Holding Back the Sunrise

Holding Back the Sunrise

by / December 31, 1995
Last summer and fall, I was honored by invitations to speak at several conferences of local, state and federal administrators in the U.S. and Canada concerning public records, freedom of information (FOI) and privacy protection -- meetings from which I invariably learned more than I imparted. Some issues are becoming clear:

There are isolated instances of public officials suppressing public access to computerized public records in their useful, digital forms. However, at local and state levels, these are the exceptions rather than the rule (no matter how reporters howl). And most exceptions appear to be limited to law enforcement or disciplinary records or newly computerized information.

At local and state levels, the big issue is not access repression. It is whether to make records available "for free" (i.e., tax-prepaid), charge only for the cost of access, or charge the value of such modern records -- i.e., whatever the market will bear, serving the small minority willing and able to pay it. In some instances, there are also concerns for privacy protection, primarily where disclosable information is co-mingled with non-disclosable information.

At the federal level, the major problem appears to be conflict between the elderly FOI Act and equally antiquated Privacy Act of 1974 -- both of which are being bludgeoned into the Information Age by haphazard court decisions in the total absence of responsible action by Congress. This may be fortunate, since most members of Congress and many congressional staffers have illustrated a dangerous level of ignorance of -- and disregard for -- the realities and ramifications of modern information access and networking.

Policymakers want balance between the public's right to know and the individual's right to privacy. Many are diligently trying to maintain the status quo -- seeking regulations to assure the same balance between access and privacy as has existed with paper records, copying machines and the opacity of paper volumes. But like 19th century officials who passed local ordinances requiring that gas buggies be preceded by someone ringing a bell and swinging a lantern, they are myopic: In the immediate future -- five to 10 years or less -- most disclosable government records will be primarily or exclusively collected, stored, retrieved and utilized in computerized form within most agencies.

There are only two alternatives: Either public access to and use of disclosable records will be radically enhanced, and personal privacy and agency confidentiality will be significantly reduced, or public access must be radically suppressed. (The third alternative of limiting access to computerized records only as paper printouts is ridiculous!) And it's unlikely that government can maintain records secrecy -- even less so than with the Pentagon Papers or Watergate disclosures that predated public networks and today's "Information Age."

These facts are much of the reason that privacy advocates and access advocates are lobbying decision-makers with increasing diligence and fear. (It
is also why some police-state nations on the Pacific Rim and in the Middle East are very hesitant to allow their citizens access to the irrepressible global Internet.) The relative ease and difficulty of access cannot remain approximately as it now is; the sunrise cannot be halted. And if secrecy overrides access, then citizens will have significantly less ability to be informed participants in the process of their own governance. There is no alternative.

On a different issue, officials often hear that, "Government should operate more like a business!" But citizens and business leaders don't mean that government should be a for-profit operation, with its services available only to those who can afford to pay for them -- especially not on top of [admittedly finite] taxes already paid. The public plea is that government efficiency and innovation be more like that of the private sector.

And responsible officials can use modern technology to radically enhance the efficiency and reduce the cost of citizens' access to their government and its decision-making information and processes.

But technological impact on public access and agency budgets is nothing new.

The 15th century printing press radically enhanced public access, compared to what was available via scribes. At the time, opponents worried that the technology could be used "to spread unworthy ideas." (Owners of the few libraries of the time, filled with hand-scribed tomes, also fretted about losing their value and monopoly.) And it's said that Gutenberg's technology had much to do with creating the Reformation and overthrowing religious hierarchies that dominated European government of the era.

If you were administering a Public Records Act (PRA) in the 1400s, would you argue that hand-scribed copies of public records could be available for the cost of copying, but "high tech" copies produced -- much more quickly and at much less expense -- by "costly" printing presses, would only be available at market-based, premium prices? If so, how arrogant and stupid would historians describe such policies?

Xerography became available in the early 1960s. Among other things, publishers howled about its likely impacts on their control of copyrighted materials. (Administrators in states that permit copyrighting of public records, please note!) There was even extensive debate about whether to permit copiers to be installed in libraries.

If you had been administering a PRA in the 1960s, would you have advocated that copies of public records could be provided at cost, but only if they were laboriously re-typed or hand copied; that faster, labor-efficient, cheaper-to-produce xerographic copies would be available only for hefty market fees? After all, it required new, expensive, exotic, high-tech machines and trained operators.

How idiotic would such a policy look today -- like the alleged 1930s legislation in one state declaring that the mathematical constant, Pi, was to be 22/7ths (passed the lower house; died in the upper chamber)?

Now we have computers and nonprofit, global computer networks. And some officials say -- with perfectly straight faces -- that paper copies of public records can be available for copying cost, but less costly, more efficient, more useful electronic copies justify expensive, access-limiting profiteering.

Will such nit-picking be judged -- in the near future -- as any more sensible than the quibbles among Middle Age leaders regarding the number of angels that could dance on the head of a pin?

Jim Warren has served on the California Secretary of State's Electronic Filings Advisory Panel, received John Dvorak's Lifetime Achievement Award, the Northern California Society of Professional Journalists' James Madison Freedom-of-Information award, the Hugh M. Hefner First-Amendment Award, and the Electronic Frontier Foundation Pioneer Award in its first year. He founded the Computers, Freedom & Privacy conferences and InfoWorld magazine. He lives near Woodside, Calif. E-mail: jwarren@well.com