Sweden’s Freedom of the Press Act is generally cited as the world’s first law granting rights of access to government records to the public. The phrase “freedom of information” (FOI) did not become widely known or used until passage of the United States federal Freedom of Information Act (FOIA) in 1966. The federal Act was weak and completely revised in 1974 on the heels of the Watergate scandal. Its enactment opened the floodgates, and within 10 years, every state in the US had enacted some sort of access to records law. As a concept, FOI has become international. Today there are approximately 100 nations that have enacted an access to information law, and many have jumped ahead of the laws in the US.
When I’m asked, “which state has the best freedom of information law”, my answer is “Mexico.” Mexico? I started discussing FOI with Mexicans around the turn of the last century, when it was predicted that 75 years of one party rule would come to a close. That happened, and reform minded Mexicans passed a remarkable FOI law in 2002. And they did what we couldn’t have done when our laws in the US were passed in the '70s — they built information technology into their law. Think about the '70s — high tech was an electric typewriter and we used carbon paper to make copies. There was no internet or email.
Mexico’s was the first law that gave people the right to request and obtain records by using email. We learned from its experience, and New York was the first state to include the right to seek and obtain records via email in a provision enacted in 2006. The Mexican law also requires “proactive” disclosure: posting records of significance on a website even before anyone requests them. That makes life easy for everyone. People can obtain records any time of the day or night, and often they can acquire the equivalent of a thick report quickly, easily and at no cost. Government staff need not respond to a FOI request if the records are accessible online. Everybody wins. And what happens when the government concludes that certain records are frequently requested and clearly public? They post them online. They “push” the records out to the public.
Historically in this country, our FOI laws are based on the right to request government records, to “pull” them out. In other nations, the emphasis is to “push” them out. More and more here, government agencies are posting records on their websites, pushing them out to the public. The public today can often gain access to information readily that would have been difficult if not impossible to obtain not so many years ago. That’s great.
We must think, however, about issues associated with government’s inclinations when it pushes information out to the public online. Very simply, government pushes out what it wants us to know. It likely doesn’t push out what it doesn’t want us to know.
The trend toward pushing out information is the way of the world, and it will be with us forever. We’re addicted to gaining access to information from one screen or another. That’s fine, but only if we continue to have the right, a right guaranteed by law, to pull out the information, especially the information that government doesn’t want us to know. That’s why we need strong FOI laws in New York and throughout the nation.
As Judge Louis Brandeis suggested more than a century ago, “sunlight is the best disinfectant.”