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and of¬cial whistleblowers who reveal details of government policy.
Ministries of the central government took limited (but nonetheless
unprecedented) steps to release crime reports, documents from diplo-
matic archives, and details about procurement procedures. “China™s
progress in the area of transparency is irreversible,” claimed the state-
run People™s Daily in 2003.30 The Economist reported that the Chinese
State Council was contemplating the adoption of a regulation that
would acknowledge a citizen™s right of access to government infor-
mation and af¬rm the principle that government information should
be publicly available except in enumerated circumstances.31
The Chinese government had good reason to improve access to
government information. Some of its actions were mandated in trade
agreements that China signed as part of the process of joining the
World Trade Organization. The country had also been embarrassed
by its mishandling of its SARS epidemic, which was rooted principally
in of¬cial recalcitrance in providing details about the spread of the
disease. As well, China™s leaders hoped that transparency would curb
of¬cial corruption and quell growing public restlessness evidenced,
ironically, in newly released statistics showing a dramatic increase in
“mass group incidents.”32 And even Chinese policy makers were sen-
sible of the extent to which the “right to information” was becoming
entrenched in the laws of other countries.
Lower levels of Chinese government actually raced ahead of cen-
tral government. In 2002 the government of Guangzhou, a metropolis
of ten million people on China™s south coast, announced a “revolu-
tionary” change in policy on access to government information.33
Guangzhou™s Provisions on Open Government Information acknowl-
edge the “right to know of citizens and organizations,” establish a
“general principle” that government information should be made
public, and promise that a detailed list of documents will be pub-
lished on the government™s own initiative. In 2004, the municipality
of Shanghai “ home to another seventeen million “ adopted a simi-
lar code. Like the Guangzhou law, the Shanghai code requires of¬-
cials to release information within ¬fteen days or provide reasons for
refusal.34
Whether the Guangzhou and Shanghai codes can be effectively
enforced by citizens remains a critical question. No citizen of
Guangzhou attempted to sue the municipality over a refusal to


8
The Glass Case


comply with the disclosure rules during the ¬rst two years in which
they were in force. In Shanghai, however, an attorney quickly ¬led
a suit after local of¬cials declined to provide documents that might
have shown whether his client was the true owner of a home taken
during the Cultural Revolution. “This is a pre-conceived legal test,”
said He Guoping, who conceded that he was surprised when the
Xuhui District Court agreed to hear the case in August 2004.35 (By
spring 2005 the case still had not been decided.) Municipal of¬cials
in Shanghai claimed at the end of 2004 that they had already received
3000 requests for information and approved almost 70 percent of the
applications. At the same time, however, of¬cials warned that they
would “stand ¬rm on holding back information that has a strong
bearing on state security and social stability.”36


From arcani imperii to data smog
Central to this global “right to information” movement is the pre-
sumption that information held by government should be publicly
available, unless government of¬cials can make a good case that legit-
imate interests “ perhaps the public interest in preserving national
security, or the need to protect another citizen™s privacy “ would be
harmed by releasing information. By the end of the 1990s there were
many people who believed that the “right to know” “ and the presump-
tion of openness “ had ¬nally become entrenched as a basic principle
of democratic governance. If so, this would mark the ¬nal overthrow
of a much older proposition: that the business of government should,
as a rule, be done in secret.
The tussle over access to information has always been closely
tied to struggles over the distribution of political power. In pre-
revolutionary France, the absolute authority of the King was bolstered
by a practice of strict secrecy in public affairs, extending even to a ban
on the distribution of friendly commentaries on government policy.37
As a practical matter, secrecy was easily preserved at a time when the
only method of distributing information was by manuscript (that is,
handwritten) texts. A dramatic advance in information technology “
the printing press “ triggered a government crackdown, culminating
in the “law of silence” of 1764, which prohibited public discussion of
matters of state.


9
Blacked Out


This technological transformation, and the challenges to state
authority it encouraged, also forced supporters of the King™s prerog-
atives to articulate an explicit defense of the practice of secrecy. The
political philosopher Jean Bodin revived the term used by the Roman
historian Tacitus to describe the “secrets of imperial policy” that had
to be protected against senatorial prying: the arcana imperii. Follow-
ing Tacitus, Bodin and other supporters of absolutist rule argued that
the King™s ability to maintain the integrity of the state would be under-
cut if arcana imperii were not protected: With publicity, the King™s
plans “would be as effective as an exploded mine.”38 In seventeenth-
century England, the political theorist Robert Filmer wrote a defense
of kingly authority that also accepted the presumption of secrecy:

I have nothing to do to meddle with Mysteries of State: such
Arcana Imperii, or Cabinet Counsels, the Vulgar may not pry into.
An implicite Faith is given to the meanest Arti¬cer in his own
Craft, how much more is it then due to a Prince in the profound
Secrets of Government. The Causes and Ends of the greatest poli-
tique Actions and Motions of State dazle the Eyes, and exceed the
Capacities of all men, save only those that are hourly versed in the
managing of Publique Affairs.39

Revolutions in England (in 1688) and France (in 1789) led to
an abandonment of the absolutist conception of state secrecy. The
right to free speech was gradually entrenched, legislatures improved
their capacity to monitor taxing and spending, and the process of
lawmaking was itself opened to public scrutiny. The pace of reform
should not be over-estimated. It was not until 1803 that the British
House of Commons acknowledged the right of the press to sit in the
public gallery and record its debates; the now-familiar Hansard, the
daily record of British parliamentary debates, did not begin pub-
lication until 1829. Elaine Scarry has recently noted the lengths
to which the drafters of the U.S. Constitution went to emphasize
the need for open lawmaking “ for example, by requiring pub-
lication of a “regular statement of Account of the Receipts and
Expenditures of all public Money,” as well as a journal of Congres-
sional proceedings.40 In 1789, these matters could not be taken for
granted.
By the end of the nineteenth century, the Western democracies
had achieved what we might call a level of basic transparency: The

10
The Glass Case


rule of law was established, the process of lawmaking (including the
business of taxing and spending) was open to public view, and the
right to speak freely about governmental affairs was protected. This
was a great achievement, but it was very far from a repudiation of the
presumption of of¬cial secrecy. Within the bowels of the bureaucracy,
secrecy was still very much the rule. Writing shortly before the Great
War, the German sociologist Max Weber argued that secretiveness
was a hallmark of bureaucratic life:

Every bureaucracy seeks to increase the superiority of the pro-
fessionally informed by keeping their knowledge and intentions
secret. Bureaucratic administration always tends to be an admin-
istration of “secret sessions”; in so far as it can, it hides its knowl-
edge and action from criticism. . . . The concept of the “of¬cial
secret” is the speci¬c invention of bureaucracy, and nothing is
so fanatically defended by the bureaucracy as this attitude. . . . In
facing a parliament, the bureaucracy, out of a sure power instinct,
¬ghts every attempt of the parliament to gain knowledge by means
of its own experts or from interest groups. . . . Bureaucracy natu-
rally welcomes a poorly informed and hence a powerless parlia-
ment “ at least in so far as ignorance somehow agrees with the
bureaucracy™s interests.41

The extent to which bureaucratic secrecy was to be regarded as a
problem depended upon the perceived power of bureaucrats. In the
early part of the twentieth century, the bureaucracies of Western gov-
ernments were still comparatively small. This was particularly true
in the United States, where the central government had a modest role
in national affairs. Even in the 1920s it was typical for high-level of¬-
cials to be titled “clerks” “ a re¬‚ection of the extent to which they were
thought able to shape the content of government policy.
Perceptions about the power of bureaucrats changed dramatically
in the 1930s. In the United States this was partly a result of the
expansion of the federal role in commissioning public works, pro-
viding social insurance, and regulating business activity “ which was
manifested in the “alphabet soup” of new agencies such as the SEC,
TVA, AAA, PWA, NLRB, CCC, and NRA. As important, however, was a
change in the kind of work done by federal bureaucrats. Increasingly,
of¬cials were given broad mandates in legislation passed by Congress,
and expected to craft regulations that gave concrete expression to
those mandates. Senior federal employees were no longer clerks: Now

11
Blacked Out


they were lawmakers, with the capacity to formulate rules that could
have a profound effect on the economic interests of American busi-
nesses and citizens.
It is dif¬cult, in retrospect, to appreciate the anxiety with which
a large part of the American public viewed the accretion of power by
the federal bureaucracy in the Depression years. Many cheered the
Supreme Court when it struck down laws that gave federal agen-
cies broad authority to make rules governing the American econ-
omy. (After a 1935 decision in which the Court ruled unconstitu-
tional a key New Deal statute because it gave President Franklin
Delano Roosevelt unchecked power, the New York Herald Tribune cel-
ebrated “a tyranny overthrown.” An American Bar Association report
warned that the growth of federal agencies might lead to a state of
“administrative absolutism.”42 ) In 1937, Roosevelt tried to expand
the Supreme Court to circumvent its obstructive majority, but his
“court-packing” scheme failed, defeated by a coalition of Republicans
and conservative Democrats. In 1938, the same coalition defeated
another Roosevelt plan to expand the White House and consolidate
its control over federal departments and agencies. Critics called it
a scheme for “one-man rule” and “authoritarian government” and
handed Roosevelt the worst rebuff of his presidency.43
In broad terms, the complaints made in the 1930s by opponents
of the Roosevelt administration would sound familiar to contempo-
rary critics of institutions such as the World Trade Organization or
the International Monetary Fund. Power had clearly shifted from
Congress to a newly enlarged bureaucracy; matters once resolved
in legislation were now disposed of in regulations crafted by of¬-
cials who, only ten years earlier, had been regarded as clerks. (Today,
the parallel complaint is about the shift of power from national
bureaucracies to new supranational organizations.) This extraordi-
nary new power was often exercised secretly and capriciously, critics
said: New rules suddenly would be announced, without the opportu-
nity to challenge the grounds on which they had been adopted. “The
rise of administrative bodies probably has been the most signi¬cant
legal trend of the last century,” said one distinguished jurist. “They
have become a veritable fourth branch of the Government, which
has deranged our three-branch legal theories much as the concept
of a fourth dimension unsettles our three-dimensional thinking.”44 A


12
The Glass Case


British jurist put the problem more bluntly, calling rule by bureau-
crats the “new despotism.”45
Even progressive reformers recognized the need for steps to regu-
late and legitimize bureaucratic power, and in 1946 Congress adopted
the Administrative Procedure Act.46 The APA imposed three con-
straints on the “fourth branch” of government. It required federal
of¬cials to provide notice about proposed new rules in the recently
created Federal Register, and provide “interested parties” an oppor-
tunity to comment. It also gave citizens a right to fair treatment and
a right to appeal unfair decisions. The third element was least appre-
ciated at the time: a rough guarantee of access to information. Each
federal department was expected to publish basic information about
its organization, the rules it enforced, policy statements and proce-
dures that guided its work, and its decisions. Furthermore, any other
“matters of of¬cial record” were to “be made available to persons
properly and directly concerned except information held con¬dential
for good cause.” Of¬cials were expected to accept requests for docu-
ments, but the Justice Department quickly made clear that it would
construe the law narrowly. The APA was not intended “to open up Gov-
ernment ¬les for general inspection,” the Attorney General warned in
1947. “The great mass of material relating to the internal operation
of an agency is not a matter of of¬cial record.”47
The APA was the progenitor of two contemporary species of dis-
closure rule. One (as I note in Chapter 8) comprises a host of disclo-
sure requirements now imposed on countries through World Trade
Organization agreements. The other consists of contemporary dis-
closure laws such as the American Freedom of Information Act, or
FOIA. The idea of an FOIA was conceived by Harold Cross, the for-
mer counsel of the New York Herald Tribune, which had so harshly
criticized Roosevelt™s reach for power during the New Deal. In 1950,
Cross was commissioned by the American Society of Newspaper Edi-
tors to write a report on the problem of government secrecy. Cross
tallied the weaknesses of the APA and proposed a new law that would
acknowledge the “right to know” and create a presumption that all
citizens should have access to all government records.48
Ironically, an idea that had been born out of conservative frustra-
tion with the New Deal quickly gained favor with the press and with
Democrats and progressives. Journalists led by the ASNE seized on


13
Blacked Out


Cross™s idea as the Truman and Eisenhower administrations tightened
secrecy rules in the early years of the Cold War.49 For the ¬rst two

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