Access Denied: Freedom of Information in the Information Age

Erica Hollander

Charles N. Davis and Sigman L. Splichal, editors. Access Denied: Freedom of Information in the Information Age. Ames, Iowa: Iowa State University Press, 2000.

Charles Davis and Sigman Splichal’s Access Denied: Freedom of Information in the Information Age is a valuable little collection of papers and essays on how much openness we really have in government 35 years after the passage of the federal Freedom of Information Act. It claims to be the first scholarly book that attempts to provide such a view, and I know of no other, although there are handbooks meant for working journalists and lawyers. Inspired by transactions of the National Freedom of Information Coalition, the book is written from a particular ideological standpoint: that open public discourse and restraint on government excesses depend on open processes of government and on a free press that can reach all the information it seeks. This means open meetings, open records, open courtrooms, and public visibility in virtually all cases.

The collection opens with an essay by Sigman Splichal on the history of access law in the United States, beginning with John Milton and John Locke and moving into the 20^th century. The piece provides a brief but solid context for the rest of the papers.

The second paper, "Public Support for Access to Government Records: A National Survey," by Splichal, Paul Driscoll, Michael Salwen, and Bruce Garrison, also purports to be the first of its kind: a national telephone survey of depth and breadth of public support for access to government information. Results reported show that access to government information is supported by the public across demographic groupings, at the same time that the public remains leery of the publication of jurors’ names. Intriguingly, the study finds substantial public support for open access to settlements in product liability litigation, where openness is routinely unavailable.

The third paper is a cataloguing of access in the states according to how many allow or facilitate digital access to state records. The authors of this piece regret that few state governments have made it their business to assure computer technology will increase public access to information states store. The authors twice quote a single state employee in Pennsylvania who had the poor judgment to say that, "We don’t have a policy for releasing data, so right now our policy is not to release any." This is set forth as an example of government’s refusal to respond to the realities of the information age. In fact, it may only be idiosyncratic intransigence or misguided defensiveness.

Thereafter, Susan Dente Ross has an essay on teleconferencing, telecommuting, and public access to the political process. She finds that the statutes on the books fail to provide guidelines for government use of such new media technologies. Ross worries that open meeting laws, for example, fail to address the potential for meeting by phone or video conferencing. Twenty-seven states specifically allow virtual meetings while 23 fail to take the possibility into account., and thus fail to guarantee public access to such meetings.

The fourth chapter argues convincingly that the test of what access is appropriate for private contractors performing government functions should be the same as for the state agency that had the job originally. In the absence of such an ethos, the authors see a threat to public access in the rush to privatizing prisons, schools, waste disposal, and the like.

The fifth piece is on the competing values of privacy and access. This is an important part of the overall picture. According to a quoted survey, seventy per cent of the public does not believe it proper for the press to have unrestricted access to all records even on public figures. Concern regarding the media’s judgment and discretion mitigates the national commitment to openness. That concern has been echoed by the Supreme Court in denying reporters’ access to centralized, comprehensive, computerized data bases of criminal records, in U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), even though the components of those records could be freely reached. Ironically, stirrings of anti-access sentiment can be seen just when digital information technologies become most capable of providing access.

The sixth chapter, on the Supreme Court’s opinions on invasions of privacy, then follows logically, describing a carving out of broader than original exemptions to the Freedom of Information Act. What the chapter describes is also of a piece with the concerns underlying Reporters Committee—again the Court appears to direct its energy at preventing overreaching of the media instead of at facilitating open access. Privacy concerns prevented the Bureau of Land Management from being ordered to disclose a list of names to which it had mailed a newsletter regarding the agency’s plans with respect to the high desert in Oregon. An environmental group wanted the list so that it could mail its own materials to those BLM had reached. In denying the requested access, the Court said that the only purpose for which disclosures could be required under FOIA was that of shedding light on the agency’s performance of its duties. Justice Ginsburg objected that the Act contains no such requirement, and that its addition represents a kind of unjustified judicial activism.

Chapter 7 contains Matthew Bunker’s "Closing the Courtroom: Judicial Access and Constitutional Scrutiny after Richmond Newspapers," the leading case on the public’s right of access to criminal trials. Bunker discusses a marked trend toward gagging the press in high profile cases such as the Simpson trial, the Rodney King trial, and the McVeigh and Nichols trials. Cases of this kind present very complex and difficult issues—posing problems of fairness of process, visibility of the courts, stigmatization of the defendants, protection of jurors, and willingness to serve on juries, which are only touched on in the short chapter. Chapter 8 follows up with the questions of whether and when anonymity of jurors can be justified in an open criminal process.

Chapter 9 poses the questions of what secrets are appropriate in an open society and how they may be protected. That this is a big question cannot be doubted: over three million government officials and industry employees have the power to classify information. In 1995 alone, over 3.6 million documents were classified. At the same time, a general feeling that government should be open makes it possible to gather a great deal of information about national security. Meanwhile, technological developments of our time have made it possible to see and photograph virtually every bit of the earth from satellites, and those photographs and other records are of course now part of the government’s documents.

Chapter 10 highlights people and organizations important to the open access movement. The collection ends with a list of FOI resources and centers.

This little book is a beginning and it is a good beginning. It could be expanded on in some intriguing ways. I found myself wondering about how other countries handle these issues and would have been interested in some cross-cultural comparisons. Also, the particular ideological slant of the authors apparently prevented any analysis of costs. So long as we are committed to the notion that access to all government records must be granted all inquirers no matter what the cost, we may never ask what it makes sense to provide. Yet I would argue that we should want to know whether the costs should be born by the general public or the ones seeking the information, and whether in some cases there are good reasons to say the costs of disclosure cannot be justified by the nature of the material. As any experienced trial lawyer knows, it is sometimes the case that more is less, and the truth can be hidden in a welter of minutiae as well as in a locked file. As it becomes possible to transfer more and more information easily, it still is worth deciding what access is worth requiring. Moreover, there are some very real problems of intellectual property ownership in this field: for example, if the information storage software is proprietary, how can the agency or contractor make disclosures to the public that are meaningful? More work needs to be done in this and related areas. This little book is a good start. The digital information deluge is just beginning.