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Article Excerpt
As many commentators have noted, the phrase freedom of information represents a certain kind of public myth. So-called liberal, democratic governments keep a lot of information secret, or prevent its disclosure through obfuscation and delay, but use the ideology of access to government information as a means of shoring up the state's legitimacy (Woodbury 1995; Scalia 1982; Edelman 1971; Tudor 1972). If governments were serious about information access, as Woodbury (1995: 51) notes, then information acts would have teeth to them, providing punitive damages, the discipline or dismissal of employees, and access to parliamentary or congressional information as well (information often exempted by legislators). Indeed, this notion of liberal democratic pluralism--that the "public" benefits from the disclosure of government information and thus uses this information to lobby its representatives--is merely false advertising. Because of the complexity of access law, there has arisen a whole cottage industry of access requesters and responders who specialize in the field (thereby limiting entry), not to mention the media, private industry, and political parties, who use the various acts for private or partisan purposes (Kester 1998). Criminological theory suggests that this is a function of ruling elites and class power (Bonger 1916; Chambliss and Seidman 1971; Taylor 1999), which are camouflaged with notions like democracy and access to government information. As Carl Schmitt (1985) observes, the term citizen is a facile abstraction that fails to reflect one's gender, race, or class status. It is used liberally to camouflage certain elite interests that have access to information technology, the media, the techniques of information access, and the generally favourable decisions of judicial bodies.
This article is designed to outline a method of collecting data rarely used by academic criminologists, one that probably falls within the theoretical gambit of conflict or critical criminology. I will first briefly describe the use of both the American and Canadian access legislation (or FOIA, as it is more commonly known in the States, and the ATIA in Canada) by a number of academic researchers (2) and then proceed to highlight two lawsuits in which the author was the sole plaintiff. In so doing, I wish to underscore both the potentials of this kind of method (3)--actually suing the government in court--and the tremendous obstacles both from within the university and in general.
Examples from the literature
Former Washington Post managing editor Ben Bagdikian wrote a book on Lewisburg Penitentiary (1976), largely from the point of view of eight federal inmates there, using the FOIA to obtain some information from the U.S. Bureau of Prisons. "The Bureau of Prisons refused information unless I paid for it. It denied access to some records and said that other records had been destroyed" (ix). Bagdikian also observed that the Bureau was hostile to his project, censoring mail to and from the penitentiary and punishing inmates who agreed to interviews. With the help of lawsuits and the American FOIA, Ward Churchill and Jim Vander Wall (1990a; 1990b) documented the FBI counter-insurgency "wars" against the new left in America. This included the Black Panthers, the American Indian Movement (AIM), and other progressive organizations that were infiltrated, were wiretapped, and were subjected to surveillance, to the creation of phoney evidence, and to agent provocateurs.
The journey of San Francisco Chronicle journalist Seth Rosenfeld (2002) is very useful in illustrating some of the difficulties academics encounter when using the FOIA or even contemplating litigation. In 1981, while a journalism student at the University of California at Berkeley, Rosenfeld filed an FOIA request for information pertaining to the Free Speech Movement on campus, as well as to the activities of 100 luminaries who were prominent during that period. The FBI refused to make disclosures, citing national security concerns among others, and Rosenfeld then embarked on a 17-year-long legal battle that eventually reached the U.S. Supreme Court. In the course of this litigation, Rosenfeld obtained legal fees under court order and forced the FBI to disclose its political surveillance of university professors on the Berkeley campus, including efforts to paint former university president Clark Kerr as pro-communist. These machinations ultimately led to Kerr's losing a cabinet position in President Lyndon Johnson's government and to his subsequent firing by the regents of the University of California in 1967 (see Rosenfeld v. Department of Justice).
In the seminal work of Alan A. Block of the Pennsylvania State University, one finds use of FOIA materials from both the FBI and U.S. Immigration authorities, but only casually referenced, with the methodology never fully developed. Block (1975; 1980) used FBI files for his dissertation on Jewish gangsters in New York City and supplemented this information with material that was available from the Central Archives for the History of the Jewish People (Block 1975: 77 n. 55). Not widely known is that he filed a lawsuit against the FBI in 1983 for documents relating to the death of a Puerto Rican political activist (see Block v. FBI). Strangely, his early work on historical methods in criminology fails to mention the use of the FOIA (Block, Inciardi, and Hallowell 1977).
Professor Athan Theoharis of Marquette University, a historian by training, has spent a career detailing the abuses of intelligence agencies, particularly the Federal Bureau of Investigation, and has published a number of books based, in part, on FOIA-obtained records. Theoharis' sourcebook on the Bureau, co-edited with Tony Poveda, Susan Rosenfeld, and Richard G. Powers (1999), remains a classic in the field and is partly based on his work with the FOIA. As early as 1984, Theoharis was writing in the Public Historian about the use of the act to research covert government intelligence activities. A chapter in his 1998 book deals specifically with the use of the act to investigate FBI activities and outlines its use by numerous historians (Theoharis 1998). Clearly the act has helped many historians in their research, but it also has its limitations: Few academics have initiated actual litigation, due to the costs, the commitment of time, and the delays involved. Even the exception tends to prove the rule. In 1967, historian Julius Epstein filed a lawsuit against the Secretary of the Army, asking for documents on the forced repatriation of anticommunist Russian prisoners after World War II. Both the trial and appellate courts turned Epstein down, finding that the Executive Branch had properly classified the documents as secret, national security documents (see Epstein v. Resor). After challenging the denial all the way to the U.S. Supreme Court, Epstein concluded that "judicial review is meaningless without judicial examination of the documents in question" (Barker and Fox 1972: 18). However, this case did lead to the 1974 amendments to the FOIA that addressed this very issue; namely, the inability of courts to actually review the challenged documents in camera.
Marc Riedel (2000)...
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