George W. Bush’s insistence on absolute ‘executive privilege’ doesn’t follow American law.Report Discusses Citizens’ Right To Executive Branch InformationBy Cliff Montgomery – June 1st, 2007American citizens’ access to government information–including executive branch info–is the subject of a very informative Congressional Research Service report updated April 23rd, 2007. We offer quotes below:“Throughout the first 150 years of the federal government, access to government information does not appear to have been a major issue among the three branches or for the citizenry. There were a few instances during this period when the President, for reasons of maintaining the constitutional independence and equality of his branch, vigorously resisted attempts by Congress and the courts to obtain executive records. Furthermore, during this same era, an active federal public printing program was established and effectively developed.”Following World War II, however, information came to be of limited availability from federal departments and agencies. Conditioned by information restrictions prompted by recent global hostilities, fearful of Cold War spies, intimidated by zealous loyalty investigators within and outside of government, and anxious about various efforts at reducing the executive workforce during the postwar reconversion, the federal bureaucracy generally was not eager to have its activities and operations disclosed to the public, the press, or other governmental entities.”Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information. The public availability of records held by the executive branch was limited by artful interpretation of the housekeeping statute of 1789 authorizing the heads of departments to prescribe regulations regarding the custody, use, and preservation of the records, papers, and property of their entity.”Moreover, a provision of the Administrative Procedure Act of 1946 indicated that matters of official record should be available to the public, but added that an agency could restrict access to its documents ‘for good cause found’ or ‘in the public interest.'”These discretionary authorities were relied upon to restrict the accessibility of unpublished agency records and documents.”Such conditions also contributed to the increasing difficulties of congressional committees and subcommittees in gaining access to both records and officials of federal departments and agencies during the 1950s.”In response, some congressional panels began examining these information access issues and seeking responsive legislative solutions. Among the well known inquiries in this period was the work of the Special Subcommittee on Government Information of the House Committee on Government Operations. The subcommittee, established in 1955, was chaired by Representative John E. Moss and produced many volumes of hearings and reports.”Apart from interbranch information access dilemmas, Congress, in 1966, undertook fashioning various statutory arrangements for realizing public access to executive branch information.”Executive branch officials, however, were not supportive of these measures and, initially, did not always promote or pursue their faithful administration.”The current major federal laws facilitating public access to government information are briefly described below…
- Freedom of Information Act
“Initially enacted in 1966 and subsequently amended, the Freedom of Information Act (FOIA) establishes for any person–corporate or individual, regardless of nationality–presumptive access to existing, unpublished agency records on any topic.”The law specifies nine categories of information that may be permissibly exempted from the rule of disclosure.
- Federal Advisory Committee Act
“A 1972 statute, the Federal Advisory Committee Act (FACA), in part, presumptively requires that the meetings of all federal advisory committees serving executive branch entities be open to public observation.”The statute specifies nine categories of information–similar to those of the FOIA–that may be permissively relied upon to close advisory committee deliberations when such matters are under discussion.
- Privacy Act
“Legislated in 1974, the Privacy Act, in part, establishes for individuals who are United States citizens or permanent resident aliens, presumptive access to personally identifiable files on themselves held by most federal agencies (generally, however, not law enforcement and intelligence entities).”The statute specifies seven types of information that may permissively be exempted from the rule of access.
- Government in the Sunshine Act
“Enacted in 1976, the Sunshine Act presumptively opens the policymaking deliberations of collegially-headed federal agencies–such as boards, commissions, or councils–to public scrutiny unless closed in accordance with any of nine exemptions to the rule of openness. Disputes over proper public notice of such meetings or the propriety of closing a deliberation may be pursued in federal court.Interbranch Access“No statutory arrangements have been created to facilitate access by one branch of the federal government to records and information holdings of the other two branches. Both Congress and the judiciary have subpoena powers which can be exercised to compel the production of materials by another branch, but even these demands have sometimes been resisted.”Congress can use its ‘power of the purse’ to leverage its information access demands; federal courts rely upon a spirit of justice and fair play to sustain their orders for the production of information by another branch.”In view of the American separation of powers model of government, such conflicts are neither unexpected nor necessarily destructive.”
