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  • Using Public Information to Protect Religious Liberty

    by Brian Simboli

    public-information

    The government has tremendous power to obtain information about the citizenry. The latter, however,  often has difficulty obtaining information about government activity. This “information asymmetry” threatens the continued exercise of religious freedom. To address this problem, religious freedom advocates must diagnose the source of this asymmetry and take concerted action to counteract it.

    Examples abound of threats to religious liberty. Many lawsuits are underway about the HHS mandate’s threat to conscience rights. Extensive documentation has been submitted to Congress concerning alleged IRS targeting of pro-life groups. Alliance Defending Freedom released a tape of an IRS agent haranguing a pro-life group. The recent SCOTUS ruling about the Defense of Marriage Act  unfairly ascribed negative motives to defenders of traditional marriage. Steven Ertelt of Lifenews claimed that “during her tenure, [Department of Homeland Security] Napolitano aggressively targeted pro-life advocates and a number of incidents occurred that had her agency calling pro-life people terrorists or comparing them.”  A Pew Charitable Trust assessment discerns a decline in religious freedom in the U.S.  One could go on and on.

    In response, Catholic religious liberty advocates and their allies need to cultivate great information savvy about government information sources. Unfortunately, there is an asymmetry between the government’s panopticon ability to obtain information from the citizenry and the latter’s limited ability to obtain information about the government. Again, the IRS can harangue groups and individuals with intrusive questions about their activities. Also, a message appeared on the WH webpage asking citizens to report misinformation about Obamacare.  In contrast, investigations into IRS and possible inter-agency abuses proceed in a relative information vacuum, with plaintiffs to the large number of lawsuits having to wait largely on the discovery process and with Congressional investigations proceeding slowly.

    How did this information asymmetry arise? As government departments, sub-departments, and regulations multiply, it becomes increasingly difficult to extract useful data from the burgeoning mountain of government information.  Unscrupulous bureaucrats easily exploit this tendency by hiding, destroying, or manipulating information while political lobbyists and special interest groups influence, without reprise, politicians and the bureaucrats who execute their policies.  So, too, opacity serves bureaucratic interests. As Max Weber noted long ago in Economy and Society, “bureaucratic administration always tends to exclude the public, to hide its knowledge and action from criticism as well as it can…. Bureaucracy naturally prefers a poorly informed, and hence powerless, parliament—at least insofar as this ignorance is compatible with the bureaucracy’s own interests” (992-993).

    These reasons explain why the citizenry finds it difficult to access government information. Why, however, might the citizenry find it especially challenging to access information about internal governmental practices and policies specifically concerning religious liberty?  For a diagnosis, we can turn to the principle of subsidiarity affirmed in Quadragesimo Anno, with roots in the work of Nell-Breuning. It expresses the critical role intermediary social bodies should play in society. With the breakdown of robust social bodies standing between individual and state, the latter absorbs the individual as much as possible into its embrace, rather than serve a properly subsidiary role.  Remaining intermediate groups, including religious bodies that provide crucial social, medical, and educational services to the poor, lower economic classes, and the homeless, threaten the state’s  totalizing hegemony and so become its targets. This is tragic, because such intermediate groups can so effectively address social problems, and have the proper motivations to do so.

    In light of this diagnosis, what should religious liberty advocates do? A 2012 law review article by Mark Fenster mentions four broad strategies proponents of access to government information have adopted. Religious liberty advocates should study and adapt aspects of these strategies.

    First, religious liberty advocates should align with the anti-corruption movement, which (again, in Fenster’s account) regards “transparency” as one method to achieve corruption-free government. The topic of global government corruption elicits much attention, especially regarding economic matters. Religious liberty advocates should expand and enrich popular discussion of it by pointing out that any targeting of countercultural groups, for example pro-life or traditional marriage proponents, falls squarely under the ambit of government corruption. Information is required to determine corrupt  influence of powerful lobbies in shaping  policies that flout conscience. Possible tie-ins with the pharmaceutical industry should likewise be investigated.  News items such as this—“Medical committee behind HHS birth control mandate tied to NARAL, Planned Parenthood”—should spur continuing investigative journalism and public scrutiny about the impact of special interests on advisory groups that falsely claim objectivity.

    Second, the Freedom of Information Act (FOIA) needs reform.  Investigative journalists and citizens make FOIA requests with varied success.  Granted, there are obviously ethical reasons not to invoke FOIA willy-nilly. Harm can result when the government releases information that affects the welfare of innocent persons, as authors David Cuillier and N. Davis Charles have documented.  An antidote is ongoing, vigorous, and well-reasoned public debate about the circumstances under which FOIA requests benefit rather than harm the common good. Unfortunately, governments can stifle such debate with one-sided bureaucratic rule-making. For example, the organization Cause of Action has suggested that the current administration has created barriers to fulfilling FOIA requests.

    Third, religious liberty advocates should align with the digital transparency movement.  Fenster chronicles that movement’s  often rhapsodic utopianism about transforming the relationship between government citizenry and government, and even government itself, using the web, computer programming, and software as tools. While introducing a note of sobriety to these discussions, religious liberty advocates can promote governmental transparency concerning data relevant to assessing  observance of religious freedoms. Realistically, though, these advocates will more likely have to compile and post data on their own, using tools like those championed in the digital transparency movement.

    Finally, Fenster discusses Wikileaks, which “views the state as an adversary whose foundations can and must be shaken by surreptitious and perhaps criminal efforts to steal its data” (502). Religious liberty advocates should distance themselves from Wikileaks, since association with it can engender bad press, but more importantly because the ideological view of the state it presupposes (in Fenster’s account) ranges well beyond the goal of improving observance of first amendment rights. Also, as Fenster mentions, the approach unrealistically expects the flow of information it obtains to be sustainable. On the other hand, these advocates should also discuss circumscribed conditions under which information provided by government workers sympathetic to their cause properly belongs in the public square and can therefore be distributed on the web with compelling reason and in particular circumstances, with information redacted harmful to innocent parties.

    Implementing such “transparency” strategies in practicable and ethical ways necessitates new tactics.  First, especially given their small numbers, journalists concerned about religious liberty should devote far more energy to investigative journalism. While opinion journalism is valuable, investigative journalism that exposes fresh facts, and is conducted with analytical acumen, ultimately has greater social usefulness in the current environment.

    Second, religious liberty advocates should know the culture of government bureaucracies and their byzantine organizational charts so they can frame requests for government information with laser-like precision.  Staff expertise is readily available at regional government depository libraries.

    Third, if information transparency is more achievable at the state, county, or municipal levels than at national ones, defenders of religious freedom should advocate comparable levels of transparency for the latter.  I asked ADF to comment on its use of FOIA requests. Their reply suggests that state and local information does not pose difficulties of the kind mentioned above:  “Generally, we at ADF rely on FOIA requests quite frequently to help us identify religious freedom violations. We rarely invoke the Federal FOIA because most of our cases involve state and local governmental entities. We generally have not had any problems with these. Governmental entities respond relatively quickly and if the request is too broad, they ask you to narrow it to save time and money. There are certainly exceptions, and governments can be quite obstinate in releasing documents sometimes. But that can usually be taken care of with threatening a lawsuit for noncompliance with the statute.”

    Fourth, religious liberty advocates should lobby Congress for greater access to information relating to the First Amendment’s guarantee of free exercise. Also, when they encounter FOIA-related problems, they should appeal to the Office of Government Information Services, which describes itself as “the federal FOIA ombudsman.” Furthermore, the current wave of FOIA requests that bear on religious liberty provides a “data set” to monitor whether agencies unreasonably invoke regulations that permit the non-fulfillment of FOIA requests (including IRS FOIA exemptions).  More generally, religious liberty advocates should chronicle how the “transparency” ideals of the current administration were subverted. Patrice McDermott of “openthegovernment.org” noted that “on his first full day in office, President Obama issued a Memorandum on Transparency and Open Government calling on his administration to develop recommendations that would ‘establish a system of transparency, public participation, and collaboration.’” She claims that this initiative had a “basis in extant law and regulation.”  What happened?

    Finally, religious liberty advocates need a healthy skepticism about facts and inferences in news stories, whatever their source, and learn to do independent research and confirmation. As always, political enthusiasms and passions can undermine objectivity.

    While other mechanisms are available to religious liberty advocates, e.g. legal, political, lobbying, journalism, and the ballot box, access to reliable government information greatly helps their effective use. Religious liberty can fully flourish only if the public understands the internal policies of government bureaucracies, as well as the political, financial, and lobbying influences on them.

    The views expressed by the authors and editorial staff are not necessarily the views of
    Sophia Institute, Holy Spirit College, or the Thomas More College of Liberal Arts.

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