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BLACKED OUT




In 1966, the U.S. Congress passed the landmark Freedom of Informa-
tion Act (FOIA), giving the public the right to government documents.
This “right to know” has been used over four decades to challenge
overreaching Presidents and secretive government agencies. FOIA
has also become a model for other nations, spawning similar laws
in sixty other countries. Nonetheless, the struggle for openness is far
from over. This book describes the tactics that politicians and bureau-
crats around the world have used to preserve government secrecy.
It explains how profound changes in the structure of government “
privatization of public services, the rise of powerful international
organizations, the growth of tightly knit networks of security
agencies “ are complicating campaigns for openness. The complex
effects of new information technologies “ sometimes enhancing open-
ness, sometimes creating new barriers to transparency “ are also
described. Blacked Out provides an invaluable overview of the chal-
lenges confronting the new global movement for open government.

Alasdair Roberts is an associate professor of public administration
in the Maxwell School of Citizenship and Public Affairs at Syracuse
University. He is also Director of the Campbell Public Affairs Institute
at Syracuse University, and an Honorary Senior Research Fellow of
the Constitution Unit, University College London. He received a law
degree from the University of Toronto and a PhD in Public Policy from
Harvard University. His research focuses on two areas: public sector
restructuring and transparency in government. His web address is
http://www.aroberts.us.
BLACKED OUT
GOVERNMENT SECRECY IN THE
INFORMATION AGE



Alasdair Roberts
The Maxwell School of Syracuse University
cam™ʀɪdɢe uɴɪveʀsɪtʏ pʀess
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge c™2 2ʀu, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521858700

© Alasdair Roberts 2006


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2005

ɪs™ɴ-13 978-0-511-13558-3 eBook (EBL)
ɪs™ɴ-10 0-511-13558-0 eBook (EBL)

ɪs™ɴ-13 978-0-521-85870-0 hardback
ɪs™ɴ-10 0-521-85870-4 hardback




Cambridge University Press has no responsibility for the persistence or accuracy of uʀʟs
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
The eye of the public makes the statesman virtuous. The multitude of the
audience multiplies for disintegrity the chances of detection.

Jeremy Bentham, 1785



Our country has forgotten how to keep a secret.

Donald Rumsfeld, U.S. Secretary of Defense, 2004
CONTENTS




Acknowledgements page ix

The Glass Case
1 1

I CONTEXT

Secrecy and Security
2 27

Regime Change
3 51

Message Discipline
4 82

Soft States
5 107

II STRUCTURE

Opaque Networks
6 127

The Corporate Veil
7 150

Remote Control
8 171

III TECHNOLOGY

Liquid Paper
9 199

IV CONCLUSION

The End of the Story?
10 231

Notes 239

Index 303

vii
ACKNOWLEDGEMENTS




This is a book about transparency, so let me make a full disclosure of
the debts I owe to the people and organizations who have helped to
bring it to fruition.
I am Canadian, and began using Canada™s Access to Information
Act when I started teaching at the School of Policy Studies at Queen™s
University in 1989. (My ¬rst request, for a copy of the instruction man-
ual given to newly appointed Canadian cabinet ministers, was denied
in full.) But I did not begin conducting research on the subject until
1997, when the Canadian Newspaper Association asked me to write
a survey on the state of Canada™s federal and provincial disclosure
laws. It has been a pleasure to work over the last eight years with the
CNA and its President Anne Kothawala, an articulate proponent of
the right to information in Canada.
In 1999, a fellowship at the Woodrow Wilson International Center
for Scholars allowed me to contrast Canadian experience with the
United States™ track record under its older Freedom of Information
Act. I also had the privilege of working with Laura Neuman and other
staff at the Carter Center, learning more about efforts to improve
transparency in the Caribbean and Latin America.
In 2000, the Open Society Institute awarded a fellowship that pro-
vided a wonderful opportunity to travel and study struggles over open-
ness in other countries. In 2003 the Open Society Justice Initiative, an
operational program of the Institute, provided support for an interna-
tional workshop on national security and open government that was
organized by the Campbell Public Affairs Institute, a research cen-
ter of the Maxwell School of Syracuse University, which I currently
direct. I have bene¬ted on many occasions from conversations with

ix
Acknowledgements


Helen Darbishire, Senior Program Manager of the Justice Initiative™s
Freedom of Information and Expression Program.
I have also been honored to work with the ten other members of
the Transparency Task Force, an international committee of scholars
and activists established in 2002 by Professor Joseph Stiglitz™s Initia-
tive for Policy Dialogue, to improve understanding of transparency
as a tool for advancing human rights and economic development.
Chaired by Shekhar Singh and Ann Florini, the Task Force includes
Tom Blanton, Richard Calland, Jamie Horsley, Laura Neuman, Ayo
Obe, Elena Petkova, Vivek Ramkumar, Ivan Szekely, and Hanhua
Zhou.
The last decade has witnessed the emergence of a remarkable
international community of scholars, advocates, and public servants
interested in open government. The members of this group corre-
spond regularly and rely on each other for advice and support in their
campaigns for transparency. The extent to which this network has
grown over a few short years “ in breadth, in depth of interconnect-
edness, and in sophistication of dialogue “ has been extraordinary.
I have learned a great deal from the members of this community. I
am particularly indebted to David Banisar, who has for several years
done an extraordinary job of tracking international developments in
this ¬eld; to Toby Mendel, Law Programme Director of ARTICLE 19;
and to David Goldberg, for his manuscript comments.
I am also grateful for the assistance of the staff of the Campbell
Public Affairs Institute, Bethany Walawender and Kelley Coleman,
and the support of six graduate assistants who have worked with me
while completing their master™s degrees in public administration at
the Maxwell School: Lillian Foo, Sarah Holsen, Kevin Lo, Michael
N™dolo, Katherine Younker, and Andrea Stenhoff. Thanks are due as
well to John Berger, Senior Editor at Cambridge University Press, for
his enthusiasm and advice.
Over the years, I have ¬led hundreds of requests for informa-
tion, using disclosure laws in several countries. In most cases, these
requests have been handled by disclosure of¬cers who have done their
best to honor the spirit of the law. It is a dif¬cult job, which often
requires career public servants to mediate between dissatis¬ed cit-
izens and balky higher-level of¬cials. I™m indebted to this group of
civil servants, as well as to the investigators who have dealt with my


x
Acknowledgements


complaints and appeals, for their professionalism and patience with
sometimes complex requests.
Finally, I must thank my parents, James and Nancy Roberts, who
have passed down their own love of knowledge and a measured skep-
ticism of authority. My wife, Sandra, has listened patiently to many
stories on arcane points of law; and my children, John and Constance,
now know what I have been doing down in our basement all these
months.




xi
The massive glass cupola of the renovated German Parliament, opened in 1999.
The British architect Norman Foster said that he intended the Parliament to be
“transparent, its activities on view.” The cupola contains an observation platform
“allowing the people to ascend above the heads of their political representatives.”
Photograph by Hendrik Brixius.
1
THE GLASS CASE




Hoy todos estamos en una caja de cristal, porque hoy todo se ve, todo se
lee y todo se escucha.
“ Vicente Fox, President of Mexico, March 20041


The village of Kelwara sits in the arid folds of the Aravalli mountains
in the southern part of the Indian state of Rajasthan. Above the village
are Kumbalgarh Fort, half a millennium old, and luxury hotels for
tourists who visit the Fort. The villagers are very poor; the price of
a night™s stay in one of the hotels, 3000 rupees, is more than many
earn in a year. The villagers rely on wheat, sugar, and kerosene that
is distributed by the government for sale by local ration dealers at
reduced prices. But many ration dealers are corrupt. They falsify their
registers to show that they have sold rations to poor villagers and then
sell the supplies on the black market.
In January 2004, 400 villagers from Kelwara and neighboring pan-
chayats gathered on a mango-shaded ¬‚at below the check dam that
gathers Kelwara™s water. The jan sunwai “ Hindi for public hearing “
was organized by an activist group, Mazdoor Kisan Shakti Sangathan
(MKSS), which had worked with the poor of southern Rajasthan for
¬fteen years. The ration dealers were there as well, standing at the
edge of the meeting; at the front was a table at which sat the lead-
ers of MKSS, the local magistrate, and visitors from Delhi. A banner
behind the table, in Hindi, said: “Democracy Is Transparency with
Accountability to the People.”2
This was perhaps the twentieth jan sunwai that MKSS had orga-
nized, and by now the dramatic arc of the meeting was well estab-
lished. Shankar Singh, one of MKSS™s leaders, led the villagers in a

1
Blacked Out


song that he had composed, and that had become the organization™s

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