I'm in the middle, or more like the end, of a Freedom of Information Law (FOIL) lawsuit against the town of Stuyvesant. Funny to think that when Gerry Ennis revoked my permit on August 9, 2010 and the town clerk Melissa Naegeli emailed me to tell me I have no right to appeal on August 16, 2010 I did not know that the FOIL law existed. Never sent in a FOIL request until then. Now here I am arguing a FOIL lawsuit I filed pro se... and maybe doing a little better than just arguing a lawsuit.
I'll discuss the details of the case soon enough. We'll see how it plays out, my case is looking pretty good, but I'm not sure the Freedom of Information system is working as well as it should.
Freedom of Information Law and the right of the public to information is far too weak in New York State and United States. We have a solid right to publish our opinion. We don't have a solid right to get the information necessary to know what to say. If the government wants to cover stuff up, they can get away with it. If they get caught, nothing much happens to them.
Who's fault is that?
The process back in the 18th Century that lead to our Constitution was good. The anti-Federalists had good reasons to oppose the Constitution - like the power of unelected, lifetime appointed judges. Good points on both sides, mixed in with plenty of deception and power grabs. Both sides argued intelligently. The process worked.
When the anti-Federalist complained that there was no bill of rights in the first draft, Madison wrote back that you don't want a list of rights. There are things that should be rights that will not get on the list of rights. If you make a list, then that's it, anything not on the list isn't a right.
The anti-Federalists said, no, if you don't have a list then you might have no rights. The anti-Federalists won that one, except maybe Madison and company did get in the 9th amendment, which means there are other rights other than those on the list.
Madison had a point, as enshrined in the 9th amendment. Take FOIL. It's not a Constitutional right. It would have been a strange thing for people in the 18th Century to think of as a right. They didn't have photocopiers or carbon paper. They had printing presses and newspapers but documents, government documents, were hand copied pieces of paper. I guess you could require the government to make a copy and post it on a pole somewhere - and in fact, we have plenty of laws about "notice" that amount to just about that. They could not have imagined the huge amount of data and easy of copying that data that we have now, or even what we had 50 years ago.
So they didn't think about Freedom of Information. How could they? I also think the Founding Fathers didn't pay enough time thinking about embezzlement. And maybe 12 or 20 years would be enough for a Federal judge, who then has to be re-appointed (or not). And plenty more they didn't think about... which is why the Bill of Rights was never intended to be the end of the story.
The Founding Fathers knew things would change, so they left the door open for rights they hadn't thought to put in the Constitution back then. The Right to Information, FOIL or FOIA, is exactly the kind of thing they had in mind: an example of the kind of thing they had in mind when they said there would be things they did not have in mind.
When the government hides stuff, it should be a bigger deal than it is. FOIL or FOIA means don't hide stuff from the people.
The 14th amendment boils down to what's good for the goose is good for the gander. The 1st amendment means you have a right to your own head and body. The 2nd and 3rd are hard to figure out. The 4th amendment means, hey, this is my house. The 5th, 6th, 7th, and 8th mean they can't railroad you, take your property and lock you up for nothing. All kind of basic common sense stuff in there.
And information? The government can't hide what their doing. Pretty simple. No hiding stuff is a pretty basic, simple idea. No secret meetings. No secret budgets.
I think Freedom of Information is covered by the 9th amendment, as we have laws and 40 years of legal precedent to back those laws up. The right to information is now part of the culture, as well as the law of the land. I think the right is now covered by the 9th amendment and there is no going back. FOIL and FOIA cannot be repealed (I would say).
But like everything else in the Bill of Rights, or even the Constitution generally, you'd be hard pressed to prove that the government actually follows what the paper says. The president can start a war without Congress, no matter what the paper says. They can strip search you for nothing. They can fly over your house with drone and take pictures of you. Hide the budget. Hide everything. Lock you up. Kill you, whatever.
Still, I think information is a right, even if it is violated by the government as completely as all the other rights. I think when the government hides stuff, it should be a big deal, like when they hammer you to try to shut you up. We know they shouldn't punish you for speaking your mind, arrest and strip search you for attending a peaceful demonstration and all the other stuff they do.
It's just as bad when they hide what their doing, hide the paper.
FOIL or FOIA is what the Federalists had in mind when they wrote the 9th Amendment. So hand over the documents. Post everything online. Open up the files. Bring out the paper.
Go file a pro se FOIL lawsuit.