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Information, Democracy, Power

Robert Weissman

March 15, 2012

Information is Power …

… Except when it’s not.

Overview

• The Freedom of Information Act– How it works– Hot issues– Public Citizen achievements

• Corporate Power, Secrecy and Information– Unequal Access to info– Campaign spending– Innovations

The FOIA Mini-Revolution

• Freedom of Information Act

• A public right to information held by the government

• Leads to breakthrough reporting and transformative change

• Red Dye #2 ban• Agent Orange• Aspirin and Reye’s syndrome warning• Ford Pinto recall• Jack Abramoff visits to White House• Fed support for banks after financial crash• Post 9/11 monitoring of civic organizations• J Edgar Hoover plans to round up Americans• UFOs

Key FOIA Attributes

• Presumptive right of the public to all government information

• Clear specification of exceptions, to limit arbitrary agency decisions

• Judicial review

• Simplicity: Available to anyone, no threshold to show “need”

FOIA in Practice

• Simple request and agency obligation to respond• Modest fees for non-commercial requesters• Exemptions

– National security– Agency internal personnel rules and practices– Trade secrets and proprietary information– Inter-/ Intra-agency work product– Personal privacy– Interfere with law enforcement– Financial regulatory information

FOIA Data

• Roughly 600,000 FOIA requests annually– Vast majority by commercial users

• Backlog of around 70,000

• Expenditure: $415 million

Burning Issues

• Practical implementation issues– Fees– Requests to narrow

• Exemptions

• Delay

Exemptions

• Flat denial: ½ time by CIA and SEC

• Obama admin reduces claim of internal agency deliberation

• Admin tells Supreme Court that FOIA exemptions should not be construed narrowly

Delay

• Persistent, top concern with FOIA implementation

• Average delay for complex request at FBI, Department of State and Dept of Defense range from close to one year to three years

• For many requests, untimely information is tantamount to no information

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Public Citizen Achievements• Lobby for 1974 amendments that establish the

working FOIA• Litigated 100s of FOIA cases, more than any

other organization• Vaughn v. Rosen, requiring agencies to index

documents and reasons for refusal to provide• Public Citizen Health Research Group v. Food

and Drug Administration, establishing a narrow definition of trade secret

• Armstrong v. Executive Office of the President, establishing duty to provide electronic records

Recent Victories

• Milner: Eliminates “High-2” exemption – invented exception that expanded to suit agency desires

• CompTel: Corporations do not have a “personal privacy” interests (even though corporations defined as “persons” under FOIA)

Recent Victories – Public Citizen

• Nixon grand jury testimony (not FOIA)

Gov’t data showing hands-free use of cell phones during driving as dangerous as hand held

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Corporate Power, Secrecy and Freedom of Information

Unequal Access to Information

• US Government is undertaking trade negotiations for a Pan-Pacific free trade deal – an Asian NAFTA

• Public Citizen leading charge for openness, but administration refuses to make negotiating text available

• 600 corporate advisory committee members have access to text

• Very practical impact on advocacy and outcomes

Political Influence

• Great deal of information available on campaign spending and, to a lesser extent, lobbying

• Excruciatingly small impact on behavior• Citizens United poses new problems, with

new possibility of disclosure as a meaningful remedy– Corporations don’t want to be held

accountable for their election influence-peddling

• “It is important to the Chamber not to change its practices [of not disclosing donors] because when it is known who made a contribution, it gives others the opportunity to demagogue them, attack them, or encourage them not to do it.”– Tom Donohue, US Chamber of Commerce

Although many of the nation's leading CEOs are eager to participate in this year's election, they largely plan to steer clear of super PACs because of the disclosure requirements.

"I think the Target experience makes them gun-shy," said Scott Talbott, chief lobbyist for the Financial Services Roundtable, referring to a national boycott against the retail chain in 2010 after it donated to a political group backing a conservative Republican gubernatorial candidate in Minnesota who had made negative statements about gay and lesbian rights.

-- Los Angeles Times, February 2012

Many paths to disclosure

• Legislated disclosure by all independent groups spending on elections

• SEC or state requirements for corporations to disclose spending to shareholders

• Requirement for government contractors to disclose campaign spending (could be done by executive order)

Mandated Disclosure: TRI

• Toxic Release Inventory– 650 toxic substances

at 20,000 industrial facilities

– 90 percent reduction in emissions

– Shaming and empowerment of communities

Mandated Disclosure: Dodd-Frank

• Publish What You Pay– Mandated disclosure of

oil, gas and natural resource company royalty payments to

– Delay in issuance of rule– Massive industry

resistance

Mandated Disclosure: Dodd-Frank

• CEO-worker pay ratios– Information to

workers, check on inequality

– Massive industry resistance

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Crowdsourcing

• Consumer Product Safety Commission database– Compilation of consumer complaints– Direct information to consumers– Encourage seller remedy– Early warnings to agency– Aggregation

• Consumer Financial Protection Bureau

Compilation Data

• Fair housing data and its positive impact

• Corporate crime– Disconnect between corporate crime and

street crime– Problem of corporate recidivists -- penalty

structure, government contracting

Concluding Reflections

• Discourse of openness and transparency has triumphed, but practice is far more uneven

• Disclosure has limits and is frequently oversold as a remedy in place of needed regulation– Burden on consumer – obtain, analyze and act on

info– Bad actors may not be shamed– Disclosure not a substitute for regulating wrongful

behavior, should be a facilitating tool

More Concluding Reflections

• Information as a right/Freedom of Information remains a powerful concept

• Disclosure will most facilitate change and honesty in government when there is a constituency to absorb and act on information

• Automatic, proactive disclosures most effective

Last Concluding Reflections

• Digital age means there is more information and data

• Does not mean there will be more openness and transparency

• Gov’t has much more information in the digital age, but there is far, far more information under corporate control

• How open we will be as a society – and as a global community – remains very much up for grabs … and is directly related to the robustness of our democracy