Why Freedom of Information Isn't

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What with the frenzy over the WikiLeaks' revelation of State Department secrets igniting a furious debate about government secrets, I have a little story to relate. But first, for context, here's a relevant quote I came across recently from President John F. Kennedy, speaking before the Newspaper Publisher's Association in 1961, at a time when civility and reason still had a place in public discourse.

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment. That I do not intend to permit to the extent that it is in my control. And no official of my Administration, whether his rank is high or low, civilian or military, should interpret my words here tonight as an excuse to censor the news, to stifle dissent, to cover up our mistakes or to withhold from the press and the public the facts they deserve to know."

Presidents before and since Kennedy have skirmished to varying degrees with bureaucracies whose natural tendency is to hide things from the public and to prefer working in the dark to the sunshine. Here's what this has to do with aviation: Reader Gordon Feingold, a founding member of the Cirrus Pilots Association but now just an involved owner, is doing his own due diligence on how the FAA is handling fuel issues. He asked the agency, specifically the Engine and Propeller Directorate, for public comments on a fuels approval Advisory Circular (20-24) being revised. The FAA initially declined to provide these unless he filed a Freedom of Information Act request.

For those of us who have done this, a FOIA is a pain in the butt. It sometimes takes extraordinary effort just to define what's wanted then weeks or months of waiting to get it. Under the guise of "procedures," agencies use FOIA requests to delay or prevent the public from getting information it should have ready access to. The current administration has said as much and has in fact urged citizens to bypass the FOIA and request information directly. Unfortunately, the agencies then shut the door with…right, another FOIA requirement. In the FAA's case, an agency source told us it's their policy to do this—no law supports it, it's just internal policy. The underlying reasoning is that public comments on things like ADs or advisory circulars may contain proprietary information and this needs to be stripped before the public can see it.

I don't buy this. No one should. The public has a right—a duty, really—to know all of the factors that go into public policy formation. These aren't state secrets related to national survival. They are regulatory policy considerations. If a commenter doesn't want something known, the commenter should withhold it from the public forum, not rely on a government bureaucracy whose tendency is toward delay and obfuscation to filter it. This is a version of what Kennedy meant when he said "an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment."

I am no way suggesting that something nefarious or conspiratorial is going on in the formulation of ACs. As I said, these aren't state secrets. What I am suggesting is that FOIA is a double-sided blade. It allows citizens a peek behind a curtain that really shouldn't be there in the first place, but by invoking it at every turn under the guise of "procedure," the FAA and other agencies use it as slow-leak tool to frustrate the public. Frustration isn't the goal, it's the result.

That was true in 1961 when Kennedy spoke about it and it's still true today. It was wrong then and it's wrong now. Perhaps the only way to jolly these agencies out into the sunshine is to point out when they would rather stay in the dark. When last I communicated with Feingold, he was told by EPD that perhaps a FOIA wasn't necessary after all and they'd work on getting the comments to him. He's still waiting.

Comments (28)

Having worked with various public-policy think tanks for years, I can tell you that government agencies at all level make a science out of CYA, obfuscation and secrecy. This is done more for personal reasons than for any real security, to hide incompetence, waste, cronyism, graft and downright criminal action. The first response to many requests generally lead one to the public relations gate-keeper who friendly points one to the agency's no-details web site. Threats of FOIA are met with disdain, feet-dragging, then a massive dump of data. Finding what you are looking for is like finding a needle in the haystack, and the authors are far too busy at their government job to help you. It's all a big game really, and the taxpayer is the sucker generally. Every government agency is surrounded by its own beltline of "bandits", companies that feed off of a bloated, empire-building bureaucracy whose intent it is to work the minimum number of years before full retirement benefits are achieved, then "retire" to the directorship in companies that have profited from connections made while these folks are on the taxpayer dole. Bell, California, is only the tip of the iceberg. Countless state divisions of aviation are just another bureaucracy with airport-related businesses steering massive funding efforts in their direction, the latest scam being solar-power and so-called sustainable terminal, all while pilots are left to solve the most serious problems like fuels and TSA.

Posted by: Kent Misegades | December 9, 2010 6:52 AM    Report this comment

Such Paranoia! Listening to you guys you'd think that each government agency has a department designed just to frustrate you, individually. The fact is that most agencies, from townships and cities to Federal departments are so understaffed and overwhelmed that they just can't have someone on the payroll waiting for you to call so they can drop whatever they're doing to answer your question. The fact is that, particularly at the Federal level, there are incredible amounts of information available online. Just because you want it yesterday in a particular format, sorted and filtered so you can research your question doesn't mean it's government's job to provide it to you, at taxpayer expense. There's 300 million of us out there, all with questions for our government employees, all with their real jobs to do. When they do get data requests they have to make sure that they are getting you the right information, and that it's proper to release it. It's not about an off-the-cuff conversation with curious citizens. It's about being responsible.

Posted by: Bob Hawbaker | December 9, 2010 7:32 AM    Report this comment

Paul said it best - FOIA is a peak behind a curtain that really shouldn't be there in the first place. If the proceedings of government agencies were transparent, there would be no need to citizens to file requests to see what goes on. Just another example of the other world that is Washington. I honestly believe that they don't see anything wrong with the way they handle the business or governing. And we as citizens and voters have done nothing to tell them they're wrong.

Posted by: Jerry Plante | December 9, 2010 8:08 AM    Report this comment

A good article Paul, and thanks for the words of wisdom from JFK.

Bob Hawbaker, voicing factual events is not paranoia, is is merely observations about the reality of dealing with government agencies in the year 2010.

For perspective, keep in mind that the first assertion by the government of "national security", also "state secrets", was in 1948 regarding the crash of a B-29. Surviving family members of civilian crew members on that flight sued the government under the Federal Tort Claims Act. The case made its way to the Supreme Court as U.S. v. Reynolds, in which the government claimed state secret privilege. The Court upheld the government's claims against the widows, based on "national security".

Years later in the digital age, all the paperwork was accidentally declassified and placed on the internet. It turns out that the government's claims were false and that the plaintiff's case had been true and accurate.

Shades of Wikileaks, eh?

JFK was assassinated for his harsh words about the CIA and Allen Dulles, among other "crimes" against the Military Industrial Complex, as his successor eventually called it.

The bureaucracy does one thing consistently--protect itself. Even at the expense of justice and democracy and truth.

Posted by: Richard Sinnott | December 9, 2010 8:25 AM    Report this comment

Come on, guys & gals! If we were to allow the public into the affairs of government, where will it end?

Posted by: John Wilson | December 9, 2010 11:10 AM    Report this comment

And to prempt comments from the contextually challanged, my previous post was intended as satire.

Posted by: John Wilson | December 9, 2010 11:13 AM    Report this comment

I think we are missing one key item in the discussion. We have placed the government and it's employees to manage and handle certain missions in our society (like the FAA). They are, because of their position and the volumes of information available to them, best positioned and best informed to make all of these decisions. No one, citizen or government employee, likes having his decisions second-guessed, particularly by those that may be viewed (rightly or wrongly) as less qualified. But, if a government employee freely disburses all of the information that they use in making their decisions, they leave themselves open to precisely that occurrence.

Consequently, it is simply human nature to be reluctant to share all of this information with the public. So, for most this is not a hostile action, it is simply human nature. There will always be a minority that simply want to control and limit their powerbase, but for most it is simply a reluctance to open themselves up to public criticism.

Therefore, while I think the release of most non-classified government information should be almost a matter of course, the citizens of our country must always fight the natural tendency of our government to conceal, control, and bury much more of the information it uses everyday than is truly necessary.

The one real problem comes when someone has to make a decision as to what information must be controlled and limited in distribution, and what can be distributed freely.

Posted by: Vic Renaud | December 9, 2010 11:19 AM    Report this comment

For the record: Government agencies generally charge a modest fee for assembling and sending requested information, so it is not at the expense of the taxpayers, but of the requester. If budgets are strapped, this is as it should be.

I don't mean to dismiss the notion that government workers are overworked. But in case you haven't noticed, it's no picnic out here in the private sector. In general, federal employees haven't been ravaged by layoffs and pay cuts, as most of us in business have. Everyone has to take on new duties often with no extra pay, if not a pay cut. We all do the best we can.

Posted by: Paul Bertorelli | December 9, 2010 11:43 AM    Report this comment

This is not the first time the FAA has found itself embroiled in legal action regarding an FOIA request. In fact if one "Googles" Taylor v. Sturgell, you will find some 3300 "hits" dealing with a FOIA case that went to the US Supreme Court (2008). In that instance the FAA refused an FOIA request to access ATC drawings for a Fairchild F-45. The F-45 is a 70+ year old design of which only a dozen or so were constructed. I'm afraid that opinions about dealing with government agencies, similar to Mr. Hawbaker's, tend to be a bit naive. In reality those dealings are not as benign as they should be. It's apparent the FAA continues to resist legitimate FOIA requests even though a unanimous decision by the US Supreme Court has proven the FAA position/resistance as being in error when it comes to legitimate FOIA requests.

Posted by: Brent Taylor | December 9, 2010 12:08 PM    Report this comment

Kent has in right! Look, I believe in initially giving both individual people and organizations the benefit of the doubt. But when one is confronted with a pattern of behavior by OUR government and it's bureaucracies that at best fails to live up appropriate standards, and at worst is an abject breach of the public trust, to continue to excuse or explain it away can only be described as denial! Human beings are tempted and prone toward corruption when in positions of power. Our founding fathers new this only too well and intentionally created a government framework with strict limitations in order to minimize the opportunity for this corruptive tendency. By allowing our government to become so bloated and expansive, is it really a surprise that we have such a major problem?

Posted by: William McClain | December 9, 2010 12:19 PM    Report this comment

Interesting case. Here's a summary link:

http://www.scotusblog.com/case-files/cases/taylor-v-sturgell/

Posted by: Paul Bertorelli | December 9, 2010 12:46 PM    Report this comment

This is a political diatribe that is only superficially related to aviation. Please stop posting this material on AvWeb and move it to a more appropriate blog. There are plenty to choose from.

Posted by: Donald Harper | December 9, 2010 1:03 PM    Report this comment

Donald, if you are referring to MY previous post I respectfully suggest that the superficiality of my statements as they relate to aviation depends entirely on whether you want to discuss the symptoms of the problem, or the cause. If one believes that government bureaucracies are basically sound and well functioning (as some posters suggest) then perhaps some “symptoms” tweaking will get the desired results. On the other hand, if one believes bureaucracies like the FAA (and many others) are truly broken (as I do) then tinkering around the edges isn’t really going to accomplish much.

Posted by: William McClain | December 9, 2010 1:58 PM    Report this comment

William, believe he was referring to the topic of blog in general, not your post. What some people can't accept is that politics and aviation constantly intersect and when they do, they're fair game for comment. And so we should.

Posted by: Paul Bertorelli | December 9, 2010 2:03 PM    Report this comment

I'm in agreement with Donald Harper. Paul wrote an article about the currently hot topic of secrecy or lack thereof of information held by the US government, a topic which is currently hotter than normal due to Wikileaks. That's how Paul started the article. Then he found a small way to connect his article to the overall topic of this site and his blog, by using a specific example involving the FAA. There's no balance to the FAA reporting; Paul didn't ask the FAA for comment on anything. If he had, he'd report that he had received no comments from the FAA or what the comments were. It's Paul's blog, Paul's opinion, Paul's space, and he can say what he wants on it. But those of us who read it can point out, like Donald Harper did, that Paul's opinion on secrecy of government information is only superficially related to the overall topic of the website, and based on the comments, many readers don't agree with Paul's opinion and some of us wish he'd stick to topic that are more aviation reporting and less political commentary. And no, I don't work for the FAA or federal government.

Posted by: Richard Persons | December 9, 2010 3:26 PM    Report this comment

Paul didn't ask the FAA for comment on anything. If he had, he'd report that he had received no comments from the FAA <<

And you are assuming this based on what exactly? Or are you just making it up? I did indeed ask the FAA for comment. Trail of e-mail and a phone conversation. That's the part where it says "In the FAA's case, they say it's their policy to do this—no law supports it, it's just internal policy. " This information was provided to me on background from the FAA person who dug it up.

If you follow the fuels debate as I have, you'd know that the comment process related to AC 20-24 is part and parcel to people interested in how the FAA is overseeing fuel approvals. It's right down the center lane of politics intersecting aviation.

Fair game for coverage and comment. No one is compelled to read it or agree with it. That's why we call it a forum.

Posted by: Paul Bertorelli | December 9, 2010 4:53 PM    Report this comment

Paul's blog, Paul's opinion, Paul's space, and he can say what he wants on it. And apparently sees no reason to provide attribution, not even along the lines of "a source within the FAA tells me...."

Posted by: Richard Persons | December 9, 2010 6:18 PM    Report this comment

Fair point. Text fixed above. And by the way, don't feel shut out. If you'd like to do a guest blog, just e-mail me.

Posted by: Paul Bertorelli | December 9, 2010 6:26 PM    Report this comment

I agree Paul--general aviation interests and politics DO intersect, probably more often than we would like.

And if one is into civic obligations and citizen participation in government, then one must comment on the present state of government efforts to increase secrecy. There is more to life than just aviation. Responsible citizenship demands information and sometimes criticism of government actions.

Posted by: Richard Sinnott | December 10, 2010 7:17 AM    Report this comment

Sorry don't agree with you on this one Paul. On multiple occasions I have requested and been granted copies of the log of disposition of comments on advisory circulars and been given them without a FOIA request. A simple email to the author was all it took. Including the engine directorate guidance.

As far as rulemaking - including AD's - a docket is opened for each proposed AD and placed on the Department of Transportation's docket management system. All comments submitted are posted.

Quick search didn't see your name out there on anything Paul - sorry you are not participating, maybe I spelled your name wrong.

President Obama has mandated the administrative branch to do more in this area. Look forward to my taxes going up so FAA, and other agencies, can spoon feed you everything. Perhaps they will set-up a nice twitter account for you.

Posted by: Rob "daSlob" Schaffer | December 10, 2010 2:22 PM    Report this comment

Quick search didn't see your name out there on anything Paul

What were you looking for?

Posted by: Paul Bertorelli | December 10, 2010 2:30 PM    Report this comment

Anyone involved in policy or rule making - whether FAA or other agency or even in a corporation - will tell you the biggest issue is getting a response when the document is sent out for comment.

So just out of curiousity I searched for your name. Certainly you are active in the industry and have a vested interest in any of number of AD's, pending regulatory changes, etc. that have been published for comment. Thought maybe you might have weighed in on a few.

Posted by: Rob "daSlob" Schaffer | December 10, 2010 2:47 PM    Report this comment

Also, while inconsistent once an AC is released to the public the FAA posts the document on their regulatory and guidance library. Some directorates also post the comment log (chart). Transport Airplane Directorate seems better at this than others. Try this link for an example.

http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/6AD694FCB44116968625772600583199?OpenDocument

Hopefully my cut and paste works.

The particular AC in question in your blog (20-24) is still in development. I personally think the FAA should be given the opportunity to disposition the comments prior and provide a fully coordinated agency position to each prior to release to the public.

Posted by: Rob "daSlob" Schaffer | December 10, 2010 3:00 PM    Report this comment

As noted in the blog, I was referring to Gordon's efforts, not my own. I can sometimes get things without a FOIA request because of press status. But any citizen should be able to get the info.

In the case of AC 20-24, the logs are not available, nor are specific comments. Gordon was told comments would be viewable only after the AC was completed. I submit that this is backwards.

As for ADs, if I have commented on any, it's just a handful. Most of them are beyond my technical interest or expertise. I am more interested in the open process that I think all administrative regs should be exposed to. There is no reason to hide this information. If people want it, they should be able to get it, even if they have to pay a modest fee.

Not unreasonable, I don't think.

Posted by: Paul Bertorelli | December 10, 2010 3:21 PM    Report this comment

Well I can see two sides - It would be nice if the AC's were published in the docket like rulemaking with comments posted when presented to the FAA. That is openess in government and seems in line with what the President is proposing, debatable whether he is practicing.

However, if I submitted a comment it should stand on its own merits and shouldn't be there for you to then engage the FAA in debate with your counter postiion (which in turn I would also engage) - effectively slowing or negating the process. Rather the FAA should gather all the comments and weigh them both individually and as a whole and come to a conclusion based on their expertise. Which to the best of their ability they do.

So in the example you stated - it wasn't clear to me request for the comments pre-release of the AC. If the answer is I don't need one or just want to look at them for my own education - I'm OK with that. However, if the purpose is with the intent of preempting the process, being allowed to counter arguements, and effecting the final outcome then I'm not so sure I agree.

Posted by: Rob "daSlob" Schaffer | December 10, 2010 3:49 PM    Report this comment

Timely post. Just this week I had my own FOIA run in with the FAA

My issue is the database the FAA has built with aircraft basing info. I could tell from the FAQ on their website that they want to keep the info to themselves. To protect the airport's privacy they said. Since when did airports have a right to privacy?

Anyway, when I got a call from them they said that they weren't claiming a FOIA exemption, but that it would cost "thousands of dollars" for them to redact information on law enforcement and military aircraft. When I pointed out that military aircraft don't have N numbers, they said "Well, just law enforcement then."

So, what vital secret are they trying to protect? Has the local police department acquired a Cessna 182 gunship? Would it come as a shock to anyone that the bureau of prisons has a King Air to ferry prisoners around? And, exactly how are they going to redact it? Does Joe in the next cubicle have all of the law enforcement aircraft in his head, or is the information in a database that they could simply match against the data in the basing information? And you know, many of the law enforcement aircraft won't be listed as owned by the agency anyway, but by the state...

Most people don't realize to what extent government organizations want to keep their information secret and how many ways there are around FOIA.

Keith West http://www.howitflies.com

Posted by: Keith West | December 10, 2010 4:05 PM    Report this comment

That is openess in government and seems in line with what the President is proposing, debatable whether he is practicing.<<

I'd say definitely not practicing. What I propose is a generally more open approach by the mid- and lower-level bureaucracies who can certainly make these decisions themselves. If they need to charge a modest fee, fine. But I'd like to see them tilt toward auto-provide rather than auto-deny.

Posted by: Paul Bertorelli | December 10, 2010 5:18 PM    Report this comment

Government agencies resist disclosure of any information (no matter how trivial) because it is easier to make arbitrary and capricious decisions if the agency can say to anyone with a criticism "...you do not have all the facts." They can then release those facts that support their position and have time to construct a rationale that attempts to mitigate the criticsm, promise more transparency and appoint a commission to study the criticsm.

Posted by: Richard Jenkins | December 13, 2010 7:48 AM    Report this comment

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