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Against the Global Blackout

From Canada to India and Bush's US, fighting government secrecy.

By Stanley Tromp 11 Jan 2007 |

Stanley Tromp is FOI caucus co-ordinator of the Canadian Association of Journalists.

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FOI laws: power needed
  • Blacked Out: Government Secrecy in the Information Age
  • Alasdair Roberts
  • Cambridge University Press (2006)

Just what are our governments doing? How much does the public really need to know? Care to know? Dare to know?

Alasdair Roberts's Blacked Out: Government Secrecy in the Information Age could not have come at a better time, around the world and here in Canada. B.C. faces the prospect this spring of yet another set of regressive amendments to the FOI Act, and advocates are pressing the federal Conservative government to honour its eight broken promises on FOI reform.

The book -- by a former faculty member of Ontario's Queen's University who is now an associate professor at Syracuse University -- is not only readable and stimulating, it is unexpectedly moving in its exploration of the effect of complex administrative law on ordinary lives.

It comes as a surprise that an academic expert's tome on administrative law starts with: "The village of Kelwara sits in the arid folds of the Aravalli mountains in the southern part of the Indian state of Rajasthan." Roberts then relates how villagers found that government-supplied low-cost rations were being sold at a profit by corrupt local dealers. When citizens used FOI rules to prove their suspicions, tighter inspections and more public postings of key information resulted.

One activist coined the slogan: "The right to information is the right to life." In 2003, the Indian state of Maharashtra adopted a Right to Information Act, prodded by the hunger strike of an activist, Anna Hazare. "All corruption can end only if there is freedom of information," said Hazare, who resumed the hunger strike the next year to push for better enforcement of the act.

Hunger on the Hill?

Can one picture a Canadian fasting on Parliament Hill to force Prime Minister Stephen Harper to honour his eight broken election promises to repair the decrepit Access to Information Act? What else is left?

It's too easy to forget that freedom of information is not about files in cabinets and digital data but real issues affecting real people.

Roberts finds such stories around the globe. In Japan, the media used FOI laws to find huge government slush funds, lawyers revealed that local officials had spent a quarter billion dollars in one year mainly to curry favours with national bureaucrats, and the health ministry was ordered to release the names of 500 hospitals that had received hepatitis-C tainted blood.

In Mexico, where political parties are covered by FOI laws because they are publicly subsidized (perhaps a good idea for Canada?), parties were pressured to post their officials' salaries on websites. In Britain, which finally passed an FOI law in 2000, the media exposed torture in 1950s Kenya and bribes to foreign officials by British arms dealers.

Most surprising is the strong and growing FOI movement in China, one partly compelled by foreign economic demands. Some citizens are even launching lawsuits to force records open.

In fact, the FOI movement, spurred by the Internet, the end of the Cold War, lobby groups and other factors, can now count FOI laws in about 70 of the world's 193 countries.

Some critics even wonder if we now have too much information and are becoming buried under it, in a kind of "data smog" or "informational glut." It's a dubious complaint, given that nobody is forced to read it all and the alternative is to let government decide which information to release.

When your husband's a spy...

Still, there are times when releasing information can have very complex consequences. For example, Roberts relates, after the Berlin Wall fell in 1989, East German Stasi secret police files containing the names of 173,000 East German informants were opened up. In the four years after reunification, the German government got two million FOI requests for information, and when it proposed sealing the records, the idea was halted by hunger strikers. So the informants' names -- husbands who had spied on their wives, children on their parents, priests on their parishioners -- were revealed.

Some still question if exposing names was a great idea. Does it bring more healing or less? Yet the trend continues. Mexico opened up 60,000 files on the army's 70-year campaign of killings and torture against dissidents, and a similar process occurred in South Africa and some Latin American nations.

Sometimes, the issues that arise can be absurd. A convict in the United States made an FOI request to see the structural floor plans of the prison he was housed in. Another made an FOI request to learn the name of the "rat" who had "snitched" on him. Both requests were denied.

In Canada, however, we've seen the clear benefits of freedom of information laws. The FOI requests by The Globe and Mail for scathing internal draft reports on the Quebec sponsorship program, which led to the auditor general's harsh report, which in turn prompted the Gomery inquiry, which contributed to the fall of the federal Liberals. Ironically, the Harper government then pressed to amend the FOI law to conceal draft audits.

When secrecy meets national security

Has state secrecy been overthrown? There have been important gains, says Roberts, but important limits remain. In the United States, the 1990s "decade of openness" came to a brutal end with the 9-11 attacks. The likes of Vice President Dick Cheney and former secretary of defence Donald Rumsfeld had expressed their antipathy towards FOI for three decades, and 9-11 gave them a political opportunity to act on it. Yet even they didn't dare to repeal transparency laws.

Instead, there was "an intensified and more clever campaign to reclaim the zone of autonomy." There were exemptions and a massive reclassification of information once held in public libraries and on government websites.

Does this make us safer? Not necessarily, says Roberts, who is now working on a book on the American reaction to the 9-11 crisis. "Perversely," he writes, "the security sector is probably the one area where the consequences of poor analysis are most severe, and where the more substantial analytic capacity of the public sphere is most badly needed." President Bush and his advisors' insular "groupthink" policy enclosure led to many grievous mistakes, which public input and external expertise might have averted, says Roberts.

The public also simply has a human right to know, he adds, about all the information used to justify the Iraq invasion: "Respect for the fundamental right to self-determination demands greater openness. Secrecy, by contrast, compels the public to defer to the judgment of a narrow elite." In the months after 9-11, a shell-shocked public accepted claims for secrecy on security grounds, but they are far less likely to do so today.

Many observers have cited George W. Bush as the most secretive president in memory. And yet he never tried to revoke any of 10 major disclosure laws passed by Congress in the 1970s. "The Bush administration and its sharpest critics had one thing in common: a misapprehension about the reversibility of history," notes Roberts. "Neither side was right."

Rich and poor alike ignore FOI spirit

Roberts also shows how governments sabotage the FOI process and "spin" the results.

For example, after Ireland passed its FOI law in 1997, the government began to pre-emptively release material requested by FOI media applicants onto the Internet and to "friendly" media, to scuttle any negative press scoop. When it raised FOI fees, requests by media plummeted by 80 per cent. In Canada and the U.S., governments generally pay one or two per cent of the FOI processing price; full cost recovery (which a few B.C. public bodies are urging) would make the FOI program collapse entirely.

In Canada and elsewhere, governments try to control potential fallout from some FOI requests with computer tracking systems geared to filter out and delay politically sensitive FOI requests, mainly from the media and opposition parties -- a practice known as "amber lighting" or "purple folders." Officials often also name the FOI applicants to flaks, which violates privacy laws. The B.C. tracking system, described on The Tyee by journalist Ann Rees, is the most sophisticated of all. B.C. Information and Privacy Commissioner David Loukidelis has been studying complaints about this for two years, and is overdue to issue a report on it.

For poorer countries, FOI laws create somewhat different pressures. Sometimes as a condition for receiving aid packages, they have passed FOI laws to prove they could be "modern states," cleanse corruption and join global economic unions. (The 14 nations that had FOI laws before 1990 were all affluent democracies.)

Some passed FOI laws just for appearance, and resisted them in practice (which seems vaguely familiar in Canada today). Other administrations can barely manage the process, because they can't afford to train FOI officials and their records are in chaos (when they haven't been destroyed for political purposes). A study of Bulgaria, Peru and South Africa found many government staffers (who were often ignorant of the law) simply refused to accept FOI requests, especially from "vulnerable or excluded groups."

Roberts concludes that the effect of FOI in fighting corruption in developing countries is "largely unknown," but in India, for example, "the odds are slim that it will quickly corrode old habits of secrecy."

The new world order

Roberts also examines the effect of information sharing among states. FOI laws arose mainly to check the rise of domestic bureaucratic power in the 20th century. But, says Roberts, in the 21st century, global networks have become much more powerful than nation states, and these highly secretive networks override national FOI statutes. "Underlying all of this is a more fundamental question: why should a citizen's capacity to hold his own government accountable hinge on the transparency rules adopted by another government?"

NATO, for example, had long been pressing its members to adopt laws to punish those who leaked NATO records. When domestic records are mixed with foreign, all are covered by the extremely rigid secrecy rules on foreign data, and there is no change in sight to this oppressive situation: "Opaque networks tend to stay opaque."

Power has long been flowing out of nations to multilateral bodies that insist on the long tradition of secrecy in nation-to-nation contacts, in the spirit of diplomat Hans Morgenthau, who famously warned against "the vice of publicity." Some U.S. congressmen want more information from the World Bank, which paradoxically, Roberts notes, promotes more rigorous disclosure standards for the countries to which it lends than it does for itself.

The blending of government and private business information also creates huge impediments to information access. When President Bill Clinton announced "the era of big government is over" in 1996, the trend towards privatization, reduced or self-regulation, and non-profits doing governmental tasks had already been developing for two decades.

Whose business is it?

In Canada, examples include the privatization of B.C. Ferries and Ontario Hydro. Around the world, there are "P3" partnerships to build and/or operate prisons, schools and hospitals. Then there's the $100 billion global private defence industry, which includes the 20,000 private military contractees in Iraq, many of them deeply involved in the Abu Ghraib prisoner abuse scandal.

These "blurred boundaries" create advantageous confusion for those who like to keep secrets. It took me five years to win a legal battle just to see the UBC-Coca Cola supply contract. Roberts notes that such documents are "unambiguously a government record" and not a private one, yet both parties work to keep the contracts secret -- the governments to avoid scrutiny of its effectiveness and companies to shield their data from their competitors and other customers. (Ironically, private companies are the dominant users of FOI laws in many countries as they try to gain data on their competitors.)

Practices are varied, and evolving. One Australian state put its prison management contract online, a move that it called a world first. Ontario refused to divulge its contract with Accenture to manage social services as a "trade secret." In the United States there is less regulation but more transparency on utilities; in Australia the opposite is true. In Britain, even government regulators can't get needed information on water, gas and electrical services.

When the restructuring is done, Roberts says, "the public sector will look radically different than it did 20 or 30 years ago. Indeed, it may be difficult to speak intelligently about a 'public sector' at all...This process of restructuring has already posed a substantial threat to existing disclosure laws, and this threat will grow in coming years." This is already shaping up as the major challenge in Canadian FOI law reform.

To gain a fair measure of FOI for the quasi-governmental sectors, Roberts predicts, one must fight for it incrementally, in specific battles for specific information in specific sectors -- not all in one big sweep. "The work of mobilizing coalitions to establish information rights will be difficult."

The new 'Liquid Paper'

Roberts then turns to the issue of electronic records, or "Liquid Paper," as he calls them. He notes that popular thinking still imagines the official "smoking gun" file marked TOP SECRET. However, Roberts argues that the "stockpile of government information has been liquefied -- broken down into a vast pool of elements whose significance, taken independently, is not easily grasped."

Media and public-interest groups now use FOI laws to extract information from databases that even governments didn't know about, revealing scandals and forcing reforms. But getting and analyzing this data can be complex and costly.

American courts twice rejected government arguments that extracting the data would be too much "burden." Some states want to exploit their databases to obtain revenue. Government information may be available in principle but not in practice if the cost is too high. In 1994, the B.C. government rejected an environmental group's FOI request for databases, choosing to sell them instead for $30,000; the government's choice was upheld on appeal.

The most contentious records are likely e-mails, which are clearly accessible under most FOI laws. Presidents Reagan, Bush Sr. and Clinton tried in court but lost in their efforts to block public access to White House e-mails. Ken Dobell, B.C. Premier Gordon Campbell's former deputy and cabinet secretary, startled listeners at an FOI conference a few years back when he declared "I delete my e-mails all the time as fast as I can" to avoid scrutiny.

In fact, e-mail is more permanent than paper, with backup systems and copies floating about among recipients. Some wonder if officials now censor their e-mails. Surely sensitive exchanges will be verbal. Yet Roberts finds this fear is overstated, as e-mail has become too deeply entrenched in daily work and writing elliptically is just too complicated.

The real challenge for an inquirer is volume: one study indicated that in 2002 Canada's federal public servants exchanged about six million e-mails on every working day. "How much can one e-mail mean, in a sea of millions? How much weight can be put on the wording in one draft of a memorandum or report, if there are a dozen other variations of the same file?"

It can make the search for truth long and frustrating.

Too much information?

Roberts also asks if the public really cares about state transparency, and if revelations make a difference.

An aboriginal political activist complained to me in 1992 that "we've got an FOI Act that nobody uses!" In the first year after the federal Access to Information Act came into force, in 1983, the government received only 10 per cent of the information requests it had prepared for. The media generally make just five per cent of the total requests.

Roberts cites a poll that found more than half of the Americans surveyed said "government is generally too complicated for most people to understand" and suggests that "citizens may also lack a sense of shared responsibility for correcting misconduct in the political sphere."

And there is more. "We must also consider the troubling possibility that the rhetoric of anti-secrecy campaigners may feed this sense of disconnection." From this, Roberts suggests the possibility of "a bleaker scenario" -- that citizens may use the excuse of too much government secrecy to withdraw from public affairs: "How, after all, can citizens be expected to participate actively in politics, if critical info is being withheld from them? How can they share responsibility for the actions of their leaders if they have incomplete knowledge of their actions?"

Sometimes satire puts it best, as with a 1981 episode of the great BBC-TV series Yes Minister, in which the supremely devious bureaucrat Sir Humphrey Appleby declares that citizens of a democracy have the right to be ignorant. "Knowledge only means complicity and guilt. Ignorance has a certain dignity."

I would argue that there is little hope for a citizen inclined to shirk involvement in the first place, and if excess secrecy were not an excuse, he or she would simply find another one to allow them the "dignity of ignorance." One problem that governments should attend to far more closely is that needless or excessive state secrecy also fuels public paranoia, falsehoods and conspiracy theories.

Transparency advocates still assert that FOI brings the public closer to its governments, leading to less detachment and alienation. I expect this is mainly because members of the public feel entrusted and elevated when treated as adults who can handle the truth.

Knowledge without action

Roberts also warns of the dangers of "the naive view of transparency, in which openness is regarded as a single commodity, and an unalloyed good," because transparency can be employed as a tool by different players for dramatically different purposes.

"There is no doubt that the problem of excessive secrecy has worsened recently," says Roberts, citing recent polls in which most Americans reply that there is too much government secrecy. Yet he laments this fact has been no spur to political action.

"Worse still," he adds, "the ethic of detachment may hold sway even when enough critical facts about specific problems are in the public domain...We may watch all the political spectacle, and still use the rhetoric of secrecy to justify our decision to do nothing more than watch."

Roberts cites the Abu Ghraib prison scandal, but this seems a poor example. Public revelation did lead to congressional investigations, criminal convictions and the prison's closure. With some public pressure, secrecy can be curtailed -- in May 2006, the B.C. government backed away from a pernicious bill that would have locked up its records on public-private business dealings ("Libs Poised to Slam Lid on Secrecy," "Government Secrecy Bills Pulled").

Nevertheless, his conclusion is indisputable: "The struggle to advance transparency is important, and it is far from over...But transparency itself is not enough...Do we have a right to information? Certainly. But we also have a responsibility to act on it."

Blacked Out is an authoritative, essential look at freedom of information policy and practice in the digital age.

Blacked Out is available as a hardcover and at a reduced price as an e-book. Alasdair Roberts's website archives several of his papers exploring FOI issues.