Freedom of Information
This posting covers a fascinating area of activity for access organizations like the National Security Archive – the international freedom of information movement. Toby McIntosh, a colleague and expert who edits “freedominfo.org,” a FOI clearinghouse sponsored by the Archive, is my co-author on today’s piece, which gives a broad overview of transparency developments overseas.
[By the way, this is our last posting about the National Security Archive. It’s been a pleasure to be a guest blogger this month and I’m grateful to James Jacobs for the invitation. Hope to hear from you or see you at Gelman Library at George Washington University!]
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STATE OF PLAY
Most Americans would likely agree that the right of access to government information is a cornerstone of our political system. But it would probably surprise a lot of people to know that the U.S. was not the first country to inscribe the concept into law. That honor goes to Sweden whose Parliament – in 1766 – adopted “His Majesty’s Gracious Ordinance Relating to Freedom of Writing and of the Press,” which provided for abolishing political censorship and securing public access to government documents. Exactly 200 years would pass before the United States would enact the Freedom of Information Act.
The U.S. was still relatively early to the game. Only Finland (which was actually part of Sweden when the first act was passed) approved a similar law before us – in 1951. A handful of other European states followed in the 1970s, and by 1990 there were 14 members in the club. But the years since the fall of the Berlin Wall saw that number rocket upwards.
Today there are 93 countries with freedom of information acts – known also as right-to-know (RTI), or access-to-information laws. Most of these countries – 38 – are in Europe; 22 are in the Americas. Asia has 18; Africa has nine; and the Middle East and Oceania three apiece. (Several of these countries, unlike the U.S., have even put the concept in their Constitution.)
There are multiple reasons for this global blossoming of openness. In some (mostly democratic) countries, like Japan, scandals like the Lockheed bribery case helped drive the process. In Thailand, South Africa and elsewhere, access was part of a broader dynamic of political, economic or educational reform. The collapse of Soviet-led communism from 1989-1991 was a major impetus, prompting several former socialist states to adopt statutes to open their secret histories and help put their pasts behind them.
The individual instigators in different countries were equally diverse, ranging from civil society groups pressing for stricter environmental enforcement or pro-consumer or anti-corruption measures, to parents trying to make school systems operate more fairly.
Two of the biggest international FOI success stories have been India and Mexico.
With legal debate on the issue stretching back to a Supreme Court ruling in 1975 (i.e., that access to information is a fundamental right), India finally passed the Right to Information Act in 2005. A wide-ranging law, its written provisions and implementing measures are often highly creative in the ways they deal with the circumstances facing average citizens.
In the state of Bihar, for instance, where literacy rates are below 50% but cell phone penetration approaches 70%, local authorities created a 24/7 call center to allow the filing of RTI requests. Similarly, with the Internet accessible to only 10% of the population, local government procurement data is literally put up on walls in public areas for all to see. (Unlike in the U.S., India’s 30-day deadline for a response means something. If agencies don’t comply, they get phone calls from RTI authorities demanding that they follow up.)
Mexico’s access to information law, passed in 2002, has turned into a global model, setting a new international standard for transparency by creating a Federal Access to Information Institute (IFAI), that implements and oversees the law at the national level, and Infomex, a Web site that lets users file information requests electronically. Over 300,000 requests have been submitted since the law was implemented.
These cases are not entirely representative, unfortunately. Getting access laws passed and ensuring they have adequate muscle has been anything but smooth sailing. Government and civil activists face persistent challenges trying to beat back pressures from central authorities, the military, local bureaucrats, or wealthy business interests. Even developments like the war on terror have threatened progress on the openness front (not least in the USA).
Current struggles to get new laws through parliaments are underway worldwide, with hotspots including the Philippines, Ghana and Sierra Leone. Key points of debate usually center around the scope of the law’s coverage, the strength of the exemptions, the time frames for responses, and the system for adjudication of disputes.
After passage of these laws, the controversy often continues. The Indian prime minister set off a firestorm recently by complaining about the “frivolous” use of the Right to Information Act. In Denmark, the government wants to amend its law to better protect materials developed during the policymaking process. And in Scotland, activists want more public-private partnerships covered.
THE ARCHIVE’S ROLE
In the late 1980s, when political ferment was afoot in Eastern Europe during the Gorbachev era, the National Security Archive received a visit from a small group of young political activists from Hungary. Their organization, FIDESZ, wanted to know how to make a freedom of information process work in their country – looking ahead with characteristic optimism (but also great foresight) to the day when the communist regime in power for the previous four decades would finally teeter and fall. So they came to the Archive to hear our experiences, a visit that started a lively and extraordinarily fruitful partnership with similar groups across Eastern Europe and later the former Soviet Union.
In the years since, the Archive has become increasingly active around the world, following events in places as far-flung as South Africa, the Philippines, and Guatemala. By providing our own experiences as a civil society organization and also taking the lead in helping to bring like-minded groups together with FOI legal experts, we’ve worked to get local populations started on the complicated process of building their own information access institutions.
In Mexico, for instance, the Archive collaborates closely with scholars, lawyers, and openness advocates engaged in the public debate about the right to know. We bring international transparency activists to train Mexican NGOs on the effective use of FOI laws in advocacy work. We organize conferences to encourage network-building across the country. We also encourage the news media to monitor government transparency programs and to use FOI laws in pursuit of breaking news stories.
In the former Soviet Union, Archive staff have supported a series of FOIA advocacy groups from St. Petersburg to the Caucasus in their efforts at monitoring, education, and legal work surrounding new pieces of access legislation that have been adopted in Russia and neighboring countries. Their energetic campaign has featured filing lawsuits against the Russian Federal Security Service and applying to the Supreme Court of the Russian Federation in opposition to restrictions on materials on political repression in the Soviet Union. The Archive has also co-organized international conferences and training sessions for FOIA activists from Russia, Georgia, Armenia, Azerbaijan, Ukraine and Kazakhstan.
Campaigns for more and better FOI laws are only a part of the larger transparency picture.
For several years, the Archive has cooperated with human rights groups, ombudsmen, special commissioners, international courts, supreme courts and other official and civil society groups investigating and prosecuting human rights abuses. These efforts typically center around obtaining documentation (from U.S. and local government files) that can be used as evidence in those proceedings. Our staff has been active in a dozen countries, from Peru to Liberia to Indonesia to Spain, witnessing some remarkable results. In 2008, Archive-supplied documents and expert testimony helped convict Peruvian ex-ruler Alberto Fujimori of human rights abuses in the 1990s. These experiences are invaluable for stimulating local governments and groups to press for laws and procedures to open broad public access to their own hidden files.
One of the more significant areas of potential change currently relates to international financial/trade institutions (IFTIs) – from the World Bank to NATO. IFTIs are generally creatures of national central banks that have always been notoriously opaque. In 2003, freedominfo.org launched an initiative to measure, test, compare and ultimately increase openness within these institutions by publishing detailed reports on individual organizations, and thereby sparking a series of collaborations between freedom of information advocates and IFTI campaigners. Freedominfo.org’s continuing work and results can be found in a special section called “IFTI Watch.”
Finally, in September 2011, the Obama administration initiated the Open Government Partnership. The OGP is a “multi-stakeholder collaboration,” drawing in civil society organizations (of which the National Security Archive is one) as well as governments. Eight governments (Brazil, Indonesia, Mexico, Norway, Philippines, South Africa, United Kingdom, and the U.S.) initially endorsed an Open Government Declaration, then promulgated country action plans “to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.” The OGP now has 57 member nations who have pledged to make commitments toward more open governance. (FreedomInfo.org has written about 100 articles on the OGP.)
With so many new developments on the international front, it’s becoming more of a challenge to keep track of all that is happening. This is a particularly critical issue for those who are working to spread the adoption of RTI laws. Knowing about best practices and being able to draw on the experiences of similarly inclined groups around the world are key to these efforts.
Freedominfo.org is geared toward keeping abreast of these issues. It also provides useful research materials for free distribution. (For the texts of laws, background documents, links to national organizations and country-specific articles, see the “Country Info” tab; or search by country name.)
There’s also an email that goes out to subscribers (no charge) once or twice a week on current news and research, and freedominfo.org’s Blog Roll provides a listing of more than 100 active blogs on FOI issues.
For the best listing of FOI-related conferences and events, see the one maintained by the Carter Center here:
FOI laws internationally vary considerably, but there are not too many broad comparative materials available. One valuable resource is by Toby Mendel, “Freedom of Information: a Comparative Law Survey,” published in many languages by UNESCO:
A country-by-country rating showing a wide variety in the quality of the legal framework of FOI laws has been done by the Centre for Democracy and Law and Access Info:
There’s plenty else out there. But we hope this material is a start, and we encourage you and your colleagues to learn more about the international FOI movement. Feel free to sign up with freedominfo.org or any of the other entities above, or write to us with questions.
Deputy Director and Research Director
The National Security Archive
 The World’s First Freedom of Information Act: Anders Chydenius’ Legacy Today, (Kokkola, Finland: Anders Chydenius Foundation, 2006), see www.chydenius.net.
 http://www.freedominfo.org/2012/10/93-countries-have-foi-regimes-most-ta.... At least one expert, David Banisar, counts 99, including countries and “jurisdictions” with “laws” and “regulations.” Download his latest map from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1857498.
 See the freedominfo.org Web site for details on developments across the world. For an excellent overview of global trends and issues that remains relevant, see Thomas Blanton, “The World’s Right to Know,” Foreign Policy, July/August 2002, pp. 50-58. On the former communist system, see Malcolm Byrne, “Freedom of Information in the Post-Communist World,” Problems of Post-Communism, Vol. 50, No. 2, March-April 2003, p. 56.
 Tom Blanton, presentation, “Access to Information and Accountability: A Global Context,” Woodrow Wilson International Center for Scholars, October 11, 2012. http://www.wilsoncenter.org/event/access-to-information-and-accountabili....
 See the Open Government Partnership Web site: http://www.opengovpartnership.org/about.
Hope everyone enjoyed the Columbus Day holiday!
Last week, I gave an overview of the National Security Archive and its goal to break loose for public consumption previously unavailable historical records. Critical to those efforts is the Freedom of Information Act (FOIA), which, along with the related Mandatory Declassification Review (MDR) process, is one of the most important, yet arguably least appreciated, tools we have in this country for opening up our history, understanding how our government works, and promoting accountability among public officials.
But how does it work, and how can you make it work for you? That’s the subject of this week’s posting.
First, a few samples of documents released via FOIA and MDR that are currently featured on our Web site:
-- A remarkable 2006 “mea culpa” document from the CIA pinning part of the blame for U.S. miscalculations of Saddam Hussein’s WMD capability on intelligence analysts’ failure to look at Iraqi behavior “through an Iraqi prism,” or more specifically from the viewpoint of “a paranoid dictatorship.”
-- A copy of one the Cold War’s most controversial nuclear strategy documents – Jimmy Carter’s Presidential Directive 59, incorporating concepts that continue to underlie U.S. nuclear policy today.
-- Previously classified cable traffic from the State Department describing and assessing the nature of Pakistan’s Haqqani Network – extremely useful background material for understanding the group which the U.S. government last month declared a terrorist entity.
-- A compilation of once-secret materials about the super-secret National Reconnaissance Office (NRO) that runs our spy satellite system. More useful background on a little-known piece of our national security system.
-- No longer on our home page but still of genuine significance – numerous records obtained from the State and Defense Departments, CIA and other agencies detailing U.S. awareness of human rights violations by American allies in Argentina, Guatemala, Peru, Chile and elsewhere in Latin America in the 1970s and 1980s. As a result of their release, these materials have since been used as evidence in the trials of former Peruvian President Alberto Fujimori and other ex-military and political leaders now being held to account for their illegal activities while in power.
So, how can everyone else get access to this kind of information?
The basic approach could hardly be simpler: get the address of the agency you want to write to (we have a list on our site), and send them a letter that says, in essence, “Under the provisions of the Freedom of Information Act, I hereby request ...”
The trick, of course, is in the details. How do you decide what to ask for? How do you frame the request to get the best chance of a meaningful response? Partly, it depends on your interest.
If you want to know about the state of security at our diplomatic facilities around the world (in light of the Benghazi, Libya, attack last month), write to the State Department’s Bureau of Diplomatic Security and ask them for any studies they’ve done in recent years, or specify a region or a particular threat you’d like to learn about.
To borrow from a story in yesterday’s New York Times, if you want to know why the Social Security Administration (SSA) has decided to limit access to its death records (affecting hospital safety assessments and consumer fraud prevention), write to the SSA and ask for records of meetings, memoranda and decisions relating to the decision that, the Times reports, went into effect last November.
Want to know how the Air Force base in your county deals with spilled jet fuel? Ask the Pentagon, the Air Force and the base itself for reports, assessments, environmental impact statements, and anything else you think would reasonably produce the relevant information.
How about finding out about yourself? What does the FBI have on you? Or the SSA? Or the Veterans’ Administration? You can do that, too, by filing a Privacy Act request supplying personal data about yourself which the agencies can use to pull your records (and make sure it’s you who’s asking!). Each agency will have the required info on their site telling you how to make your privacy request.
In short, you can ask for any information from any federal (and most state and local) agencies simply by sending them a letter, or in some cases an email.
Yes, as a matter of fact. It’s an extraordinarily useful law, but most people never think about using it. It’s mostly used by veterans seeking access to their records and rights, corporate officials looking into their competitors’ activities or exploring business opportunities, federal prisoners researching their status and legal options, and, less frequently, journalists and historians.
But of course there are some catches. First, it can take a long, long time to work. While the FOIA says you’re supposed to get a response within 20 working days, that really only means you’ll get an official acknowledgement of your request. Actually obtaining the documents could take months, years, even decades!
Why? Because FOIA offices traditionally are far, far down the priority list for senior agency officials, working with budgets and incentive systems that are wholly inadequate for effective results. Also, the officials who often are asked to search for your documents are usually occupied with what are considered more “mission critical” work, which your requests are taking them away from. And there are no meaningful sanctions for just letting the months go by without fulfilling what is, after all, the legal responsibility to respond.
Also, while the law gives you the right to ask, it doesn’t mean you’ll get what you want! There are 9 different exemptions under which agencies can deny you access to records. These range from dangers to national security, to protection of personal privacy information, to commercial data, to current law enforcement material, and so on.
Those are legitimate reasons, in principle. The challenge comes when you don’t agree with an agency’s view that your request can’t be fulfilled. What do you do then?
Appeal! This is a critical point for anyone seriously pursuing access to government records. The Act includes a provision for going back to the agency and asking them to revisit their decision. It’s important because in most cases the appeal kicks the decision up a level or two within the bureaucracy, where typically someone with more authority or simply experience may decide that the original ruling can be overturned.
The final recourse, if you’re still not satisfied, is to go to court, which FOIA also provides for, although that’s obviously a costly enterprise.
The MDR process follows a different procedure – you can’t sue but you can appeal to the agency, and then you can seek further redress from a special interagency panel that has the authority to overrule the original agency’s determination. That can be very valuable if you’re dealing with an agency like CIA or FBI which has shown a pattern of flatly refusing to release certain kinds of information.
While I’m on MDRs ... that is the preferred process for documents that are classified and where you can pinpoint the item precisely -- usually by title and date (information you might glean from a newspaper article or a footnote in an official report). The request reads very much the same, but specifies that you’re seeking materials through Mandatory Declassification Review. For a variety of reasons, this approach is also much less costly and it can take far less time to go through all the appeals steps.
The main cost in both approaches comes in the form of agency search fees, which depend on who’s doing the searching. At a typical department like the SSA (according to its site), a search by a lower-level office worker runs $16 an hour, while a senior official’s time costs $59 an hour. Recently, the CIA upped its maximum hourly charge for MDRs to $72. That can be a huge obstacle, which makes it very important to see if you can qualify for a fee waiver. If you’re affiliated with an academic institution or are a member of the news media, you’re generally eligible for a waiver (of search fees, not copying fees). If you’re not, and especially if you work for a commercial corporation, you’re going to have to pay the search costs.
Almost every federal agency has information on their sites for how to file requests (with suggested language), what they’re likely to provide or deny, and what it’ll cost you.
You can also check our organization’s FOIA pages (http://www.gwu.edu/~nsarchiv/nsa/foia.html) or any number of other groups’ sites that work with access to information issues.
The next question, then, is: what are some ways to maximize your effectiveness with FOIA? We’ve been at this for over 25 years, and while there are no magic bullets, here are some helpful tips to keep in mind:
-- Do your homework (part 1) – know whether the material you want is already available publicly (a lot of material gets posted on agency Web sites, in their Electronic FOIA Reading Room, etc.). FOIA can take a very, very long time, so spare yourself the time and effort if you can.
-- Do your homework (part 2) – know what agencies handle the topics you’re interested in; better yet, learn what bureaus or even staff were/are involved, and try to get a sense of what kinds of paperwork those people created. The more precise you can be in identifying the who-where-what, the easier it will be to get your material (and the less you’ll pay in search fees, if you don’t qualify for a waiver).
-- Be reasonable and keep it simple: Don’t ask for things that are certain to be too sensitive to be released. For instance, requests that clearly would expose major military secrets are not likely to be very fruitful. Also, don’t ask for “everything on the U.S. occupation of Iraq” -- requests that would yield file cabinets worth of paper. Try to pinpoint what you want by topic or date range, e.g. It makes it easier to process and is less likely to make the poor individual assigned to your case throw up his/her hands in frustration.
-- Be comprehensive: having said the above, it’s important not to artificially limit your scope. For instance, if you’re looking for material on events similar to Benghazi, try asking not just the State Department but the Defense Department and the U.S. Marine Corps – two other entities directly involved in the security of official American facilities abroad.
-- Try an MDR rather than a FOIA: if you know the specific document you want and you know it’s classified. (Check our FOIA site for more about MDRs.)
-- Be informative. During the appeals stage, make your best argument about why you think your materials should be released, why it won’t harm national security, etc. And be sure to provide plenty of back-up information to help your case, including copies of articles, or references in books, about your document or the subject matter that will help someone understand better what you’re after (and in some cases make it harder to deny the existence of a document, or claim that it needs to remain classified).
-- Be patient! Know that it may take many months.
-- Be cooperative. Remember that regardless of the fact that you’re exercising your legal right, you’re still taking up the time of one or more people who (rightly or wrongly) may look at your request as a major intrusion on their day. Be ready to work with them to come up with a more feasible request, if asked, or to be flexible in whatever ways you’re willing to consider.
-- But be persistent, too. Don’t give up. And don’t think it’s not worth it. Our system depends on people taking the initiative. If someone doesn’t ask for something there’s a good chance it may never find its way out into the public domain.
These are some of the things it helps to know when filing FOIAs. For a lot more detail, history, facts, and suggestions, check our FOIA pages, including “Effective FOIA Requesting for Everyone – A National Security Archive Guide,” available for free on our site.
(Next week, a look at how our staff librarians prepare our highly indexed document publications for the Digital National Security Archive.)
Deputy Director, Research Director
The National Security Archive
at George Washington University
One of the future problems for a proactive system of depository libraries is to wrestle with the shift from a model based passive receipt of material sent from a central public authority (regardless of the format)to one where the art of collections and service are more directed and determined by a deliberative plan by the local institution.
It always struck me that the model the depository library program should consider is one that uses a coordinated approach and use of the Freedom of Information Act to pry information from the federal government (or the various state governments, for that matter.) In one of my thought experiments I try to imagine a depository library program based on this mechanism of information release -- how would it be different from the century old traditions of our current depository program?
The National Security Archives release of its basic FOIA handbook just might move this speculation to reality...if a few libraries are will to pull together.
See you on Day 10
Washington Post is reporting a new rule that allows health care workers "the right" not to participate in health care practices that "that they believe violates their personal, moral or religious beliefs."
One wonders if this might extend to librarians who might refuse to give out information about subjects they feel run counter to their own personal set of beliefs? Would there be circumstances, given the precepts of our professional associations about the "neutrality" of our information services, where this kind of personal stand could be taken? It looks like the rule could stay on the books for awhile.
As I thought about this week's remarkable series of electoral and civic revolutions, it got me thinking that between now and Obama's inauguration on January 20, 2009 offers us a unique opportunity.
Each day I am going to post one specific reason, observation, analysis about how the new political powers in Congress and the White House should think about government information. In particular I want to push back against the nearly ten years of rhetorical tide that swamped the way we talk about the distribution and preservation of information produced by our government.
In particular, I hope we can recapture the conceptual high ground of the whys and hows of the civic conversation about government information. Technology is important. Market forces are compelling. Political partisanship demands committment. But I remember a time when the phrase "documents to the people" actually spoke to a civic form of rhetorical community organizing. Our collections and public services were our store front headquarters in this struggle.
So, here is my first thought of the day: any depository library program's purpose transcends both format or its distribution mechanism. The programs long-standing purpose is to sustain the free and permanent access to government information. This can and must happen regardless of how the depository libraries, or their host institutions, arrange their services or materials.
Let the conversation begin and see you tomorrow.
Today is the world's first Document Freedom Day! About 200 teams from more than 60 countries worldwide are organizing local activities to raise awareness for Document Freedom and Open Standards. The site also has a pamphlet to print and distribute, as well as information on open standards, document standards, and more.
The First Amendment Center posted the full-text of the 2008 National FOI Day Conference's keynote speech, "A New Balancing Test: How Excessive Classification Undermines National Security" by J. William Leonard, former chief of the Information Security Oversight Office.
Leonard quipped that his remarks on government secrecy would be his most candid, "a sort of ‘Leonard Unplugged’ if you will for those of you into the MTV scene". He discussed instances of excessive secrecy that produced serious consequences, including the decision to go to war in Iraq, stating, "Secrecy comes at a price - sometimes a deadly price - often through its impact upon the decision-making process".
He also proposed a new way for government officials to determine whether information needs to be classified in the interest of national security; what he calls the "New Balancing Test":
"We are long familiar with what many regard as the “traditional” balancing test of national security versus openness – of secrecy versus transparency. Instead, the balancing test of which I talk is more along the lines of national security versus national security; i.e. what will cause greater damage to national security, the disclosing or withholding of specific information".
Here are some of the panels:
FOI Reform Efforts: Rewriting your state's laws?
FOI 2.0: Wikis and podcasts and blogs, oh my!
Sunshine Week Roundtable
Coalition Care and Feeding