Today's Article
U.S. government
secrecy is designed to
keep those who are
not in power from
knowing what those
with power are
actually doing.
secrecy is designed to
keep those who are
not in power from
knowing what those
with power are
actually doing.
The American Spark
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Public Access To U.S. Gov't Info Has Always Been Limited
By Cliff Montgomery - Sept. 18th, 2009
The Congressional Research Service (CRS) on August 31st released a intriguing study entitled, Access to
Government Information In the United States.
It reminds us that American democracy doesn't come down to us written in stone, but is constantly evolving to
fulfill its stated promise. Though the Declaration of Independence often spoke in democratic terms, the
Founding Fathers did not create a perfect democracy--or, in fact, a democracy of any kind.
They instead created a limited republic, where only wealthy white male landowners had full voting rights and
slavery was all too often the economic rule of the day.
It therefore is only natural that at first, government secrecy was designed to keep those who were not full
citizens from knowing what those in power were actually doing. And while things often have changed for the
better, work remains to be done.
The American Spark below offers major quotes from the CRS study:
"The U.S. Constitution makes no specific allowance for any one of the three branches of the federal
government to have access to information held by the others. No provision in the U.S. Constitution expressly
establishes a procedure for public access to government information."
"Throughout the first 150 years of the federal government, access to government information does not appear
to have been a major issue for the federal branches or the public.
"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, making government documents more accessible.
"Following World War II, some information was available from certain federal departments and agencies. The
public availability of records held by the executive branch was limited by narrow interpretation of the
housekeeping statute of 1789, which authorized the heads of departments to prescribe regulations regarding
the custody, use, and preservation of the records, papers, and property of their entity.
"Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information.
"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.
"In response, some congressional panels began examining information access issues and seeking responsive
legislative solutions. Among these legislative responses was the creation of the four following statutes:
"This report offers an overview of each of these statutes, including the boundaries of their authority.
"In 1966, Congress enacted the first law requiring public access to executive branch information. Legislative
records were not included in the bill because Congress believed it made its deliberations and proceedings
adequately subject to public observation, largely published its records, and otherwise was constitutionally
authorized to engage in information restriction in certain circumstances.
"For example, the Constitution explicitly permitted each house of Congress a discretion to keep portions of its
journal of proceedings secret and disallowed the questioning of Members of Congress 'in any other Place'
regarding official speech or debate. Legislators also were satisfied with the openness of federal court files and
hearing rooms.
"Thus, the departments and agencies were the principal object of government information access reform laws.
Executive branch officials, however, were not supportive of these measures and, initially, did not always
promote or pursue their faithful administration."
There are two interesting footnotes from the CRS report which should be included here.
The first discusses the importance of making government information as public as possible. In 1965, U.S.
Senate Judiciary Committee Chairman James Eastland stated the following:
But the second footnote points out a possible congressional hypocrisy when it comes to the stated virtue of
making government data public:
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark e-
newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!
By Cliff Montgomery - Sept. 18th, 2009
The Congressional Research Service (CRS) on August 31st released a intriguing study entitled, Access to
Government Information In the United States.
It reminds us that American democracy doesn't come down to us written in stone, but is constantly evolving to
fulfill its stated promise. Though the Declaration of Independence often spoke in democratic terms, the
Founding Fathers did not create a perfect democracy--or, in fact, a democracy of any kind.
They instead created a limited republic, where only wealthy white male landowners had full voting rights and
slavery was all too often the economic rule of the day.
It therefore is only natural that at first, government secrecy was designed to keep those who were not full
citizens from knowing what those in power were actually doing. And while things often have changed for the
better, work remains to be done.
The American Spark below offers major quotes from the CRS study:
"The U.S. Constitution makes no specific allowance for any one of the three branches of the federal
government to have access to information held by the others. No provision in the U.S. Constitution expressly
establishes a procedure for public access to government information."
"Throughout the first 150 years of the federal government, access to government information does not appear
to have been a major issue for the federal branches or the public.
"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, making government documents more accessible.
"Following World War II, some information was available from certain federal departments and agencies. The
public availability of records held by the executive branch was limited by narrow interpretation of the
housekeeping statute of 1789, which authorized the heads of departments to prescribe regulations regarding
the custody, use, and preservation of the records, papers, and property of their entity.
"Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information.
"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.
"In response, some congressional panels began examining information access issues and seeking responsive
legislative solutions. Among these legislative responses was the creation of the four following statutes:
- the Freedom of Information Act (1966),
- the Federal Advisory Committee Act (1972),
- the Privacy Act (1974), and
- the Sunshine in Government Act (1976).
"This report offers an overview of each of these statutes, including the boundaries of their authority.
"In 1966, Congress enacted the first law requiring public access to executive branch information. Legislative
records were not included in the bill because Congress believed it made its deliberations and proceedings
adequately subject to public observation, largely published its records, and otherwise was constitutionally
authorized to engage in information restriction in certain circumstances.
"For example, the Constitution explicitly permitted each house of Congress a discretion to keep portions of its
journal of proceedings secret and disallowed the questioning of Members of Congress 'in any other Place'
regarding official speech or debate. Legislators also were satisfied with the openness of federal court files and
hearing rooms.
"Thus, the departments and agencies were the principal object of government information access reform laws.
Executive branch officials, however, were not supportive of these measures and, initially, did not always
promote or pursue their faithful administration."
There are two interesting footnotes from the CRS report which should be included here.
The first discusses the importance of making government information as public as possible. In 1965, U.S.
Senate Judiciary Committee Chairman James Eastland stated the following:
- "Access to information about the activities of Government is crucial to the citizen’s ability to cope with the
bigness and complexity of Government today.… There is no validity therefore, to the frequently heard
argument that these [access to executive-branch information] proposals impinge on executive privilege
for they would not affect the proper exercise of authority of the President and department heads."
But the second footnote points out a possible congressional hypocrisy when it comes to the stated virtue of
making government data public:
- By explicit exclusion, Congress and the courts are not subject to FOIA. The committees that developed
FOIA—the House Committee on Government Operations and the Senate Committee on the Judiciary—
were responding to perceived secrecy problems in the executive branch. Furthermore, these panels had
no jurisdiction over legislation concerning congressional operations. Thus, FOIA was created, approved,
and implemented with an executive branch focus.
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark e-
newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!
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