A) Statement

Freedom of Information is the flipside to Data Protection Law, and so far as it contributes to part of a calculated system of access or denial of access to information. Through this paper this statement will be discussed with particular reference to the 1966 Freedom of Information Act (FOIA), and the Theory of Open Government.

B) Introduction

Freedom of Information has the ability to generate more controversy and heated debates than virtually any other aspect of contemporary government, and administration. The Press and the media have addressed this issue with a lot of interest, and have made the public aware of the various misuses on behalf of the government.

I) Definition

By Definition, freedom of information, means having access to files, or to information in any from, in order to know what government is up to[1]. The definition as a positive force in a democratic society can be traced back to James Madison in 1822 as president: “ 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. Knowledge will forever govern Ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives[2]”.

II)

Of course every citizen has a valid interest in knowing what the “Big Brother” is doing. This not includes what he should do for the public, but especially the misuse of power. This becomes especially evident in the American System, which is based on the public being a strong part of the overall judicial and political system. The government itself would like to limit themselves to allowing the minimum standard of Freedom of Information possible. This stance can also be understood under the perspective, that the Institutions themselves need to protect their Data in every way possible, to assure national security.

C) Freedom of Information Act

The Freedom of information act will be analysed in its historical and structural componetents with respect to the idea of open government and data protection

I) Historical Development Freedom of Information Act

The citizens of the United States required increasingly information over the nationally stored data on their person and required the “ right to know „. In 1966 the government finally issued the “ Freedom of information act “ (FOIA)[3]. Each citizen in the USA could now see, against request at the appropriate authorities, its documents, and received after 10 days of operating time the appropriate copies of the documents of the responsible authority were sent[4]. The FOIA, in the version of 1966, proved however to be as very incomplete. After 1974, when consequence of the Watergate affair (1972-1974) alerted the public, the FOIA was amended. Now “ any person”, could obtain the information of the American administrative authorities. “ Any person“ were now not only all native natural and legal entities, but also all foreign citizens and legal entities of the public and private sectors, who were located outside of the USA and stood in contact with the authorities. Likewise the file inspection for “ any records “ was introduced, under what one computerized all storage media, independent of their type, i.e. files, films, photographs, videos and tapes, even radiographs, was understood. Herby the idea was introduced, that each “ well informed citizen “ is to take part in the “ process of the democratic will formation „. In 1986 the FOIA unfortunately experienced changes with the Reagan-Administration and thus limiting the rights of the citizens again. Through this change anyone is refused to file inspection, if thereby the interests of national security, the protection of the right penetration are touched, by professional secrets and the private sphere of a third person . The secrecy powers of the state were therefore put first to the individual rights of every person[5]. The last modification of the Freedom of Information Act (FOIA) was brought onto the US in 1997[6]

II) The FIOA and Open Government vs. Data Protection

The primary model for open access to government records is the FOIA. The FOIA establishes the general right of the public to obtain information from federal agencies, unless the records are specifically exempted. One of the Act’s main goals is to facilitate the public in its „watchdog“ function; it allows members of the public to access the materials that verify whether their officials are acting in the public interest. The Act’s purpose is „to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny[7]. As such, courts have limited exceptions to the law and provided remedies—such as mandating the release of segregable portions of an otherwise exempt file—when agencies discourage use of the Act.

Similarly, every state has its own freedom of information or „right-to- know“ laws to provide public access to information at the local level. While they vary from state to state, these laws are similar to the FOIA in that they employ the same general premise and share the same goals[8]. Although state courts are obviously free to construe more or less disclosure in state laws than would be required under the FOIA, many of the laws are directly based on the federal statute, and state courts have turned to federal case law to interpret state law[9].

1) Freedom of Information

Freedom of information does not mean access to brute information alone such as documents and records in whatever form. It leads into in to open government in so far as it necessitates access to governmental decision – making in a more public and participatory form. The claims for such are couched in terms of a right of a right to know, a democratic right. Such claims are easily made, but more difficult to justify if one has not established what theory of democracy one accepts. Information is inherently a feature of power. So too is its control, use and regulation. Government, to repeat, is the organisation of information for the use, effective or otherwise, of power in public interest. Take away a Government’s preserve on information, and its preserve when and what to release, then take away a fundamental bulwark of its power. It may be debated if this is desirable of what. But it is undeniable, however, that its impact is potentially profound. Such developments could establish new centres of power and organisations outside of government, where ‘government’ would be ‘all inside and no outside’. Any responsible advocate for open government and freedom of information must accept that there are subjects which we do not all need to know and be informed on and which we cannot insist on knowing as a right. The question then becomes: what kind of information is this and, if I do not know, is someone entitled to know on my behalf and to what extent are they entitled to know? It is now time to move from the general and fairly abstract to the particular and to examine a problematic area which poses significant political, legal and practical difficulties in relation to information control and its regulation and to see how the government has responded to the competing claims of security and accountability. This is the flipside of Freedom of information, where the government will limit its openness and protect their data for good reasons.

National security concerns what may be regarded as the quintessential function of the state. It involves the most developed form of information technology – much of it highly secret. The area covers the most intrusive of information – gathering exercises conducted on behalf of the government agencies. National security is also a virtually unanswerable plea to immunity, preventing access by individuals to information upon those individuals, and confidentially. Courts[10] have long shown themselves sensitive to executive assertions of national security precluding judicial investigations of an individual grievance[11]. Many of the most controversial cases concerning information in recent years have related to national security. The peculiar potency of the subject must be fully realized. It is not characteristic of all areas of government activity. However, it will provide an interesting area of human activity I which some of the theoretical points set out above may be tested. This is because the subject poses the most difficult of questions about executive action and its relationship with effective accountability and informed public opinion.

The most important pieces of legislative reform in this matter, are the Security Service Act oft 1989, which accompanied the Official Secrets Act of 1989 and the Intelligent Service Act of 1994. The Official Secrets act did provide for a lifelong prohibition on unauthorised disclosure by security and intelligent officials and those purporting to be such officials as well as notified officials. The other two pieces of legislature place the security and intelligence services on a statutory basis and they do provide for some form of Parliamentary oversight. In addition they provide they set out in very broad terms the power of the services, the necessity for warrants from the secretary of state, or officials under certain circumstances, for otherwise illegal activity and they provide in each case for a commissioner and tribunal to deal with complaints about service activities and to oversee their activities.

National security, and the activities and oversight of those responsible for national security, is a difficult but instructive testing ground for problems associated with freedom of information. It is an area where government has made concessions to provisions of more information if not openness. Cutting through the variety of arguments supporting or undermining the existing state of operations, there is one factor implicit in this or any government’s reckoning. That is cost. The cost of opening up the world of security operations, it argues, even on the scale suggested above, would be destructive of our security. Giving more information, even to limited numbers of elected representatives, would increase the risk of leaks and treasonable use of information The consequence would affect all of us. In other areas of freedom of information, the cost factor is used as a leading argument against introduction. ‘Cost’ may take a variety of forms. There is a sheer financial cost. Allow access and everyone will want to see everything. Indeed, the hard facts and figures regarding FOIA’s overall costs, and the man-hours required for its administration, are difficult to come by — dispersed as they are among 75 annual reports from individual FOIA offices. But according to the best guesstimations of Harry Hammitt, who until 1995 tracked down and published the figures in his newsletter, Access Reports, government agencies probably spend $80 million a year responding to the 600,000 FOIA requests that pour in. The total number of backlogged FOIA requests also is scattered among those 75 reports, but a 1994 analysis by the Department of Justice, which receives all the reports and will be posting them on a single World Wide Web site next spring, indicated that only 28 of the 75 FOIA offices reporting were not carrying a backlog of cases[12]. In General this trend will indexing, and staff to deal with requests, to provide reviews, to check that exempt material is not included, to deal with litigation, to check that filing is carried out correctly. There is the cost of a loss of candour in advice when the giver or the referee knows that it may be published or shown to the subject. There is the fear of perpetual intervention when policy – makers are constantly exposed or challenged and have to justify their every move. In such a situation individuals may not wish to take risks or make the innovative decisions. The cost could be a reduction in professionalism. There is the cost of inertia. There is also the possible cost of creating greater secrecy: The spectre of the file behind the file, the meeting behind the meeting, the state behind the state. There is a possible cost of ‘the paperless environment‘ where record – keeping is minimized. Overseas experience shows that the financial costs are factors to consider when discussing the idea behind freedom of information.

2) Theory of Open Government

The “information society”, or its members are making increasing claims for an Open Government. The Term ‘Open Government’ is not the same as Freedom of information, though they are closely related. Freedom of Information may be seen as wider in so far as it covers, potentially, all information in the public and private domain. The phrase ‘open government’ refers to the openness of processes, as well as documentation and may concern private institutions in so far as they are used as a surrogate for governmental decision – making.

The most significant development concerning access to government information that we have witnessed is the The Code of Practice on Open Government which emerged under the “Citizens Charter initiative”. The movement by the government towards more open government was a necessary development from the Prime Minister’s Citizen’s Charter initiative[13]. Through this Charter and the annual reports the government supplied proof, and goals on giving out information on public services, and to consumers who paid taxes. Even though the government argued, that there was no need for a Freedom of Information, by 1994, through the White Paper[14] it had convinced, that “Open Government is part of an effective democracy”, and that citizens had to have adequate access to the information and analysis on which government business is based. While the government accepted the need for ministers and their servants to explain policies, actions and decisions to the public there was also a need for some secrecy and protection of personal privacy[15]. The three themes of the Paper were:

  1. handling information in a way which promotes informed policymaking and debate and efficient service delivery
  2. providing timely and accessible information to the citizen to explain the Government’s policies actions and decisions
  3. restricting access to information only where are very good reasons for doing so.

Its exemptions from access take up the major part of the code and can be examined in a moment but some novel features of an access to information regime, some might say startling, must be first analysed.

By 1994 the government of the United States of America had realized, that data protection of government information, was the flipside to becoming an open government. Through the Charter the government has realized, that freedom of information is one of the basic traits of a democratic society. The Charter will support many more changes to come in the future and is a fundament for the trend. an open government

III. Conclusion

Concluding we can see that the Freedom of Information Act is the fundament to the “right to know” for every citizen. It has broken the solid shell of government control over information and gives ground to other developments in the system which can be found in the revision of the Act or other Charters that followed. The development as a whole can be described as an opening of government towards a information society.

D) Final Statement

Without question, free access to information is an essential ingredient to a properly functioning democratic society. Where disagreements have arisen is in whether any government should have a right to keep information about its own workings from the public, either to improve the chances of success for its policies or to protect its members from censure, or worse, for illegal or improper acts.

The Issue of Freedom of Information and Data protection of the government is a question of balance. An equilibrium can only be achieved, if the information itself is evaluated. Of course every citizen has to have access to governmental information if only for the reason of a check of power. But this right to know cannot be extended to the point, where it would substantially threat the national security of the country. Taking freedom of information a step too far could easily backfire on the society itself and therefore do more good than bad.

Most interesting is, that the freedom of information has accelerated the government towards it’s openness. Data protection should not be considered a flipside of freedom of information, but a genuine interest of the government to protect certain information that is valuable to the national security of the country. If you analyse the Statement of the Assignment with the given information above you could say that freedom of information and data protection have a lot in common, and are the two poles between a an government restricting information, and an open government. What the legislature over the last couple of decades has reviled is, that there must be the balance that I have discussed above.

The Freedom of Information act has developed throughout the last 40 years and has led to an opening of government agencies. The government itself has put bounds on the development which I think are certainly very understandable, since every state must have some confidential information that is not accessible. Therefore one must admit that the developments can be improved (for example a faster response to a request on government information) but this doesn’t change the fact that the American citizen has a basic access to the needed information. The Freedom of Information Act will, and already has, certainly influence many countries around the world and give them the ability to watch and use information gathered by their government.

[1] Birkinshaw p. 1
[2] Branscomb p. 163 – 164
[3] Kneifel p. 135; Foerstel p. 39 – 44
[4] Kneifel p. 137
[5] Schwarz S. 135
[6] Michel pp. 1 f.
[7] Department of Air Force v. Rose, 425 U.S. 352, 361 (1976)
[8] Wojczak v. Department of Justice, 548 F. Supp 143, 148 (E.D. Pa. 1982)
[9] Compare 5 U.S.C. § 552(G)(b)(5) (1994) with Tex. Code Ann. § 2002.023(1)-(2)
[10] Birkinshaw pp. 287 f.
[11] Cf R v. Secretary of State for the Home Department ex p Ruddock [1987] 2 All ER 518
R v. Secretary of State for the Home Department ex p McQuillan [1995] 4 All ER 400
R v. MOD ex p Smith [1995] 4 All ER 427
[12] Paige p. 2
[13] Birkinshaw p. 201
[14] White Paper on Open Government Annexe B Part II, Cm 2290
[15] Birkinshaw p. 201