Transparency in Politics and the Media

Accountability and Open Government

Nigel Bowles, James T. Hamilton, David A. L. Levy, Nigel Bowles, James T. Hamilton, David A. L. Levy

• Publisher: I.B. Tauris
• Year: 2013
• ISBN:
  9780857734594
• Edition: 1
• Topic: Filología
• Subtopic: Periodismo

Increasingly governments around the world are experimenting with initiatives in transparency or 'open government'. These involve a variety of measures including the announcement of more user-friendly government websites, greater access to government data, the extension of freedom of information legislation and broader attempts to involve the public in government decision making. However, the role of the media in these initiatives has not hitherto been examined. This volume analyses the challenges and opportunities presented to journalists as they attempt to hold governments accountable in an era of professed transparency. In examining how transparency and open government initiatives have affected the accountability role of the press in the US and the UK, it also explores how policies in these two countries could change in the future to help journalists hold governments more accountable. This volume will be essential reading for all practising journalists, for students of journalism or politics, and for policymakers.

1

Origins of the Freedom of Information Act in the United States

Michael Schudson

The US Congress approved the Freedom of Information Act (FOIA) on 20 June 1966, a reluctant President Lyndon Johnson signed it into law 4 July 1966, and it took effect one year later. It declares that every federal agency subject to the Act (this exempts Congress and the courts) shall post for public view in the Federal Register and elsewhere information regarding its operation, procedures, opinions and orders, staff manuals, and indexes to these materials. Important as this provision is, the originality of the Act lies elsewhere, in a section that obliges executive agencies also to make records available ‘promptly’ to ‘any person’ who requests information the person ‘reasonably describes’ and requests in accord with published rules and fees. Moreover, if the records are denied, the requester may file a complaint with a US district court.

FOIA was a negotiated settlement between competing values – what information belongs to the public because the people are sovereign in a democracy, and what information must be withheld from the public in the service of legitimate governmental objectives that require confidentiality. The balancing of desired openness with justifiable confidentiality is struck in the law’s list of nine exemptions. When an executive agency successfully invokes any one of them, it is relieved from the obligation to disclose the information requested, although this decision may ultimately rest in the hands of a federal judge. FOIA permits the government to withhold information that falls within any of these exemptions: (1) information designated by an executive order to remain secret for the sake of national defence or foreign policy, (2) information related exclusively to internal personnel practices, (3) information specifically exempt from disclosure by statute, (4) trade secrets, (5) information that would be available only to an agency in litigation with the agency in question (information that judicial opinions later refer to as ‘predecisional deliberation’, as in the records of meetings in which agency officials consider alternative courses of action: see Goldenson, 2001–2), (6) information, like personnel and medical files, whose disclosure would invade personal privacy, (7) information compiled for law enforcement purposes that might impair law enforcement or the rights or privacy of an individual involved in criminal law enforcement proceedings, (8) information concerning agency regulation of financial institutions, and (9) geological and geophysical information.

If an agency does not release some or all of the information that a requester has demanded, the requester may go to court to seek a ruling that would require the agency to comply. This, of course, can be time-consuming and expensive. Prominent news organisations, among other parties, have been willing to do it, however. In recent years, free law clinics have been established to help news organisations file FOIA requests and appeal FOIA denials to the courts. (Yale Law School’s Media Freedom and Information Access Practicum was established in 2009 with the sponsorship of Professor Jack Balkin’s Information Society Project. The Online Media Legal Network, associated with Harvard Law School’s Berkman Center for Internet and Society, was founded in 2010.)

Although FOIA is a significant law and one that has been a model for scores of other countries, one will look in vain in almost all US history books to find the name of John E. Moss, a workaholic Democrat from Sacramento, California, who served in the US House of Representatives from 1953 to his retirement in 1978, and who is acknowledged to be the father of FOIA (the one biography of Moss is the admiring Lemov, 2011, by a lawyer and former employee of his; more thorough work is provided in the older dissertations listed in the References to this chapter). Moss was not a colourful figure, not much of a self-promoter, and for that matter no legislative craftsman (see New York Times, 1956). But he was a bulldog about the cause that consumed the first half of his Congressional career, the effort to limit the power of the executive branch of government to withhold public information from the Congress and the people.

During his first term, according to his own later account, Moss became interested in freedom of information. The Democrats in 1953 were the minority party in the House. Moss, as a freshman assigned to the lowly Post Office and Civil Service Committee, was concerned that Republicans were charging the outgoing Truman administration with being lax about dismissing federal employees for security reasons.

This was disturbing to me because I had every confidence that the Truman administration had been diligent in administering the laws and had attempted to hire loyal Americans. I insisted in committee that we get the facts from the Civil Service Commission. Well, the Commission refused to supply the information requested by the committee. This was my first experience with an agency refusing to respond to the legitimate demands of the legislative body. (Berdes, 1969: 61)¹

When the Democrats gained control of the House in 1955, Moss was appointed chair of a Subcommittee on Government Information of the Government Operations Committee. Early in the subcommittee’s efforts to investigate government information policies, staff consulted with James Russell Wiggins of the Washington Post, then head of the Freedom of Information Committee of the American Society of Newspaper Editors, other leaders in journalism, and a dozen reporters who could testify to specific instances when government agencies withheld information or suppressed news (Blanchard, 1966: 62). Moss’s efforts from that point on for more than a decade were buoyed by media support, and he was not shy about asking for it. ‘I hope more of you will bring your complaints to the Subcommittee,’ he told news executives in 1957. ‘By demanding your right of access to Federal information – and by bringing the case to the attention of the Subcommittee if your right is disregarded – you can help reverse the present Federal attitude of secrecy’ (Moss, 1957a).

That there were journalists to consult with in 1955 was itself novel. The American Society of Newspaper Editors (ASNE), founded in 1923, had taken no interest in government secrecy until World War II, and then only as a problem in other countries, holding to the premise that Americans could and should instruct the rest of the world in press freedom. Only as the Cold War developed did journalists became concerned about press freedom at home.

The ASNE created its first committee on the subject – the Committee on World Freedom of Information – in 1948. In the same year, Sigma Delta Chi, the national journalism honour society, created a Committee on Advancement of Freedom of Information – again, with a global, not a national focus. The ASNE dropped ‘World’ from the committee’s name in 1950 and Sigma Delta Chi’s committee moved towards a domestic focus in 1951 (Kennedy, 1978: 20–30: information largely from ASNE and Sigma Delta Chi contemporaneous publications). ASNE recruited the retired media lawyer Harold Cross to examine the legal environment for freedom of information in the United States with respect to local, state, and national government. His work led to a book, The People’s Right to Know (1953), that became the much-cited Bible of the freedom of information movement. Cross himself intended the work to be a ‘manual of arms’ for media lawyers and journalists (1953: xvi). He boldly began the book: ‘Public business is the public’s business. The people have the right to know. Freedom of information is their just heritage. Without that the citizens of a democracy have but changed their kings’ (1953: xiii).

A freedom of information movement was taking shape, and as much or more at state and local levels as at the national level – which is to say, it was by no means focused on secrecy in the interests of national security. The freedom of information movement gained momentum in the 1950s at the state level. By 1959, fifteen states enforced both open meetings and public records disclosure, fifteen others open meetings only, and a handful of others public records disclosure only. Journalism professional groups – Sigma Delta Chi, the AP Managing Editors, the American Society of Newspaper Editors, the National Editorial Association, and state press associations – promoted these laws (Scher, 1960: 41–52).

Moss could be very entertaining – and headline-grabbing – in firing away at government secrecy. In a speech to the Magazine Publishers Association in 1958 – Moss spoke frequently to journalism associations and conferences – he recounted how the Air Force had tested a missile, hoping to get the nose cone back safely through the atmosphere, but the experiment failed. Major General Bernard Schriever told the press the next day that there had been nothing living in the nose cone. Several days later the New York Times reported that a mouse had been in the nose cone and the Air Force admitted this. Moss added that he disagreed with the Washington correspondents who said the Air Force had denied the existence of the mouse passenger until next of kin could be notified. Moss (1958b) told the magazine publishers that he asked General Schriever if the existence of the mouse was classified under Executive Order 10501 and, if so, why was the information eventually released? If not, why was the information originally withheld?

Moss doggedly attacked executive secrecy even after Democrat John F. Kennedy came to the White House in 1961. In June 1962, he insisted that a much larger share of complaints his subcommittee pursued in the first year of the Kennedy administration than in the final half-year of Eisenhower’s presidency were initiated by the subcommittee itself (Kennedy, 1978: 102, citing an address by Moss to the New Mexico Press Association, 29 June 1962). In fact, in an address to the California Press Association on 30 November 1962, just a month after the dramatic, frightening, and effective ‘brinksmanship’ of the Cuban missile crisis, Moss criticised the Kennedy administration not just for continuing the secrecy policies of the Eisenhower administration but for expanding them – especially, for centralising policy in the White House and for making information release in defence and security matters more and more a matter of political advantage, less and less justified by defence and national security. In this speech, Moss used the framework of the Cold War to needle the Kennedy administration. ‘I’m not worried,’ he said, ‘because the society reporters for Washington newspapers were not permitted backstage when the President and the First Lady talked to members of the Bolshoi Ballet, even though they were scooped by a Tass representative who was backstage as an official of the Russian government’ (1962: 15).

This was a rhetorical move that Moss perfected – to show instances where the Soviets were more open in their information policies than the US. In a 1957 speech to the Associated Press Managing Editors, for instance, he had observed that the Russians published much of their research concerning the use of nuclear energy for domestic purposes: ‘This has been going on in open Russian technological publications for more than a year; but practically all information in the same areas are still classified in the United States’ (Moss, 1957b).

Although FOIA is a monument to the ideal of government transparency, it emerged in a climate of opinion far different from the mood and momentum of openness and disclosure that would emerge in the years after FOIA became law. True, 1974 amendments to the law made it far more effective, and these were passed in the wake of Watergate, buoyed by the very different atmosphere of the early 1970s (see Sundquist, 1981: 315–18). The 1974 amendments provided for the ‘segregation’ of information so that agencies could not classify whole documents or categories of documents as exempt; they provided for in camera review by the courts of materials the executive agencies judged to be protected by the national security exemption, they made more concrete what fell under the investigatory law enforcement exemption, they standardised the fee schedules the requester must pay, they provided fee waivers for requests that were for the benefit of the general public, and they established deadlines for agencies to respond to requests. (On the importance of these 1974 post-Watergate amendments, see Cate et al., 1994, and Wald, 1984 – who as judge in the US Court of Appeals for the District of Columbia heard many FOIA cases.) But why did FOIA become law in 1966? Why did the efforts to achieve its passage begin in 1955?

Clearly, the Cold War offered a rhetorical framework that served supporters of freedom of information. Moss spoke repeatedly of the ‘paper curtain’ of executive secrecy in Washington, an obvious reference to Winston Churchill’s 1946 popularisation of the phrase ‘iron curtain’ to refer to the Soviet domination of its Eastern European satellite countries. Moss may have picked up ‘paper curtain’ from journalists themselves, although the term was in use in a closely related context as early as 1952, referring to the barriers the government had erected to foreign scientists seeking visas for visits to the United States (Shils, 1952; see also Weisskopf, 1954). At the first set of hearings in his subcommittee, Moss invited a group of leaders in journalism to present their views. This included Victor ‘Red’ Newton, then chair of the Freedom of Information committee of Sigma Delta Chi. His committee, he observed, had produced a report that warned of a ‘paper curtain’. He testified,

This report … exposed clearly an alarming picture of a ‘paper curtain’ draped securely over the release of news in the executive branch of Federal Government; of direct censorship in many departments, agencies, and bureaus; of arrogance on the part of many of our public servants; of much propaganda for political gain and privilege; of utter public confusion as to the facts in the big stories of the day; and, in some cases, of favoritism, intimidation, and revenge in the release of news of government to the people. (House Committee, 1956: 14).

Other journalists picked up the ‘paper curtain’ phrase and Moss used it regularly. In the summer of 1955, Moss was asked to make a public report on the work of the subcommittee. His aide, J. Lacey Reynolds, a former journalist, drafted remarks for him, entitled ‘Is there a “Paper Curtain” in Washington?’ (Blanchard, 1966: 73; speech published in Congressional Record, 84th Cong., 2d Sess., 25 Aug. 1965, A6213–14). In a 1956 speech to the America...

Table of contents

• Author Biography
• Blurb
• Title Page
• Copyright Page
• Contents
• List of Tables and Figures
• List of Contributors
• Introduction
• 1. Origins of the Freedom of Information Act in the United States
• 2. Impact of Transparency on Accountability
• 3. The Impact of the Freedom of Information Act in the UK
• 4. Valuing Transparency in Government and Media
• 5. Transparencies
• 6. Transparency and Public Policy: Where Open Government Fails Accountability
• 7. Truth Vigilantes: On Journalism and Transparency
• 8. Data and Transparency: Perils and Progress
• 9. The Transparency Opportunity: Holding Power to Account – or Making Power Accountable?
• 10. Data, Data Everywhere: Open Data versus Big Data in the Quest for Transparency
• 11. Corporations and Transparency: Improving Consumer Markets and Increasing Public Accountability
• 12. The Rise of NGOs and Nonprofit Media
• 13. Keeping American Accountability Journalism Alive
• Series Page