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Washington Post, New York Times Fail on FOIA

Posted: 05/16/11 03:05 PM ET

A somewhat ugly and unfortunate debate has occurred in the national press in recent weeks over the use of freedom of information laws. The controversy began when the Wisconsin Republican Party asked the University of Wisconsin for e-mails of William Cronon, a history professor at Madison, whose records, as a state employee, are subject to Wisconsin's open records law. The Republican request arose in response to an internet posting by Professor Cronon on his personal blog, "Scholar as Citizen," subsequently published as an op-ed piece in the New York Times, criticizing Wisconsin Republicans and the state's Republican Governor, Scott Walker, for their recent assault on the collective bargaining rights of public-employee unions. A New York Times editorial called the Party's request a "shabby crusade," an abuse of academic freedom reminiscent of "medieval Inquisitors," and nothing more than a "political fishing expedition," which made the Republican Party "appear both vengeful and ridiculous."

Then, the Mackinac Center for Public Policy, a Michigan-based conservative research group, issued a similar records request to the labor studies departments at three of Michigan's public universities, Michigan State, the University of Michigan, and Wayne State University. A Washington Post editorial denounced both records requests, similarly found such demands to be an abuse of freedom of information laws, and claimed the sole purpose of such requests was little more than to "harass scholars," which, once again, could only lead to a "chilling effect" on academic freedom. The American Historical Association, of which Professor Cronon is a distinguished member, argued that Wisconsin Republicans had ignored the "important difference between an ordinary public official and a professor who happens to be paid by the state." In short, the Association claimed, Republicans were misusing the laws in order "to find a pretext for discrediting a scholar who has taken a public position." Ultimately, The Mackinac Center for Public Policy fired back at the Washington Post, defending its use of open record laws to question the political activism of academics and stressing the various checks such laws have to protect against abuse as well as protections against improper release of private and proprietary information.

The debate lays bare just how unendingly difficult it is for a "people who mean to be their own Governors" to actually do so. We'll see that quoted phrase again, below, shortly. First, however, it's important to take note of just how little the editorials offered up by the Washington Post and the New York Times actually contribute toward any constructive public understanding of, or meaningful public discourse on, public disclosure laws. Certainly more than a little irony surrounds watching two of the nation's top newspapers attack the means by which freedom of information laws are deployed. What is disappointing, if not seriously disturbing, however, is that neither paper took advantage of the opportunity served up by Wisconsin Republicans and the Mackinac Center to explain to the public the exact nature and important role of public disclosure within a democratic polity. Perhaps even more significant, neither paper has yet to report on just how reasonably well Wisconsin's public records law actually worked, functioning within the democratic process as such laws are uniquely designed to do. Nor has either paper reported, to date, how admirably the University of Wisconsin performed in its reply to the demands of Republicans, a reasoned and highly professional response that provides additional testament to the effectiveness of such laws.

Both papers failed to explain to their readers that public disclosure laws are not ends in themselves. Rather, such laws aim at providing the public with information about the workings of their governments in order for the public to participate in such workings, or at a minimum, to give the public the ability to make better assessments about how their government actually is working than the public would be able to make without such information. As James Madison stated it in 1822:

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance; And the people who mean to be their own Governors, must arm themselves with the power, which knowledge gives. (P.L. 93-502), Source Book: Legislative History).

It is useful to contrast Madison's view of the people's right to know what their government is doing with a more contemporary perspective. For example, a great deal of executive branch skepticism surrounded the original passage of the federal Freedom of Information Act when President Lyndon Johnson signed the measure into law on July 4, 1966. At that time, not one federal department or agency head had supported the legislation. President Johnson's statement issued upon his signing the legislation into law, reflected this less than enthusiastic support from inside his Administration. Less than two pages long, six of the statement's eight very short paragraphs reflected the executive branch's apprehension with the new Act. After a brief, one sentence initial paragraph referring to the procedural mechanisms involved with amending Section 3 of the Administrative Procedure Act to provide for the new law, Johnson's second paragraph struggles to balance the underlying conflict now brought to the surface by actually having to implement and enforce the statute:

This legislation springs from one of our most essential principles: a democracy works best when the people have all of the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.

In other words, for Johnson, democracy apparently works best, not when the people actually have "all" of the information about government decisions, but rather only when they have that information that poses no threat to national security. Apparently "curtains of secrecy," not only will be, but must be, allowed to keep from the public government information where the failure to do so could injure the public interest. Johnson's next three paragraphs sought to further cabin the scope of the law by emphasizing that, in practice, certain categories of government documents must not be made available to the public in order to protect individual privacy concerns, military secrets, and government investigations. Finally, President Johnson warns Congress and others that his instructions to Administration officials for implementing the new law will be best served by "a constructive approach" that meets the needs for non-disclosure that he has just now raised. He concludes by stating that he is signing the measure "with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded."

The differences between Madison's and Johnson's understanding of public information transparency could not be more transparent. Johnson failed to grasp that the people's right to know what its government is up to is not an end in itself. He gives lip service to the "cherished right" while spending most of his statement underscoring his apprehension with it and explaining when the government must restrict the right. For Madison, on the other hand, the actual success of democratic government depends upon access to popular information. Not so the public can embarrass wayward public officials, intrude into the private affairs of citizens, risk national security, or even threaten academic freedom, but rather to determine when and under what circumstances public policies favoring disclosure should give way to public policies favoring nondisclosure. It's the difference in perspective, and a substantial one, between merely providing public access to government documents and transparent governance. The latter demands actual public participation in the actual decision making. It is the heart and soul behind Madison's understanding of the people's right to public information. And determining when such information should be made public and when, in the public interest, it should not be, is itself a public policy decision.

The federal Freedom of Information Act, and the open records laws in the 50 states and the District of Columbia, begin with a general presumption in favor of disclosure of government information. This originating premise for virtually every open records law in the United States seems, somewhat stunningly, to have escaped both the Washington Post and the New York Times in their criticism of the Wisconsin's Republican Party's refusal to disclose exactly why Republican officials wanted Professor Cronon's e-mails. As attorneys for both newspapers surely would advise their respective editorial boards, no such "intent" requirement exists within any public information statute within the federal government or the 50 states and the District of Columbia. The Wisconsin Republican Party does not have to have any reason whatsoever for making its request. They are presumptively entitled to their fishing expedition, as is the Democratic Party, the Washington Post, the New York Times, or any other person. They are entitled to it not merely because it's the law or because the courts have upheld the presumption but rather because informed self governance simply can't function without such a presumption.

At the same time, from its outset, the federal Freedom of Information Act, and again, similar public records laws in the 50 states and the District of Columbia, provide exemptions to this presumption. Many of these exemptions are precisely the ones over which President Johnson expressed concern. Such exemptions, however, are not mandatory (or only rarely are so). Rather they are expressly permissive. In other words, the burden rests on the government to justify withholding of information from the public. Again, the decision to do so or not should be part of the public debate, not merely a public screed attacking the presumptive right to disclosure. For example, both the Post and the Times suggest that issues of academic freedom are involved in the case of Professor Cronon and the requests to the Michigan universities. Only by the "dint of their employment," asserts the Post, are such scholars subject to open-government laws. If such concerns are legitimate, which they very well may be, why not, then, recommend enactment of an exemption for academics employed at public institutions in order to protect such interests? But simply attacking what both papers know full well to be, and surely have argued on countless occasions on behalf of their own requests, a presumptive right to such information, simply because these two papers don't like who is doing the asking, is more than a little bit deceptive. Why not engage in a thoughtful discussion about how disclosure laws are designed to protect academics like Professor Cronon, and if such laws truly are not working, then, how to go about fixing them so they work better? In other words, who better than the national press to suggest correcting, if need be, the way we go about protecting this virtually fundamental public right of access to public information?

Finally, both papers have, to date, passed up an excellent opportunity to explain to their readers exactly how public disclosure laws work to the benefit of the public in the making of public policy. Had either bothered to follow up and report on what became of the Wisconsin Republican's request, the papers would have found that the Wisconsin open records law worked pretty well and that Professor Cronon's academic freedom apparently remains intact. On April, 1, 2011, John C. Dowling, Senior University Legal Counsel, University of Wisconsin-Madison, replied to the request by Wisconsin Republicans, as he is required to do by law. Mr. Dowling's reply illustrates precisely how the Act works:

At our request, Professor Cronon immediately undertook a search of all of his accumulated e-mails for the specific words, terms and names as you stated them in your request. The university's legal staff then reviewed all of the identified e-mails to determine which ones must be made available to you pursuant to the Wisconsin Public records law. Those determinations have been reviewed and approved by the appropriate university officials. Copies of the records determined to be available to you under the law are enclosed.

The University did not, however, produce all of Professor Cronon's records. For example, Mr. Dowling explained, records related to students were not produced because Wisconsin law requires the university to keep confidential educational communications between professors and students. Records related to potential students who had contacted Professor Cronon regarding their possible enrollment at the University also were not released. Nor were e-mail records released related to professional organizations of which Professor Cronon is a member in order to protect the business interests of such organizations and Professor Cronon's participation in the affairs of those organizations. Personal communications and communications related to personnel matters also were withheld as required by statute.

Mr. Dowling did take the opportunity to have a little bit of fun in making his reply:

You have also requested e-mails that contain the word "recall." Again, we have made the assumption that you are using this word in the context of the current efforts to recall certain public officials in Wisconsin. We are not producing e-mails containing the word "recall" in the sense of recalling a past event (e.g., "I recall from our meeting last week ...").

Finally, intellectual communications were withheld because the university concluded that "the public interest in internal communications among scholars . . . is outweighed by other public interests favoring protection of such communications." As Mr. Dowling stressed to Republican Party officials, "faculty members must be afforded privacy" in discussions "vital to scholarship and to the mission of the university."

Right up to this last paragraph, it's hard to imagine a more exemplary illustration of precisely how open-records laws should work. One can only guess at the number of times in recent days that university lawyers, government attorneys, and law firms across the country have printed out and saved Mr. Dowling's letter.

A significant problem, however, persists over the immeasurably unchecked discretion Mr. Dowling and other university officials apparently exercised in determining which public interests in non-disclosure outweighed other public interests in disclosure when they refused to disclose "intellectual communications." The difficulty is that the right to inspect public documents and records is not absolute. Where the need to protect certain information exists, exemptions may be appropriate. Two important elements, however, circumscribe such exemptions. The first, mentioned earlier, is that the presumptive right to disclosure persists. The burden remains with the government to justify non-disclosure. The second important element to consider with respect to exemptions is that the right to create them is the prerogative of the legislature. At the federal level, for example, Congress has provided for nine such exemptions within the law. An Appendix to the Wisconsin Public Records Law lists no less than 145 statutory exemptions and other legal limitations to disclosure adopted by the Wisconsin legislature. Mr. Dowling's letter, as noted, cites these exemptions to justify each of the University's decisions to not disclosure certain records right up to the paragraph regarding "intellectual communications." Not one of the Wisconsin exemptions, however, deals with the "intellectual communications." In such cases -- absent a specific statutory limitation -- the Wisconsin Supreme Court has held that the right to inspect public documents and records must be subject to a balancing test. Such a test, as Mr. Dowling's letter further illustrates, aims to determine when the public interest in disclosure (here, the internal communications among scholars) is outweighed by other public interests favoring protection of such communications.

The crucial point to be understood here, however, can be found in the distinction drawn between Madison's approach to transparent governance and President Johnson's emphasis on how his Administration would go about implementing the new Freedom of Information Act. Madison's version of transparent governance would demand that the Legislature do such balancing, not the very executive agency charged with justifying is own non-disclosure decisions. With 145 statutory limitations already enacted, one would think the Wisconsin legislature would have no trouble determining whether or not such intellectual communications should be protected from public disclosure.

The ultimate problem with the balancing test, as drawn, can be seen in the responses to Mr. Dowling's letter. Mr. Cronon seems happy:

I could not be more grateful for the thought and care that [Chancellor] Biddy Martin and UW-Madison attorneys have put into crafting these responses -- and I am very proud of this university for continuing to defend the great traditions of the Wisconsin Idea and of the "sifting and winnowing" plaque that I discussed in my earlier blog.

The "sifting and winnowing plaque" refers to a commemorative plate found at the main entrance to Bascom Hall, a major campus building, which has inscribed upon it a quote from the 1894 report of the UW Board of Regents: "Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great State University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found." Mr. Cronon, on the one hand, reads the inscription to protect his academic freedom. Arguably, on the other hand, it is the very trammeling of such inquiry that open-records laws seek to avoid by providing the means to the public to sift and winnow.

Additionally, the Wisconsin Republican Party also seems satisfied with the University's reply. Executive Director of the state party, Mark Jefferson, released the following statement:

We thank the University for complying with the open records request relating to the e-mail correspondence of Professor William Cronon, and we thank Chancellor Martin for her statement. We share her belief that University faculty are not above the rules prohibiting the use of state resources for political purposes. Like other organizations from across the political spectrum, the Republican Party of Wisconsin has a longstanding history of making open records requests, and we will continue to exercise our right to do so in the future.

Either Wisconsin Republicans have been blinded by their own insight to the value of public records laws or they simply have failed to live up to the courage of their own convictions. To date, there has been no challenge by Wisconsin Republicans to the University's own application of a balancing test to its own decision. If the Party disagreed with the reasons for the denials of materials, they had every right, again a right provided by the Wisconsin law itself, to go to court to seek review of the University's decision and perhaps compel disclosure of refused materials. Such a remedy, however, does not address Madison's concern for transparent governance, where the decision as to what should and should not be disclosed is open to public scrutiny, at least by the public's duly elected representatives.

Even more remarkable, in this context, is the failure of the Washington Post and the NY Times to weigh in on the balancing test approach to public information laws. Consider for a minute the reaction of either of these institutions to one of their own public documents request to a federal or state agency where the agency came back with a reply stating that after its own review of matters the agency found that certain interests in non-disclosure outweighed the papers' (and the public's) interest in disclosure. Yet, to date, not a peep from either paper on the Wisconsin results. One can excuse Professor Cronon because the results fell his way, and also Wisconsin Republican's who likely just don't know any better. But the failure of either paper to react is wholly inexcusable.

With much of today's news reduced to thirty second sound bites and editorial commentary frequently limited to no more than 750 words, one would think that two of the nation's premier news organizations would jump at the chance to educate the public on the ins and outs of public disclosure laws. Who better to fully explain to the public the nature of such laws, their compelling need in a democratic society, and the general success of such laws over the years in providing for transparent governance than the very societal institutions who, in many respects, depend day-to-day upon such laws for their very existence.

Forty-five years of effective freedom of information laws for the press may in fact have produced a certain complacency, but I doubt for one minute that either the Washington Post or the NY Times can now envision conducting their business without such laws. Anyone unfamiliar with that history, however, who followed the recent debate, likely would not see that. That's too bad. One would hope from more from these venerable institutions.