Issues Of Democracy: Accountability And Its Limits


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TRANSPARENCY --
THE MECHANISMS:
OPEN GOVERNMENT AND ACCOUNTABILITY


By Robert G. Vaughn


Robert G. Vaughn

A number of American laws assure the rights of citizens to observe, to understand and to evaluate the decisions and conduct of government officials. Access to information permits citizens to challenge governmental actions with which they disagree and to seek redress for official misconduct. Access to information also deters official misconduct by reminding public officials of their accountability. In this article on open government and accountability, Robert G. Vaughn, professor of law at Washington College of Law, American University, discusses how the concept of transparency incorporates these same values underlying democratic accountability, values commonly referred to in the United States by the term "open government."

The founders of the United States recognized the relationship between democracy, accountability and access to government information. James Madison, later the fourth president of the United States, captured the importance of this relationship in his often quoted warning: "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."

Today, a number of laws assure the rights of citizens to observe, to understand and to evaluate the decisions and conduct of government officials. Access to information permits citizens to challenge governmental actions with which they disagree and to seek redress for official misconduct. Access to information also deters official misconduct by reminding public officials of their accountability. The concept of transparency incorporates these same values underlying democratic accountability, values commonly referred to in the United States by the term "open government."

The best known and most effective of these open government provisions is the federal Freedom of Information Act. In addition, other open government provisions require public government proceedings and access to government documents and information. Public financial disclosure by government officials and civil servants in the executive, legislative and judicial branches of the federal government also seeks to give citizens sufficient information to judge whether the actions of those officials are likely to be influenced improperly by their own financial interests.

The open government provisions noted above often conflict with other values, particularly those of personal privacy. This conflict, however, also can be seen as the way in which access to government-held information and the protection of personal information define the information policies of democratic rather than authoritarian regimes.

The electronic revolution has affected access to information. It promises that government can become a disseminator of information vindicating the values that now support open government provisions. At the same time, it can threaten personal privacy in ways that undermine rather than support democratic institutions.

Freedom of Information Laws

Although the federal Freedom of Information Act is the best known of such provisions, all 50 states have some form of a freedom of information statute that applies to some government documents and records. A discussion of the federal statute, however, captures the most salient aspects of these state laws.

The federal Freedom of Information Act requires that some types of documents be made available without request and be placed in public reading rooms. Such documents include the rules and regulations of government departments and agencies, final opinions resolving administrative proceedings conducted by agencies, and relevant guides and manuals that directly affect members of the public. Through this requirement, Congress sought to avoid the application of "secret law" by federal officials and to guarantee that any person could examine the standards controlling the exercise of public power by those officials.

At a minimum, the rule of law requires access to the standards applied by government officials. If legal standards are to restrict official discretion, those standards must be known. Without knowledge of these standards, it is difficult to believe that they will meaningfully limit the power of public officials.

In the Administrative Procedure Act, for instance, Congress also sought to ensure that individuals and groups would know of government rules and have the opportunity to comment upon them. Agencies which propose new rules and regulations must publish them in the Federal Register, a periodical printed by the Government Printing Office and widely available in libraries and by subscription. In addition, agencies must publish information about their organization and procedures in order to permit the public to understand how redress may be sought within the agencies.

All other government documents and records are considered to be public and are to be made available upon request. The federal Freedom of Information Act creates the presumption that any person is entitled to government documents. Persons requesting these documents need not give any reason why they want the documents or explain what use will be made of them.

The federal Freedom of Information Act contains nine exemptions to disclosure. These are for documents: (1) properly classified in the interests of national defense or foreign policy, (2) consisting of internal guides or directives discussing enforcement strategies, the release of which would risk evasion of the law, (3) the disclosure of which is specifically prohibited by other laws, (4) containing confidential or privileged commercial or financial information, (5) protected by certain litigation privileges, (6) the release of which would constitute a clearly unwarranted invasion of personal privacy, (7) compiled for law enforcement purposes, the release of which could reasonably be expected to create the risk of certain harms, (8) contained in or related to oversight of financial institutions by an agency charged with regulation or supervision of such institutions, and (9) containing geophysical and geological information regarding oil wells.

The courts narrowly construe these exemptions in favor of disclosure of the relevant documents. The courts review administrative decisions to withhold requested documents more rigorously than other types of administrative decisions. In most instances, the exemptions authorize but do not require an agency to withhold documents falling under one of the exemptions. (President Bill Clinton and Attorney General Janet Reno have instructed federal agencies not to claim exemptions unless they can demonstrate that disclosure of the protected documents would damage the public interest.) The two principal examples of instances in which an exemption must be claimed are national security information and the release of documents, which would invade personal privacy.

Political accountability rests upon the right of free expression and the right of free association. These rights allow citizens to organize, to advocate and to challenge the decisions of the government representing them. These rights allow them to affect political change. In the case of political speech, the lack of information about the government policies at issue reduces the credibility of the speaker and diminishes the value of the right to speak. Without information about government decisions and the implications of these decisions, the impetus for association is also abridged.

Likewise, legal accountability, through appeal to the courts, requires information about government policies and practices. For example, documents obtained under the federal Freedom of Information Act have fueled a number of successful challenges to the conduct of government officials that infringed upon the civil rights of U.S. citizens.

The electronic revolution promises greater citizen access to government-held information and an enhanced role for the government as a disseminator of information through the Electronic Freedom of Information Act of 1996, which seeks to fulfill these promises. Public reading rooms are to become "virtual reading rooms" where the information available in them is accessible to anyone with a computer and a modem. Agencies are required to provide electronic access to documents regarding "hot topics," documents that are commonly requested or likely to be of interest to other potential requesters. No longer must certain documents or records be specifically requested; they are available electronically from a federal agency. In addition, some agencies permit requests for documents and records not falling within this category to be made electronically, and often the response may be electronic as well.

Most importantly, the Electronic Freedom of Information Act improves significantly the mechanisms for access by emphasizing the role of government as a disseminator of information. Many government documents and databases are available on the Internet. Increasingly, the federal executive branch has improved Internet access to federal agency websites. (For example, see FirstGov, an entry site that in the future, will give immediate access to federal government websites.)

Other Open Government Laws

A number of other open government laws, applicable to the federal government, also provide ways to understand and evaluate the conduct of government officials. These other provisions include the Sunshine in Government Act, the Federal Advisory Committee Act, the Ethics in Government Act, the Whistleblower Protection Act and, paradoxically, the Privacy Act. With the exception of the Federal Advisory Committee Act, most U.S. states have provisions similar to these federal laws. Indeed, the Sunshine in Government Act and the public financial disclosure provisions of the Ethics in Government Act relied upon examples found in state law.

The Sunshine in Government Act is an open meetings law, which requires that the meetings of collegial bodies, such as commissions and boards containing two or more members, be held in public. The public must be given notice of these meetings published in the Federal Register, and transcripts or other records of the deliberations must also be made available. The law assumes, subject to exemptions somewhat similar to those contained in the Freedom of Information Act, that the deliberations of the groups of individuals responsible for these collegial bodies are subject to public scrutiny. As with the federal Freedom of Information Act, these exemptions are narrowly construed.

The justifications for open meetings are similar to those supporting access to government documents and records. In fact, the federal Sunshine in Government Act and similar state laws draw their names from a famous quote by Supreme Court Justice Louis Brandeis that "sunlight is said to be the best of disinfectants."

The federal open meeting law applies to the federal executive branch. Proceedings of the other branches also are subject to public observation. A combination of constitutional and common law provisions requires that criminal and civil trials be open to the public. Many courts have extended the principle of open trials to include public access to rulings and orders disposing of litigation and to the documents supporting those rulings. Sessions of the House and Senate are open to the public. Under relevant rules of procedure, most hearings and many committee deliberations also are open.

As the Sunshine in Government Act applies to the deliberations of collegial bodies, such as boards or commissions, the Federal Advisory Committee Act regulates advisory committees containing private citizens. These committees are advisory but used by the government in formulating official standards and procedures. A principal method of regulation is the provision for open meetings with notice published in advance in the Federal Register. In addition, the Federal Advisory Committee Act requires access to information regarding the membership, activities and decisions of such bodies. Because these committees can play a significant role in government policymaking, their accountability requires knowledge of their activities.

Similarly, the rationale of open government laws applies to the Whistleblower Protection Act. This act protects from retaliation federal employees who disclose information regarding official conduct that the employees reasonably believe is a violation of law, rule or regulation, a gross waste of funds, gross mismanagement, an abuse of authority, or a specific and substantial danger to public health and safety. Like other open government laws, the protection of whistleblowers helps ensure that persons have the information necessary to make meaningful use of the rights of free expression and association, rights that are the foundation of political accountability.

Protection of whistleblowers vindicates the right of free expression. When information is available is as important as whether the information is available. Protection of whistleblowers increases both the availability of information and its timeliness. Because whistleblowers are able to disclose hidden information and to expose coverups of misconduct, they provide information at a time when a meaningful response is possible. The right of free expression does not simply protect criticism; it also guarantees the right to use democratic procedures to change government action and policy. Whistleblower protections supplement freedom of information laws by assuring access to important information before persons would otherwise be aware of the need to request government documents and records.

The Privacy Act, despite the connotations of its title, provides access to government documents and records. A person may use the act to gain review of records concerning that person, which are retrievable by some identifying particular, such as a name or Social Security number. A person has the right to review these records and in some circumstances may seek a correction or amendment of them. The courts enforce these rights to access and amendment. Access to these records permits the individual to evaluate whether the government has fulfilled its obligations under that act to ensure such records are accurate, timely, relevant and complete. The act also regulates how an agency acquires, maintains, protects, uses and disseminates such records.

The Ethics in Government Act requires that members of Congress, federal judges and certain executive officials, including high ranking civil servants, file financial information, which is made available to the public. Included in such financial reports are income from various sources including dividends, interest, rent and capital gains, which need only be reported within broad ranges of value; other forms of income, including honoraria, must be reported in more detail. Also included are receipt of gifts and the reporting of assets and liabilities. The provisions of the law are complicated and some disclosures, such as those of assets, also are made within broad ranges of value. Still, a significant amount of personal financial information is available to the public.

Congress justified these invasions of privacy on the need to reassure the public of the integrity of high government officials. Individual citizens can examine these reports to ensure that government officials do not have conflicts of interest between their duties to the public and their personal financial interests. Public disclosure of the financial interests of government officials makes a powerful statement regarding the accountability of public employees to the citizens whom they serve.

Access and Privacy

Although public financial disclosure laws starkly illustrate the conflict between access and privacy, all open government statutes confront this conflict. For example, consider the federal Freedom of Information Act. Much of the information contained in government documents is not generated by the government but rather provided to the government by third persons. In addition, information generated by the government may concern the activities or characteristics of individuals. Thus, it is likely that many government documents and records will contain substantial amounts of information involving the personal privacy of individuals.

The Freedom of Information Act addresses the conflict between access and privacy by authorizing the withholding of documents, the release of which would constitute a clearly unwarranted invasion of personal privacy. This exemption protects privacy but strikes a balance in favor of access to materials, allowing an examination of the operations of government, since the exemption requires that disclosure must lead to a clearly unwarranted invasion of privacy. Because of the relationship between the Freedom of Information Act and the Privacy Act, most authorities believe that information falling under the privacy exemption to the Freedom of Information Act also falls under the protection of the Privacy Act. Thus, federal officials lack discretion to release documents falling under the privacy exemption.

The electronic revolution can be seen as threatening the balance between access and privacy. The ease of access provided by the Internet and the role of government as a disseminator of information may increase the likelihood of violations of personal privacy. Some critics assert that the Electronic Freedom of Information Act reduces the legal and practical protections for privacy. The statutory resolution of the conflict between privacy and access requires a careful assessment of the scope of privacy protection and the justifications for access. Resolution, however, may be unattainable if the conflict is seen as the choice between incommensurate values.

From another perspective, access and privacy are both important to democratic accountability. The protection of personal privacy gives the individual the choice whether to speak and how to speak in different places and at different times and thus supports the right of free expression. The protection of personal privacy also nurtures the right of free association. For example, during the civil rights movement in the southern United States during the 1960s, public disclosure of the membership lists of the National Association for the Advancement of Colored People (NAACP) would have discouraged affiliation with that group and undermined the right of free association, which is one of the foundations of political accountability.

In his landmark book, Privacy and Freedom, Alan Westin emphasizes the relationship between access and privacy in democratic governments. Indeed, he defines democracy and authoritarianism in terms of information policy. Authoritarian governments are identified by ready government access to information about the activities of citizens and by extensive limitations on the ability of citizens to obtain information about the government. In contrast, democratic governments are marked by significant restrictions on the ability of government to acquire information about its citizens and by ready access by citizens to information about the activities of government. Rather than being inexorably in conflict, access and privacy are both intertwined with democratic accountability.


Click here for information on the Government Performance and Results Act (GPRA), 1993 legislation designed to increase accountability in government by improving the effectiveness of all programs and services provided by U.S. federal government agencies and departments.


Source:
Issues of Democracy: Accountability in Government
Open Government and Accountability

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