Introduction
The ability of individuals to obtain information about their
government is central to democracy. Only a well-informed public
can sensibly carry out its obligation to shape policy and
political institutions. When government operates in secret,
these goals are undermined. As Justice Louis D. Brandeis of the
United States Supreme Court wrote: "Publicity is justly
commended as a remedy for social and industrial diseases.
Sunlight is said to be the best of disinfectants; electric light
the most efficient policeman."
In modern democracies, public access to government information is
assured in two ways. First, limits are placed on the ability of
the government to censor those who would report on its
activities. Second, legal measures are available to enable
individuals to obtain government records of various types. In
neither case is the individual's freedom absolute. But in both
there is a strong presumption that government action should not
be shielded from public view. This paper examines each of these
methods of assuring public access to government information as
well as the countervailing forces that may limit rights to
access.
Limiting Censorship
In the United States the public's desire to gain honest
information about its government was a central motivation behind
the creation of the First Amendment to the Constitution. This
provides that "Congress shall make no law...abridging the freedom
of speech, or of the press...." During the colonial period in
American history, two techniques--prior restraints and seditious
libel--hampered public ability to learn about and criticize the
actions of the British government. Modern American law sharply
limits both techniques in order to assure that the press can
provide the public with access to government information.
Prior Restraints
In the early colonial period, authors had to obtain licenses from
the Crown prior to publication. This system of prior restraint,
administered in the colonies by a postmaster who censored in the
name of the king, had a real impact on the public's access to
government information. The press, after all, is a major source
of such information, and if the government can control what is
said, then the public's access is greatly reduced.
The British licensing system ended in 1694, but it is clear that
the Framers of the Constitution were intent on preventing its
reinstitution in the new United States. They were aware of
British jurist Sir William Blackstone's 1765 statement in his
Commentaries: "The liberty of the press is indeed
essential to the nature of a free state; but this consists in
laying no previous restraint upon publications...."
Twentieth-century law demonstrates a strong adherence to this
approach. In its pivotal 1931 decision in Near v.
Minnesota, the U.S. Supreme Court invalidated a statute under
which public authorities could suppress publication of
"scandalous and defamatory matter," which included "charges
against public oficers of official dereliction," unless the
publisher could satisfy a judge that the charges were true and
were published "with good motives and for justifiable ends."
This, in the view of the Court, was "the essence of censorship."
The Supreme Court in Near also commented on the limits of
the public's ability to gain information about the government.
"No one would question," the Court said, that the government
could lawfully prevent "publication of the sailing dates of
transports or the number and location of troops." And indeed, it
is widely understood that the public does not have a right of
access to all information in the hands of the government. The
need for informed self-government and the desire to prevent
corruption are important values, but they are not the only
values, and they are not importantly advanced by every
disclosure. The public, for example, derives little if any valid
benefit from learning the precise deployment of a nation's
defense systems, and the threat to national security from
disclosing such information may be real.
There will always be difficulties, of course, in separating
legitimate from illegitimate claims by the government that
secrecy is necessary. In the 1971 "Pentagon Papers" case, the
Supreme Court had to adjudicate the validity of a controversial
claim concerning public access to government information.
The case arose when the government sought to prevent the
Washington Post and the New York Times newspapers
from publishing a classified study of United States policy-making
in Vietnam. The newspapers had obtained the study through an
unauthorized disclosure by a former government employee. The
Supreme Court allowed the newspapers to publish the so-called
Pentagon Papers. The justices did not agree on a single
rationale; indeed, some dissented. But a majority felt that the
government had not made a sufficient showing that national
security would be endangered by the materials in question. There
was, in short, nothing analogous to the "sailing dates of
transports" the Court had mentioned in the Near case.
Under the circumstances, the strong American tradition of
resisting prior restraints carried the day.
But it is clear from the justices' reasoning in the Pentagon
Papers case that there are circumstances, however rare, in which
the public's right of access to government information through a
vigorous, free press would have to give way. In 1979, for
example, a federal trial court granted the government's request
that a magazine be prevented from publishing an article that
revealed how to build a hydrogen bomb, the most powerful type of
nuclear weapon. The government persuaded the court that this
article would reveal previously secret information that could
endanger national interests. While the case never reached the
Supreme Court, it likely represents a consensus view that the
presumption in favor of the public's right of access to
government information can be overcome in extreme cases.
In the United Kingdom an energetic press also informs the public
on government activities, thus enriching public debate and
fighting corruption. A different balance, however, has been
struck in resolving conflicts between national interests and the
public's right to know. Under the Official Secrets Act of 1911,
as amended in 1989, criminal prosecutions may be brought for
publications that damage British interests in a variety of fields
including national security, intelligence services, and criminal
investigations. Moreover, a group of government officials will
review sensitive material and issue "Private and Confidential
Notices," known as "D-notices," which can recommend that stories
not be published. Although the "D-notice" process has no
official standing, it has been influential. On balance, media in
the United Kingdom are less likely than their counterparts in the
United States to publish information about sensitive government
policy.
Seditious Libel
During the colonial period, the publication of statements
critical of the king or his agents constituted seditious libel.
Even truth was not a defense; the king was simply considered to
be above criticism. When this doctrine was applied in 1735 to
John Peter Zenger, a landmark controversy ensued.
Zenger was a New York printer who had published articles critical
of the governor general of New York. At trial, Zenger's attorney
argued to the jury that truth ought to be recognized as a
defense. Although the judge rejected this argument, the jury
ignored the law and acquitted Zenger.
When the First Amendment to the Constitution was adopted the
impact of the Zenger case was unclear. While the amendment was
meant to hinder prior restraints, it was uncertain whether libel
suits after publication were still possible, and, if so, what the
test for libel should be. In 1798 the Federalist Party was in
power, and it enacted the Sedition Act, which prohibited the
publication of "false, scandalous, and malicious...writings
against the government of the United States...." To some extent,
this statute reflected the lessons of the Zenger case since truth
was recognized as a defense. But in practice the act proved to
be a formidable force against newspapers that sought to give the
public access to information reflecting negatively on the
government. Ten convictions were obtained, and there were no
acquittals.
The Supreme Court never passed on the constitutionality of the
Sedition Act. The country did, however, react against this
restriction on its access to information supplied by the press.
The act was a factor in the defeat of the Federalists in the
election of 1800, and it expired of its own force in 1801.
Fines levied under the act were repaid by act of Congress, and
President Thomas Jefferson pardoned those who had been convicted.
It was not until the mid-20th century, however, that the fate of
the Sedition Act was sealed and the relationship of libel suits
to freedom of the press was clarified. The vehicle for these
developments was the 1964 Supreme Court decision in New York
Times v. Sullivan.
The Sullivan case arose when a citizens' group published an
advertisement in the New York Times which described the
civil rights movement in the South and appealed for money. The
advertisement criticized the behavior of the Montgomery, Alabama,
police in breaking up a demonstration. L. B. Sullivan, a
commissioner of the city of Montgomery, brought suit maintaining
that the advertisement contained inaccurate information and that,
even though he was not mentioned by name, the criticisms of the
city government would be taken as criticisms of him. The jury
found that there were false statements and they awarded Sullivan
$500,000.
The Supreme Court reversed, holding that libel actions, even with
a defense of truth, could lead to undue self-censorship and
hinder the robust debate vital in a vibrant political community.
Honest and accurate criticism of government would be deterred
because of doubt whether it could be proved at trial and because
of the expense of doing so. Justice William Brennan wrote:
"Although the Sedition Act was never tested in this Court, the
attack upon its validity has carried the day in the court of
history." He concluded that libel actions brought by public
officials could only be allowed if they proved that a statement
was made with knowledge that it was false or with reckless
disregard of whether it was false.
The New York Times v. Sullivan test has remained in force
and has enabled the press to provide the public with aggressive
coverage of government activities. On the other hand, its sharp
limitation on libel actions has, in the view of some, tilted the
scale quite a bit in terms of the ability of government officials
to function without baseless charges being leveled against them.
In the United Kingdom, here as with prior restraints, a somewhat
different balance has been struck. British libel law is far more
favorable to public officials who bring suit. No special rules
distinguish public from private plaintiffs who claim they have
been libeled. There is no New York Times standard;
indeed, the defendant has the burden of proving the truth of the
published statement. The result is many more verdicts against
the media and more self-censorship in close cases. Several
publications with political themes have come out in different
editions--one for distribution in the United Kingdom, another for
distribution in the United States--because of these variations in
libel law.
The net effect of America's firm rejection of prior restraints
and seditious libel has been widespread media coverage of
government activities. Not only public events, like trials and
legislative hearings, but private meetings later reported
secretly to the press are ubiquitous features in daily newspaper,
radio, and television accounts.
But the First Amendment only allows the press to report on what
it can see or uncover. The amendment does not, by its own force,
require the government to disclose information. The ability of
citizens to obtain government records at their own request has
required important statutory measures.
Statutory Access to Government Information
The public's "right to know" is a popular slogan, but it is only
in the second half of the 20th century that it has been given
effective legal status in most Western democracies. Prior to
that time, governments could simply refuse to disclose their
enormous files. Absent those instances in which enterprising
reporters or others uncovered documents or plans, the public
lacked access to information in the hands of the government.
The leading exception is Sweden, where the right to government
information is a constitutional principle over 200 years old.
The Freedom of the Press Act of 1766 provided access to
documentary material in government files. This approach remains
a central part of Swedish law and is now enshrined in the Swedish
Constitution. Various exceptions are also provided by law.
Elsewhere, however, this basic approach took a long time coming.
The central breakthrough came in the United States with the
passage in 1966 of the Freedom of Information Act. This statute,
which governs federal agencies, has been followed by the passage
of similar laws in virtually every American state and in numerous
countries including Canada, France, Australia, and New Zealand.
Since 1966, the Freedom of Information Act has been amended
several times and subjected to numerous judicial interpretations.
The act as it now stands is worthy of careful attention. It
provides a detailed road map of how citizens can gain access to
government information and to precisely those instances in which
access can be denied.
The Freedom of Information Act
When President Lyndon B. Johnson signed the Freedom of
Information Act in 1966, he expressed clearly the importance of
the law to democratic government: "This legislation springs from
one of our most essential principles: a democracy works best when
the people have all the information that the security of the
Nation permits. No one should be able to pull curtains of
secrecy around decisions which can be revealed without injury to
the public interest...." Under the act the government must
publish rules, final decisions in contested matters, policy
statements, and other sources of law. This is a vital protection
against the creation of "secret law," but it is not the most
revolutionary aspect of the statute. That title should be
reserved for the act's requirement that government agencies
produce any record on the request of any person, unless the
agency can show a specific statutory exemption.
The agencies subject to the act are the Cabinet departments,
independent commissions, and other bureaus located in the
executive branch of the government. The act does not apply to
the judiciary or the Congress. Those branches do, of course,
publish their opinions and statutes, and they hold public
proceedings, but their inner workings are not subject to public
scrutiny. Similarly those officials whose sole function is to
give advice to the president are not subject to the act. The
president's ability to receive confidential advice was found by
the Supreme Court to have a constitutional basis in the 1974 case
of United States v. Nixon. In that case the president's
need for confidentiality had to give way to the needs of the
criminal justice system for specific information, but no general
right of access to the president's papers was found. In any
event, the act does not apply to those who only advise the
president. Nonetheless, the act's coverage is vast since the
covered agencies, such as the Department of Defense, the
Department of Justice, and the Federal Trade Commission, employ
hundreds of thousands of people and hold literally millions of
documents.
An agency must disclose information located in a "record."
Typically these are written documents which can be copied and
supplied to the individual making the request. Reasonable fees
can be charged for the copying. The term "record" includes
computer files, but it does not include physical items, such as a
rifle, which could not readily be copied.
One of the most important features of the act is that the
individual seeking the record need not disclose why he wants it.
There is no special requirement of need. Once a request has been
made, the agency must supply the record unless it can invoke a
specific statutory exemption. If a document contains some
material that is exempt and some that is not, the agency must
edit the document and provide the non-exempt portion.
If an agency declines to provide a record on the ground that it
is exempt, the individual making the request can go to federal
court. In the subsequent judicial proceeding, the burden is on
the agency to sustain its action in withholding the record. The
court can examine the record in secret to see if, in fact, the
agency's exemption claim is valid.
Given this statutory structure, debates about the scope of the
act almost inevitably become debates about the scope of the
exemptions. It is useful to look at the most important
of these exemptions to understand when the public's right of
access to government information is outweighed by other values.
The first exemption is for records that are properly classified
by an executive order designed to keep secret those materials
relating to national defense or foreign policy. The
protection of national security at times requires that the
government not disclose its military plans or its negotiating
posture. The executive cannot simply stamp a document
"classified" under the act since the court can look beneath the
stamp to see if the document is in fact within the standards set
forth by executive order. In practice, however, courts have been
disinclined to second-guess presidential judgments in these
areas. Moreover, there are separate statutory exemptions
relating to files of the Central Intelligence Agency.
On the domestic front, the act contains an exemption for trade
secrets. This is necessary because the government, in performing
its regulatory functions, often calls on businesses to provide
proprietary information. Thus the Food and Drug Administration,
for example, requires detailed research information before it
will license a company's new pharmaceutical drug. Clearly this
would be an unworkable system if a rival drug company could
obtain this information simply by filing a Freedom of Information
Act request.
Another exemption allows agencies to keep secret information that
would be privileged in ordinary civil litigation. For example,
the attorney-client privilege means that agencies do not have to
reveal documents in which their lawyers have given them advice on
pending lawsuits. A broader feature of this exemption is that
it protects from disclosure predecisional memoranda in which
agency officials give advice on policy matters. Once a decision
has been reached, that decision has to be published. But the
drafters of the act believed that the give and take of policy
debate would be chilled, or discouraged, if participants knew
that their predecisional advice would later be made public. They
might be afraid to defend controversial positions or to give
candid views. The courts have held that this exemption does not
apply to purely factual documents that are generated in the
predecisional period. A set of statistics, for example, does
not represent the kind of policy advice that is subject to the
exemption.
The next major exemption to the Freedom of Information Act
concerns perhaps the most difficult balance in the entire
statute. By law, a document can be withheld if its disclosure
"would constitute a clearly unwarranted invasion of personal
privacy." The values on both sides here are powerful: on the one
hand, invading an individual's privacy not only causes
embarrassment; it takes something away that is impossible to
replace. On the other hand, government officials can avoid
legitimate scrutiny if they can invoke privacy to cover up abuse
of the public trust.
The act leaves the matter open to balancing in the individual
case. It does tilt toward openness a bit with its reference to
"clearly unwarranted" invasions of privacy, suggesting that other
invasions will have to be borne to serve the broader goals of the
statute. The courts have reduced the tension somewhat by
developing a technique of editing that allows public knowledge
of the underlying issues while protecting individual identities.
The pivotal case in this development was Department of the Air
Force v. Rose. Students doing an article for a law school
publication were engaged in research concerning disciplinary
systems at military academies. They sought files from the Air
Force Academy including summaries of cases of honors violations,
such as cheating on exams by cadets. The Department of the Air
Force, arguing on behalf of the academy as well as the cadets
named in the files, sought to prevent disclosure on the grounds
of privacy. The Supreme Court concluded that the files should be
edited to delete not only the names of individuals, but
identifying characteristics, such as the cadet's hometown.
Editing in this fashion, the Court reasoned, is simply an
application of the act's general provision for separating out
exempt material from a document before releasing the rest. After
editing, the documents would be released, and they would be of
value to the researchers since they would still provide general
information on how the Air Force Academy handles honor
violations, since they would include information on the number
and types of violations, and the like.
The last major exemption to the act concerns records compiled for
law enforcement purposes. The primary goal here is to prevent
disclosures that would hamper law enforcement personnel in their
efforts to fight crime. The act, for example, specifies that
this exemption applies to records that would "disclose
investigatory techniques" or "reasonably be expected to endanger
the life or physical safety of law enforcement personnel."
All of the exemptions to the Freedom of Information Act are
designed to balance the goal of open government against competing
societal values. Performing the balancing in each case is a
difficult and important task. But it should not obscure the
basic result of the act--an unprecedented release to the public
of information in the hands of the government. After an initial
period of grumbling and some foot dragging, every major American
agency now responds to thousands of Freedom of Information Act
requests a year. This is not a source of strife or scandal; it
is a routine part of the agency's work. Over 90 percent of all
Freedom of Information Act requests are granted, providing
businesses, journalists, and ordinary citizens with a wealth of
information about how government works. Of those that are
denied, some end up in court and at times the court rules that
the document or part of it must be released. But the central
legacy of the Freedom of Information Act is not one of
litigation, it is one of open government.
Other Statutory Routes to Government Information
Building on the success of the Freedom of Information Act, the
United States has enacted several other statutes to broaden the
public's access to government information.
In 1976, Congress enacted the Government in the Sunshine Act,
which opened the meetings of multi-member federal agencies to the
public. Meetings, which must be announced in advance, are
defined as those situations where the heads of an agency get
together for "the joint conduct of agency business." The
structure of the Government in the Sunshine Act is modeled on
that of the Freedom of Information Act. Meetings must be open to
the public unless a statutory exemption is available. When
meetings are closed pursuant to such an exemption, a transcript
of the meeting is kept. As a result, an individual who believes
the meeting was improperly closed can go to court. If the court
agrees that the meeting should have been held in the open, the
transcript will be released.
The statutory exemptions to the Government in the Sunshine Act
are similar to those in the Freedom of Information Act. There
are, for example, exemptions for classified information relating
to national defense, for trade secrets, and for matters relating
to law enforcement.
There is one major area, however, where the Government in the
Sunshine Act provides even broader access to governmental
processes than the Freedom of Information Act. The latter
statute exempts predecisional policy discussions. As noted
above, the thinking was that advisers might be less than candid
if they knew that their views would be made public. They might,
for example, be afraid to take highly controversial positions.
But the Government in the Sunshine Act contains no such
exemption. The drafters of the statute wanted to let the public
in on policy discussions. As a result, the public can and does
walk in on meetings of agencies such as the Federal
Communications Commission and the Nuclear Regulatory Commission
as they debate matters of policy. Because the Sunshine Act
applies only to multi-member agencies, it does not entitle the
public to sit in when the secretary of transportation, for
example, discusses highway funding. With agencies headed by a
single individual, the definition of "meeting" would be quite
difficult. But for the typical five- or seven-member regulatory
commission, the Sunshine Act has meant an unprecedented opening
of policy debate.
The Sunshine Act has been popular with the public, and similar
statutes have been enacted in all 50 states. But its opening up
of policy discussion has been less than completely successful.
The availability of an exemption for predecisional debate under
the Freedom of Information Act has persuaded some agencies to
conduct business on paper. Other discussions are held, at least
in a preliminary way, by low-level staff who are not subject to
the Sunshine Act and whose predecisional memoranda are exempt
under the Freedom of Information Act. Finally, agency heads at
times engage in "notational voting" in which a memo circulates on
which they vote without holding a meeting. In the end, the open
meetings that are held often result in policy discussions that
are perhaps more scripted and less frank than they would be if
they were held in secret.
The immediate cause of these difficulties is the lack of
uniformity between the Sunshine Act and the Freedom of
Information Act. More broadly, it reflects a continued
uncertainty about whether policy debate does or does not suffer
in quality when it is conducted entirely in public. But the
problems associated with this point should not obscure the
broader impact of the Sunshine Act. Many more meetings are held
in public now than before the act's passage, and the public is
accordingly aware of far more of the workings of the government
than ever before. Every day in Washington citizens sit in the
audience as agency heads hear and discuss reports on matters of
undoubted public interest.
In another statutory development, the principles of open
government have been extended beyond full-time agency employees
with passage of the Federal Advisory Committee Act. By law, many
private groups advise government agencies. When those groups are
formed and controlled by the government, they are subject to the
act, which was passed in 1972 and amended in 1976. Advisory
committees covered by the act must open their meetings to the
extent required by the Government in the Sunshine law and
disclose their records as required by the Freedom of Information
Act.
The most recent major addition to the public's right of access to
government information is the 1978 Ethics in Government Act.
Here the purpose is rather more specific than what we have seen
so far; while the general virtues of open government played a
role in the passage of this statute, the more specific problem of
conflicts of interest was far more important. This act requires
the filing of detailed financial statements by federal government
officials. Its coverage is greater than the other open
government statutes, because it applies not only to executive
agency employees but to legislative and judicial personnel.
The financial statements must be filed with an Office of
Government Ethics, which reviews them to see if there is a
conflict between an individual's public job and his private
holdings. The statements are made available to the public as
well. Finally, the act goes beyond disclosure requirements in
imposing restrictions on the jobs that former government
officials can accept.
When the statutes requiring the government to release information
are taken together with the First Amendment law that prevents the
government from censoring the media, the result is government
that takes place to a considerable extent in the light of day.
Of course, there are secret meetings and private deals in which
the public trust is abused. And there is legitimate and
continuing debate on the need for secrecy in certain areas to
further the common good. But there is in the end a consensus
that democracy works best when the people can see clearly what
their government is doing. As James Madison, the "father of the
Constitution," and later, the fourth president of the United
States, wrote: "Knowledge will forever govern ignorance. And a
people who mean to be their own governors must arm themselves
with the power knowledge gives."
THE FEDERAL PRIVACY ACT OF 1974
With statutory law strongly favoring disclosure of government
information, the protection of personal privacy takes on a
particular urgency in the federal government of the United
States. While the 1966 Freedom of Information Act permits the
government to withhold information when disclosure "would
constitute a clearly unwarranted invasion of personal privacy,"
the public came to believe that this did not fully protect an
individual's desire to control information about himself. The
difficulty was figuring out how to safeguard this desire without
undercutting the public's general right of access to information
about the government. The solution embodied in the Federal
Privacy Act of 1974 is to empower individuals to require that
government records about themselves are accurate and are not
being misused.
The act applies to agency records that are organized by a
person's name or by some type of individual identification, such
as a Social Security number. Records kept on computers are
included. The central provision of the act gives an individual
access to records about himself. The individual can read those
records and can then request that they be amended to correct
errors. An individual, after all, is likely to be much better
informed about his own situation than is any government agency.
Errors that have crept in, whether through oversight or malice,
will quickly be spotted. The agency may, of course, decline to
make corrections on the ground that the individual is providing
inaccurate information, but the act provides procedures,
including judicial review, to enable an individual to protest an
agency's refusal to correct a record.
The Privacy Act also restricts the government's ability to
disseminate information about an individual to others without a
valid basis. Penalties are to be assessed against the government
if it discloses information without legal grounds for doing so.
While legal grounds can be found under a number of statutory
provisions, including the Freedom of Information Act, there are
situations in which the act restricts the government. For
example, in the 1987 case of Tijerina v. Walters, a
federal court found it improper that an official of the Veterans
Administration wrote an unsolicited letter to a state bar
examiner referring to administration files allegedly showing that
an individual had falsified informatin on a government loan
application. The court said that the "Privacy Act was intended
to build constraints around the disclosure of information in
government files irrespective of the worthiness of the cause for
such disclosure."
The tension between open government and individual privacy is
unlikely ever to be fully eliminated. The goal of the Privacy
Act is to reduce the tension by assuring that government records
about individuals are accurate and that their dissemination is
limited to legally valid channels.
ACCESS TO GOVERNMENT DOCUMENTS IN THE UNITED KINGDOM
Unlike the United States, Canada, Australia, New Zealand, and
many European countries, there is no general freedom of
information statute in the United Kingdom. There is instead a
series of statutes that grant public access to government records
in specific areas. The result is a shift in presumptions. In
those countries with typical freedom of information acts, the
government must release a document unless it can show that a
specific exemption exists. In the United Kingdom, the citizen
must show that the requested document falls within an area in
which release is allowed.
Even this somewhat limited form of access to government
information began rather late in Britain. The starting point was
the Data Protection Act of 1984, which gave people the right to
see computerized records concerning themselves. This statute,
like the American Privacy Act of 1974, focused on an individual's
own reputation rather than on learning about the workings of
government generally. The Data Protection Act has been extended
to enable people to obtain non-computerized records about
themselves with passage of statutes covering medical, school,
social work, and housing records. A somewhat broader freedom of
information idea is embodied in the Environment and Safety
Information Act of 1988, which requires publication of
enforcement actions against companies which break environmental
or safety laws.
There are, of course, a variety of ways, including explanatory
leaflets published by local authorities, in which the government
in the United Kingdom informs citizens about its programs. But
in terms of wide public access to government information, there
is in practice somewhat less access than in those countries with
broad freedom of information statutes.
TELEVISED JUDICIAL PROCEEDINGS IN THE UNITED STATES
In the United States, trials have generally been open to the
public, including reporters from newspapers. The Supreme Court
has rejected efforts by some states to close trials when the
judge believes that publicity would be prejudicial. The Court
has found that the public has a right of access grounded in the
First Amendment.
But what about putting trials on television? Here the Court's
early skepticism has given way to acceptance. In the 1965 case
of Estes v. Texas, the Court found the presence of
television cameras over the defendant's objections to be so
intrusive that due process of law had been denied. But in 1981,
the Court found that conditions had changed. It ruled in
Chandler v. Florida that because new technology made
television equipment much less distracting the state could allow
broadcasts over the defendant's objection. The state had
carefully controlled the placement of cameras and the like, and
no showing of real prejudice had been made. Of course, the
increasing ubiquity of television throughout American society may
have played a role in the Court's reaction as well.
Today, 47 states permit television coverage of at least some
court proceedings. While most access is to civil cases, criminal
cases are often broadcast as well. A few federal courts have
experimented with television, although the U.S. Supreme Court has
so far remained off the air. Public concerns that lawyers might
play to the cameras or that television might somehow influence
witnesses seem to be fading. Indeed, televised trials have
become routine fare--one private cable TV network broadcasts
trials 24 hours a day. It may no longer be dramatic, but
televised courtroom proceedings now give millions of American
citizens a more direct sense of their nation's judicial system
than ever before.
THE CANADIAN ACCESS TO INFORMATION ACT
The Canadian Access to Information Act of 1983 is set up
similarly to the American Freedom of Information Act, but it
makes use of several additional features to aid citizens in their
quest for government documents.
The Canadian Act provides that any Canadian citizen or permanent
resident can gain access to government records. Policy
discussions by the Cabinet are entirely excluded from the act for
2O years, and there is a list of exemptions for other types of
material. The exemption list is somewhat longer than that in the
American act, including in addition to matters like trade secrets
such topics as information that could injure federal-provisional
relations and information that could injure the financial
interests of the government of Canada.
The unique features of the Canadian act involve the methods
available to a citizen who seeks access to government records.
In order to facilitate such access, the act requires the
publication of an "Access to Information Register." The register
is organized into chapters corresponding to major government
institutions, and each chapter describes all records under the
control of that institution in enough detail to enable people to
request specific items. Copies of the register are available in
hundreds of libraries and thousands of post offices across
Canada.
The act also creates an information commissioner to deal with
complaints. The commissioner is an ombudsman who
investigates--at no charge--claims by citizens that they have
wrongly been denied access to government documents. The
ombudsman--who reports to Parliament--can act without legal
formalities and is often able to resolve complaints on that
basis. The first commissioner said that her role was "to cause a
fair investigation into all complaints; to interpret the act in
favor of release and to argue for a narrow interpretation of any
clause that seeks to prevent disclosure." While judicial
proceedings are available, they are less frequently employed than
under the American Freedom of Information Act.
The Canadian Access to Information Act has opened up government
files to a considerable extent and has created a
framework through which Canadians can learn a good deal about the
operation of their government.
BIBLIOGRAPHY
Administrative Conference of the United States. Federal
Administrative Procedure Sourcebook: Statutes and Related
Materials. Washington, D.C.: Office of the Chairman, 1985.
Berg, Richard K. and Stephen H. Klitzman. An Interpretative
Guide to the Government in the Sunshine Act. Washington,
D.C.: U.S. Government Printing Office, 1978.
Birkinshaw, Patrick. Freedom of Information: The Law, The
Practice, and the Ideal. London: Weidenfeld and Nicolson,
1988.
Harrison, Tim. Access to Information in Local Government.
London: Sweet & Maxwell, 1988.
Marsh, Norman S., Ed. Public Access to Government-Held
Information: A Comparative Symposium. London: Stevens & Son
Ltd., 1987.
O'Reilly, James T. Federal Information Disclosure:
Procedures, Forms, and the Law. Colorado Springs, Colorado:
Shepard's, Inc., 1990.
United States Congress, House Committee on Government Operations.
A Citizen's Guide on Using the Freedom of Information Act and
the Privacy Act of 1974 to Request Government Records.
Washington, D.C., U.S. Government Printing Office, 1991.
CONTACTS
Freedom of Information Clearinghouse
P.O. Box 19367
Washington, D.C. 20036
Telephone: 202-833-3000
Freedom of Information Service Center
The Reporters Committee for Freedom of the Press
1125 15th Street, N.W.
Washington, D.C. 20005
Telephone: 202-466-6312
Publications Services
Executive Office of the President of the United States
725 17th Street, N.W.
Washington, D.C. 20503
Telephone: 202-395-7332
United States Department of Justice
Office of Information & Privacy
Washington, D.C. 20530
Telephone: 202-514-3642
About the Author: Steven Goldberg is a professor of law
at the Georgetown University Law Center in Washington, D.C. He
received his A.B. from Harvard University and his J.D. from Yale
University. He has served as a law clerk to Justice William J.
Brennan, Jr., of the United States Supreme Court and as an
attorney with the United States Nuclear Regulatory Commission.
___________________
Project management and editing by John Russell Deane III,
president of the Center for International Management Education
(CIME). CIME is engaged in providing assistance to emerging
democracies in the development of market economy legal systems.
CIME is currently assisting Estonia in the adoption of its civil
code and in the creation of the National Law Center, which will
provide education to the legal community, especially the
judiciary.
Freedom Papers Series:
Editor: Howard Cincotta
Associate Editors: Jeanne Holden, Deborah M.S. Brown
Design: Sherry Hayman
September 1994
