Hale FOI Speech

March 9, 1997

The status of Freedom of Information in the United States has always been a good news, bad news story and this year is no different.

It reminds me of a joke that made the rounds several years ago and hopefully, some of you in the audience are young enough you haven't heard it.

Moses was having a discussion with God about what could be done to make the pharaoh let his people go from Egypt. They discussed several strategies and finally settled on a plague of locusts. God then Warned Moses there was good news and bad news about that option. Moses asked what was the good news and God said, "Such a plague would probably do the job." So what's the bad news, Moses asked. God replied, you have to write the environmental impact statement.

While we have had some notable successes in the past 12 months such as the passage of the electronic update to the Freedom of Information Act, the downside has included passage of the Communications Decency Act.

While the growth of the Internet has made more government information accessible to more people, it has spawned attempts at censorship because of concerns over violent or pornographic content.

While the Department of Defense has been required by executive order to review material more than 25 years old and to declassify at least 15 percent of it over the next five years, less than 2 percent of such material is seeing the light of day.

While the "Accuracy in Campus Crime Reporting Act of 1997" has been introduced in Congress with nearly 20 co-sponsors from both sides of the aisle, it has a long way to go before passage.

While Florida has often been held up as an early adapter of state sunshine laws and has done much to lead the way in this area, this year, it is finding itself in a battle over a proposed shield law and preserving access to driver and motor vehicle records, the same battle many of us are facing.

While many libraries are coming online with the Internet and posting entire catalogs and reference materials, a serious challenge to public access in Boston is being launched by the mayor who pulled the plug to prevent children from stumbling across pornography.

While many federal agencies have eliminated or cut back on their backlogs on FOIA requests, the Department of State has 3,420 backlogged requests followed by the CIA, Department of Justice and other such agencies as the FBI and Bureau of Prisons, which were not required to respond to recent surveys on backlogs. I saw somewhere that if you put in a request for an FBI file that is over 100 pages, it takes 90 months or 7-1/2 years. However, if you request a file that is less than 100 pages, you could get what you're looking for in just under three years.

I have learned recently that if you are interested in looking for Deep Space Surveillance Anomalies, the government maintains several data bases from three orbital and deep space tracking systems.

However, if you are interested in finding out about the inert ingredients in certain chemicals, it's possible that information was lost last year by the Environmental Protection Agency. That report was accompanied by a report from California, whose state EPA agency wanted to institute a shredder policy for scientific data that differ from or otherwise do not support the final policy decision for which it was collected.

Well, let's take a closer look at some of these issues.

Congress passed the Electronic Freedom of Information Act last fall, unanimously, which always worries me.

A key element to the legislation is that the decision on the form in which records are released in now the choice of the person requesting the records.

In addition, agencies must provide an index of online records within three years and must provide guides on how to access information and issue reports on backlogs so you know when to expect a release of information.

There is supposed to be expedited access for those who can prove a compelling need for a timely release of information. One of the examples given has been imminent government action such as closing a local military base. In Oklahoma City, we certainly could have used some straight answers when the closing of Tinker Air Force Base was being considered and the fate of 35,000 civilian employees hung in the balance.

Ironically, those who file FOI requests may not be able to do so electronically. Nothing in the bill addresses the format of the request.

But, overall, we are pleased with this legislation.

That leads us to the Communications Decency Act that is heading for review by the Supreme Court this year.

The CDA is the government's attempt to ban material from the Internet that does not meet with official approval. It was promoted as a way to prevent children from stumbling across pornography, but some see it as a plot to eliminate politically offensive material from every computer screen in America.

Among items illegal under the CDA are classics of English literature, the most widely known works of sculpture in the world's museums, and basic health information about breast cancer and AIDS.

A spinoff of this newest attempt at censorship has been a recent assault by the mayor of Boston that started with the Boston Public Library's Internet services and spreading to other areas.

Last month, the mayor said the city would install software to restrict children's access to pornographic sites on the Internet. He said the city would purchase a program call Cyber Patrol and install it on every computer that can be used by children in the city's libraries, schools and community centers.

The software has a feature call "CyberNot," a list of Web sites that contain objectionable material. The list is apparently created by a team of adults who examine sites for a variety of material. Unfortunately, the software's manufacturer will not publish the list and some people see it as an Internet blacklist.

There appears to be no parallel for this sort of secret blacklist of banned books or other types of banned material for libraries.

Allegedly, a computer hacker found the list and discovered that it contained the names of sites that didn't violate any pornographic guidelines including an animal-rights site, the Electronic Frontier Foundation's censorship archives and a Web site devoted to Christian dating.

A recent column written by Simson Garfinkel sums up the concerns about Internet censorship of many freedom of information advocates.

He said, "I'm opposed to computer-aided censorship because it sends fundamentally the wrong message to our children. It says we don't trust them to act responsibly. It says censorship is an appropriate decision for our elected leaders to make."

But the most interesting quote to come out of this controversy came from a library trustee who said: "We're exempt from freedom of information disclosure. We don't let people read public library reports on our city's public library."

Leg's go past the highly emotional issue of what children should be exposed to and talk about censorship on the college level.

In Oklahoma last year, a group called Oklahomans for Children and Families, created a controversy over adult material found on the University of Oklahoma Internet service provider's site under adult news groups.

The head of the organization showed the president of the university, former Oklahoma Sen. David Boren, pictures of bestiality and child pornography that had come from a campus computer. He said they might be illegal images and he was going to call in the police, district attorney and the FBI.

Borne met with his lawyers the next day and then ordered that the adult news groups be blocked from access by campus computers.

But Boren used to be on the foremost proponents of the First Amendment. He has spoken many times on the importance of free speech and freedom of the press. But now, when faced with an accusation of allowing young people to be exposed to obscene material, he capitulates.

The argument can be made that the whole action was pretty silly in that any student can go to his or her own computer or a friend's computer to see anything the student wants to see.

But the question is where does it stop? Is the next group or organization or material to be banned the one touting the controversial issue dejour?

While the word pornography usually is the first to stir up emotion rhetoric, what will be the next word that leads to formation of well-intentioned censorship groups?

The First Amendment Center newsletter recently published an article noting that the new movie, "The People vs. Larry Flynt," projects as strong a First Amendment message as any Hollywood firm in recent history.

At one point in the movie, porn publisher Flynt, played by Woody Harrelson, says, "If the First Amendment will protect a scumbag like me, then it will protect all of you."

Some First Amendment supporters say the movie should be shown for college credit to teach students about the usually dry First Amendment doctrine.

But the movie has generated its own debate between those who think Flynt has been wrongfully promoted the status of First Amendment hero and martyr to feminist groups, which say the film glosses over the damage Flynt's magazines have done to women.

The point is . . . the point that we all keep missing is. . . they all have a right to say from the Hollywood producers to Flynt himself to you.

Now much of what we've been talking about is journalists, educators, attorneys, researchers and private citizens attempting to pry information from the tightly clinched fists of somewhat misguided government officials who think that said information belongs to them and no one else. And we've looked at the possible ramifications of censorship on the Internet.

That's what I called the "us vs. them" syndrome. Us being the good guys, supporters of First Amendment rights, upholders of the public's right to know, etc.

But we also have the "us vs. us" syndrome.

Case in point.

On Sept. 17, 1996, Dateline NBC aired a segment on access laws in Texas and around the country. In researching a story on a rape victim who was allegedly being harassed by her attacker, now a prison inmate, and his jailhouse attorney, Dateline discovered that Texas had an open records law.

The convicted rapist began making requests of state agencies for information about the victim ranging from her Social Security number, driver's license information, her phone number and address, and classes she had attended at local universities. His jailhouse attorney said his client claims the victim was lying and that he was attempt to gather information that might cast doubt on her credibility as a witness.

The Dateline reporter said the answer to why these prisoners were able to get this information about this woman was (and I quote) "buried back in 1973, when Texas, like a lot of other states, was trying to come to grips with government corruption. And the Legislature passed a law called the Texas Open Records Act, which decreed that all government records, with a few exceptions, would henceforth be open to everyone."

Oh, how I wish it were only a few exceptions. As in most states, the Texas law is riddled with exceptions, proved by the fact that much of the information the prisoners in this case were after was not received.

Texas has passed some restrictions making it more difficult but not impossible for inmates to get access to public records. But there are also documented cases to show that some inmates who were not guilty have been able to do something about freeing themselves because of access to public records.

Dateline closed its segment with a statement that all 50 states have some type of freedom of information laws allowing the general public access to most government records. The implication was "this is a bad thing."

The National Freedom of Information Coalition encouraged its members to write to NBC and complain about their lack of objectivity and the lack of any information on why state access laws are so important to a democracy.

As mark Goodman, executive director of the Student Press Law Center, called the story in a letter to Dateline, " . . . a case-in-point of reporting so superficial (at best) and biased (at worst) that it will do incalculable harm to those journalists and members of the public we count on to serve as watchdogs of the government."

Why did this happen? I don't think you can simply write it off to sensational journalism. I think you have to say these reporters don't have a clue about the importance of openness in government.

After being besieged with letter from freedom of information groups, journalists and others, a letter sent to Kyle Niederpruem, FOI Chairman of the Society of Professional Journalists, that attempted to make assurances that NBC understood the concern about how open records laws are depicted. Their justification for doing the story was "the specific story about the inmate who managed to obtain vital information about his victim, we believe, is a legitimate story to tell."

Which brings up the singlemost difficult problem we will have to deal with and that is the issue of individual privacy.

Whether NBC did the story because of the threat to privacy and whether they should have done a better job of presenting the case for having open records laws may be moot unless we can convince the public that there are times when the loss of privacy may well be the price of living in a democracy.

I know people who lay awake at night worrying that the dawning of the computer age means George Orwell was right and "Big Brother" can reach through the home computer (whether it is turned on or not.) and control their every move. They are convinced the CIA or some other nameless government agency could at anytime confiscate their bank accounts, rewrite their wills, bug their cellular phones and have complete access to all of their personal data.

You know what? They could be right. But that is why now more than ever it is important for freedom of information groups to consistently maintain vigilance over the types of records the government collects and continue to push for full access to electronic records from police reports to health department reviews of local restaurants.

Freedom of information groups also need strong public involvement through education programs so that the public understands that the First Amendment is a guarantee of individual freedom.

Those of us who are journalists can no longer be the only vocal advocates of freedom of information. When high school students graduate with so poor an understanding of the First Amendment that they think freedom of the press means the press can write anything it wants, we've got real problems.

When legislators can close all DMV records because one woman was killed by a man who allegedly learned where she lived from driver's license information and no one understands the need for those records to be open, we've got real problems.

We need to recruit legislators to our cause, wee need to make curriculum materials like those prepared by the First Amendment Congress available in our schools, we need to have citizens speaking out in favor of openness before the fear of privacy loss becomes overwhelming.

The National Freedom of Information Coalition was formed about four years again hopes of expanding the number of state freedom of information groups because this is a battle that really needs to be fought at the grass-roots level.

It is not easy to carve out the time needed to do these things when many of us hold full-time jobs, but a little bit of time from a number of folks can accomplish much.

I know that most of my speech today has been serious, but these are serious times and serious challenges.

When I was working on this a couple of weeks ago, I looked at my First Amendment Calendar supplied by the Freedom Forum and saw the following 1945 quote from newspaper publisher Palmer Hoyt. He said: "A civilization that is not informed cannot be free, and a world that is not free cannot endure."


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