The Freedom of Information Act: Shredding the Paper Curtain (original) (raw)

Regardless of whether it comes under the guise of news management, the credibility gap, or government secrecy the basic question at issue is the control of information. The conflict over who is going to gain information and when it shall be made available arises in various contexts. A prime example of this problem is the Watergate scandal. In addition to the alleged concealment of information pertaining to criminal activity within the White House, the most serious aspects of Watergate revolve around the testimony regarding domestic surveillance and public opinion manipulation. N.Y. Times, May 21, 1973, at 1, col. 8. These charges represent serious challenges to our Constitutional structure and will only be resolved by a complete airing of all the facts. Questions concerning information and control of its dissemination have been posed to the courts in a number of cases. The two most significant are the trial of Daniel Ellsberg and Anthony Russo for releasing the Pentagon Papers, United States v. Russo, Criminal No. 9373-CD (C.D. Cal., Dec. 29, 1971), and the recent Supreme Court decision holding that newspapermen do not have a constitutional privilege to withold their sources of information, Branzburg v. Hayes, 408 U.S. 665 (1972). It should be noted that the charges against Ellsberg and Russo were subsequently dismissed. N.Y. Times, May 12, 1973, at 1, col. 8. These controversies highlight the fundamental constitutional considerations involved in the use of information and emphasize an unspoken premise of our system: the people have a right both to receive and to distribute information. 2 Gettysburg Address by Abraham Lincoln, Nov. 19, 1863. 694 FREEDOM OF INFORMATION of the governmental powers among three departments to save the people from autocracy. 3 In order to assure a government of laws and not of men they embodied their political philosophies into one great document, the Constitution of the United States. The first principle upon which this newly-formed government was to function was the basic concept of accountability. The Founding Fathers realized that only an informed populace could preserve the principle of accountability and thereby prevent concentration of power within any one branch. This concept was profoundly expressed by James Madison: Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. 4 As government regulates daily life to a greater degree, the people's right to be more dearly informed about the activities and decisionmaking processes of government increases proportionately. The emergence of the United States as a world power after World War I, the Depression, and the subsequent technological and economic expansion led to greater governmental control and regulation. To meet these challenges effectively, a hybrid creature of authority evolved, viz, the administrative agency. Since these agencies were answerable primarily to the Executive and were not subject to the normal checks and balances of the three major branches of government, a problem developed regarding their lack of accountability. Many agencies were operated like miniature baronies and developed protective mechanisms in order to frustrate possible inquiry. In order to eliminate the paper curtain of bureaucracy, Congress attempted the formulation of a general statutory scheme to aid free access to knowledge of agency operations by enacting section three of the Administrative Procedure Act (APA). 5 Soon after its enactment it became apparent that, despite the clear intent of Congress, this statute was often being used as a justifica