Recently, the push has been to exempt Critical Infrastructure information from the FOIA. No one disagrees that there is some information that the public should not have, at least for a specified period of time — although there may be disagreements on the nature of that information and on the length of time. (Keynote address by Patrice McDermott, Senior Policy Analyst, OMB Watch, to US Department of Energy, Freedom of Information Act and Privacy Act Conference.) Democracy's Strength—An Informed Public Keynote Address by Patrice McDermott to U.S. Department of Energy Freedom of Information Act and Privacy Act Conference August 8, 2000 I am honored to be here this morning. And doubly honored, because — I will tell you — not a lot of people will get up — at what is for me the crack of dawn — to hear about the importance of an informed citizenry. So, thank you for being here. My topic this morning is "Democracy's Strength—An Informed Public." This is a topic very near and dear to our hearts at OMB Watch. For those of you who don't know us—and, as we have only ever made a FOIA request to OMB (and got turned down!), many of you may not — OMB Watch is a public interest nonprofit that advocates for public participation in government decision-making. We consider public access to information an essential component of responsible and responsive democracy. What I mean by this is that we believe that in order for the public to be responsibly engaged in governance and in decision-making, it needs to have meaningful access to good information. I will return to this in a moment. The other half of the equation is that in order for government to remain — or become — responsible and responsive to the public, it has to be open about its activities and its processes. And, of course, this is the spirit, the intent of the Freedom of Information Act. But I don't plan to talk to you only — or even primarily — about FOIA this morning. As critical to the functioning of accountable government as FOIA is, access to government information is so much broader than that. What I primarily want to talk about this morning are what I see as portents of change in the wrong direction in terms of how we understand the role and the importance of access to public information. It is being argued that we are changing our paradigm about access to information, that new ideas of what information looks like and how pieces of information are or can be linked together means that our previous understanding no longer works. And it is true that we are developing new ways of providing access to information and of enabling its use. Thomas Kuhn's insights — in The Structure of Scientific Revolutions — about how paradigms get established, what they do, and how they break down are as useful as they were almost 40 years ago. Paradigms establish not only what questions get asked, but what questions can be asked and what counts as a meaningful question. When it comes to the responsibility of the government to protect the health, safety and security of the American public, these are questions that are not amenable to easy or glib answers. So if, indeed, we are in a paradigm shift, we need to be careful about the directions in which we head and who controls the process. At OMB Watch, we have for over 10 years been engaged in providing meaningful access to government databases. Our service — RTK Net — is available for free to anyone but is intended primarily for community activists. We work to get, for instance, the Toxics Release Inventory data — which is collected from industry by EPA — into the hands of people in affected communities. We have, over the years, heard many stories back from folks who took this information and using the capacity we provide for pulling together information from multiple databases into a single—user-defined—report, have done presentations to, for instance, the U.S. Civil Rights Commission on environmental justice issues. So we know that putting information in the hands of people is a powerful tool in letting them have say over their lives and their communities. And in improving the quality of the data that government collects — and industry provides. One of the arguments one hears — and we have certainly heard it many times — is that you can't just give information to people. They won't know what to do with it. Or, our favorite one from regulated industry, the people won't know the quality of the data and therefore will be misled. Who provided that data? Who is responsible if it is poor quality and misleading?! The reality is that if you put the data out there, folks will find the errors and the inconsistencies and they will pressure to have them corrected. We don't think this is a bad thing. And those who are disseminating data do have a responsibility to let its potential users know the limitations of that information. But just because information is not perfect is no reason to withhold it from the public. It is reason to make efforts to improve it and to make clear where the problems or complications are. And what is puzzling is that sometimes this is more difficult in an online environment than it is in an ink-on-paper one. Or it requires rethinking how we do things; just putting ink-on-paper documents or databases up on a Web page does not do two things. It does not take advantage of the capacity of linked information and it does not necessarily make it easy for users to quickly see the notes that would have been at the bottom of the printed page — all those caveats and explanations. So, there have been real problems with statistical data that is put online. The digital, linked, environment creates new opportunities and it exposes information — and its vulnerabilities and its problems — to many more users. But more easily and more broadly exposing those vulnerabilities and problems cannot be allowed to become a reason for limiting access. Part of the struggle that is going on in this paradigm shift is over balancing accountability and protection. What is often under dispute is who is being protected and from what. The claim is usually that it is the public being protected from misinformation or from misuse of information. While the misinformation claim is an ongoing fight, the claim that the public is being protected from the misuse of information is the current cry. I know that, in many ways for your agency, the Cold War is not dead. But for most of the rest of the government it at least should be. But the urge to withhold is as strong as ever. So, new reasons to withhold industrial information from the public need to be found and, lo and behold, we have Internet terrorists and/or terrorists using the Internet (and often the two are conflated) to scare ourselves with. Don't get me wrong. I know there are terrorists who are using the Internet and, indeed, military types have said that we used our Internet capabilities in the Balkans for what many would describe as terroristic purposes—overloading systems, blocking capabilities, etc., to harass the public and immobilize governments. But is this possible risk — that to date has no counterpart in reality — a good enough reason to withhold from the general public information on, say, how many people are likely to be killed if a chemical plant explodes? There are chemical accidents all the time — with no assistance from terrorists — caused by risks and vulnerabilities that were known and could have been remedied or mitigated. Yes, maybe if this information is online, a terrorist might use it to figure out where to bomb—but anyone who drives up I-95 could figure that one out. The critical question, though, is how do we appropriately balance that minimal risk against the right of the public to know the health and safety risks to which they are exposed? And how do we balance it against the ability of watch dog organizations to track what a company is doing across the country in mitigating risks — or not? Who is really being protected here? The industries and their shareholders? In case you don't recognize this scenario, it has to do with the Worst Case Scenarios of Risk Management Plans mandated by the Clean Water Act and mandated to be made publicly available. There is now a statute preventing EPA and anyone who receives it through EPA from putting that information online. Recently, the push is to exempt Critical Infrastructure information from the FOIA. Now, this is information that industries want to voluntarily share with the government and that does create some complications in establishing clear procedures for dealing with it. And no one disagrees that there is some information that the public should not have, at least for a specified period of time — although there may be disagreements on the nature of that information and on the length of time. But there is currently a bill in the House that not only exempts very vaguely defined information from disclosure under FOIA, but also exempts those companies sharing it with the government from liability for harms caused by those risks. Again, what is being protected here? I heard just recently that, at the summit with computer industry leaders earlier this year after the rash of Denial of Service attacks on the Internet, the President was told by these same folks that most of the attacks had happened by taking advantage of known vulnerabilities that the companies had not bothered to fix. Clearly, an area of central importance to your agency has to do with national security information. I am not an expert in this area (I rely heavily on Steve Aftergood for my information). But I think it is reasonable to try to keep open — and try to re-open — questions of what does need to be classified in this post-Cold War age. We should be looking at how to minimize the withheld information and the effort involved in releasing it. Whatever other problems there may be with it, I am quite fond of the 1997 Report of the Commission on Protecting and Reducing Government Secrecy which describes the secrecy system as a regulatory system. As the Summary says, "Secrecy is a form of government regulation. Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation." And it goes on to say that the classification system "is used too often to deny the public an understanding of the policymaking process, rather than for the necessary protection of intelligence activities and other highly sensitive matters." The Report is, as I am sure you know, about re-examining the tension between secrecy and openness. And right now, it seems, as with industrial information and with other regulatory matters, the intent of Congress is to introduce so much process that the work of government grinds to a halt. Thus, it seems that at least part of agenda behind the mandated re-review of declassified documents is as much to grind the process to a halt as to protect the public from risk. The ability to access information digitally is (or can be) a dramatic change and it will lead to a paradigm shift. But, as I said before, we — the American public and public servants who believe in access — need to stay in control of the questions. We cannot let those who fear exposure define the questions that will or can be asked. Too much is at stake and, as the title of this talk indicates, an informed citizenry is the strength of democracy. To quote the oft-quoted James Madison: "...a people who mean to be their own Governors, must arm themselves with the power knowledge gives." My husband tells me — he is a few key years older than me — that Johnny Carson had an early TV show called "Who Do You Trust?" Perhaps that is a good question to keep in mind as we shift our paradigms about access to information. And perhaps a more telling one would be "Who Do You Not Trust?" If we don't trust the American people with information about their government and its activities, and with information that is vital to their health, safety and security, we should ask ourselves, "Why not?" Thank you.
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