Freedom of Information

Public’s ‘right to know’ still a matter of debate

By Michael Doyle

Bee Washington Bureau

(Published Oct. 14, 2001)

WASHINGTON—Wartime places new stress on the venerable concept of the people’s right to know.
Although it’s common currency among lawmakers and journalists, the very notion of a public “right to know” in fact poses vexing problems. For one, inevitable tensions arise between the war strategists’ insistence on secrecy and the public advocates’ insistence on access.

“The American people have the right to know—they have the duty to know—what their (military is) doing in their name,” former CBS News anchorman Walter Cronkite said on CNN last week. “And it must be recorded (even if) it can’t be put out immediately without military surveillance, military censorship.”

But there’s a more fundamental problem: Judges and constitutional scholars have never actually identified a right to know.
“Such a right would stray far from the words and original meaning of the constitutional guarantees,” the late constitutional scholar Archibald Cox once concluded.

This is more than just an exercise in wordplay. Rights are fundamental, upheld by courts and often expansive. Something that isn’t a right gets less government deference.

Some rights are explicitly written, as in the First Amendment’s guarantee of a free press. Other rights are, in essence, found. The right to privacy, for instance, is not written in the Constitution but nonetheless has been identified by the Supreme Court.

Reporters were the first to spread the notion of a right to know. Legal scholar David O’Brien pinned the first use to a Jan. 23, 1945, speech by an Associated Press executive. Likewise, the American Society of Newspaper Editors in a 1957 “Declaration of Principles” asserted that “the American people have a right to know, as the heirs of Magna Carta (and) the inheritors of the privileges and immunities of the English common law.”

The idea caught on in the 1950s among the lawmakers who were laying the foundation for what would become the Freedom of Information Act.

“Not only are (the people) entitled to know, but by rights inherent in the Constitution, they have the right to know,” Sacramento Congressman John Moss declared in 1955.

Moss’ notion of a right “inherent in the Constitution” is not unique. The Supreme Court has detected the rights of travel, privacy and free association, among others, by peering into the shadows of the constitutional text.

One of Moss’ congressional allies in the FOIA fight, Missouri Sen. Thomas Hennings, claimed to find an implicit right to know in the Constitution’s requirement that Congress “keep a journal of its proceedings, and from time to time publish the same.” From this, and a related requirement that presidents “shall from time to time give to the Congress information of the State of the Union,” lawmakers like Hennings derived a public right to know.

“The right to know was so much taken for granted by the Founding Fathers that it was not deemed necessary to include it in the original Constitution,” Hennings asserted in 1959.

The Supreme Court has never taken it that far. Skeptics note that the drafters of the Constitution explicitly rejected a proposal to publish all House proceedings. Some government business, the Founding Fathers thought, should not be transacted in public: Meetings of the Senate were not open to the public until 1794.

In its cases of press access, the court has moved carefully.

In one case, the court agreed that journalists—as agents of the public—have a right to attend a criminal trial. Conservative Chief Justice Warren Burger concluded in the early 1970s that “free speech carries with it some freedom to listen.” But in a subsequent case, Burger wrote that the court never “intimated a First Amendment guarantee of a right of access to all sources of information within government control.”

“The right to speak and publish,” former Chief Justice Earl Warren stated, in a mid-1960s case upholding a U.S. ban on travel to Cuba, “does not carry with it the unrestrained right to gather information.”

This absence of an identified right to know has effectively narrowed the Supreme Court’s interpretation of the Freedom of Information Act, which Moss pushed into law in 1966 after 11 years of trying. Among his chief allies:Rep. Donald Rumsfeld, R-Ill.

“Rumsfeld really played a major role (with) the Republicans,” recalled former Moss staffer Michael Lemov, who’s now a Washington attorney. “Moss was the chief author, but Rumsfeld stood by him.”

Rumsfeld was close enough to the late congressman that he served, until his appointment this year as defense secretary, on a congressional advisory committee to the John E. Moss Foundation. The nonprofit group annually honors members of Congress and focuses on Moss’s cherished information-access issues.

As a GOP congressman during the Vietnam War, facing a White House controlled by the other party, Rumsfeld championed the public’s access to information.

“We have said that ours is a government guided by citizens,” Rumsfeld said in 1966 debate over the FOIA. “From this it follows that government will serve us well only if the citizens are well informed.”

Rumsfeld warned then that members of President Johnson’s administration resented “any attempt to oversee their activities either by the public (or) the Congress.” A free flow of government information, Rumsfeld said, could help offset this tendency; he did not, however, go so far as to use the right-to-know phrase.

Now Rumsfeld is emphasizing the other side of the equation.

“I do believe in openness,” Rumsfeld said the day after the Sept. 11 terrorist attacks, but “I think it’s time for all who deal with (classified) information to treat it with the care and respect that it merits.”

Used with permission of Michael Doyle, a reporter in the Washington bureau of The Sacramento Bee

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