John E. Moss Public Service Award Ceremony
Room HC-9, United States Capitol
Noon, July 9, 2002
By Paul McMasters
On Independence Day, 1966, President Johnson took time out from holiday festivities at his ranch on the Perdernales to sign the Freedom of Information Act into law. If he had waited only a few hours more, a pocket veto of the legislation automatically would have gone into effect.
There was no press release, no ceremony, no special pens struck for the occasion. The chief sponsors were not invited.
It had taken 11 arduous years for Congressman John Moss of California to coax into existence a law that few in government liked or wanted. But the legislation finally made it through. This law providing meaningful access to government information embraced three democratic ideals.
That was 36 years ago. But we never quite escape the clutches of history. It has a
way of landing on us suddenly and hard when we forget it. And when it comes to the conditions that created the great need for the FOIA back then, the past has caught up with us.
The reason that Congressman Moss and his colleagues worked so hard and endured so much getting FOIA passed was that it had become next to impossible for members of Congress and their staffs to obtain access to even the most routine of information in the custody of federal agencies or the White House.
Today, the federal government, while attending to the formidable responsibility of waging a war on terrorism, has allowed itself to slide backward into history with an ever-widening array of restrictions on access. These new restrictions in effect have demoted both the public and the Congress as partners in the democratic process.
Once more, Congress is summoned to the crucial task of championing access to government information – a role mandated by tradition, by law, and by the Constitution.
There is no question that in the world we live in today, there is some information that must remain secret to protect our national security. Beyond that narrow but important spectrum, however, the Congress, the public and the press should have maximum access to government information.
It is essential to the public so that we have true democratic decision-making.
It is essential to the press so that it can facilitate the flow of information among the three branches of government and the public.
It is essential to Congress so that it can provide proper oversight and accountability.
There always has been what some describe as a "culture of secrecy" in government. It is a natural thing because information is power; in some instances it is dangerous; in other instances, it may violate personal privacy or compromise an ongoing law-enforcement investigation. Responding to FOIA requests also is a drain on scarce resources.
But many restrictions on the flow of information in recent months have gone well beyond those considerations.
In addition, there is a theory afoot these days that to share information is to weaken the executive. That theory, in practice, may well be responsible for many of the current restrictions on access.
Finally, there is another reason for some restrictions: The horrors of September 11. That tragedy provoked a serious re-examination of our information policies -- a re-examination that was legitimate and necessary. There are some secrets that must be kept.
But many of the changes in access policies that have come out in the wake of September 11 are not truly related to the war on terrorism; in many cases, they seem designed more to increase the comfort level of government leaders than the security level of the nation.
What has emerged is an environment where government is providing increasingly less information to U.S. citizens while demanding increasingly more information about them.
Many of these new restrictions impact directly on public access and in many instances the ability of members of Congress to participate in the making of policy and to represent their constituencies properly. To list a few:
In addition, Congress increasingly is pressured to "incentivize" compliance with old laws and to spice up news laws by granting exemptions to the FOI and whistleblower laws. Examples include legislative proposals concerning critical infrastructure, the Transportation Security Administration and the proposed Homeland Security Department.
These developments raise several important questions:
There are a number of ways Congress can address such questions: By commissioning a definitive study and public report calling for specific action, by creating a bipartisan caucus on access and accountability, by conducting hearings, or by establishing a joint select committee with FOIA oversight.
There are other things Congress can and should do to make access to information a priority in governmental life:
The key to bringing about change, however, is that the members of Congress themselves must care; if it's not important to them, it's not important at other levels and in other branches. Government information must be branded as crucial to democracy, to responsible governance and to freedom.
It really is up to Congress to create ways to protect access and to raise its value as a democratic principle.
It must embrace the idea that, except for very specific areas, information, not secrecy, is the best guarantor of the nation's security. There is danger in the dark.
And it must recognize that there always will be loud and persuasive voices raised
on behalf of security, privacy and the protection of commercial interests – especially during times of national crisis – but there are no natural constituencies with the resources and organization to make the case for access and accountability.
That role falls rightly to Congress.
Democracy depends above all on public trust. Public trust depends on the sharing of power. And the sharing of power depends on the sharing of information.
That time-honored principle assuring the success of this ongoing adventure in democratic governance suffers mightily when the system of checks and balances becomes unbalanced and the role of Congress as guardians of access and accountability is compromised.
Paul McMasters, First Amendment Ombudsman at the Freedom Forum, is a member of the John E. Moss Foundation's board of directors.