By Mitchell W. Pearlman
Since I have been involved, one way or another, in the field of government transparency for some 40 years, I am often asked what have been the most important Freedom of Information issues over that period. Here is a somewhat truncated answer to that question. For it would require a much longer essay – some would even say a book – to fully describe all the important issues that have arisen since Connecticut’s first-of-a-kind FOI Act was enacted in 1975.
It is one thing to pass an FOI law. It is another thing, however, to implement it, and implement it effectively. The novelty of Connecticut’s law was that it created an independent government commission to administer and enforce the law. For the most part, the commission has done its job well and is a highly regarded government agency. Unfortunately, however, in 2011, the current governor, apparently to exercise political control over the commission and other independent “watchdog” agencies, created a new level of bureaucracy over them. That bureaucracy, ironically – or perhaps cynically – is called the Office of Governmental Accountability. It has hamstrung the FOI Commission by incompetent and self-aggrandizing administrators who have made it virtually impossible for the commission to effectively deal with its enormous workload on behalf of the people of Connecticut. Thus the Office of Government Accountability has made government in Connecticut less accountable.
Starting in 1980, five years after the FOI Act was enacted, the legislature and the courts have led a counterattack against the commission’s broad interpretation of the FOI Act in furtherance of public disclosures. Together these branches of government have created, and continue to create, numerous exemptions and loopholes in the law. Among other things, they have permitted law enforcement agencies to virtually hide behind a veil of secrecy even while creating laws governing situations in which the public interest in disclosure clearly outweighs some perceived interest in personal privacy.
The 1990s ushered in the age of the computer in local and state government. Obviously no one foresaw many of the public policy issues of electronic records when our FOI laws were first enacted. So the FOI Commission had to figure out how to integrate this new technology into the FOI Act. The retention, archiving and destruction of email and text messages remain an unresolved issue to this day.
The new century has brought other challenges as well. Chief among these is the obsession with national security. Almost immediately after the attacks on September 11, 2001, governments at all levels began to shut down access to information. Important public health, environmental and safety information on government websites was removed. Obviously, a more appropriate balance between legitimate security concerns and the public’s right to know has to be established.
The concept of an open and accountable government is essential in any democracy. Unfortunately the trend over much of the past 40 years has been to close down much critical government information that had been open to public scrutiny with the passage of Freedom of Information laws. Unless this trend is reversed, I fear that our democracy will continue to wither, if not die.