Social Science Research Council
Omiya Law School professor Lawrence Repeta delivered the following speech at an Abe Fellowship Colloquium titled “People are Sovereign! Access to Government Information and Democratic Government in the United States and Japan” held at the Japan Foundation Conference Hall in Tokyo on October 26, 2006.
by Lawrence Repeta
I
The U.S. Freedom of Information Act and the more fundamental concept of a people`s right to know are direct outgrowths of the most basic principle of a democratic Constitution: the people are sovereign. James Madison, the man commonly known as the “father” of the US Constitution explained this basic concept – and the people`s need for information – two hundred years ago.
During my Abe fellowship year in the United States, my goal was to find evidence of how this process works today, and in particular to examine what role the Freedom of Information Act (or “FOIA”) might play in enabling the people to better exercise their sovereignty. To do this, I sought out individuals and organizations who seek to exercise a right to know about the activities of government in some significant way. The core of the project is a series of approximately 30 tape-recorded interviews with individuals in positions to describe the details of their use of the FOIA in particular cases. My objective was to capture each story in the speaker’s own words. The range of subject matter was quite broad. In each case, I did substantial background research to gain some understanding of the issues and the significance of the case and the documents disclosed.
Among the people I interviewed was a man named Steven Aftergood, who works at a non-profit research organization called the Federation of American Scientists. (www.fas.org) This organization was formed in 1945 by scientists who had participated in the Manhattan Project, the research project that led to creation of the atomic bombs that were dropped on Hiroshima and Nagasaki. Horrified by the threat to humanity posed by the atomic bomb and even more fearsome weapons to follow, they created the Federation of American Scientists in order to oppose the development of unnecessary weapons, to encourage the development of peaceful uses of technology and to oppose excessive government secrecy. During the course of our interview, Aftergood issued this dire warning: “It is not clear that democracy as we have learned it from our textbooks in school has a certain future. It’s the question that President Lincoln asked at the Gettysburg Address: whether this vision of self-governing citizens—whether, in his words, ‘government by the people…can long endure.’ We don’t know the answer to that. It is a question that has to be asked again and again by every generation.”
Now it is 2006. And the question remains: “Is this kind of government really possible?” The kind of government that Madison and his colleagues designed, with the people as sovereign? The government that Lincoln described as a government “by the People?” If it is possible, how can it be achieved? What are the means to achieve this kind of government? In particular, what are the means in the Age of the Internet?
A little over thirty years ago, this concept of “the people as sovereign” was put to a severe test in the United States. We experienced a president who led a government that systematically broke the law to pursue its political objectives. This was a government in which secret police illegally opened mail, tapped telephone lines, illegally broke into private offices, distributed false information with the intent of destroying the reputations and personal lives of its political enemies and engaged in other illegal activities. The president was named Nixon and the incident that symbolized much of went wrong is called “Watergate.”
Amazingly, it turned out that the American system of democratic government not only survived the threat posed during the Nixon era, but it emerged stronger, with new protections against the abuse of government power.
President Nixon resigned in August 1974. During the remainder of the 1970s. the U.S. Congress adopted many so-called “open government” laws that share the common goal of making government operations more transparent and open to public scrutiny. The objective was to help insure against the occurrence of a second Watergate. These laws included the first privacy protection law that applied to the federal government. This law prohibits the misuse of private information and enables citizens to examine government records concerning themselves and to demand that erroneous information be corrected. They included laws requiring that certain government meetings be open to the public, a law requiring the appointment of independent investigative officers in each major government agency, the first law providing significant protection for government whistleblowers, and others. But the law that passed Congress in the autumn of 1974 amending the Freedom of Information Act is surely the most fundamental “open government law” and the one that is most heavily used. It is also the law that has been most sharply resisted by Republican administrations, in particular the administration of George W. Bush.
From the day Bush and Cheney took office in January 2001, they have fought a continuous battle against the post-Watergate reforms. Despite this government’s hostility to open government reforms – and especially to the FOIA -- the interviews show that in a wide range of cases, individuals and organizations have successfully used these reforms to force the government to disclose significant information that otherwise would not have been made public. 1
Some examples of the information they uncovered include: 1) more than ten thousand pages of documents produced by the so-called “Cheney Energy Task Force,” 2) government research documenting ongoing damage to the environment in Alaska’s Prince William Sound resulting from the 1989 Exxon Valdez disaster, 3) documents that show that during the ongoing Iraq War agents of the FBI and the Department of Defense have spied on peace groups in the United States like the Quakers who oppose the Iraq War and on other citizen organizations, 4) contracts and other documents that show massive payments to private corporations related to the Iraq and Afghanistan wars, and even 5) documents concerning the abuse of prisoners in U.S. custody at Abu Ghraib prison in Iraq, Guantanamo Bay, Cuba, and elsewhere.
Toward the end of his long life, Madison delivered the words that are quoted more often than any other. He wrote that "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives."
Following Madison’s lead, the U.S. Congress of the 1970s created the modern system of open government laws. I interviewed individuals who used these laws to, in Madison’s words, “arm themselves with the power knowledge gives.” How did they do it? What are the key elements necessary to enable these open government laws to work?
The first necessary element is certainly an independent and aggressive news media. To the extent that news organizations employ skilled journalists who conduct true investigative reporting, the public right to know is served. To the extent that they do not conduct investigative reporting, but instead rely primarily on the words of paid public relations staff and other spokespeople and on press releases and other official documents, then the public right to know is not served; government succeeds in disseminating a message of its own choosing, whether or not it is a true description of events. The Watergate incident itself was uncovered through the dogged efforts of investigative journalists who pursued the story for many months before grasping its significance.
After the news media, the next most significant type of entity in the process of providing the people with important information in the United States today is probably the wide array of organizations commonly known as “non-profit public interest groups” or “civil society” organizations. (When I say “important” in this context, I mean important to the process of democratic governance. In other words, important in order to enable the people to exercise their power of sovereignty.) These groups enable like-minded citizens to band together in order to more effectively obtain information, to express their opinions and to participate in the governance process. As shorthand, I will refer to these groups simply as “NGOs.” Their use of the Freedom of Information Act has been the primary focus of my research.
Before we go any further, I’d like to show you a couple of NGO websites that can help illustrate some of these points.
First, let`s take a look at the website of the Natural Resources Defense Council. (The speaker displays several pages from the NRDC website at www.nrdc.org.) This is one of the largest and most professional of the environmental protection groups. As you might expect, their website is very colorful and chock-filled with information of all kinds. There are policy statements and press releases, descriptions of ongoing programs and campaigns, profiles of the staff and the board of directors, and lengthy reports, including annual reports for several years available in PDF format.
But that`s not all. There is also financial data. Funding is an issue of great importance to every NGO. In order to qualify for non-profit treatment under the U.S. tax laws and to enable donors to obtain tax deductions for their gifts, the NRDC – like all such groups -- must file an annual tax return known as a Form 990.
Would you like to know what`s in the NRDC tax return? Well, here it is. (The speaker displays the NRDC Form 990, which is available at http://www.nrdc.org/about/finances.asp.) NRDC has posted it right on their website. The tax return requires the disclosure of much detailed financial information to the government. Among other disclosures, each organization must list the names and salaries of the five highest paid employees. In NRDC’s case, anyone can surf the Web and find this information. I call this “real transparency.”
My first interview in the series was with a lawyer who works for NRDC. She sued the U.S. Department of Energy and won a court order instructing the Department to release documents related to the Cheney Energy Task Force. Following this court order, a truck carrying more than ten thousand pages of documents arrived at NRDC offices one afternoon in March 2002. The NRDC staff not only analyzed these documents, they also spent two weeks scanning them and then they posted the entire collection of documents on their website so that news reporters, staff at other NGOs and interested citizens could see the documents for themselves. This is a clear example of a powerful use of the Internet to serve the people`s right to know.
Next, I`d like to show you the website of a group called the “Electronic Privacy Information Center,” more commonly known as “EPIC.” (The speaker displays several pages from www.epic.org.) EPIC has a very large website with much information of value to anyone interested in privacy protection, and free speech and other fundamental human rights. The sources of funding are somewhat different from NRDC. Compared to NRDC, this is a much smaller, more specialized group. In the NRDC case, a very large individual membership base provides a major pillar of financial support. EPIC does not have the advantage of such a big membership list. Its mission is far more abstract than protecting animals and mountains. So EPIC must rely on donations from charitable foundations. Many of these donors are listed in the EPIC Annual Report.
Like NRDC, EPIC uses the Freedom of Information Act heavily to obtain government information related to its policy agenda. I’d like to point out a special feature of this website, which EPIC calls “FOIA Notes.” (The speaker clicks on the FOIA Notes icon on the website.) Like NRDC, EPIC uses the Freedom of Information Act very heavily to obtain government information related to its policy agenda. Through “FOIA Notes,” EPIC not only conveys information about its activities to Web visitors, it also trains them in the use and importance of the Freedom of Information Act.
We have just considered two examples of very successful American NGOs. Now let’s step back and ask a fundamental question: What are the attributes of a successful NGO? There is a very simple, comprehensive answer to this question: They must be very well managed. This means that they must have clearly stated missions, they must effectively utilize a range of communications media, they must be able to raise sufficient funds to maintain a stable, continuous operation and they must hire and retain qualified professional staff.
Let’s consider the mission statements of the two NGOs we just visited on the Net: The Natural Resources Defense Council mission statement is somewhat long, but the opening is short and clear: “The Natural Resources Defense Council's purpose is to safeguard the Earth: its people, its plants and animals and the natural systems on which all life depends.” The Electronic Privacy Information Center also has a clear mission: “EPIC is a public interest research center in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values.”
Regarding communications media, effective use of the Internet is critical to enable NGOs to disseminate information, including information they may obtain through use of the Freedom of Information Act. As I mentioned earlier, in the case I studied the NRDC scanned thousands of pages of documents received through FOIA and made them available to anyone through their website. Other groups have taken similar action. But the Internet is a very crowded place. There is tremendous competition to “attract eyeballs” among NGOs, news organizations, individual bloggers and others. In order to attract and retain a significant audience, the NGO website must offer information that viewers think they can get nowhere else, or that is presented in an especially persuasive manner. The website should be visually compelling and well organized. Articulate NGOs create and manage (with frequent updates) very large and attractive Internet Websites, rich with content relevant to their agendas.
The successful NGOs I studied are all run by professionals. They employ volunteers and student interns and cooperate with individuals outside the organization, but the core functions of management, research and writing, public speaking, liaison with mass media and others are conducted by full-time professional staff. In many cases, these individuals have long careers at the same institutions (or similar ones) and over a long span of time have developed the sophisticated skills and expertise that enable the NGO to have an impact. In order to effectively spread the NGO message, they must have articulate, knowledgeable spokespeople. Here I should mention the symbiotic relationship that has evolved between the NGOs and the traditional news media. Articulate NGOs typically work effectively with the mass news media to broadcast their message to the society at large. A division of labor appears to have arisen, with news reporters as generalists and NGO staff as specialists. (Many such examples were uncovered in my research, including very heavy reporting of NRDC’s disclosure of documents related to the Cheney Energy Task Force and EPIC’s uncovering of government use of so-called “No Fly Lists” or “Terror Watch Lists” to keep people the government suspects as dangerous from boarding airplanes.
These people and other key staff members must be sufficiently compensated to enable them to devote themselves to this kind of work. This costs money. The biggest civil society organizations have annual budgets that can run to tens of millions of dollars. In most cases, the primary source of ongoing funding is through charitable foundations and a primary role of the executive director is fundraising through such foundations. Some employ professional grant application writers to assist them. Some NGOs (in particular, environmental protection groups) are able to generate significant funding through fees collected from very large individual memberships.
I’ve just spent a lot of time talking about NGOs and two examples in particular. The reason I did so is that I believe organizations like these are the most powerful engines that make the U.S. Freedom of information Act work. They are contemporary examples of citizens who, in Madison’s terminology, “arm themselves with the power that knowledge gives.”
Strong news media, civil society organizations and motivated experts and individual citizens make a freedom of information system work by filing requests and then disseminating the information they receive to the society at large. But what can be done if the executive branch of government refuses to disclose information in response to these requests or otherwise refuses to follow the open government laws?
Aggrieved parties can take the government to court. Lawyers and NGO leaders whom I interviewed won court orders instructing government agencies to release information that the agencies wanted to hide. For example, when the Natural Resources Defense Council sued the US Department of Energy to obtain information related to the “Cheney Energy Task Force,” Judge Gladys Kessler issued an order setting specific dates by which the Department was required to provide a complete listing of all material in its possession related to the request (commonly known as a “Vaughn Index”) and to disclose specific documents.
In response to another freedom of information request, a federal judge in New York City named Alvin Hellerstein has ordered the release of photographs of prisoner abuse at the Abu Ghraib prison and more than one hundred thousand pages of documents concerning government investigations into this abuse. The government strenuously opposed the release of this information, arguing that it would enrage our enemies and cause deep embarrassment to the United States. There is no question that this is true. But when the Judge ordered disclosure anyway, he explained: "my task is … to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society: transparency and accountability in government." (For the court order, see http://www.aclu.org/torturefoia/legaldocuments/index.html.) Without any doubt, this is a highly sensitive case. But the law is clear. And the authors of the United States Constitution foresaw that the pressure on judges would be great. In order to insulate them from such pressure and protect their independence, the Constitution grants them lifetime appointments.
It is reassuring to know that there are some hard-working and courageous judges willing to issue orders to compel government agencies in appropriate cases to release information which those agencies seek to hide. In cases like these, the courts fulfill their constitutional duty. Without independent courts, there would be no real check on government secrecy.
By now, some of you may be thinking “This is a very big system involving many government agencies and countless NGOs and others.” And, by the way, I should mention that the federal government processes several million Freedom of Information requests every year. This is unquestionably a serious investment of government resources and of the society itself. A very practical question is: “Who should pay for it all?”
This is perhaps one of the areas where the American and Japanese systems show the greatest divergence. Under the Japanese law, with very few exceptions, every requester – both commercial and non-commercial – must pay an application fee every time he or she files an information request. When information is actually disclosed, then requesters must pay another fee just to examine documents even though they do not receive copies and must also pay a copying fee of ten yen for each page received. (When Japan’s law came into effect in 2001, the fee was set at 20 yen per page. The government responded to complaints from users by cutting the copy fee from 20 yen to 10 yen per page this year.)
There seems to be an attitude in Japan that the information disclosure system is something like a toll road. If you drive your car on that road, then you must pay at the entrance and you must pay more as you go along, depending on how far you drive. If you choose not to use the toll road, but to drive on other public roads, you don’t have to pay anything at all. The key point is that the people who enjoy the benefit of using the road should pay for it.
This “user-fee” analogy certainly does not apply in the United States. The US Freedom of Information Act has always been based on a completely different philosophy. Although government agencies can collect fees to recover some of the costs of handling information requests, there is no fee payable at the time an information request is filed and agencies are generally prohibited from requiring payment of search and copy fees in advance. For all non-commercial requesters, agencies are required to provide the first two hours of search time and the first one hundred pages of copying free of charge for each request. When information is requested by an educational institution or by the news media, agencies are required to provide search and other services for free and may only collect a copying fee.
The authors of the U.S. Freedom of Information Act were aware that, for non-profit groups who depend on charitable donations for their existence, application fees, copy fees and other charges can constitute a significant barrier to use of an information disclosure system. They also understood the important role that these groups can play in making the system work. In order to provide a special incentive to news reporters, NGOs and others, the law expressly provides for reductions and even total waivers of all fees in cases where disclosure of the information is in the “public interest” and is likely to “contribute significantly to public understanding of the operations or activities of the government.” Any requester can potentially qualify for a complete fee waiver under this rule. In several cases covered by my interviews, requesters received many thousands of pages of documents with no fee payable at all. In the case of an ACLU request for information related to treatment of prisoners at Abu Ghraib, Guantanamo Bay and other military detention facilities, the government has released more than one hundred thousand pages of documents with no fee payable.
Why is this the case? Why did the United States Congress pass a law requiring the waiver of fees in cases where the release of this information serves the public interest? If James Madison were here today, he would have no trouble answering this question. It is because the Freedom of Information Act is not a toll road. The central purpose of the Freedom of Information Act is not to enable an individual user to obtain some information in which he has some specific interest – although it does serve that purpose as well. It is because the central purpose of this law is to serve the people’s right to know in order to enable them to better and more intelligently exercise their sovereign power. In the year he took office, President Bill Clinton wrote a memorandum to all heads of federal government agencies in which he explained this connection. Clinton wrote that the FOIA “has played a unique role in strengthening our democratic form of government. The statute was enacted based on the fundamental principle that an informed citizenry is essential to the democratic process.”2
By obtaining and disseminating government information, organizations like the NRDC, EPIC and others I studied in my Abe Fellowship project help to fulfill the central purpose of the FOIA, which is to promote an informed citizenry, in Clinton’s words “essential to the democratic process.”
This philosophy applies not only to costs of processing requests and copying material. It also applies to the payment of attorneys’ fees. The Freedom of Information Act provides that courts can order the government to pay “reasonable attorney fees and other litigation costs” in cases where lawsuits filed by requesters result in significant disclosure of information. I interviewed a news reporter in San Francisco who spent 15 years in litigation against the FBI seeking the release of documents related to FBI activities at the University of California. When the case was finally settled, the government not only released tens of thousands of pages of documents; it also agreed to pay more than $ 600,000 in attorney fees. (See www.sfgate.com/campus/.)
Why should the government bear this cost? In a report that accompanied the post-Watergate 1974 reform of the FOIA, the U. S. Senate explained that this payment of attorney fees in cases where information requesters are successful would encourage them to go to court for the purpose of enforcing national policy. In other words, in the San Francisco case, it was not the FBI, but the reporter and his lawyers who were serving the American people.
It is time to bring my comments to a close. Before I do, I’d like to briefly mention one other interesting feature of the American freedom of information movement.
Constant effort is required to educate reporters, historians and individual citizens about the use and the importance of the people’s right to know. The citizen organizations involved in this process include not only the advocacy groups I described earlier, like NRDC and EPIC, they also include such groups as professional associations of journalists, historians and researchers, government employees, and scientists, as well as labor unions, and other groups. One of my favorites is the American Library Association. The public library has a special place in American communities. It serves as a convenient source of information and knowledge, a “window on the world,” for ordinary people in small towns and big cities all across the country. The American Library Association now has more than 60,000 members; it serves as a cornerstone to the movement for public education, individual self-improvement, and good citizenship. And, yes, the ALA also plays an important role in the Freedom of Information movement. Among its activities, in 1986 the ALA established an annual award to be granted to an individual who, in the ALA’s words, has “championed, protected, and promoted public access to government information and the public's right to know.” In February of this year, the man I quoted at the beginning of my talk, Steven Aftergood of the Federation of American Scientists, received this award, which the ALA calls the “James Madison Award.” The award is traditionally given at a ceremony in Washington DC on March 16, which is Madison’s birthday and is celebrated as “Freedom of Information Day” throughout the United States. (See http://www.firstamendmentcenter.org/press/information/topic.aspx?topic=FOI_Day.)
Thank you very much.
1One of the young lawyers I interviewed explained the reason this way: “We have had one-party rule in Washington, so there has been no congressional oversight. Congress has failed to use its authority to conduct investigations on big issues like the torture at Abu Ghraib or abuse of investigative authority by the FBI and other agencies, so little information has come out through Congress. The sources of information on issues like this have been disclosures by whistleblowers, other anonymous leaks to the press by government officials, and documents obtained through litigation under the Freedom of Information Act. Without these sources, the people would have no knowledge of their government’s actions in these areas.”
2 Memorandum, October 4, 1993.
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