The right to know vs the need for secrecy: the US experience

This article is part of the Democracy Futures series, a joint global initiative with the Sydney Democracy Network. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.

Thomas Jefferson once wrote that “information is the currency of democracy,” or so it is easy to learn online. Fortunately, it is just as easy to learn that he wrote no such thing. The people who run the website for Jefferson’s home at Monticello cannot find that quotation anywhere in Jefferson’s papers.

And there is really no need to spend time searching. The American founders rarely spoke of democracy and they did not label the American form of government “democratic” but “republican”. They judged democracy to be unstable and undesirable. So we can feel confident that Jefferson never uttered nor wrote these words.

It was not Jefferson but political activist Ralph Nader who declared information the currency of democracy. In 1970 Nader claimed a “well-informed citizenry” to be the “lifeblood of democracy” and wrote that “information is the currency of power".” Later, in 1986 and 1996, he condensed these not entirely consistent propositions into:

“Information is the currency of democracy.”

Don’t forget right to privacy and security

Nader’s proposition, however, stands on shaky grounds. It is not difficult to think of instances where reasonable people would prefer that some information the government possesses be kept from the public.

In the interest of public safety, a citizen who is being watched by undercover police officers, operating according to the law, should not be informed of the surveillance. In the interest of personal privacy, the public should not have access to personnel records of government employees without good cause. Nor should genuine national security information be publicly available.

Activists who support transparency in government do not generally advocate complete transparency in all facets of government. Most democrats accept many limitations to complete disclosure of government information.

In the United States, many of these limitations are long established and well institutionalised, including their incorporation in explicit provisions of the pioneering US Freedom of Information Act (FOIA) of 1966. This was the first such law in the world since Sweden enacted something like it in 1766 and Finland in 1951.

Earlier in North American history, there were many conditions under which subjects, later “citizens", did not have full access to relevant information. It troubled the government of Virginia in 1682 that an upstart printed the laws of the colony without a licence. He was punished, since printing was forbidden in Virginia until 1729, and from that point until 1765 the governor controlled the only printing press in Virginia.

In the Commonwealth of Massachusetts, a political entity with an elected assembly, legislative proceedings were confidential, even including how one’s representative voted on particular measures. It is hard to imagine a matter more central to democracy than the availability to voters of a public record of how their representatives vote, but this was not something the people of Massachusetts in the 1700s demanded.

Nor did the people of the United States demand it until 1970 – 1970! Only then did the US House of Representatives make members’ votes on amendments to bills part of the public record. Only then did a reform coalition in the House sponsor a set of “anti-secrecy” measures that ushered in a major increase in the public visibility of legislative action.

What can we learn from history?

There are several important historiography lessons in all this.

First, there is a strong tendency, at least in the United States, to attribute all wise political acts and ideas to people who lived at the end of the 18th century and correspondingly to attribute all ill-conceived and disastrous political ideas to our contemporaries – particularly those of the other party. Yet when we look closer, this assessment of history requires re-adjustment, especially to account for the dramatic ways in which democracies have come to operate at least since 1945. While these changes are problematic in various respects, they also incorporate huge advances in pluralism, tolerance, diversity of representation, and transparency.

Second, sources of progressive change do not always come “from below”. In some instances they do – the US civil rights movement is a stunning example. (Although, even there, a long history of the NAACP’s legal efforts to challenge segregation and discrimination operated in the courtrooms of the nation, not in the streets.) But in the particular case of the right to know, the drive for freedom of information was pursued with scarcely any popular interest, let alone a popular movement.

John Moss, architect of the US Freedom of Information Act, drew on Cold War rhetoric to demand executive accountability to Congress.Wikimedia Commons/Congressional Pictorial Directory

The Freedom of Information Act came out of a decade-long effort in the Congress to control the expansion of an ever more powerful executive branch of government. This was much more a battle between two branches of government than between two political parties or two theories of governing. It appealed to a popular Cold War rhetoric, urging members of Congress to recognise that growing executive power and executive secrecy were establishing a “paper curtain” in Washington, violating principles of “openness” that distinguished the “free world” from Soviet totalitarianism.

Presidents both Republican and Democrat resisted the congressional challenge; members of Congress both Republican and Democrat vigorously urged it forward. While journalists and associations of journalists like the American Society of Newspaper Editors applauded FOIA, the general public took little notice.

Third, there is a challenge that few scholars have taken up concerning the role of higher education itself in fostering both insight and oversight as public values. Higher education in the US grew enormously after 1945 in the percentage of young people attending college.

Even more important, it changed decisively in the development among college faculty and students of a more critical attitude toward received cultural knowledge. This included a growing integration of the sciences into college curricula once largely dominanted by the arts and letters.

Over time, as historian Thomas Bender has observed:

“The increasingly professionalised disciplines were embarrassed by moralism and sentiment; they were openly or implicitly drawn to the model of science as a vision of professional maturity.”

Tracing the impact of higher education on the broader society is a task that deserves far more attention than it has received. One of those impacts, I suspect, was a growing resonance of challenges to authority, including the authority of public officials who operate behind closed doors.

Sometimes there are good reasons for secrecy

Making government more accessible to the public is vital to improving the quality of democracy, yet this does not make transparency an ultimate good that should be honoured under all circumstances. There really are military secrets that should not fall into the hands of fanatics, practical jokers, or deranged people. There really is a need for government decision-makers to be able to trust in the confidentiality of their meetings and of their electronic communications if there is to be a free flow of conversation among them.

The recent dust-up over Hillary Clinton’s use of her personal email account while in office as US Secretary of State is only the latest case of uncertainty over the rules of acceptable behaviour when there is a clash between a legitimate confidentiality of internal communications and a public right to information. Should the Secretary of State be forbidden to shield some of her communications by conducting them on her personal e-mail account?

What about a professor at a public university? Should he or she be able to shield communications in the same fashion, making them unavailable to citizens who use state public records laws to demand release of e-mails?

Some groups have sought access to professors’ e-mail to discredit researchers whose work supports the scientific consensus on climate change. Others have tried to discredit professors who are sceptical of the scientific consensus. Some states exempt university professors’ records from public records laws on the grounds that the preservation of academic freedom is a vital democratic good that, within limits, trumps the public’s right to know.

There really are good reasons for, say, the secrecy of the voter’s ballot in a world where the strong can intimidate the weak if their preferences are known. There really are good grounds for protecting privacy and, in the realm of everyday social interaction, maintaining civility by tact in the withholding of honest appraisals. And there really is a value in authentic intellectual inquiry related to public issues that deserves to be weighed against a public right to know.

Still, reforms toward the greater visibility of government activity and demands for greater frankness in other domains of life, too, have contributed to the improvement of society. Almost everyone recognises the danger to democracy of overclassification and enforced silences that exist only to save an individual, office or policy from embarrassment and not to protect national security, personal privacy or decision-makers’ legitimately confidential deliberations.

So what do we make of Edward Snowden?

Even Edward Snowden does not advocate absolute transparency and is withholding some material.EPA/Council of Europe

And Edward Snowden? Mr Snowden has indicated that he has not released all of the government records in his possession. Nor, apparently, will he do so. Some of them, it seems, if made public, could endanger public safety.

I have no reason to doubt Snowden’s good intentions in withholding these records but nor do I have any reason to judge him an expert at, let alone a legitimately selected representative for, deciding what information is or is not in the public interest. Why is this his right to decide?

Responsible government secrecy requires a democratic process of oversight. Theft, brave and selfless an act as Snowden’s appears to have been, is not a good model of holding government accountable.

I understand the distrust of government secrecy. I share it. I do not understand a lack of distrust of informational vigilantism and even, in some quarters, antic glee at Snowden’s coup. We can be grateful that he opened a window on wide-ranging US government misdeeds in National Security Agency surveillance, but it is much harder to sympathise with the way he went about it.

In a world of grave dangers to life from weapons we have made, of devastating threats to earth’s resources that we have callously exploited, and of hate and intolerance we have failed to sanction, it is often difficult to see bright spots in recent decades, but surely one of them is an expansion of a culture of frankness and of expectations of public disclosure. These advances are not untroubled, as anyone who honours the value of privacy knows, but on balance there has indeed been progress.

This article is based on the author’s lecture, A Surprisingly Short History of the ‘Right to Know’, at the University of Sydney. The ABC will broadcast a recording of the lecture on Radio National’s Big Ideas program at 8pm on May 5 and it can then be accessed here.

Michael Schudson has in the past received funding from the Spencer Foundation and the US National Endowment for the Humanities and a fellowship awarded by the MacArthur Foundation. He is contracted to receive future funding for research on "cultures of health" from the Robert Wood Johnson Foundation.