Here is another paper I wrote while in graduate school.

Some History and Problems With Federal Information Policy

There are five liberties guaranteed by the Constitution of the United States (COTUS). Among these are the right to assemble, the freedom of religion, speech, press, and the right to redress grievances against the government. The latter three have great importance regarding the issue of government information policy. With these three liberties it is implied that citizens of the United States are entitled to, on various levels, information that the government produces. There is a long history regarding the issue of government information and the public’s right to access it. Because of inconsistent information policies at the federal level, the rights of the people to monitor the government are severely obstructed. This paper will examine some of the theoretical foundations of the rights of citizens relating to monitoring the government. It will also examine some milestones in the development of federal information policy in the United States. Finally, it will make some recommendations that could help clear up the confusion regarding federal information policy and make the dissemination of information to the public more efficient.

Theoretical Foundations of the Public’s Right to Know

Many of the concepts surrounding the COTUS and the debate over it are found with the ideas of Enlightenment thinkers such as John Locke and Montesquieu. Locke’s theory of the social contract held that there existed a sort of covenant between the people and those who ruled over them.[1] If leaders do not live up to the expectations of the people or become tyrannous, then the people have the natural right to nullify the “contract” and start anew. This is exactly what colonial patriots did when King George III ignored their wishes for fair representation. To avoid repeating such tyranny the framers of the constitution looked to other Enlightenment thinkers such as Montesquieu and his idea of “checks and balances.” While checks and balances are embodied in the concept of separation of powers it is often overlooked that the ultimate check upon federal power comes from the people, hence the importance of being able to have access to information.

Perhaps the best source of commentary relating to the COTUS is found in the Federalist Papers. Written by Alexander Hamilton, James Madison, and John Jay, the papers provide insight into the powers invested in the various branches of government as well as how the constitution should be interpreted; the papers also provide insight regarding information and its dissemination. For example, Federalist #21 outlines things that make nations successful. Here Hamilton notes, “the wealth of nations depends upon an infinite variety of causes.” Among these are the “genius of the citizens [and] the degree of information they possess…”(Wills 101). The term information suggests two things. The first is that the “genius of the citizens” rests upon the education they have, which is, no doubt, beneficial to the republic. But it also suggests the importance of the people having access to government information to ensure that it is operating the way it should.

It should also be noted that information and its acquisition is important not only to general citizens but also to elected officials as well. Often elected officials are denied access to information just as normal citizens are. From time to time elected officials become at odds with members of other branches of the government over information and its withholding. Martin Halstuk (2002) points out such a situation. He notes when congress was considering the appropriation of funds regarding John Jay’s negotiated treaty with Great Britain in 1796, George Washington denied their requests for information pertaining to the instructions given to Jay to negotiate the treaty (¶ 30). Granted, treaty-making powers are delegated to the executive branch, however, this information was a reasonable request and could have been helpful in determining the appropriation. Indeed, Madison appreciated the value of such information. He notes in Federalist #53 “No man can be a competent legislator who does not add to an upright intention and sound judgment, a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie with the compass of men in private as well as public stations” (272).

Choosing the Right Candidate

As previously mentioned, the right of the federal government to rule the people are granted through the theoretical framework of the social contract. The machinery of that contract can be found through suffrage. Voting is the “first line” of defense of the social contract. It allows the people to rid themselves of unworthy leadership; people must rely on information in order to make an educated decision. Hamilton illustrates this in Federalist # 84 where he notes the people must therefore depend on the information of intelligent men, in whom they confide—and how must these men obtain their information? Evidently from the complection of public measures, from public prints, from correspondences with their representatives…It is equally evident that the same sources of information would be open to the people, in relation to the conduct of their representatives in the general government…(Wills 439)
Information from the federal government (e.g. Congressional voting records, etc.), whether filtered through the press or not, is vital to the public in voting decisions.

An Example of Antebellum Attitudes Towards Public Information

Between 1845 and 1860 federal information policy evolved. As the federal government became more bureaucratic, agencies within had to consider how to disseminate the information they held. Harold Relyea (1989) points out that it was in 1846 when Congress provided for the “routine printing of all Congressional reports, special documents, and bills” (31). Eventually, all government printing was completed by the Government Printing Office, which Congress established in 1860 (31). A corollary to these establishments, Congress created a place to house information with the goal of facilitating “public availability and knowledge of government actions” (32). These developments set precedence and are conducive with the liberties of the First Amendment and the doctrine of checks and balances.

These noble gestures spread to other areas of the federal bureaucracy as well. James W. Oberly (1987) notes, although, the Federal Pension Bureau (FPB) took a different attitude during the 1850s. It was during this period that the U.S. government undertook one of the largest federal benefits programs the country had seen (Oberly 287).[2] The FPB had to administer benefits to veterans of the Mexican-American War. To assist in this task the FPB attempted to print and release information to aid in achieving their goals. What the FPB program demonstrates is that “the federal government saw information from a view point of costs incurred rather than benefits conferred” (293). Finally, Oberly relates his argument to the contemporary debate over information policy and the costs of disseminating it to the public versus privatizing the process. Many believe privatization will save the public tax dollars. It may indeed be the case that the federal government will save money but that may actually increase the cost to the public in money and information lost. Private businesses are in business in order to turn a profit; it is therefore not clear how this will effect public access to government information.

Contemporary Issues in a Post 9/11 World

In light of the 9/11 tragedy the American public has been admonished that the government needs to start thinking with a “post 9/11 mentality.” What this means is that national security and how the government administers it has changed. We have been told, or it has at least been implied, that the new enemies of the United States are “terrorists,” but it is not always clear whom “they” are. It is not surprising that when national security is threatened (whether this threat is real or perceived), for the federal government to take measures to minimize the threat. There are many ways in which the federal government “protects” national security. Of these, there currently is a measure of reclassification of documents at the National Archives and Records Administration (NARA) that threatens the liberty of the American public. Just as alarming is that while this measure was initiated before 9/11, it is gaining momentum and support among the various government agencies; all in the name of national security.

Steven Aftergood (February 21, 2006) is following this situation in his list serv newsletter Secrecy News. Here he reports on the reaction of the NARA to a New York Times article that exposed the fact that “thousands of declassified documents had been reclassified by executive branch agencies and removed from public access in questionable circumstances. The NARA, he notes, is going to be investigating the issue. The story broke on February 20, 2006 when the New York Times (2006) reported that at least 55,000 documents had been reclassified since 1999. The Times noted that recently Matthew M. Aid, a historian, realized that many documents he had accessed and copied years ago had been reclassified. If this was not peculiar enough he also noticed that some of the documents were benign regarding sensitivity and date back as far as the Korean War and the beginning of the Cold War.

There are a few reasons why this should raise concerns. First, it threatens academic freedom and the body of historical knowledge. It threatens academic freedom because any document acquired before reclassification might not be able to be incorporated into historical research due to laws regulating classified documents. This impedes the historian from describing history and constructing arguments about it. Also, withholding crucial supporting evidence (documents) will definitely hinder the body of historical knowledge as a whole.

Secondly, and just as serious, is that it trespasses on the public’s right to know about the affairs of government. Sissela Bok (1989) argues that she is not sure “that the democratic processes can persist in the face of current amounts of secrecy…” (202). Indeed, reclassification erects a barrier to the democratic processes that are the foundation of this republic. The public’s right to know is another “check and balance” on the federal government. Granted, most of the documents found at the NARA are over twenty years old but the information often helps to shape how Americans perceive the government and how it should operate. The only way to circumvent the barrier is to utilize the Freedom of Information Act (FOIA).

The FOIA is supposed to ensure public access to records of the government. It “carries the presumption of disclosure,” that is “the burden is on the government—not the public—to substantiate why information may not be released” (National Security Archive, 2006). It should be noted that the government might deny a FOIA request under nine exemptions, one of which includes national security. While the FOIA is yet another “check and balance” the process of requesting information under this act seems to be quite daunting.

Another problem with reclassification is that it adds to the concern that the current administration is bypassing civil liberties. Aftergood (February 16, 2006) highlights this in the article “Confronting the White House’s ‘Monarchial Doctrine,’” a term coined by George Will. The concern of this article is over domestic spying with obtaining F.I.S.A warrants. The Congressional Research Service (CRS, 2006) notes the Supreme Court has found that under ordinary conditions the probable cause test for issuing a warrant relative to national security “may be less demanding or at least different than it is in the context of a traditional criminal investigation” (CRS Memo). Furthermore, the CRS found that F.I.S.A. allows for “less demanding” probable cause but not in terrorism cases (CRS Memo). This may explain why the current administration circumvented the F.I.S.A. court in its wiretapping program. Nevertheless this coupled with the reclassification of documents at the NARA illustrate the current administration’s heightened use of secrecy and subterfuge.

Perhaps the most serious concern about reclassification is the question over where historians, indeed the public in general, stand in relation to possessing reclassified documents and the Espionage Act. Aid notes that some of the documents he obtained prior to reclassification may place him in violation. His concerns are not without merit; there is case law to support his concern. Daniel Patrick Moynihan (1998) reminds us of Eugene V. Debs, a presidential candidate and war protester, who was sentenced to ten years in prison for violating the Espionage Act of 1917 (106). While the circumstances in both cases are different, it demonstrates that the government is willing to prosecute “violations” of the Espionage Act.

The fact that documents were reclassified at the NARA highlights the obvious absence of a uniformed policy regarding classification and illustrates a culture of “missing information” (Aftergood, 2005).[3] There have been attempts to create a uniformed policy. For example, in 1997, while serving on the Commission on Protecting and Reducing Government Secrecy, Daniel Patrick Moynihan and his fellow committee members recommended that there should be legislation that binds all governments agencies to certain procedures regarding classifying and declassifying government documents. Moreover, the commission made the following recommendations:

• Information shall be classified only if there is a demonstrable need to protect the information in the interest of national security.
• The president shall establish procedures for the classification and declassification of information.
• In decisions about whether information should be classified, the benefit from public disclosure shall be weighed against the need for secrecy. Where there is significant doubt, the information shall not be classified.
• Information shall remain classified for no longer that ten years, unless the agency specifically recertifies the need for continued secrecy. All information shall be declassified after thirty years, unless it is shown that demonstrable harm will result.
• There shall be no authority to withhold information from Congress.
• A national declassification center shall be established to coordinate, implement, and oversee declassification. (quoted in Moynihan, 11-12).

Superficially, it would seem that these are well thought out recommendations and could shed light on the darkness of classification secrecy. One of the most glaring problems with these recommendations, however, is the second one. Giving each president authority to establish classification/declassification policy does not create a uniformed policy. This allows policy to constrict or relax every four to eight years depending on the president.

That there is a lack of a uniformed policy makes it less surprising to note that in the post 9/11 world there has been a culture of “missing information.” Aftergood (2005) notes information is disappearing, not just from the NARA, but other federal agencies as well. Previously declassified information that has come up “missing,” he writes, include information from the Department of Defense, Los Alamos Technical Report Library, U.S. Airforce, U.S. Army, Energy Department, and the National Geospatial-Intelligence Agency. Finally, he admonishes us much in the same manner as Bok has that “Information is the oxygen of democracy. Day by day, the Bush Administration is cutting off the supply” (¶ 25). As his list demonstrates, information policy that is set at the top (executive) quickly effects the information policy of other federal agencies, thus potentially weakening the democratic process. This is not to marginalize the importance of national security. However, it underscores the importance of developing a uniform classification/declassification policy that seeks to balance national security in a legitimate way with civil liberties.

Recommendations for a More Uniformed Information Policy

The ideas put forth by Moynihan are a good start for a more uniformed information policy but the problem with his suggestions is found with allowing presidents to set their own policy. The policy regarding all information should be developed by the legislative and executive branches and, if challenged, approved by the judicial branch to ensure constitutionality. Elected officials should also solicit public input to aid in drafting such a policy. The policy should be made into law and the House of Representatives should allow changes only with a two-thirds majority vote.[4]

Such a policy should consider the needs of national security, within reason. Obviously, contemporary information of a military nature should have more stringent guidelines regarding declassification. The main consideration of such a policy, however, should be the needs of the public and should remain true to the social contract. It is also imperative for our elected leaders to remember the theoretical foundations of the rights of citizens to monitor the government. The reason why our republic has been successful and stable for so long is because of the system of checks and balances set up by the framers of the U.S. Constitution. The survival of this system is dependent upon the access of information within the government and, of course, to the public.

References

Aftergood, S. (2005, March 17). The age of missing information. Slate. Retrieved January 21, 2006 from: http://www.slate.com/id/2114963/

—. (2006, February 16). Confronting the White House’s “Monarchical Doctrine.” Message posted to secrecy_news@lists.fas.org

—. (2006, February 21). Reclassification program at National Archives exposed. Message posted to secrecy_news@lists.fas.org

—.(2006, March 3). Archives declares moratorium on reclassification.
Message posted to secrecy_news@lists.fas.org

Bok, S. (1989). Secrets: On the ethics of concealment and revelation. New York: Vintage Books.
Congressional Research Service. (2006, January 30). Memorandum to Senate Select Committee on Intelligence. Retrieved February 20, 2006 from: http://www.fas.org/sgp/crs/intel/m013006.pdf

Moynihan, D.P. (1998). Secrecy. New Haven: Yale University Press.
National Security Archive. (2004). The Freedom of Information Act. Retrieved February 15, 2006 from: http://www.gwu.edu/~nsarchiv/nsa/foia.html

Oberly, J.W. (1987). Information policy in an era of illiteracy: The U.S. Pension Bureau before the Civil War. Government Publications Review, 14, 287-294. Retrieved March 21, 2006 from SJSU interlibrary services.

Relyea, H.C. (1989). Historical development of federal information policy. In C.R. McClure, et al (Eds.), United States government information policies: Views and perspectives.
Wills, G.(Ed.). (1982). The Federalists Papers by Alexander Hamilton, James Madison, and John Jay. New York: Bantam Books.

[1] For more about Locke see Relyea’s Perspectives on information policy development.
[2] See Oberly’s Information policy in an era of illiteracy: The U.S. Pension Bureau before the Civil War for a more in depth examination of the program. For purposes of this paper it is important to examine the attitude of the federal government information policy.
[3] The NARA eventually declared a moratorium on reclassifying documents as reported by Steven Aftergood in Secrecy News on March 3, 2006.
[4] I argue that the House of Representatives is a more direct voice of the people.