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Government is clearly still not transparent enough

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Gene Policinski
March 17, 2011
— The national picture for Freedom of Information laws, celebrated during national Sunshine Week (March 13-19), is bit brighter thanks to two recent U.S. Supreme Court decisions and some White House initiatives.

But to give a twist on the old saying, “There’s a cloud in every silver lining.”


In the last few weeks, the Supreme Court limited two major exemptions to the federal Freedom of Information Act (FOIA). In FCC v. AT&T, the Court said an exemption for “personal information” did not apply to information about corporations. And in Milner v. Department of the Navy, the justices forbade wide use of a “personnel” exemption they found was often used to withhold a broad range of materials.


But when it comes to ensuring that the public has as much access as possible to regular and classified information about public business and public policies gathered and kept by public officials, steps forward often seem to bog down—in no small part because of the sheer amount of material to be disclosed.


The Obama administration’s determined efforts to find those who leak confidential federal information are a major negative, experts say. One speaker at National Freedom of Information Day 2011 on March 16 said the Obama White House had pursued more prosecutions for leaks than were brought in the previous 50 years.


Even as the White House announced new initiatives to improve technology for easier access to information, a number of reports during Sunshine Week—from groups like OMB Watch, the National Security Archives at George Washington University and Openthegovernment.org—find that federal agency performance lags behind President Barack Obama’s promises to reform and expand transparency efforts.


First Amendment experts also worry that the continuing WikiLeaks controversy involving massive amounts of leaked classified material will lead to new crackdowns on what agencies will place in the public sphere, and new limits on whistleblowers acting in the public interest.


The WikiLeaks scandal already is blamed for the demise in the last congressional session of a proposed federal “shield law” protecting sources and journalists. And there even had been veiled mentions of using the 1917 Espionage Act to prosecute The New York Times for publishing some of the information disclosed by WikiLeaks.


Such charges against the Times or other news organizations are unlikely, said noted First Amendment attorney Floyd Abrams, a speaker at National FOI Day. Abrams was part of the defense team that defeated attempts by the Nixon administration in 1971 to prevent publication of the Pentagon Papers. But Abrams also warned that that landmark victory left open the possibility of criminal charges after classified material was made public. If officials can prove real damage to U.S. national security, something lacking in the Pentagon Papers case, then prosecution may well proceed against WikiLeaks founder Julian Assange and others, Abrams said.


As to records held by various federal agencies, even officials who support transparency warn that just the job of reviewing and declassifying government records is daunting. Representatives of the newly formed Public Interest Declassification Board told FOI Day attendees that literally millions of man-hours would be required to decide whether records held by federal agencies should be open. PIDB is studying ways to automate the declassification process, they said.


On the state level, although several states have new laws to open their files, Utah’s governor just signed a bill implementing new restrictions on that state’s public records—with the one week between introduction and passage effectively shrouded in secrecy. Some Utah officials have said delaying implementation of the law until July 1 would afford plenty of time to discuss its contents. But the very idea of discussing a measure after passage seems in itself a good argument against such limits on disclosure of public debate and records.


The National FOI Day conference, sponsored by the First Amendment Center and part of Sunshine Week events nationwide, annually recognizes the March 16 anniversary of James Madison’s birth in 1751. Madison, “the Father of the Constitution,” was the principal author of the Bill of Rights.


For Madison and other founders, a successful republic required an informed citizenry. On July 4, 1966, President Lyndon Johnson signed the FOI Act, noting that information was the lifeblood of a democracy.


In 2011, the need for informed citizens is as great as ever—but the barriers to full disclosure and transparency remain too high.


Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

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