Peru conference weighs effects of open records

Is transparency a ‘luxury?’

(LIMA, Peru) – Legislation like Cayman’s Freedom of Information Law is sometimes being placed on the back-burner by wealthy democracies concerned about security and financial stability.

That was one of the major concerns raised during an international right to information conference hosted by the Carter Center this week in Lima, Peru.

‘It’s quite clear that when under pressure, whether it be to deliver public services or under threat of terrorism…or when faced by a banking crisis…the holders of information tend to contract their enthusiasm for both the spirit and the letter of the law when it comes to transparency,’ said Richard Calland of the Institute for Democracy in South Africa.

‘If we need to be secret in order to save jobs, to save the planet, or to prevent terrorists from killing people, shouldn’t we then accept a lower level of transparency?’

Suffolk University professor Alasdair Roberts, an internationally-recognized open records advocate, told conference attendees that the choice isn’t necessarily a stark division between security and openness.

‘I think there is a misunderstanding here about what advocates of transparency are asking for,’ Mr. Roberts said. ‘No reasonable advocate of openness is asking for complete and unrestricted openness.’

However, there should be a fair balance between the interests of security and transparency, Mr. Roberts said.

‘The national security bureaucracy is unlikely to do a fair balance of these competing interests on its own,’ he told the conference.

Independent parties chosen to arbitrate these matters, such as ombudsmen or information commissioners, are often not trusted by security interests, Mr. Roberts said.

However, he argued that those charged with protecting the security of a country shouldn’t perceive transparency as a threat to their operations.

‘If there is waste and corruption in the security sector then that is a threat to national security,’ Mr. Roberts said. ‘If soldiers are not getting the supplies they need because of waste and corruption, that undermines national security.

‘Transparency is a national security policy.’

US lobbyist Tom Susman, arguing the other side of the issue, pointed out that transparency laws don’t necessarily mean that corruption and waste will automatically be rooted out.

‘Transparency itself doesn’t deliver accountability…it’s the use of transparency,’ Mr. Susman said. ‘Transparency can often be scantily but provocatively dressed.’

Mr. Susman noted that unaudited reports from the US government indicate the country spends some US $353 million on open records requests and freedom of information activities each year. The government recovers about $10 million of those costs annually, he said.

The largest cost for open records requests in the US come from agencies charged with handling security such as the FBI, CIA, Department of Homeland Security and the like.

‘In those agencies, the cost per freedom of information request is $2,500 per request,’ Mr. Susman said.

It was a concern open records advocates should consider, Mr. Calland said.

‘Is transparency a luxury item?’ he asked the conference. ‘Doesn’t it sometimes get in the way of more important considerations?’

Professor Roberts said the reason open records requests dealing with security are often so expensive is the delays imposed on them by the various bureaucracies.

‘On Friday, I received a decision form the British information commissioner about a complaint that I filed with the office four years ago,’ he said.

In fact, in a paper Mr. Roberts published in 2007 while he was at Syracuse University’s Maxwell School, he noted that he had stopped filing open records requests with the UK because there was essentially nothing he could do if those agencies chose to ignore him.

During a study of 15,000 open records requests made to the UK Ministry of Defense, Mr. Roberts said he discovered that even the bureaucrats themselves could be frustrated by the system.

‘One of the descriptions (of the person making the request) was the British Foreign Minister,’ he said. ‘You had one British government department using the Freedom of Information Act to get information from another. And it’s not the first time I’ve come across that.’

‘If we need to be secret in order to save jobs, to save the planet, or to prevent terrorists from killing people, shouldn’t we then accept a lower level of transparency?’

– Richard Calland, Institute for Democracy