An interview with the US Ambassador in Sofia on the occasion of FOIA's 50th anniversary
Mr. Rubin, now when the FOIA turns 50, in what way do you think the society has benefited from such a law?
American society has benefited immensely from FOIA, as the information that is now in the public domain thanks to the law sheds light on how our government works and, more importantly, helps to hold government accountable to those it serves. As the esteemed American jurist Louis Brandeis famously wrote, “Sunlight is said to be the best of disinfectants.” That has proved true: the transparency that FOIA promotes really does positively affect the way our government functions. It essentially creates a watchdog, but rather than having the government monitor the government, FOIA empowers the public to hold the government accountable. That makes for better governance.
Freedom of information laws, in addition to opening a window on things like how certain decisions were made or how a given program works, benefit a society by nurturing an atmosphere of openness. It has taken decades, but such a culture has begun to take root in my country, thanks in no small part to FOIA. We have strived to make the law better, amending it almost a dozen times as we have learned through experience and struggled to strike the right balance between transparency and the need to conduct some aspects of government business discreetly. I’m proud that we’ve moved, even if in fits and starts, toward a culture that increasingly favors openness. This is typified in a directive President Obama made to all executive branch agency heads the first full day of his administration; FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails,” the President wrote, meaning that in a close call as to whether solicited information should be released or withheld when the law might allow an exception, release should generally be favored. That approach represents a true paradigm shift from the past, when openness with government information was the exception, not the norm.
Besides good legislation, what other factors do you think are necessary to achieve an open and transparent government?
First, the public must demand openness and transparency from its government. That should lead to solid legislation, which is a necessary tool to carrying out any major program against which there will be pushback, including FOIA. As yet another renowned U.S. jurist, Learned Hand, put it, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” And so it is with access to information: there must be a strong will to perpetuate a meaningful regime, as laws are meaningless if there is no resolve to implement them. The importance of transparency must be understood by those in positions of authority, and those individuals must be committed to carrying out the program properly. President Obama has set a forward-leaning tone on this topic, as mentioned, from day one of his Presidency. Executive agency heads have proved dedicated in responding to FOIA requests, as demonstrated by steady improvement over the years in the number of requests for which they supply information and the timeframe within which they do it.
Since the first day of his Administration, President Barack Obama has made Open Government a high priority. The President just signed the FOIA Improvement Act of 2016 into law on June 30, 2016. What changes have been introduced to make FOIA work better?
The FOIA Improvement Act of 2016 addresses a range of procedural issues with the goal of making the process fairer and more effective. Among other things, the Act requires that agencies provide dispute resolution services at various times throughout the FOIA process. It codifies the Department of Justice’s “foreseeable harm” standard with respect to withholding certain information, and it creates a new “FOIA Council,” which will serve as a forum for collaboration across government agencies and with the public to explore ways to make the administration of the FOIA program better. More information about the Act is available on the Department of Justice’s website.
President Obama has initiated the Open Government Partnership (OGP) in 2011 at the UN General Assembly meeting with seven other heads of state and an equal number of leaders from civil society. What is the impact of the OGP at a global level?
OGP has been an effective tool in securing commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. In embracing a high-level Open Government Declaration, coming up with concrete action plans developed with public consultation, and committing to independent reporting on their progress going forward, governments all over the world have chosen to prioritize transparency. That is a significant accomplishment.
I am happy that Bulgaria is an active member of OGP. Our Embassy has collaborated with Deputy Prime Minister Bachvarova’s office in seeking ways to promote those ideals in practice and shaping elements of Bulgaria’s action plan . For example, our two countries’ bilateral rule of law working group has supported the adoption by Bulgaria’s government – in coordination with civil society – of a goal in its new OGP action plan related to determining beneficial ownership of bidders on certain government contracts. This is exactly the kind of transparency measure that, if carried out diligently, can really make a difference in fighting corruption.
Could you share an interesting case or example of good practices when a FOIA request resulted in the release of information of essential importance to the public?
Information gained through FOIA requests has been invaluable in informing the public on a range of important issues. For example, information about the military’s disciplining of traumatized and injured soldiers led in recent years to changes in the way discharge boards are constituted and operate, allowing mental health professionals a say on how soldiers are disciplined in certain cases. FOIA information can actually also make for exciting reading. Information accessed through FOIA revealed the U.S. government’s role in bringing Boris Pasternak’s famed novel “Doctor Zhivago” to citizens of the Soviet Union by publishing the banned book in the Russian language and distributing it behind the Iron Curtain.
The Access to Information Programme has been looking up to the US FOIA since the beginning of its advocacy work 20 years ago. The Bulgarian FOIA (the Access to Public Information Act) has just turned 16. What would your wishes be for the Bulgarian law’s anniversary / your recommendations for achieving an open and accountable government?
My government certainly does not have a monopoly on expertise or best practices related to open government. There’s much we can learn from other countries in various areas, including from Bulgaria. But I can say that we have gotten better in understanding and applying the ideals of FOIA over time. My advice is to never stop trying to improve. Learning about best practices through forums like the Open Government Partnership is a great way to see what others are doing in this arena. And, of course, close collaboration between government and civil society is essential in constructing a workable framework that is conducive to open and accountable governance.
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