<<

. 4
( 53 .)



>>

years of his presidency, Eisenhower had the support of a Republican-
dominated Senate and House of Representatives, but Democrats
regained control of the House in 1954 and had both the motive and
the opportunity to push for tougher disclosure rules.50 And by the ear-
lier 1960s, a growing number of environmental and consumer rights
groups also advocated for a right to information, to scrutinize federal
agencies they claimed had been co-opted by industry.51
This was a remarkable turnabout. In 1940, Franklin Roosevelt
vetoed an early version of the APA, decrying it as a tool crafted by
“powerful and concentrated interests” to stymie reforms aimed at
improving the welfare of “a diversi¬ed mass of individuals.”52 When
the Freedom of Information Act was ¬nally adopted in 1966, one
of its most vocal proponents was Ralph Nader™s Center for Study
of Responsive Law, which exercised the right to information in an
effort to unmask instances in which government regulators had bent
to pressure from business lobbies. The Center also provided support
to NBC reporter Carl Stern in FOIA litigation that provided early
evidence of the Federal Bureau of Investigation™s surveillance and
harassment of protest groups.53 Other groups in the emerging “public
interest movement” also used the law, and in 1974 they seized the
opportunity created by the resignation of President Richard Nixon to
have the FOIA considerably strengthened.
The Freedom of Information Act of 1966 established a right to
information held by government agencies, articulated a presumption
that government documents should be publicly accessible, and pro-
vided methods for compelling of¬cials to comply with its require-
ments. It was also, by international standards, an oddity. (Sweden
and Finland, for example, had older laws af¬rming a right to of¬-
cial documents; however, many documents that are subject to FOIA
would not be considered “of¬cial” as the term is de¬ned in Swedish
or Finnish law.) While the FOIA served as a model for advocates and
legislators in other countries, their governments were not quick to
replicate the law. Twenty years later, only eleven countries had com-
parable statutes. It was assumed that FOIA-style laws were a luxury,
only likely to be adopted by wealthy, politically stable democracies “
perhaps as a way of appeasing disaffected voters as the advanced
economies stagnated in the late 1970s and early 1980s.

14
The Glass Case


This assumption was shattered after 1989, as countries began to
emulate American practice at a remarkable pace. Dominant states
such as Japan and the United Kingdom within the club of af¬‚uent
democracies adopted disclosure laws; so did states in Central and
Eastern Europe recently liberated from Soviet domination. Other
countries “transitioning” to democratic rule in Latin America, Asia,
and Africa also passed FOIA-style statutes. By the end of 2004, ¬fty-
nine countries had adopted right to information laws (See Chart54 ).
Even this ¬gure was understated: Some countries acknowledged a
right to information in their newly adopted constitutions but had
not yet adopted legislation to elaborate how the right would work
in practice. There were also federal states such as Germany whose
subnational governments had adopted disclosure laws even though
the national government had not. Furthermore the pace of adoption
showed no indication of slackening. (Germany, for example, ¬nally
adopted a national law in July 2005.)
Obviously this trend was a product of profound changes in the
international political order in the 1990s. In many instances, nations
sought a dramatic way to repudiate the secrecy of collapsed authori-
tarian regimes and signal their new alliance with the remaining super-
power, and the constitutional or statutory recognition of a right to
information was an effective way of doing this. In many countries,
governments also took special measures to open the archives of their
secret services. Even in the United States, new programs were estab-
lished to declassify Cold War-era documents, and the Clinton admin-
istration promised to reform policies that governed the classi¬cation
of records in the future. By the end of the 1990s, nongovernmental
organizations that lobbied for disclosure in different countries had
been knitted together into a robust, global movement. Many inter-
national organizations “ nongovernmental and governmental both “
had endorsed the right to information and advocated “model laws”
that were built on principles articulated (if not always respected) in
the U.S. FOIA.
It was dif¬cult, in such circumstances, not to believe that the world
was on the cusp of an unprecedented era of openness. “Secrecy is in
retreat,” said the in¬‚uential British sociologist Anthony Giddens in
2000, heralding public demands for increased transparency as part of
a global “second wave of democratization.”55 Another British scholar
suggested that transparency should be regarded as one of the basic

15
National Right to Information Laws, 1965 to 2004.
After 1989, the number of countries that had adopted laws like the United States™ Freedom of Information Act increased rapidly. By
2004, ¬fty-nine countries had similar laws.
The Glass Case


“constitutive principles” that must be respected by institutions if they
expected to retain legitimacy in the eyes of the public.56 Writing in
the American journal Foreign Policy in 2002, the head of an in¬‚uen-
tial American public interest group suggested that “the international
freedom-of-information movement stands on the verge of changing
the de¬nition of democratic governance. The movement is creating a
new norm, a new expectation, and a new threshold requirement for
any government to be considered a democracy. . . . The ideal openness
regime would have governments publishing so much that the formal
request for speci¬c information . . . would become almost unneces-
sary.”57
The very idea that a government might publish this much infor-
mation would have seemed ludicrous were it not for technological
advances that radically reduced the cost of collecting, distributing,
and accessing data. The “internet bubble” was as evident in discus-
sions about public access to information as it was in the stock market.
Technological evangelists foresaw a world in which “anyone with a
modem can gather nearly as much intelligence as the CIA.”58 (In the
pre-9/11 era, this was an homage to technology, not a slight on the
CIA.) In 1999 the Canadian government, which took pride in its lead-
ership in the new ¬eld of “e-government,” said its goal was to allow
Canadians to “access all government information . . . on-line at the
time and place of their choosing” by 2004.59 Active use of information
technology by government (the G8 countries said in a 2000 statement)
would move us toward “a truly Global Information Society.”60
Some commentators even suggested that the main dif¬culty con-
fronting citizens in the future would be their inability to exploit the
vast amounts of information that soon would be available. A 2003
study by researchers at the University of California calculated that
the rate of production of “new stored information” produced globally
had doubled in just three years: In 2002, 800 megabytes of recorded
information “ roughly equal to 30 feet of books “ were produced for
every person on the planet.61 In 1969, one study estimated that the
U.S. government maintained “roughly 70 billion sheets of paper in
the equivalent of ¬ve million four-drawer ¬ling cabinets.”62 In digital
form, this is roughly 340 terabytes of data “ probably less, as I note
in Chapter 9, than the amount of data that is now exchanged daily in
e-mail within the federal bureaucracy; and all of it subject to potential
scrutiny under the U.S. FOIA.

17
Blacked Out


The technology columnist David Shenk, alarmed by our inability
to keep up with this sprawling mass of information, suggested that
citizens might become lost in “data smog” “ a phenomenon exac-
erbated by the indiscriminate release of government information.
Shenk criticized the “disclosure mania” typi¬ed by the release, in
1998, of 60,000 pages of material from the Starr inquiry™s investiga-
tion of President Clinton. “An unrestricted ¬‚ood of information can
sometimes be more onerous than bene¬cial,” he said. “One of the
dangers is that we will be exposed to so much data so quickly that
we™ll lose perspective on what it means.”63 Shenk was not alone in
thinking that the real question was how citizens would deal with the
looming “information glut.”64


The limits to transparency
Has the old presumption of secrecy really been overthrown in favor
of a new presumption of openness? In this book I present a series
of essays to argue that “ notwithstanding the real gains that have
been attained over the last three decades “ there are still important
limits to the principle of governmental transparency. In part this is
because there are enclaves within government in which the “right to
know” has made little headway. There are also substantial changes in
the conditions of governance “ in the context in which governments
operate, in the structure of institutions that formulate and execute
policy, and in the technology that is used to produce and distribute
information “ that may constrain the ability to obtain government
information.
As I will argue in Chapter 2, the security sector of government “
the collection of departments and agencies responsible for defense,
intelligence, and policing “ is one in which the right to information
has gained only a tenuous hold. It will seem odd to say this in light
of the remarkable revelations over the past decade about the con-
duct of security services in former communist states, in the military-
dominated countries of Latin America, and during the years of
apartheid government in South Africa. However, we must distinguish
between the standards of transparency applied to the security services
of collapsed regimes and the standards applied to security services
today: In many countries, disclosure laws have been carefully tailored
to ensure that the security sector survives as an enclave of secrecy.

18
The Glass Case


In the United States, the “decade of openness”65 came to an abrupt
end with a dramatic change in the context of governance, triggered
by the terror attacks of September 11, 2001. New worries about vul-
nerability to terror attacks led to an expansion of secrecy as govern-
ment agencies reconsidered the wisdom of disclosing information
that once had been made routinely available. New threats are lead-
ing us to craft new understandings about the limits to transparency:
Some facts that once were readily acquired might now need to be
more carefully controlled. However, there is a danger in taking this
too far “ and a danger, too, in not recognizing that the best way to
deal with new threats is sometimes to pull down old constraints on
transparency.
The Bush administration™s attempt to reverse openness policies in
its ¬rst term was not simply a reaction to the events of 9/11. (For con-
venience, references to the Bush administration relate to presidency
of George W. Bush and not that of his father, George H. W. Bush.)
In Chapter 3, I observe that senior members of the Bush adminis-
tration “ such as Vice President Dick Cheney and Defense Secretary
Donald Rumsfeld “ share an antipathy toward open government rules
that is three decades old. This antipathy may be unreasonable, but
it is not irrational: Distaste for openness is part of a larger concern
about the proliferation of constraints on executive authority since
the early 1970s. Indeed, there is good evidence that a combination of
factors (more aggressive advocacy groups, broader media competi-
tion, public distrust, and the advent of the internet) have created an
environment that is, from the point of view of Presidents and their
advisors, much more complex and tumultuous.
The Bush administration™s retreat from openness can be regarded
as an attempt to address executive anxiety about the capacity to gov-
ern effectively in this new environment. Rumsfeld, the most vocal
critic of the restrictions put on policy makers in the executive branch,
sometimes sounded like a latter-day Jean Bodin, the political philoso-
pher remembered for his attempt to defend the arcana imperii as
kingly authority was challenged by technological and social change.
To be fair, Rumsfeld is not an absolutist “ but he, too, is attempting to
defend an ancien regime. Whether the Bush administration™s attempts
to reverse openness rules will ultimately be effective in restoring
governability remains an open question. Although the administra-
tion was routinely damned for excessive secrecy during its ¬rst term,

19
Blacked Out


its efforts at rollback were limited and often unsuccessful, and the
term was marked by some remarkable revelations about its inner
workings.
Anxiety over the erosion of executive power is not unique to the
United States, nor to the conservative end of the political spectrum.
In many countries, leaders of different political hues express the
same concerns about the challenges of governing in a policy envi-
ronment that is more thickly settled with journalists and advocacy
groups and more fast-paced and unpredictable. As I note in Chap-
ter 4, these concerns have often lead to open assaults on disclosure
rules. Governments have also been resourceful in developing internal
procedures designed to ensure that their control of the affairs of state
is not shaken by the disclosure of sensitive documents. Because these
procedures are buried in administrative practice, they can be dif¬-
cult to detect and counter. Nevertheless, they are important: Internal
rules crafted to impose order on the disclosure process “ to minimize
the disruptive potential of openness rules “ essentially constitute a
“hidden law” designed to restrict access to government information.
Much of this story is about the debate over transparency in coun-
tries of the First World “ nations that are, by global standards, rich,
democratic, politically stable, and technologically advanced. There
was a time when it was thought that disclosure laws would only be
adopted in countries such as these. In the last decade this idea has
been decisively refuted. The countries that are now rushing to adopt
right-to-information laws are often poor, sometimes weakly demo-
cratic or authoritarian, politically unstable, and technologically lim-
ited. Nevertheless, the governments and citizens of these countries
expect their new right-to-information laws to do great things “ to
legitimize rulers, reduce corruption, and heighten popular participa-
tion in governance. In Chapter 5, I suggest that there is good rea-
son to doubt whether these high ambitions will be quickly realized.
Advanced democracies spend millions of dollars to operate their laws,
which depend as well upon a professional civil service and modern
record-keeping systems. A repressive political system could also mean
that citizens are able to do little with information even when it is made
available.
As I noted earlier, openness rules developed in Western democra-
cies were crafted to deal with problems of control and legitimacy as
modern states emerged and consolidated their power. These rules are

20
The Glass Case


built on certain assumptions about the structure of power “ that it
is exercised by autonomous and sovereign governments and imple-
mented through public bureaucracies controlled by those govern-
ments. The rapid diffusion of FOIA-style laws could be regarded as
a sort of triumph, a de¬nitive statement about the subordination of

<<

. 4
( 53 .)



>>