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Constitutionalism: America and Beyond
The Principles of Democratic Elections
Federalism and Democracy
The Creation of Law in a Democratic Society
The Role of an Independent Judiciary
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The Role of Interest Groups
The People's Right
to Know: Transparency in Government Institutions
Protecting Minority Rights
Civilian Control of the Military

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Democracy Papers
The People's Right to Know:
Transparency in Government Institutions

By Rodney A. Smolla

"The power to withhold the facts of government is the power to destroy that government."
                 -- U.S. House of Representatives
                     Committee Report on Freedom of Information

Democracy Papers

The phrase "the people's right to know" is frequently repeated as a political and legal slogan. These words are often associated with media requests for government information, and invoked by journalists who wish to justify the dissemination of controversial material. "The people's right to know," however, can also have a different meaning, separate from the notion of freedom of the press, a meaning that is truly grounded in the people, and directed toward the right of the people to know about the actions of their own government. It is this variation of the phrase "people's right to know," focusing on what in modern times is often referred to as transparency in government, that concerns us.

This opening up of the business of government, this exercise in increasing transparency, is frequently a difficult and complex process, a process that often requires the careful balancing of competing interests. On the side of an open government are the values of accountability and democratic participation. Yet, open government may at times be costly, may sacrifice certain legitimate interests in candor or efficiency within government, and may jeopardize other laudable social values, such as the protection of individual privacy, national security, and law enforcement. Democratic governments should be largely open and transparent governments. Yet even the most open and democratic government will in certain settings require some measure of secrecy or confidentiality to function appropriately.

The United States, in its struggle to deal with these competing interests, has focused on three principal problems: (1) access to public records and documents, in which the "business of the people" is stored in some tangible form; (2) access to the deliberative institutions of government, such as meetings and forums in which public business is debated and resolved; and (3) access to places that conduct routine non-deliberative government business, such as government-managed prisons, hospitals, or schools.

Freedom of information: access to records and documents

In the United States, experience with "freedom of information," with the notion of a strong legal right of access to government records and documents, is a relatively recent phenomenon, one that only began in earnest in the 1960s. The U.S. Congress passed the federal Freedom of Information Act (commonly referred to as the FOIA) in 1967 in response to a growing sense that prior federal law was usually invoked as a justification for withholding information, rather than as an affirmative spur to the disclosure of information. The FOIA created a broad command that official information shall be made available to the public, for public inspection. This is the norm, the "default" rule, and American courts have repeatedly emphasized that under the FOIA, federal agencies must respond expeditiously and conscientiously to requests by citizens for information.

The FOIA creates nine exemptions from compelled disclosures. These exemptions, the only ones the law allows, are plainly intended to set up concrete standards for determining whether particular material may be withheld or must be disclosed. Aggrieved citizens are given a speedy remedy in courts when an agency refuses to disclose material by invoking one of these exemptions. If the courts find that the agency was wrong in not disclosing the material, it will order the material released, and may punish the agency with fines.

The FOIA is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. The nine exceptions contained in the law are designed to provide a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure. They are:

(1) national security secrets relating to national defense or foreign policy;
(2) materials relating solely to the internal personnel rules and practices of an agency;
(3) materials that are specifically exempted from disclosure by some other federal law;
(4) trade secrets and commercial or financial information that is privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, or could reasonably be expected to disclose the identity of a confidential source. In the case of information compiled by a law enforcement authority in the course of a criminal investigation or by an agency conducting a national security intelligence investigation, FOIA exempts from public disclosure information furnished by a confidential source that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or could reasonably be expected to endanger the life or physical safety of any individual;
(8) materials relating to examinations and regulation of banks and financial institutions; or
(9) geological and geophysical information and data, including maps, concerning wells.

Some of these exemptions require balancing major competing policy concerns, others involve relatively specific and narrowly applicable matters, such as the location of wells or the regulation of banks. The three principal areas of major policy debate and litigation in the administration of the FOIA have involved the exemption for national security and defense matters, the law enforcement exemptions, and the exemptions designed to protect individual privacy.

The tension between the values of an open government and the values of privacy are especially acute. Particularly with the onset of modern electronic databases, almost no one in contemporary society can keep entirely secret very many facts about himself or herself. Many facts about individuals come into the hands of government agencies for legitimate reasons, and are stored in databases controlled by the government. For there to be any meaningful protection of privacy, therefore, it must be recognized that while complete secrecy is an impossibility in modern times, laws designed to insure that disclosure will be highly selective are possible, and such laws will go a significant way toward creating at least some protection for individual privacy.

Supplementing the federal FOIA are various state freedom of information laws. All American states have state laws designed to provide public access to the records of state and local governments. These laws vary from state to state. Many follow quite closely the federal FOIA model, creating a broad command of access to government materials, and then listing exceptions.

The costs of the freedom of information laws, at the national and local level, have long been a matter of intense public debate. Some of the direct cost of a FOIA request is normally passed on to the requester -- charges such as search and photocopy fees, for example, are typically set forth in uniform fee schedules maintained by agencies. Much of the indirect cost of the FOIA, however, the "overhead of openness," if you will, is simply absorbed by the agency as part of its operating budget. Freedom of information undoubtedly makes government more expensive, because government employees must be hired to index, organize, store, and retrieve data, creating an administrative machinery enabling the agency to respond properly to FOIA requests.

Americans have learned that it is one thing to enact the value of freedom of information into formal law, and another to attempt to change the culture of government so that officials will comply with the spirit of open government, working to facilitate access to public records, instead of frustrating or undermining such openness. In the years immediately following enactment of the FOIA, many agencies treated it as an annoyance, as something to be gotten around or frustrated whenever possible. Attitudes, however, have gradually changed, and a newer generation of public officials appears much more open and receptive to the notion of easy and generous access to public records.

To some degree the shift in culture is attributable to the new computer technologies of the 1990s. Wholly aside from the question of access to government data, the Internet has created an "information culture" in which people all over the world are increasingly accustomed to being able to quickly and cheaply obtain a wide range of information merely by searching databases from their own computer. An entire generation of people throughout the world is beginning to see easy access to information on the Internet as virtually an entitlement, as natural as breathing the surrounding air. In democratic nations, people naturally tend to extend this sense of entitlement to the government. Making government records easily accessible online is increasingly perceived as one of the basic obligations of a democratic government. Thus, citizens not only expect freedom of information; they now expect freedom of information on-line. This growing perception found its way into American federal law in 1996 with the passage of the Electronic Freedom of Information Act, a law that made it clear that the concept of "public records" included records kept in electronic form and required that federal agencies permit electronic access to their records.

As the Internet has matured, and become so much a part of mass culture, with virtually all businesses and organizations in the private sector touting Web pages that contain substantial information and opportunity for interaction on-line, governments have been pressured to compete in the electronic marketplace, and make themselves "Internet friendly." At the national and local level, government agencies are increasingly adding to their on-line databases, providing public records in a manner that is easily accessible to any citizen with a computer and a modem. Ultimately, this may also solve one of the major cost concerns posed by freedom of information laws. Because government data is often in electronic form, agencies may find that it is relatively easy to provide open access to public record data by simply using software that makes such data easily identifiable and retrievable by ordinary citizens using the Internet.

Access to the deliberative processes of government

Openness and transparency in government apply not only to governmental records and data, but also to governmental decision-making processes themselves. In the United States, there is a strong tradition, in part protected by the American Constitution itself, guaranteeing a right of public access to the proceedings of courts and legislative bodies. In more recent times that tradition has been supplemented by the passage of federal and state laws, popularly known as "sunshine laws," that also guarantee public access to meetings conducted by executive and administrative agencies.

The U.S. Supreme Court has ruled, in Richmond Newspapers, Inc. v. Virginia, in 1980, that the guarantee of freedom of speech in the First Amendment to the U.S. Constitution includes a right of the people to access to criminal trials. At the heart of this right is the recognition of the vital role that public access to criminal proceedings plays in the democratic life of the community. As the Supreme Court explained in Chief Justice Burger's opinion for the majority, "the early history of open trials [in Colonial times in America] in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results." This right to attend criminal trials has been extended by many American courts to civil trials as well. And indeed there are powerful and persuasive reasons, well grounded in both history and function, for applying the right of access to civil cases. As 19th-century Justice Oliver Wendell Holmes once observed, access to civil judicial proceedings is "of vast importance" because of "the security which publicity gives for the proper administration of justice. . . . It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."

In the modern television age, the right of the public to attend judicial proceedings has been augmented by a practice, increasingly common in the United States, of permitting television cameras to cover trials. At present there is no constitutional right to cameras in the courtroom recognized by American courts, but many courts, either by state statute or by local court rules, now routinely allow television cameras to tape and broadcast trials. There is, in fact, an American cable television network, known as Court TV, that broadcasts actual trials as part of its main programming, hour after hour, day after day. In the United States, at present, this right of access is more commonly allowed in state courts than in federal courts.

The U.S. Supreme Court does not permit cameras or live radio broadcasts in its courtroom. In recent years, the Court has audiotaped its proceedings, and has released them at the beginning of the next term through the National Archives. Expediting this tradition during the dramatic Supreme Court litigation over the 2000 presidential election, the Supreme Court did allow the news media to broadcast a tape-recording of the entire proceedings immediately following their conclusion, in recognition of the intense public interest. Americans were thus able to listen to the hearings, which lasted about 90 minutes, only minutes after they were concluded.

In all courts in which cameras or microphones are permitted, judges are normally granted considerable discretion to establish ground rules and procedures to minimize the disruptive impact of the cameras and microphones, and to ensure that their presence does not undercut the vital importance of ensuring a fair trial.

At the legislative level, there is a long tradition in the United States of open deliberations for legislative bodies. This is normally not guaranteed by constitutional documents, but rather is entrusted to the discretion of the legislative bodies. Nevertheless, by strong tradition, most legislative proceedings of the U.S. Congress and of state legislatures are open to the public. More recently, proceedings of legislative bodies have become routine on television. In the United States the C-Span Networks regularly broadcast proceedings of Congress, and to a somewhat lesser extent, proceedings of state legislatures are now broadcast.

In response to the perception that meetings of federal, state, and local agencies are often far more important in the actual administration of public business than the deliberations of legislative bodies themselves, the federal government, and many state governments, have enacted open-meetings laws, often referred to as "sunshine laws."

The federal open-meetings law, called the "Government in the Sunshine Act," was passed by Congress in 1976. The law requires that meetings of a federal agency be open to the public. The law defines "meeting" as constituting a "quorum" for the conduct of business -- that is, the deliberations of the minimum number of government officials required to effect official action on behalf of the agency. It commands in stern and sweeping language that officials shall not "jointly conduct or dispose of agency business" except in such an open-meeting, and further states that "every portion of every meeting of an agency shall be open to public observation."

There are, as one would expect, exceptions, largely tracking those of the FOIA, designed to exempt from the open-meetings law proceedings involving national defense or foreign policy, internal agency rules, trade secrets, law enforcement investigations, regulation of financial institutions, personal privacy, and disclosures in which an individual will be accused of a crime or formally censured.

The touchstone of the sunshine law is the concept of a "meeting." Here the law seeks to distinguish between the formal deliberations of a quorum within an agency in which actual decisions affecting the public will be made, and the preliminary and informal discussions of policy that are a natural and inevitable requirement of governance. Congress, in drafting the Sunshine Act's definition of "meeting," recognized that the administrative process cannot be conducted entirely in the public eye. Informal background discussions that clarify issues and expose varying views are a necessary part of a government agency's work. To impair such discussions would inhibit candor among the officials, and would act as a drag on the conduct of government, without achieving significant public benefit. Thus, the law strikes a compromise, and is triggered only when at least a quorum of the agency's members actually conduct or dispose of official agency business.

Once again, this legal picture has been augmented by television. Throughout the United States, local cable television systems typically set aside one or two channels devoted entirely to the broadcast of local government deliberations, including such meetings as city or county government sessions, meetings of school boards, or zoning boards.

Access to places

To what extent, in a free society, should citizens, including members of the media, have a legal right of access to public places like prisons or schools run by the government?

One response to the issue of access to places owned by the government would simply be to say that citizens have no access to government property at all, because it is, after all, the government's property, and the government should have the power to include or exclude anyone it wishes. This notion has been rejected in American law, however, and has been replaced by a body of First Amendment principles that go under the heading of "public forum law." Certain places, such as parks, major public squares, streets, and sidewalks are deemed "traditional public forums," areas of government property that are held "in trust" for the people -- that is, places where the people have retained the right to assemble for peaceful expression and demonstration, as long as public order is maintained. Even beyond places such as parks and public squares, American courts have recognized that certain other facilities, such as public auditoriums, meeting rooms, or atriums of large public buildings, may also become "public forums" in which any person has the right to speak or to listen to what is transpiring.

Many government institutions, however, are not "open spaces" suitable for expression, but are rather working institutions in which the government's routine day-to-day business is being conducted. I am not speaking here of the deliberative or decision-making business of government, the subject of access to official proceedings, such as courts or administrative agency meetings, but rather the other non-deliberative functions of government, such as those provided by government hospitals, or schools, or prisons. These institutions are traditionally not regarded as "public forums." There is, by tradition, no recognized legal right for citizens to enter these institutions, and access to them can be limited to those with business to conduct there. Schools may exclude all but students, teachers, administrators, and parents, for example. Hospitals may exclude all but patients, medical personnel, and bona-fide visitors. Prisons may exclude all but prisoners, prison officials, and lawyers.

Yet for all of these institutions, and many others that can be imagined, there may be pressure from citizens, including members of the media, for access, in order to observe and perhaps critique what is transpiring. Members of the public or the media may wish to report on alleged abuses, corruption, squalid conditions, or other perceived improprieties taking place within these institutions. Since these institutions are financed by public money, the argument is that the public has a right to know what is going on inside them. At least for the present, American courts have not been willing to recognize any constitutional right of access that is generally applicable to such institutions. What some courts have been willing to acknowledge, however, is a principle of non-discrimination. If institutions do grant some rights of public access -- such as public tours of prisons, for example -- the institutions cannot discriminate against the media, or against citizens who take the tour solely for the purpose of observing and gathering information potentially critical of how the institution is operating.

The value of openness

All governments everywhere and at all times in world history have an inherent inclination to govern at least partly in secret. This is a natural human instinct, and a natural instinct of government. A society that wishes to take openness seriously as a value must therefore devise rules that are deliberately tilted in favor of openness -- tilted more than may at first seem reasonable -- in order to counteract the inherent proclivity of governments to engage in control, censorship, and secrecy.

We are challenged in modern times by breathtaking developments in communications, as technologically revolutionary as the printing press, developments that promise to alter dramatically the ways in which we gather, store, organize, and communicate information. A nation committed to an open culture will defend human expression and conscience in all its wonderful variety, and accord substantial protection to freedom of speech, freedom of the press, freedom of religion, freedom of association, freedom of assembly, and freedom of peaceful mass protest. These freedoms will not only be extended to political discourse, but to the infinite range of artistic, scientific, religious, and philosophical inquiries that capture and cajole the human imagination.

A society that wishes to adopt openness as a value of over-arching significance will not merely allow citizens a wide range of individual expressive freedom, but will go one step further, and actually open up the deliberative processes of government itself to the sunlight of public scrutiny. In a truly open culture the normal rule is that government does not conduct the business of the people behind closed doors. Legislative, administrative, and judicial proceedings should, as a matter of routine, be open to the public.

For Additional Reading

Ellen Alderman and Caroline Kennedy, The Right to Privacy (Knopf 1995)

How to Use the Federal Freedom of Information Act, Reporters' Committee for Freedom of the Press (6th ed., FOI Service Center)

Ithiel De Sola Pool, Technologies of Freedom (Harvard 1983)

Rodney A. Smolla, Free Speech in an Open Society (Knopf, 1992)

Sanford Unger, The Paper & the Papers: An Account of the Legal and Political Battle over the Pentagon Papers (E.P. Dutton 1972)

About the Author:
Rodney A. Smolla is the Allen Professor of Law at the University of Richmond School of Law. He is a scholar, author, and lawyer with expertise in constitutional law.


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