Keynote Address: “The Light at the End of the Tunnel: the Outlook for FOI.”
Presented by Jane E. Kirtley, Silha Professor of Media Ethics and Law, School of Journalism and Mass Communication, University of Minnesota.

Delivered at the Minnesota Coalition on Government Information “Freedom of Information Day & Award Ceremony,” March 14, 2008, Minneapolis Central Library.

With higher temperatures and March sunshine, it really seems like our long Minnesota winter is coming to a close. This brings us a sense of optimism, and hope.

And it’s a metaphor for the future of freedom of information. I believe it is no coincidence that James Madison, drafter of the First Amendment, was born on March 16.

This year, for the first time in a long time, there seems to be a real prospect that transparency in government could be restored.

On the last day of 2007, President Bush signed the OPEN Government Act, making important procedural changes to strengthen the effectiveness of the Federal Freedom of Information Act. There are new penalties for agencies that drag their feet in replying to requests for records – or to put it in a more positive way, new incentives to encourage agencies to comply with the law in a timely fashion.

There is enhanced Congressional oversight – an essential to the proper functioning of FOIA, no matter who is in the White House and no matter which party is in the majority – because when the legislature fails to keep an eye on the executive branch, Freedom of Information is always at risk.

There is a new definition of “representative of the news media” – which is important, not because the press does or should have greater rights of access to government records than the rest of us, but because Congress recognizes that those who gather information in order to disseminate it to the widest possible audience deserve to receive fee breaks to make it possible for them to do so.

There are even new “public liaisons” for each agency, and a new FOI ombudsman to run interference between requesters and the government.

The bi-partisan team of Sen. Patrick Leahy and John Cornyn have joined forces again to introduce a new bill that will require members of Congress who introduce proposed legislation to create new exemptions to FOIA to “explicitly and clearly” state just that – in other words, to put a stop to the practice of burying stealth exemptions in complex bills.

These are all exciting and encouraging developments.

But let’s not kid ourselves. Eight years of government secrecy is not going to go away overnight. The rallying cry of 9/11 was the pretext for policies amounting to an information blackout on an unprecedented scale: secret intelligence, secret prisons, secret torture, secret trials, and secret surveillance – all in the name of protecting national security.
I’ve said it before, and I’ll say it again: secrecy does not equal security. In fact, it almost invariably undermines it.

We know that the current administration in Washington is hostile to the very idea of the public’s right to know. It is ironic that, less than a month after signing the OPEN Government Act, President Bush directed that the funding for that FOI ombudsman should be shifted from the independent National Archives and into the Department of Justice – a Department that, at least since October 2001, has demonstrated over and over again its contempt for open government and the public’s right to know.

This is the same Department that, instead of enforcing the FOIA, has zealously pursued leakers – people who have chosen to circumvent restrictive policies to make information to the public – and threatened those who receive leaks with prosecution under the Espionage laws.
This is the same Department that has condoned using sweeping subpoenas to try to force journalists to reveal their confidential sources – and not surprisingly, has obstinately opposed the enactment of a federal reporter’s shield law to protect journalists from the prospect of lengthy imprisonment or crippling monetary fines for simply doing their jobs.

Some will argue that the restrictions and secrecy were necessary. Others contend that they were purely opportunistic. Right or wrong, for better or worse, the tenure of this administration is coming to an end. Later this year, a national election will determine who will decide the future of FOI. Those who care about open government are hoping that the candidates will commit themselves to an agenda that will reject the directives, policies, and practices that have turned the executive branch into a virtual bunker of impenetrable secrecy, and reopen it to public scrutiny.

It is always risky to speculate about how a particular candidate will address these issues once he or she is in office. On the hustings, no candidate is against open government. Words like “accountability” and “transparency” may pepper their speeches. And, as they utter them, they may even believe them.

But I’ve observed government long enough to know that even the best intentions are often unfulfilled once an administration assumes office. Openness and accountability sound terrific in the abstract. But maintaining the commitment in the midst of the turmoil of political Washington is the challenge.

Nevertheless, I remain optimistic. A new generation of voters, who are accustomed to taking and sharing information through the Internet, will not settle, I predict, for business as usual. The old techniques of obfuscation and concealment simply won’t wash with young people who seek out the answers for themselves and who demand transparency from those who govern them.

That said, I do remain concerned about some things.

I worry that the judiciary, which for more than 75 years has maintained an almost unbroken tradition of expanding and enhancing the rights of freedom of speech, and of the press, is retrenching, rethinking, and in many cases, restricting those rights. Whether it is the failure to recognize a First Amendment-based reporters privilege, or a reluctance to allow meaningful access to digitized records because of theoretical concerns about security or privacy, or the continued refusal to expand the right of the public to observe judicial proceeding by allowing cameras into our courts – it all adds up to a net loss for the public’s right to know.

I worry that legitimate concerns about security at the upcoming Republican and Democratic National Conventions will prompt our law enforcement officials to extend and expand their surveillance activities in overly zealous and inappropriate ways that will intimidate and chill the rights of citizens to engage in peaceful protest.

And I worry that just at a time when my fellow citizens need in-depth news reporting – the news that is essential to making informed decisions – economic challenges will result in shrinking the resources that are necessary to support the kind of outstanding investigative reporting that we are honoring today.

You may share these worries. You may have others.

But however substantial and genuine these worries may be, I remain optimistic, because I recognize that those of us gathered here today, and many others like us around the state and around the nation, will not tolerate another decade of secrecy, predicated on fear.
So much of the secrecy that exists today was based on panic. It was justified as necessary to address threats on a scale that most of us found unfathomable – and terrifying. It shook our nation to the core.

But it is past time to get back to our first principles. It is past time to recognize that this nation is strong, that it was conceived in revolution, but born to live as a country bounded by the rule of law.

It is my hope that our return to these principles – our return to sanity – is already underway.
Our long journey through the dark tunnel of secrecy is coming to an end. There is a light at the end of the tunnel.
Thank you.

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