Comment on Information Access-Surveying the Current Legal Landscape of Federal Right-to-Know Laws

• Date: 01 August 2009

39 ELR 10786 ENVIRONMENTAL LAW REPORTER 8-2009

Comment on Information Access—

Surveying the Current Legal Landscape

of Federal Right-to-Know Laws

by Gary D. Bass and Sean Moulton

Gary D. Bass is the Founder and Executive Director of OMB Watch. Sean Moulton

is the Director of Federal Information Policy at OMB Watch.

Openness is an American bedrock principle, with

secrecy being disdained except where absolutely

necessary. As former Sen. Daniel Patrick Moyni-

han (D-N.Y.) said, “Secrecy is for losers.”1 If information is

the lifeblood of democracy, then public access to informa-

tion would be the arteries that keep democracy healthy. Yet,

despite the clea r importance of transparency to an eective

and accountable government, we continue to fa ll short of

the openness we need and have often been promised. David

Vladeck’s article, Information Access— Surveying the Current

Legal Landscape of Federal Right-to-Know Laws,2 lays out a

clear case for how and why our federal eorts to establish the

public’s right to information, especially environmental infor-

mation, have not yet succeeded and what next steps would be

most helpful in correcting that fa ilure.

We as a nation have made repeated attempts to make our

government open and accountable to the people. And while

progress has been made, in some area s more progress than

others, we continue to struggle with the responsibilities of

our often longstanding right-to-know laws, such as the Free-

dom of Information Act (FOIA)3 and the Federal Advisory

Committee Act (FACA).4 Vladeck appropriately spreads the

blame for these shortcomings across a ll three branches of

government. Congress’ right-to-know laws have become out-

dated and fail to keep pace with the reality of what can and

should be accomplished in the Internet age. Executive agen-

cies, fearing criticism and oversight of their actions, continue

to be resistant to transparency, causing excessive delays a nd

often requiring those seeking information to go the expen-

sive route of hiring a lawyer and going to court. And the

1. T H D P M, S: T A E-

 227 (Yale Univ. Press 1998).

2. David C. Vladeck, Information Access—Surveying the Current Legal Landscape

of Federal Right-to-Know Laws, 39 ELR (E. L.  P’ A. R.) 10773

(Aug. 2009) (a longer version of this Article was originally published at 86 T.

L. R. 1787 (2008)).

3. 5 U.S.C. §552.

4. Pub. L. No. 92-463, §15, 86 Stat. 770, 776 (1972) (codied at 5 U.S.C. app.

2 (2000)).

courts have often, t hough not always, acted with excessive

deference to the federal government.

e growth in government secrecy, especially for envi-

ronmental and health data, has had profound and negative

impacts on the United States. It makes the public and com-

munities less safe. It hinders public participation in policy

issues that eect their health and well-being. It contributes to

near-record lows in trust of the executive branch. With the

growth of the Internet, it would seem a no-brainer that gov-

ernment transparency should be at its strongest point—and,

accordingly, our democracy very healthy. Yet the opposite is

happening; the public disclosure arteries are seriously clogged,

jeopardizing our democratic health. As Vladeck notes in his

numerous examples, attempts to get information about issues

aecting public health are met with intense long-term resis-

tance ma king the disclosure of the information ta ke longer

and cost more. Given this type of government reaction, it is

not surprising that a 2009 survey of A merican adults found

73% think the federal government is secretive, and 44% think

state government is secretive.5 e trend line is not good: in

2006, 62% thought the federal government was secretive.6

ere are three intertwining problems that inuence gov-

ernment secrecy concerning environmental information. First,

today’s laws and policies on public access are inadequate for

today’s 24-hour, 7-day-a-week Internet world. Too often the

burden is on the public to request information; and there are

far too many loopholes to allow agencies to withhold informa-

tion. ese policies need radical overhaul. Second, the federal

government’s use of interactive technology is largely grounded

in the 20th century. e use of Web 2.0 thinking is only start-

ing to make its way into government via the incoming Obama

Administration, but the hardware, software, and capacity

of public employees needs signicant upgrade. Finally, even

with the best technology and policies, there is an underlying

5. Press Release, Sunshine Week, Federal Govt. Still Viewed as Secretive; Presi-

dent’s FOI Orders Get High Marks (Mar. 13, 2009), at http://www.sunshine-

week.org/sunshineweek/secrecy_poll_09 (last visited June 1, 2009). e poll

was conducted by the Scripps Howard News Service and Ohio University in a

study commissioned by the American Society of Newspaper Editors.

6. Id.

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.