Why Freedom of Information Isn't
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.