An Unfettered Press
The Right to Know
By Richard A. Bumstead
Constitutionally protected free speech. Freedom of the press. They represent, as former U.S. Supreme Court Justice William Brennan once wrote, "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
But something is missing. How can spirited and informed debate on public issues take place, particularly debate that embarrasses officials, if the public does not know what is going on -- if government cloaks its activities in secrecy and evasion? The historical record shows that, at one time or another, government at all levels -- federal, state, and local -- stands guilty of this charge.
It is the self-appointed role of the American press to inform the public about government activities, thereby sparking debate. Reporters continually look for stories that will play on the front page -- stories about corrupt government officials, or agencies that fail to do what is required by law, or government policies gone wrong. The press maintains that it gets little cooperation from government. Officials prefer to release information that reflects favorably on their activities -- and to duck embarrassing questions. The relationship between government and the press is, at bottom, adversarial, and most reporters prefer it that way.
Over the years, reporters have developed ways of getting at the truth. They rummage through records that are unquestionably public, such as the Congressional Record or the minutes of meetings held by public boards. Reporters develop sources in government, officials they trust and who trust them, and who will talk "off the record" about what is really going on. They exploit the "leak," information given to them surreptiously by sometimes disgruntled government employees who want to draw attention to illegal activity. They build stories by interviewing scores of people, none of whom knows the real purpose of the questions posed.
In 1966, the U.S. Congress passed the Freedom of Information Act (FOIA), giving reporters a new way of getting information on government activities. By law, they can demand to see government records -- not just the ones that have traditionally been open to the public, but, with a few exceptions, all that are records generated by government operations.
What kind of records? On the federal level, records such as a study done for the Atomic Energy Commission on cancer rates among 30,000 workers in an atomic weapons facility, federal audits issued two weeks before the National Aeronautics and Space Administration's 1986 Challenger disaster that revealed improper equipment monitoring at the Marshall Space Flight Center, and audits of defense contractors that disclosed federal tax dollars being used for travel and entertainment expenses.
Before the Freedom of Information Act became law, such records would never have been made public. The law favored the government's right to say who could examine and copy its records. In 1789, when the federal government was first established, department heads were given responsibility for keeping and safeguarding records and, by extension, prescribing their uses. In the beginning, officials relied on the common-law practice of opening public records only to those who had an interest in them, commonly called the need-to-know doctrine. State and local governments followed this common-law rule as well.
Over the years, the power of state and local government officials to deny access to records had been whittled down by legislation and court decisions, generating a patchwork of law and regulation that few reporters could master. All too frequently, a reporter found that he or she had no clear-cut right to certain information. On the federal level, Congress made an attempt to liberalize rules of access to federal records in 1946. The Administrative Procedure Act of that year said that matters of official record should be made available to the public, but added that an agency could restrict access to its documents "for good cause found" or "in the public interest." The need-to-know doctrine still lived.
How did this need-to-know principle work in practice? A government official would make a judgment -- yes or no -- on whether someone requesting a particular document or report needed to know what was in it by virtue of his or her position, or job, or what he or she intended to do with the information. And there was no appeal from some official's denial of access to the records.
As a practical matter, this put a reporter -- or a citizen -- at the mercy of some officious clerk. Here is an example from my own experience. In the early 1970s, I was working as a free-lance writer in the northeastern U.S. state of Massachusetts, trying to put together a story on the costs of running state-supported colleges, whose campuses are scattered throughout the state. I had a hunch that some colleges were receiving a disproportionate share of the budget at the expense of other schools -- a theory that, if true, would have made a good story. I wanted to compare each college's expenditures to determine if any campus was favored.
I appeared at the one place that had these figures in a central file -- the state board of higher education in Boston. "I'd like to see the college budgets for last year," I politely said to each of the several people I was shunted to. Invariably I was asked two questions: "Whom do you represent?" and "Why do you want this information?"
I replied, truthfully, that I represented myself, and what I wanted the information for depended on what I found -- answers that no one found satisfactory. Finally, the assistant to the deputy chancellor for education in the state suggested that I write a request to the chancellor himself, and he would consider it in due time. The classic brush-off.
I had gotten this kind of response before and had learned to keep my temper in check. Whom I represented and what I was going to do with the information had no bearing whatsoever on my request. A new Massachusetts law had given me -- in fact, any person -- the right to examine and copy any document generated by the state government in going about its business (with certain understandable exceptions, such as law enforcement records).
I wrote a letter to the chancellor, citing the law, and asked to be shown these documents two weeks hence. On the appointed date, a clerk ushered me into the board room and gave me the documents I wanted to examine, no questions asked. It was, I believe, the first brush of a rather obscure state agency with the Massachusetts open-records law. No longer was a person in Massachusetts required to establish a need to know what was in records. He or she had the right to know.
Today, all states have right-to-know statutes. They include three essential elements: presumption of a public right of access to government records, placing the burden of proof on government officials who want to withhold information; enforceability of this public right in court; and statutory exemptions to disclosure of certain information, such as tax returns.
The preamble of the right-to-know law in the state of California catches the democratic spirit that underlies such legislation: "In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
"The people of this State do not yield their sovereignty to agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."
The right-to-know laws enacted by state legislatures invariably were accompanied by another kind of law that made the job of monitoring government activities much easier -- the open-meetings law. Such a law requires that any government agency run by a board must give public notice on when and where it meets, must open the session to the public, and must conduct no public business (with certain exceptions) outside this session. The state board of higher education in Massachusetts, for example, a group appointed by the governor to coordinate state higher education, was compelled by the Massachusetts open-meetings law to do its business in public.
The open-records and open-meetings laws have made an amazing difference in how reporters and state government officials operate, says an editor on the Arkansas Gazette: "The attitude has changed -- not only of reporters but of public officials. School boards that have never been covered now provide not only notice of their meetings but a desk and chair for the press. Small towns as well as large ones are opening their meetings to the press, some of them before being asked. Many reporters have reproduced copies of the laws and carry them around with them in their billfolds. They are much more militant than before. When the Alcoholic Beverage Board left the state capitol and tried to hide in a member's private office downtown to conduct business, the press marched into the office and demanded to be admitted. Just last week the state real estate commission and the private real estate board tried to hold a closed joint meeting on the guise that the state board was merely a guest of the private group, but the reporters put the pressure on and were admitted."
The federal government was not immune to this nationwide movement to open up government records and meetings. Prodded by newspapers and by groups such as the American Civil Liberties Union, Congress held several committee hearings on the subject over an 11-year span. Not one administrative official testified in favor of proposed right-to-know legislation, seeing it as a threat to executive prerogative.
Nonetheless, Congress passed the Freedom of Information Act in July 1966. It applied the right-to-know principle to federal records. President Lyndon Johnson was said to have signed the legislation reluctantly. Eight years later, the act was amended to make it more effective. That same year, another statute, the Privacy Act of 1974, was enacted, giving individuals the right to access information contained in their own federal records. And in 1976, the Congress passed, and President Gerald Ford signed into law, the Sunshine Act, the federal equivalent of state open-meetings laws.
The FOIA established that "any person" has a right, enforceable in court, to access records of executive branch agencies of the federal government. It does not apply to records maintained by the U.S. Congress, the federal court system, or the president's executive staff in the White House. Other, more restrictive rules govern the accessibility of such records.
To get information from the federal government under the FOIA, any person -- a reporter, citizen, even a foreign national -- files a request in writing describing the information he or she wants and addresses it to the FOIA officer in the agency that has the records. One can ask to inspect the records or to receive copies. The agency may charge reasonable search and copy fees. The agency has 10 days in which to provide the records sought or to state the exemption in the FOIA that allows it to refuse.
Information that falls within certain categories is generally withheld; these restricted categories are national security, trade secrets and confidential commercial information, internal agency memorandums, records that invade a person's right to privacy, law enforcement investigations, and information specifically exempted by prior law (for example, information contained in tax returns). If a request is denied, one may appeal the decision first to the agency for another review, and finally to a federal court. The government bears the burden of proof thatthe information requested is indeed exempt.
Over the history of the FOIA, however, many government officials have construed the act as narrowly as possible, forcing requesters to go to court for clarification. Numerous court cases have been filed over what constitutes a reasonable fee for search and copying expenses. In 1990, a reporter from the Rocky Mountain News in Denver, Colorado, was told by the U.S. Department of Energy that her newspaper must pay $1 million in search and copy costs to obtain the travel records of the former Secretary of Energy. Often an agency, citing the volume of FOIA requests, fails to meet the 10-day response deadline, and the courts have been reluctant to insist on compliance.
In addition to procedural roadblocks, innumerable cases have been adjudicated over substantive issues. What, in fact, constitutes a public record? How does the Privacy Act of 1974 impinge on the Freedom of Information Act? Which prevails -- the president's security classification system, by which certain documents are marked "secret" or "top secret," or the FOIA? Such questions have generated a cottage industry on FOIA case law. Each year, the U.S. Justice Department publishes a case list for what must now be an army of FOIA attorneys. The most recent list contains 371 pages of citations, plus a 260-page annotated guide to the FOIA's legal history.
The upshot is that many journalists avoid using FOIA procedures. Says an investigative reporter at the Fresno (California) Bee: "Generally, I avoid FOIA at all costs. I don't have a lifetime to wait on the information coming through FOIA."
Any reporter who believes his or her FOIA request is not being handled properly can seek help from the Freedom of Information Service Center in Washington. It is a project of the Reporters Committee for Freedom of the Press to monitor government's compliance with the FOIA and educate reporters in FOIA procedures. The press associations in each state also monitor how well state and local governments are complying with local open-records and open-meetings laws.
"People don't use FOIA as often as they should, because they believe it is too cumbersome and time-consuming," says Rebecca Daugherty, director of the center. "And it's a shame. There are terrific stories being produced from use of FOIA. And we know there are many other stories waiting to be written."
One such story was published in 1989 by the Constitution, the leading newspaper in Atlanta, Georgia. It suspected that local banks were not lending an equitable amount of money to blacks to buy homes in black neighborhoods -- a form of discrimination prohibited by federal law. But how to prove it? Asking bank officials would have produced a noncommittal but politic answer, something like "I am sure our bank's lending policies conform to the law." And, indeed, their records may not have been organized to provide a ready answer even if bank officials volunteered to research the question.
But there was one untapped source. Under federal law, banks are required to report each home loan to the Federal Financial Institutions Examination Council. Here was a federal record of bank home loan lending practices in Atlanta, accessible under FOIA rules.
The Constitution filed a FOIA request for the data and received seven computer tapes listing 109,000 real estate loans made in Atlanta over the prior six years. The newspaper then arranged for a computer center to match the data with census tracts, which give the racial composition of inhabitants. The findings startled Atlanta, which prided itself on its race relations: Whites received more than five times as many home loans from Atlanta's banks as blacks of the same income.
"The numbers you have are damning," said the chairperson of a leading Atlanta bank. "Those numbers are mind-boggling. Atlanta bankers are discriminating against the central city, but it's not a willful thing."
After months of "uninhibited, robust, and wide-open" public debate, Atlanta banks revised their lending practices and committed millions of dollars to home mortgages in black areas. And the Constitution won a Pulitzer Prize, one of America's highest journalistic awards, for making imaginative use of the right-to-know law.
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Richard A. Bumstead is a Washington-based writer with the U.S. Information Agency.
