March 13, 2011 | By Jennifer Lynch

Sunshine Week: Do Open Government Laws Still Matter in the Era of WikiLeaks?

March 14-18, 2011 is “Sunshine Week”—a week to focus on the importance of open government and how we can ensure accountability for our leaders at the federal, state and local levels.

In the year since Sunshine Week 2010, the world of open government has been rocked by the WikiLeaks leaks. Early last April, WikiLeaks released a video of a 2007 US Army air attack in Baghdad that left 12 dead, including two employees of the news agency Reuters. This wasn’t the first controversial information the site ever posted, but it swiftly put WikiLeaks in the center of a dialogue about what information the public has a right to access and whether releasing that information will put lives and national security at risk.

Since that time, WikiLeaks also published (on its own and through reporters at several national newspapers) several hundred thousand intelligence reports from the wars in Afghanistan and Iraq and is in the process of publishing over 250,000 state department cables. While some of the leaks have merely provided us with a little gossip and a window into other cultures, some of the information has taught us about the abuses that have occurred during the wars, the lies our leaders and the leaders of other countries have told us, and the incredible loss of lives those wars have cost.

With all of the information WikiLeaks has brought to light, many have asked what WikiLeaks means for national security and the way we protect (or can’t protect) information. But another question is what WikiLeaks means for those of us who work with open government laws every day – who try to work “within the system.”

There's no question that the process of obtaining government records through the Freedom of Information Act (FOIA) or state or local open government laws is slow and frustrating. While WikiLeaks may get hundreds of thousands of pages of documents covering several federal agencies in an email or on a CD, it may take us months or even years to get a few hundred heavily redacted pages from one agency. FOIA departments of federal agencies are underfunded, understaffed, overworked and sometimes don’t try as hard as they should or could to find and release all records responsive to a FOIA request. This means we often have to resort to litigation to get the documents we're entitled to under FOIA, which is itself a slow and costly process, and one that's not easily available to the average FOIA requester. And unfortunately, the Obama Administration, for all its early calls for transparency and accountability, has also been a disappointment in this area, clinging to arguments the Bush Administration used to prevent the release of crucial information. This all suggests that maybe “open government” shouldn’t be controlled by the government.

However, if you believe asymmetries of information are sometimes necessary (for example, in times of war, to keep information from our enemies) but that governments sometimes abuse those asymmetries, then you have to believe there needs to be room for whistleblowers and the FOIA process. Whistleblowers—individuals working within governments or private companies—can, by virtue of their position, bring evidence of waste and abuses to light that the general public would have no way of knowing about. But the FOIA process—because it's codified and because agencies know they will be required to release information under FOIA—keeps government honest and provides a way for anyone in the general public to ask for and obtain information on our government. Both of these are necessary, not just to increase transparency but to allow us to conduct the analysis and create the context necessary to ensure that the information brought to light actually makes a difference.

Although there’s a chance that WikiLeaks will lead to even more excessive classification and secrecy as well as increased penalties for disclosure, there’s also reason to hope that the courts and people working to promote government transparency will actually bring more accountability to government. In the last month, the Supreme Court has issued two important decisions limiting the federal government’s ability to withhold information through the FOIA exemptions. First, in FCC v. AT&T, the Court rejected AT&T’s claim that corporations have “personal privacy” interests that could be protected by Exemption 7(C). Then in Milner v Dept. of Navy, the Court rejected the government’s broad interpretation of Exemption 2, finding that Navy maps of ammunitions storage could not be withheld under an exemption protecting “personnel rules and practices.” In both of these cases, the Court reiterated that FOIA exemptions should be construed narrowly to ensure that as much government information as possible can be released to the public.

So what can you do to promote government accountability in honor of Sunshine Week? Here are some ideas and some cool new tools to help you make a difference:

1.   File your own FOIA or public records act request.

The Reporters Committee for Freedom of the Press has excellent resources on its site for filing open government requests, including information on the process and even a tool that generates the letter for you (with separate versions for federal and state open government laws).

The Department of Justice also offers a helpful guide to FOIA (though this, of course, is the government’s interpretation of FOIA), with updates every month on recent FOIA cases. And each of the federal agencies has information on its website about how to file a FOIA request (for example, here’s the FBI’s FOIA page). Or you can go to the federal government's brand new FOIA web page to find them all in one place.

And if you're having trouble getting an agency to respond to your FOIA request, contact the folks at the Office of Government Information Services (OGIS). They offer mediation and facilitation services for all FOIA requesters who haven't yet filed a lawsuit against the agency.

2.  Use some of the cool new tools available to track your request and upload, analyze and publicize the records you receive.

Two new sites offer tools that can make the FOIA process easier and more effective. MuckRock allows you to submit, track and create a record of your request while Document Cloud provides you with tools to analyze the records you receive. Document Cloud allows you to upload documents to its servers and then runs them through a powerful analytics tool that gives you access to information about the people, places, dates and organizations mentioned in each document. It also lets you highlight and write notes on information you find. When you’re ready, you can use the site to publicize the documents or use their document viewer to embed documents on your own website.

4.   Write to your Senator or Representative and urge them to oppose the misguided (and confusingly named) SHIELD Act, which would amend the Espionage Act to make it a crime for anyone—including people who write about leaked information already in the public domain—to publish information “concerning the human intelligence activities of the United States or any foreign government.”

5.   Become one of EFF’s newest Cooperating FOIA Reviewers and take some time to help us look through the documents we get.

6. Donate to EFF so we can continue our FOIA work to expose the government’s expanding use of new technologies.


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