Today's Article
George W. Bush's
insistence on
absolute 'executive
privilege' doesn't
follow American law.
insistence on
absolute 'executive
privilege' doesn't
follow American law.
The American Spark
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Report Discusses Citizens' Right To Executive Branch Information
By Cliff Montgomery - June 1st, 2007
American citizens' access to government information--including executive branch info--is the subject of a very
informative Congressional Research Service report updated April 23rd, 2007. We offer quotes below:
"Throughout the first 150 years of the federal government, access to government information does not appear
to have been a major issue among the three branches or for the citizenry. There were a few instances during
this period when the President, for reasons of maintaining the constitutional independence and equality of his
branch, vigorously resisted attempts by Congress and the courts to obtain executive records. Furthermore,
during this same era, an active federal public printing program was established and effectively developed.
"Following World War II, however, information came to be of limited availability from federal departments and
agencies. Conditioned by information restrictions prompted by recent global hostilities, fearful of Cold War
spies, intimidated by zealous loyalty investigators within and outside of government, and anxious about various
efforts at reducing the executive workforce during the postwar reconversion, the federal bureaucracy generally
was not eager to have its activities and operations disclosed to the public, the press, or other governmental
entities.
"Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information.
The public availability of records held by the executive branch was limited by artful interpretation of the
housekeeping statute of 1789 authorizing the heads of departments to prescribe regulations regarding the
custody, use, and preservation of the records, papers, and property of their entity.
"Moreover, a provision of the Administrative Procedure Act of 1946 indicated that matters of official record
should be available to the public, but added that an agency could restrict access to its documents 'for good
cause found' or 'in the public interest.'
"These discretionary authorities were relied upon to restrict the accessibility of unpublished agency records
and documents.
"Such conditions also contributed to the increasing difficulties of congressional committees and
subcommittees in gaining access to both records and officials of federal departments and agencies during the
1950s.
"In response, some congressional panels began examining these information access issues and seeking
responsive legislative solutions. Among the well known inquiries in this period was the work of the Special
Subcommittee on Government Information of the House Committee on Government Operations. The
subcommittee, established in 1955, was chaired by Representative John E. Moss and produced many volumes
of hearings and reports.
"Apart from interbranch information access dilemmas, Congress, in 1966, undertook fashioning various
statutory arrangements for realizing public access to executive branch information.
"Executive branch officials, however, were not supportive of these measures and, initially, did not always
promote or pursue their faithful administration.
"The current major federal laws facilitating public access to government information are briefly described
below...
"Initially enacted in 1966 and subsequently amended, the Freedom of Information Act (FOIA) establishes for
any person--corporate or individual, regardless of nationality--presumptive access to existing, unpublished
agency records on any topic.
"The law specifies nine categories of information that may be permissibly exempted from the rule of disclosure.
"A 1972 statute, the Federal Advisory Committee Act (FACA), in part, presumptively requires that the meetings
of all federal advisory committees serving executive branch entities be open to public observation.
"The statute specifies nine categories of information--similar to those of the FOIA--that may be permissively
relied upon to close advisory committee deliberations when such matters are under discussion.
"Legislated in 1974, the Privacy Act, in part, establishes for individuals who are United States citizens or
permanent resident aliens, presumptive access to personally identifiable files on themselves held by most
federal agencies (generally, however, not law enforcement and intelligence entities).
"The statute specifies seven types of information that may permissively be exempted from the rule of access.
"Enacted in 1976, the Sunshine Act presumptively opens the policymaking deliberations of collegially-headed
federal agencies--such as boards, commissions, or councils--to public scrutiny unless closed in accordance
with any of nine exemptions to the rule of openness. Disputes over proper public notice of such meetings or
the propriety of closing a deliberation may be pursued in federal court.
Interbranch Access
"No statutory arrangements have been created to facilitate access by one branch of the federal government to
records and information holdings of the other two branches. Both Congress and the judiciary have subpoena
powers which can be exercised to compel the production of materials by another branch, but even these
demands have sometimes been resisted.
"Congress can use its 'power of the purse' to leverage its information access demands; federal courts rely
upon a spirit of justice and fair play to sustain their orders for the production of information by another branch.
"In view of the American separation of powers model of government, such conflicts are neither unexpected nor
necessarily destructive."
By Cliff Montgomery - June 1st, 2007
American citizens' access to government information--including executive branch info--is the subject of a very
informative Congressional Research Service report updated April 23rd, 2007. We offer quotes below:
"Throughout the first 150 years of the federal government, access to government information does not appear
to have been a major issue among the three branches or for the citizenry. There were a few instances during
this period when the President, for reasons of maintaining the constitutional independence and equality of his
branch, vigorously resisted attempts by Congress and the courts to obtain executive records. Furthermore,
during this same era, an active federal public printing program was established and effectively developed.
"Following World War II, however, information came to be of limited availability from federal departments and
agencies. Conditioned by information restrictions prompted by recent global hostilities, fearful of Cold War
spies, intimidated by zealous loyalty investigators within and outside of government, and anxious about various
efforts at reducing the executive workforce during the postwar reconversion, the federal bureaucracy generally
was not eager to have its activities and operations disclosed to the public, the press, or other governmental
entities.
"Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information.
The public availability of records held by the executive branch was limited by artful interpretation of the
housekeeping statute of 1789 authorizing the heads of departments to prescribe regulations regarding the
custody, use, and preservation of the records, papers, and property of their entity.
"Moreover, a provision of the Administrative Procedure Act of 1946 indicated that matters of official record
should be available to the public, but added that an agency could restrict access to its documents 'for good
cause found' or 'in the public interest.'
"These discretionary authorities were relied upon to restrict the accessibility of unpublished agency records
and documents.
"Such conditions also contributed to the increasing difficulties of congressional committees and
subcommittees in gaining access to both records and officials of federal departments and agencies during the
1950s.
"In response, some congressional panels began examining these information access issues and seeking
responsive legislative solutions. Among the well known inquiries in this period was the work of the Special
Subcommittee on Government Information of the House Committee on Government Operations. The
subcommittee, established in 1955, was chaired by Representative John E. Moss and produced many volumes
of hearings and reports.
"Apart from interbranch information access dilemmas, Congress, in 1966, undertook fashioning various
statutory arrangements for realizing public access to executive branch information.
"Executive branch officials, however, were not supportive of these measures and, initially, did not always
promote or pursue their faithful administration.
"The current major federal laws facilitating public access to government information are briefly described
below...
- Freedom of Information Act
"Initially enacted in 1966 and subsequently amended, the Freedom of Information Act (FOIA) establishes for
any person--corporate or individual, regardless of nationality--presumptive access to existing, unpublished
agency records on any topic.
"The law specifies nine categories of information that may be permissibly exempted from the rule of disclosure.
- Federal Advisory Committee Act
"A 1972 statute, the Federal Advisory Committee Act (FACA), in part, presumptively requires that the meetings
of all federal advisory committees serving executive branch entities be open to public observation.
"The statute specifies nine categories of information--similar to those of the FOIA--that may be permissively
relied upon to close advisory committee deliberations when such matters are under discussion.
- Privacy Act
"Legislated in 1974, the Privacy Act, in part, establishes for individuals who are United States citizens or
permanent resident aliens, presumptive access to personally identifiable files on themselves held by most
federal agencies (generally, however, not law enforcement and intelligence entities).
"The statute specifies seven types of information that may permissively be exempted from the rule of access.
- Government in the Sunshine Act
"Enacted in 1976, the Sunshine Act presumptively opens the policymaking deliberations of collegially-headed
federal agencies--such as boards, commissions, or councils--to public scrutiny unless closed in accordance
with any of nine exemptions to the rule of openness. Disputes over proper public notice of such meetings or
the propriety of closing a deliberation may be pursued in federal court.
Interbranch Access
"No statutory arrangements have been created to facilitate access by one branch of the federal government to
records and information holdings of the other two branches. Both Congress and the judiciary have subpoena
powers which can be exercised to compel the production of materials by another branch, but even these
demands have sometimes been resisted.
"Congress can use its 'power of the purse' to leverage its information access demands; federal courts rely
upon a spirit of justice and fair play to sustain their orders for the production of information by another branch.
"In view of the American separation of powers model of government, such conflicts are neither unexpected nor
necessarily destructive."