Last Updated: December 29, 2000
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Freedom of information
We are one, but mind your own business
The delicate balancing act between the public’s right
to know and the desire for privacy has been going on for centuries, with
each generation charting its own course
By Eric Newton
Take a look on E-Bay at the auction listings for the Fugio penny, the
first official U.S. penny, issued in 1787. On one side of the coin, the
linked colonies form a circle, and the slogan says, “We Are One.” On the
other side, though, there is a different slogan: “Mind Your Business.”
More than two centuries later, polls show we still have mixed feelings
about freedom and privacy. We think people need to know what’s going on
for a democracy to legislate, execute or judge, but we feel the facts of
our personal lives are being scattered too far and wide.
Public opinion matters. Neither freedom of information nor privacy is
guaranteed by the Bill of Rights.
The World War II generation, faced with a global choice between open,
democratic societies and closed totalitarian or communist states, opted
for openness. The Baby Boomers, coming of age after the Watergate scandal,
spread open government laws to the states.
But these decisions are hardly unanimous. High officials protect information
by invoking national security. Bureaucrats shield officialdom by making
other information so tedious to get at that many just can’t. In the name
of privacy, thousands of tiny laws attempt to engineer bits of information
out of the news stream.
Battered but still alive is the basic idea that arose half a century
ago — all information is public unless the government can prove otherwise.
Or, as journalist Herbert Brucker put it in his 1949 book, Freedom
of Information: “Upon what meat doth democracy feed? It feeds upon facts.”
Will this rule survive?
“The natural process of things,” warned Thomas Jefferson, “is for liberty
to yield and government to gain ground.” Though new privacy laws and rulings
do seem to indicate growing secrecy, the following timeline shows our route
has been anything but straight. The course looks as though it were plotted
by the flip of a coin:
1766 — Sweden enacts Western Europe’s earliest known free press
law. It protects access to government information.
1776 — The Declaration of Independence, approved during a secret
meeting, complains England’s King George III forced his policies by convening
“legislative bodies at places unusual, uncomfortable and distant from the
depository of their public records.”
1789 — The U.S. Constitution says in article one, section five
that each house of Congress “shall keep a Journal of its Proceedings, and
from time to time publish the same, excepting such Parts as may in their
Judgment require Secrecy...”
1791 — The First Amendment says “Congress shall make no law...
abridging the freedom of speech or of the press.” A few years later, Congress
tries to abandon this by jailing editors under the Alien and Sedition Acts.
The election of Thomas Jefferson in 1800 ends those jailings.
1860-65 — Congress censors the mails, outraged so much pornography
from the new invention, the camera, is being sent to Civil War troops.
Mail censorship becomes common in wartime.
1890 — An American court recognizes a “right to privacy,” responding
to a seminal article by Samuel D. Warren and Louis D. Brandeis in the Harvard
Law Review. News media, say Warren and Brandeis, too often violate the
rights of privacy of individuals.
1917-18 — During World War I, the Espionage and Sedition acts
make it a crime to criticize the government. Millions lose their ethnic
and socialist publications as hundreds of newspapers and magazines are
banned from the mails. Journalists covering the war post $2,000 bonds and
submit to censors.
1931 — As the First Amendment turns 140 years old, the U.S. Supreme
Court rules that it definitely applies to the states. In Near v. Minnesota,
the court rules state governments can’t try to control information by shutting
down newspapers.
1944-55 — A frenzy against Communist “infiltration” of the United
States government prompts Sen. Joseph McCarthy to hold hearings so secret
that some of the transcripts are being reviewed only now, 50 years later.
1946 — The Administrative Procedures Act passes. Congress intends
to give people access to government records, but agencies interpret it
as a law allowing them to withhold information.
1948 — The fledgling United Nations approves the Universal Declaration
of Human Rights. Article 19 says: “Everyone has the right to freedom of
opinion and expression ...”
1949 — Journalist Herbert Brucker publishes the book Freedom
of Information, calling for greater access to the workings of government:
“Whether this information system — this unofficial fourth branch of the
government consisting of press, radio and all the rest — is adequate to
the task of enabling democracy to get along, is the central question of
our time.”
1953 — Harold Cross, legal counsel to the American Society of
Newspaper Editors, publishes The Public’s Right to Know: Legal Access to
Public Records and Proceedings, the bible of the Freedom of Information
Act movement.
1955 — Rep. John E. Moss (D-Calif.) begins congressional hearings
on government secrecy. During the next 11 years, Moss becomes the legislative
father of freedom of information.
1958 — 85th Congress takes a deliberate but small step toward
allowing access by adding a sentence to the 1789 law stating it does not
“authorize withholding of information from the public.”
1964 — U.S. Senate passes freedom of information legislation,
but it dies in the House Judiciary Committee. The next year, the Senate
sends another bill to the House.
1966 — The full House passes the Freedom of Information Act,
requiring all records to be released to “any person” unless they are specifically
exempted. On July 4, President Lyndon Johnson signs the FOIA. Congress
also passes “Government in the Sunshine” legislation requiring some 50
federal agencies, board and commissions to open most of their meetings.
1971 — The Nixon administration tries to rewrite free press
law by invoking prior restraint against The New York Times, The Washington
Post and anyone else who wants to print the Pentagon Papers, a top secret
government history of the Vietnam War. The U.S. Supreme Court rules that
they can be printed. Justice Hugo Black writes that the First Amendment
protects the press “so that it could bare the secrets of government and
inform the people.”
1972 — After the Watergate break-in, journalists push to “put
teeth in the FOIA” with improved disclosure of government records. President
Richard Nixon signs the Federal Advisory Committee Act, opening advisory
committee meetings to the public.
Ralph Nader establishes the Freedom of Information Clearinghouse, promoting
more public use of the FOIA.
1974 — Congress amends the Freedom of Information Act, overriding
President Gerald Ford’s veto, to make the act more responsive to the public.
The amendments are a reaction to both Watergate and a tendency by the U.S.
Court of Appeals, District of Columbia Circuit, to decide FOI cases in
favor of non-disclosure. The amendments set a 10-day time limit for agencies
to respond.
Ford signs the Privacy Act, which restricts the amount of information
that the government may keep on an individual to what is “relevant and
necessary to accomplish a legitimate agency purpose.”
1976 — Ford signs the Government in the Sunshine Act, opening
agency meetings and requiring agencies to publish meeting times and places.
1980-88 — President Ronald Reagan’s administration proposes lessening
the government’s burden of disclosure under the FOIA. The Reporters’ Committee
for Freedom of the Press documents more than 300 attempts, many of them
successful, during the administration of presidents Reagan (and, later,
George Bush) to limit press and public access to information and inhibit
anti-government reporting.
1986 — Congress passes and Reagan signs the FOIA Reform Act,
giving more protection to confidential law-enforcement sources. This change
hits users hard.
1987 — March 16, the birth date of James Madison, is designated
as Freedom of Information Day. After nearly a decade of lobbying, former
Society of Professional Journalists president Jean Otto gets a Congressional
resolution signed by President Reagan.
1988 — Journalism scholars Edwin Emery, Phillip H. Ault and Warren
K. Agee estimate 40 percent of Congressional business is handled in closed
committee sessions. They say the “right to report ... is denied more often
at the grass roots level of government than at the national level.”
1989 — The U.S. Supreme Court decides Reporters Committee v.
Department of Justice, allowing the FBI to withhold its computerized, clearinghouse
rap sheets to shield individual privacy rights. The court says the government
must release only “official information,” data that directly reveals its
activities. Scholar Martin Halstuck says this ruling, as it is applied
in other cases, is reshaping “the contours” of the law, eroding the policy
of full disclosure.
1992 — All 50 states and the District of Columbia recognize the
public right of access to government records. (In 1940, only 12 states
did.) But in California, when the First Amendment Project “audits” government
compliance, it finds that most local agencies do not comply with state
public records laws.
1994 — The Drivers’ Privacy Protection Act is introduced
by Sens. Barbara Boxer (D-Calif.) and John Warner (R-Va.), to protect people
from being stalked by individuals who learn their addresses through use
of drivers’ license data from state departments of motor vehicles. But
the same act bans news organizations from using these formerly public records
to locate people in the public eye.
1995 — President Bill Clinton signs Executive Order 12958, changing
classification policies to both improve controls and speed declassification
of millions of secret documents. Yet documents can still be almost impossible
to get.
1996 — On the 30th anniversary of the Freedom of Information
Act, Sen. Daniel Patrick Moynihan says, “In the end, too much secrecy
in the government for too long tends to erode the confidence of the society
in the government.”
President Clinton signs the Electronic Freedom of Information Act, ensuring
public access to government documents maintained electronically.
1998 — The Society of Professional Journalists and the California
Newspaper Publishers Association survey voters: Seven in 10 support a broad
constitutional amendment granting access to state records.
1999 — The Washington non-profit OMB Watch reports that no federal
agency had fully complied with the 1996 Electronic Freedom of Information
Act.
2000 — Forty-five senators, more than 200 members of the house
of representatives and 46 Republican and Democratic state parties pay for
subscriptions to Aristotle, the nation’s largest voter database.
Presidential candidate George W. Bush’s campaign uses the system, which
provides public officials with detailed personal profiles of registered
voters. Candidate Al Gore’s campaign claims it does not use Aristotle or
any other any firm that jeopardizes the public’s privacy.
Advocates estimate as many as 1,000 new laws have been introduced to
limit government release of information, many prompted by the ease with
which data can be shared over the world’s network of personal computers.
Sources: Sunshine and Secrecy: The Freedom of Information Act Turns
30, The Freedom Forum and The American Society of Newspaper Editors, 1996;
Access Denied: Freedom of Information in the Information Age, Iowa State
University Press, 2000; The Freedom Forum First Amendment Ombudsman Paul
McMasters, Presstime, March 2000, and The Freedom Forum Newseum library
and databases.
Eric Newton, historian for the Newseum, is a member of ASNE’s Freedom
of Information Committee.
