek an OIRA Administrator with knowledge and skills in the full range of government information law, policy, and responsibilities.
National security information
The longstanding authority of the president of the United States to direct the handling of classified information by executive branch agencies sets the strongest government-wide signal for access to government information. The executive branch controls how classification and declassification decisions are made, including the application of the Freedom of Information Act, and affects congressional oversight and judicial access.
The existing authority, Executive Order 12958, issued by President Clinton, made significant progress in placing the government back on track with historical trends to address the problems of the unmanageable volume and overclassification of national security information. Since the end of World War II, executive orders largely narrowed the basis and discretion for classifying information, accompanied by periodic declassification schedules. This approach was suspended by President Reagan with Executive Order 12356, which continued in force through the administration of President George H.W. Bush. President Clinton and his administration closely studied and listened to a wide range of views inside and outside the federal government before issuing the existing order in April 1995.
However, the emphasis on secrecy from previous administrations continued to reverberate, and such a framework, once in place, is difficult to reverse. In 1997, three years into the Clinton administration, the congressionally chartered Commission on Protecting and Reducing Government Secrecy, known as the Moynihan Commission for its chair, Sen. Daniel Patrick Moynihan, detailed the looming declassification problem. The commission's final report stated that "over 1.5 billion pages of records 25 years old and older are still classified by the Federal Government. Of this amount, agencies currently plan to review less than one-half approximately 719 million pages under the automatic declassification provisions of the Order, meaning that agencies are exempting from automatic declassification over three-quarters of a billion pages." President Clinton's executive order was subsequently amended in November 1999 in extending the automatic declassification deadlines another 18 months until October 2001.
Also symptomatic of the effects of longstanding problems of the classification system, hampered by the bottleneck resulting from previous administrations' policies, has been the need for statutes targeting subject specific agency records. Costly, yet prodigious, these efforts have released millions of pages of material and led to new and often innovative oversight panels in areas including: the President John F. Kennedy Records Collect Act, radiation victims of government testing and mining, and Nazi and Japanese war crimes, as well as Holocaust assets.
Clearly, the need for appropriate and effective management and protection of national security information includes improved management of the people and the information involved in classified work. Balancing these national security responsibilities against managing the volume, overclassification and declassification of information cannot be overstated in its importance. Arguably, the well publicized espionage cases in recent years, several of which were rooted in the years governed by the previous executive order, display the extent to which overclassification obscures both the protection of real secrets and scrutiny of intelligence personnel.
If President George Bush decides to issue a new executive order on security-classified information, it should remain on the historical track established by the Clinton order.
Should changes be made, they should made with these purposes in mind:
- Narrow the criteria for classification.
- Reduce the discretionary classification authority of government personnel.
- Reduce the volume of classified information.
- Place equal emphasis upon declassification.
- Create, maintain, and monitor schedules for systematic declassification
- Retain the balancing test for the public's interest in access to information against the need for national security.
- Retain administrative appeals program established to enable the public to seek an independent
review of a request for classified information that has been denied.
- Eliminate authority for reclassification.
- Create greater accountability and information security management standards for all classified information, including compartmentalized and special access programs.
The Freedom of Information Act
The importance of the personal commitment of the president and Cabinet officials to government transparency and accountability is most clearly demonstrated with regard to implementing several crucial laws. These include the Freedom of Information Act and the Privacy Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act.
While no one agency can control how others implement these laws, former Attorney General Janet Reno set an important standard by establishing the importance of complying with the Freedom of Information Act. The attorney general placed a priority in her own department by including compliance by departmental information managers with information laws as part of their annual performance evaluations. In addition, the attorney general emphasized to all in government that FOIA exemptions are not mandatory, that the law is a disclosure law not a withholding law, and, in that light, the law permitted exemptions to be invoked when necessary, not automatically.
The president and the attorney general of the United States should act to:
- Support the Freedom of Information Act as a positive value and affirmative responsibility of federal agency managers to achieve transparency and accountability.
- Strengthen the implementation of existing law, particularly the "EFOIA" and state clearly the intent of Congress to treat paper and electronic records equally.
- Maintain the former Attorney General's use of personnel performance criteria to highlight and reward positive implementation of the Freedom of Information Act and related laws.
- Narrow the restrictive claim that the Privacy Act precludes disclosures for requests made by the media.
- Separate the functions of FOIA appeals and FOIA policy from inside the office of the Department of Justice's Information and Privacy Office.
- Establish and pursue standards and time schedules for resolving and settling all outstanding FOIA litigation.
- Direct federal agencies to comply with the disclosure policy intent of the FOIA.
- Adopt a policy of limiting FOIA denials, and defense of such denials, to demonstrable
The legislative branch
Congress serves as one of the best examples of how Internet technology provides more direct access and the appearance of a closer link of government to the public. Even so, that example belies a troubled transparency mission. The forcefulness of the Internet as a disclosure and reform mechanism continues in Congress, notably with the recent introduction of legislation to provide Internet access to committee transcripts, gift disclosure reports, lobbying reports and Congressional Research Service reports.
In general, however, nowhere has the potential for achieving "checks and balances" to strengthen transparency been more dramatically underserved than in Congress.
In reducing its commitment to oversight and accountability, Congress has diminished its strength as an institution. The impact on access to government information, whether extracted and reported on by Congress, or sought privately and directly from federal agencies, has been significant. It is the very lapse in this regard, that has diminished the public's understanding of the fundamental role played by Congress in freedom of information matters.
Despite the need to examine the implementation of new laws, ranging from the electronic amendments to the Freedom of Information Act to the qualifications of the Chief Information Officers, little oversight has prevailed. There has not been a hearing on the administration of the Freedom of Information Act since 1996. Efforts to broaden the criminalization of leaks of intelligence information have been pursued with a crisis fervor. Ironically, these have been sought at the same time that some of our government's intelligence and counterintelligence agents have continued to sell valuable secrets in the face of espionage laws that carry the death penalty.
It is vital that Congress attend to the laws that in many cases have been written as a blueprint for transparency but are being interpreted as a blueprint for secrecy. Congress must fulfill the checks and balances responsibilities of the Constitution in the exercise of its fundamental duties, including probing deeper to produce more information about government activities as part of the appropriations, authorization, and oversight functions.
Most recently, it has been the politicization of the "power to probe," including by committees historically associated with strengthening transparency through oversight, investigation and legislation, that has instead heightened intrabranch tensions between Congress and the executive branch. Information access by congressional committees has increasingly served as a fulcrum for investigations and partisan confrontations. In recent years such access battles signal the first stage of congressional inquiries in such areas as:
- Health-care reform.
- White House operations (travel office, security clearances).
- Federal intervention at the Branch Davidian compound in Waco, Texas.
- Campaign finance.
- Impeachment of the president of the United States.
This repeated style of probing, particularly in the absence of more substantive programmatic oversight, has fostered resistance throughout the government.
Agencies are increasingly on the defensive, whether responding to a request directly from Congress or an investigative arm such as GAO, that information being sought may be related to lurking congressional oversight or public relations problems for the agencies. Withholding the requested information is often viewed by agencies as a best defense. Indeed, key agencies, including the departments of state and defense, have formalized and restricted the availability of information by establishing policies or authorizing officials to block, or, politely, but indefinitely delaying access.
Congress needs to restore its commitment to the checks and balances function and recognize that its own efforts to the contrary undermine the proper implementation of access laws on behalf of the public. Further, they damage their own trustworthiness and transparency in the eyes of federal agencies and the public.
The checks and balances function necessary to create greater transparency of the federal government requires that information access must be:
- Elevated by congressional leadership and committee and subcommittee chairs as a priority.
- Established as a necessary commitment by agency heads and officials at the outset of congressional requests for information, investigations, and hearings.
- Established as a singular and defined area of strategic importance to Congress in fulfilling the checks and balances function.
- Identified as a singular and defined area for constructive engagement between committee and subcommittee chairs with federal agency heads to ensure communication, understanding, and responsiveness to Congress.
- Emphasized in confirmation hearings of new agency and department heads.
Building with the blueprint
While the above discussion of both the larger need for transparency, together with specific recommendations and changes in the executive and legislative branches of government, may only highlight some of the core issues and needs, perhaps the larger question, from the public's perspective, is how can something be built with this blueprint.
The strategy and fulfillment is the province of those who have the most at stake, including the media, access and right-to-know groups, and policy specialists. Its success will depend on communicating directly with the president, the executive branch, and the Congress to create greater transparency.
A note to you:
The Blueprint for Transparency is a work in progress. We have presented a draft at the National FOI Day Conference so that you can be a part of the process. We want this report to serve as a statement of principles, a strategy and resource document for those working on improving and expanding access to information, and as an informational and educational resource.
We would like to hear from you about this statement, what should be added, what should be changed, how it should be used, etc.
Send comments to the drafting committee through Paul McMasters, First Amendment Ombudsman, The Freedom Forum, 1101 Wilson Blvd., Arlington, VA 22209 or firstname.lastname@example.org. We are eager to hear your comments.