By Cliff Montgomery – Sept. 18th, 2009
The Congressional Research Service (CRS) on August 31st released a intriguing study entitled, Access to Government Information In the United States.
It reminds us that American democracy doesn’t come down to us written in stone, but is constantly evolving to fulfill its stated promise. Though the Declaration of Independence often spoke in democratic terms, the Founding Fathers did not create a perfect democracy–or, in fact, a democracy of any kind.
They instead created a limited republic, where only wealthy white male landowners had full voting rights and slavery was all too often the economic rule of the day.
It therefore is only natural that at first, government secrecy was designed to keep those who were not full citizens from knowing what those in power were actually doing. And while things often have changed for the better, work remains to be done.
The American Spark below offers major quotes from the CRS study:
“The U.S. Constitution makes no specific allowance for any one of the three branches of the federal government to have access to information held by the others. No provision in the U.S. Constitution expressly establishes a procedure for public access to government information.”
“Throughout the first 150 years of the federal government, access to government information does not appear to have been a major issue for the federal branches or the public.
“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, making government documents more accessible.
“Following World War II, some information was available from certain federal departments and agencies. The public availability of records held by the executive branch was limited by narrow interpretation of the housekeeping statute of 1789, which authorized the heads of departments to prescribe regulations regarding the custody, use, and preservation of the records, papers, and property of their entity.
“Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information.
“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.
“In response, some congressional panels began examining information access issues and seeking responsive legislative solutions. Among these legislative responses was the creation of the four following statutes:
· The Freedom of Information Act (1966),
· The Federal Advisory Committee Act (1972),
· The Privacy Act (1974), and
· The Sunshine in Government Act (1976).
“This report offers an overview of each of these statutes, including the boundaries of their authority.
“In 1966, Congress enacted the first law requiring public access to executive branch information. Legislative records were not included in the bill because Congress believed it made its deliberations and proceedings adequately subject to public observation, largely published its records, and otherwise was constitutionally authorized to engage in information restriction in certain circumstances.
“For example, the Constitution explicitly permitted each house of Congress a discretion to keep portions of its journal of proceedings secret and disallowed the questioning of Members of Congress ‘in any other Place’ regarding official speech or debate. Legislators also were satisfied with the openness of federal court files and hearing rooms.
“Thus, the departments and agencies were the principal object of government information access reform laws. Executive branch officials, however, were not supportive of these measures and, initially, did not always promote or pursue their faithful administration.”
There are two interesting footnotes from the CRS report which should be included here. The first discusses the importance of making government information as public as possible. In 1965, U.S. Senate Judiciary Committee Chairman James Eastland stated the following:
“Access to information about the activities of Government is crucial to the citizen’s ability to cope with the bigness and complexity of Government today.… There is no validity therefore, to the frequently heard argument that these [access to executive-branch information] proposals impinge on executive privilege for they would not affect the proper exercise of authority of the President and department heads.”
But the second footnote points out a possible congressional hypocrisy when it comes to the stated virtue of making government data public:
“By explicit exclusion, Congress and the courts are not subject to FOIA. The committees that developed FOIA—the House Committee on Government Operations and the Senate Committee on the Judiciary— were responding to perceived secrecy problems in the executive branch. Furthermore, these panels had no jurisdiction over legislation concerning congressional operations. Thus, FOIA was created, approved, and implemented with an executive branch focus. “
