Freedom of Information
The individual's Right to Know
INTERVIEW
FREEDOM: Most Americans understand freedom of speech and freedom of the press, but freedom of information is a more remote idea. How would you explain in layman’s terms the relation of freedom of information to the freedoms of speech and the press?
MR. ADLER: I think the primary difference is that freedom of speech and freedom of the press are guaranteed constitutional rights expressly provided for in the First Amendment, in the Bill of Rights.
Freedom of information—although it is a policy that we believe underlies the First Amendment, which clearly contemplates that freedom of expression and freedom of the press will be primarily to discuss the activities of the federal government or relation to government generally—is not specifically provided for in the Constitution.
FREEDOM: What stands out in your mind as the major accomplishment of the Freedom of Information Act (FOIA)?
MR. ADLER: People very often ask the question a little bit differently. They’ll say, “What do you think has been the most important thing that the public has learned from the Freedom of Information Act?” Or, “What has been the most important disclosure made under this statute?”
The most important thing the FOIA has done is, by its mere existence, it has changed the attitude of the federal bureaucracy with respect to responsibility to the American public to respond to requests for information generally, and to respond to requests for access to specific records in federal agencies.
Although the FOIA does not provide, of course, that you can specifically invoke the Act and trigger a series of procedures requiring the agency to consider your request and to respond as to whether or not they’re going to release the information to you, or whether the information falls within one of the nine exemptions for disclosure, just the fact of the existence of the statute—without even having to resort to it—has meant that a great deal of information which in decades past might not have been accessible to the American public is routinely available, because federal agency employees understand the public now has a right of access to those records.
FREEDOM: Critics of the Act say it promotes “government in a fishbowl.” What do you say about that?
MR. ADLER: Well, that was the original criticism of the statute when it was first enacted in 1966. During the hearings that led up to the enactment of the Freedom of Information Act, there wasn’t a single agency in the federal government that supported the FOIA.
They said, for example, why is it only the executive branch, why not the legislative branch or the federal judiciary which is subject to this requirement? And of course the reason is because the legislative branch and the federal judiciary to a much larger extent than the executive branch already operate within the public eye.
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For example, in Congress, most hearings are open to the public to attend. When a senator or a congressman proposes a bill for a new law, that bill is accessible to any member of the public, who may obtain a copy of it.
When committees report legislation, their reports explaining the intent behind the legislation are available to the public, and the same is true with enacted laws.
The same thing is true with respect to the federal judiciary. Only on rare occasions are federal court proceedings closed to the public.
This notion that it promotes government in a fishbowl is not really true, because the act is not only an authorization for the right of public access to records, but it also at the same time is a right for government agencies to deny access to certain public records. There are nine specific exemptions from that disclosure requirement. Those nine exemptions are relied on quite heavily by agencies in the scope of their work as basically codifying the legitimate confidentiality interests of government that Congress recognizes as being necessary to the workings of the various agencies.
FREEDOM: What is the advantage to the individual American taxpayer to having a strong Freedom of Information Act?
MR. ADLER: The American taxpayer pays millions and possibly even billions of dollars per year for agency public information programs which result in the taxpayer learning about things only when the agency wants the taxpayer to know about them.
Not surprisingly, that means that most of the information that agencies put out to the taxpayer is information which puts the agency’s performance in its best light.
The FOIA allows, however, any member of the public to obtain access to agency records that he or she specifically wants to see—whether or not the agency particularly wants these made publicly available.
That serves as a very important check on government accountability, because although we have oversight committees in Congress, we have the federal courts, we have the separation of powers, the independent checks and balances system that the Constitution sets up which is supposed to provide for the best accountability of government to our public—I don’t think anyone, any member of the public, would be willing to allow any portion of our federal government to play a 100 per cent surrogate role for the public itself in being able to determine public accountability with respect to the performance of government.
The Freedom of Information Act has been an invaluable tool in helping the press, for example, to serve as the public surrogate in examining and closely scrutinizing the workings of government to determine whether or not government is acting in the public interest.
FREEDOM: How can citizens stay informed of any developments or news regarding the FOIA?
MR. ADLER: Generally, they should be able to find out about them in press reports, because the press naturally keeps on top of the subject, but if they are concerned about these particular issues, they can always call the ACLU, and the ACLU will be able to provide information on what’s going on in Washington and how they can plug into that process.
FREEDOM: To sum up, what could the individual American do to ensure that we maintain a strong FOIA?
MR. ADLER: There are two things.
One is that each individual should know their rights. They should know that they do have statutory rights which implement important constitutional rights that they have to obtain information about the federal government, because it is their government.
The second thing they should do is inform their members of Congress that they think these are very important rights which must be protected and enhanced through legislation. They should urge their members of Congress to oppose any efforts to cut back on public rights of access to government information.
