Paul McMasters, First Amendment ombudsman for The Freedom Forum, delivered this address on March 18, 1999, at "Access '99," a conference sponsored by the Virginia Coalition for Open Government at Montpelier, the home of James Madison, in Orange County, Virginia.

I just hosted an all-day conference Tuesday on freedom-of-information issues at the federal level. As you probably know, there are many, many problems with access to government at the national level.

• Despite presidential orders and laws requiring the declassification of millions of documents, intelligence foot-dragging and congressional interference have greatly hampered the effort.
• Federal agencies have demonstrated slow or no compliance to the provisions of the Electronic Freedom of Information Act.
• Citing a threat of terrorism, members of Congress and security agencies have halted EPA's plans to post on the Internet crucial information about the 68,000 chemical facilities that are nestled in neighborhoods across the nation.
• And legal challenges to the delay and denial of requests for information can take years and then may not be successful.
  

The list goes on and on.

These problems have been my primary concern over the past few weeks of preparing for that conference, but I knew that as soon as Tuesday was over I would have to shift gears quickly and refocus on the equally critical and compelling issues confronting access advocates on the state and local levels for this conference.

To help me refocus, I've been gathering over the past few months a stack of material you wouldn't believe on freedom-of-information issues, events and trends just in the Commonwealth of Virginia.

I'm sure it isn't news to anyone in this room that there is a lot going on in Virginia. But I thought it would be helpful to present something of an overview of those developments as an appropriate opening for today's conference.

My plan was to offer some analysis and commentary on the terrific statewide access audit conducted by Virginia newspapers. I thought I might share my perspectives on the recent revisions to the Virginia Freedom of Information Act.

And I thought it also would be important to note with alarm a pertinent few of the dozens of recent FOI lapses dotting the Virginia landscape, some of them right in James Madison's backyard.

Indeed, there is much to report, to examine, to lament and to decry. Anyway, that was my intention up until late yesterday afternoon, when I pretty much had my speech written -- well, at least in my head.

But then I got to thinking about the setting for this conference -- Montpelier, the home of James Madison -- and why this site was chosen. The more I thought about it, the less I thought of the idea of jumping right into a discussion of these other matters without a proper acknowledgement of our surroundings and its history.

So if you'll permit me, I'll add just a few thoughts of my own to what already has been said this morning.

Right here at this place, on these grounds, James Madison did so much of the studying and thinking and writing that eventually would earn him the richly deserved title of "Father of the Constitution."

Right here, on these grounds, he agonized over a considered position on whether the Constitution should have a Bill of Rights.

Right here, on these grounds, he worked out the philosophical and political principles that allowed him to articulate the vision of representative government so eloquently captured in these well-known words:

"A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

This is James Madison's vision of representative government.

It seems clear from this passage that Madison considered information to be the equivalent of knowledge -- or at the least, it is the prerequisite to knowledge. It seems clear from this passage that knowledge is the equivalent of power.

And it also seems clear that Madison felt that, beyond its intrinsic value for the individual and society, knowledge was a prerequisite to a truly representative government.

Knowledge just doesn't enable and enrich, it empowers.

In other words, the sharing of information places the governors and the governed on an equal footing in the democratic process.

To remove any doubt of Madison's presumption that government information should be public information, note his use of "popular" twice within the first five words of this passage. We know he didn't use the word to mean "well-liked" but rather to mean "of or carried on by the common people or all of the people." [Webster's New World College Dictionary]

Government information must be public information -- unless and until there is a mutual agreement about what information should not be disclosed routinely. James Madison worked hard -- urged along by Thomas Jefferson and others -- to install that principle into everyone's idea of representative government. Somewhere, though, between the Age of Reason that agitated Madison's mind and the Age of Knowledge that excites our own, some of our elected leaders lost sight of that democratic vision of shared power through shared information.

A few days ago, a reporter asked me what James Madison would think about the state of open government today, whether we had been faithful to his vision.

Now I'm not about to involve myself in a debate over "original intent." I'll leave that to the lawyers and the ideologues. But it is an interesting question, nonetheless, and one I'm compelled to respond to.

I doubt that even a mind of Madison's depth and scope could have imagined or anticipated the forms that our so-called "representative government" would assume over the ensuing two centuries -- layer upon layer of bureaucracy; regional, technical and economic agencies; quasi-governmental bodies; consultants, contractors, appointed commissions -- the list goes on and on.

Nor could Madison have imagined or anticipated the evolution of government records from pen on parchment to electrons in hard drives and all the iterations in between. Nor could he have imagined that lantern-lit meetings around rough-hewn tables eventually would become elaborate rituals with virtual variations -- meetings by telephone, facsimile, video conferencing and e-mail.

But then, Madison didn't need to imagine all that, did he?

Because James Madison and his fellow framers had the magnitude of mind to get the fundamental point right: a functioning and fair government depends on a free flow of information -- from the government to the people as well as from the people to the government.

Interrupt that flow, constrict that flow, or divert that flow, and the basic compact between a government and its people is irreparably damaged and inevitably doomed. That remarkable compact, of course, resides in the Bill of Rights.

Madison may have come later than others to a commitment to that instrument but it was no less intense. And if the Bill of Rights was the contract, the First Amendment was the action clause, providing the solid intellectual footing for Madison's vision of representative government.

The principle of freedom of information is invoked in at least three components of the First Amendment: freedom of speech, freedom of the press, and the freedom to petition government for redress of grievances.

When citizens are denied access to government information, they are no longer on equal footing with their governors, thus petition becomes more often than not an exercise in frustration and futility.

When journalists are denied access to information, the government in effect is exercising prior restraint, reducing news about political process and power to whatever public officials see fit to leak.

When the people are denied access, public officials are engaged in censorship dressed up in the rationales of political efficiency and convenience. The bottom line is that when it comes to political process and public discourse, the only free speech is informed speech.

Right about here, I suppose, would be a good place to acknowledge the fact that there is some information that the government, no matter at what level, should not be required to share. I think most of us agree that medical, psychological, and financial information about individuals should be confidential. That law enforcement agencies have a need to restrict access to information that might jeopardize an ongoing investigation. That national security information should be secret. And that trade information should be protected.

I think most of us would agree also, though, that government agencies often venture far beyond legitimate restrictions on access for reasons ranging from convenience to pure cussedness.

Thus citizens seeking information they have a right to under Virginia law are routinely lectured and dismissed by public officials and government employees at school board offices, administrative offices, health departments and police and sheriff's departments in every county of this state.

In local councils and commissions, citizens are shut out as elected officials spending their tax dollars and serving at their pleasure go into "executive session," which in fact is a closed or secret meeting.

And state agency after state agency delays and denies when citizens come calling for records affecting their health, their safety, their taxes, their schools, their daily lives. Now, before I'm blamed for painting with too broad a brush, let me hasten to say that there are public officials and government employees who know the law, honor their duty to the public, and are committed to open government.

You will be meeting some of those very people in this room today. They understand and share Madison's vision and work hard to make it a reality. They should be recognized and supported for that. They have a better grasp of democracy than some of their colleagues and certainly they have more faith in the people they represent.

I think it's only fair to mention, too, that it's not just people in government who sometimes fail the open-government ideal. There are journalists and their bosses who fail. There are lawyers, and judges, and scholars who fail. And there are plenty of ordinary citizens who give short shrift to the ideal.

All of these people take their cue from public officials who view sunshine in government as some sort of carcinogen to be warded off by a home-remedy sunscreen made up of secrecy, delay and denial.

As a result, too many citizens view a secretive government as an enemy that can't be defeated so they retreat into apathy and disengagement, or, worse, paranoia and conspiracy theories.

All of us in this room know that this shouldn't be, this can't be, if democracy is to realize its full potential. But there are some powerful obstacles to realizing that goal:

• A passion for personal privacy bordering on a national panic;
• A trend toward the privatization of public records that puts access farther from our reach;
• Weak laws;
• Adverse court decisions;
• Public officials who don't recognize the need;
• And private citizens who don't demand that the need be met.

Public officials rationalize their restrictions by saying, "It's a press thing. Besides the people don't care about access. They care about their privacy."

The journalists rationalize their inattention by saying, "It's an inside-baseball thing. Besides our publishers and general managers don't care about access. They care about avoiding legal fees."

And the people rationalize their inaction by saying -- well, not very much. But they are the ones, if they were here right now, who would be asking these questions:

• Who are we to judge a governor who wants to enlarge the circle of those whose "working papers" are subject to public scrutiny?
• Who are we to judge state legislators who find an excess of openness uncomfortable and inconvenient?
• Who are we to judge courts that routinely defer to executive authority in FOI disputes?
• Who are we to judge local law enforcement who turn citizens away when they inquire about matters affecting crime and public safety?

Well, I'll tell you who we are.

We are citizens and taxpayers of the Commonwealth of Virginia. We want to be involved in public affairs. We want to vote intelligently. We want, above all, good government, government that is efficient and effective, compassionate and fair, responsive and responsible.

Who are we?

We are a people who, in the words of James Madison, "mean to be our own governors."