The cover-up culture: How bureaucratic secrecy poisons public health and democracy

“ Disease recognises no boundaries, and in a great city like London it is essential that in so vital a matter as the public health full authority should, subject to Parliament, be vested in one supreme authority—a central authority which [432] shall secure uniformity of administration; a central authority which shall be able to compel a local authority in London to do that which if it neglects is a danger to the community; a central authority which, in the event of such neglect, shall be authorised itself to undertake that work ”

“ THE spirit of the laws by which matters of public health are administered rests upon the theory which underlies all forms of government, that is, that the state has the power to compel the ignorant, the selfish, the careless and the vicious to so regulate their lives and property that they shall not be a source of danger to others. ”

“ It is the claim of the complainants that the emptying of the large amount of sewage produced in Grand Rapids into the river contaminates its waters and fills them with impurities which are carried down the stream as it flows to, and into, or through the village; that, as the water goes down, the substances and impurities which are in it, due to the sewage, whether visible or invisible, are left upon the surface of the ground, and there decomposition creates such odors as to constitute a public nuisance in the village. ”

“ Popular resistance, changes in central policy, and loss of authority by rural cadres have weakened China's population control program, which is essential to the nation's long-term economic viability. One of the most dangerous long-term threats to continued rapid economic growth is the deterioration in the environment, notably air pollution, soil erosion, and the steady fall of the water table especially in the north. The amount of arable land continues to decline because of erosion and economic development, the cumulative loss since the Communist takeover in 1949 being more than 15%. ”

“ Nothing speeds the growth of corruption more than policies that foster arbitrary secrecy. Secrecy allows little scandals to become major scandals, costly to the taxpayers, devastating to our foreign-aid program, to our position of defense readiness, and to our national morale.
“Secrecy,” as the House Government Operations Committee has put it, “is the handmaiden of bureaucracy, especially military bureaucracy. It has so pervasive an effect that all government becomes invested with the urge to restrict—even those routine agencies which should be wide open to the public.” ”

“ The present age is opposed to such development; and the more the state manipulates the man, the more completely will individuality and originality be destroyed. The state requires a tax-paying machine in which there is no hitch, an exchequer in which there is never a deficit, and a public, monotonous, obedient, colourless, spiritless, moving unanimously and humbly like a flock of sheep along a straight, high road between two walls. That is the ideal of every bureaucracy ”

“ That all power is naturally invested in, and consequently derived from, the people; that magistrates therefore are their trustees and agents, at all times amenable to them.
"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind. ”

“ It is well to remember that every withholding of government business from the public is an encroachment upon the democratic principle that government officials are accountable to the people. It follows that citizens should regard all governmental secrecy with some suspicion as an encroachment on their right to know.
The American citizen should reject all arbitrary claims to secrecy by the bureaucracy as sharply as he would reject any claims to a right of the executive branch to by-pass Congress in levying taxes. ”

“ Let us not forget that the more a government becomes secret government, the more it will tend to be irresponsible government, and that irresponsible government will soon be arbitrary and corrupt government. ”

“ But it is indispensable for the practicable application and enforcement of these fundamental principles that the Government should not always be controlled by one political party. Frequent change of administration [Pg 295] is as necessary as constant recurrence to the popular will. Otherwise, abuses grow, and the Government, instead of being carried on for the general welfare, becomes an instrumentality for imposing heavy burdens on the many who are governed, for the benefit of the few who govern. Public servants thus become arbitrary rulers. ”

“ The soda-water on general sale is frequently contaminated with copper and lead, produced from the action of the carbonic acid contained in the water on the metallic substances of which the apparatus in which it is made is constructed. ”

“ A wise citizen should be as outraged at arbitrary secrecy as he would be at arbitrary imprisonment. Logically he should insist on the same safeguards against arbitrary secrecy that he would against unjustified [Pg 10] arrest or taxation. The public’s “right to know” is that basic.
Unfortunately, there is a general tendency to regard government secrecy as only a problem for the newspapers. And even within the newspaper profession there is a tendency to ignore government secrecy until it interferes with a story the individual reporter or editor wants to develop. ”

“ However, we can never trust the judgment of those in power who might be inclined to make self-serving declarations on their own virtues. This has happened often in the past. We know now that at least eight or ten congressional committees have made it clear they are not as sure as Mr. Rogers that secrecy is not being used to hide crimes, favoritism, and blunders today.
[Pg 137]
“It is not necessary to arrive at any conclusion on the virtues of this administration or any administration, to conclude that secret government is not in keeping with democracy. ”

“ As a matter of fact the defense of secrecy, from the point of view of the inner politics of the state, resolves itself almost entirely into an opinion that the ignorance and inexperience of the people does not fit them to judge of foreign relations. That, it must be confessed, does not seem to be a very sound or convincing basis for the choice of methods of public action in a modern state. ”

“ News management, I repeat, can be controlled only by insisting on the public’s right to go behind the statements distributed by the government agencies or by high government officials.
[Pg 11]
Those who manipulate the news or try to cover their tracks with arbitrary secrecy are not likely to be pursuing totalitarian goals. Usually the only motivation is short-term political gain. Often it is rationalized on grounds that a few factual errors and overdrawn conclusions are not important when viewed in the total context of the achievements of the party in power. ”

“ Since 1789 the State, call it the Nation if you like, has replaced the sovereign. Instead of looking directly to the chief magistrate of this nation, the clerks have become, in spite of our fine patriotic ideas, the subsidiaries of the government; their superiors are blown about by the winds of a power called “the administration,” and do not know from day to day where they may be on the morrow. As the routine of public business must go on, a certain number of indispensable clerks are kept in their places, though they hold these places on sufferance, anxious as they are to retain them. ”

“ The clerks, few in number, were under the orders of a prime minister who communicated with the sovereign; thus they directly served the king. The superiors of these zealous servants were simply called head-clerks. In those branches of administration which the king did not himself direct, such for instance as the “fermes” (the public domains throughout the country on which a revenue was levied) , the clerks were to their superior what the clerks of a business-house are to their employer; they learned a science which would one day advance them to prosperity. ”

“ Agreements and understandings which do not exist at all are imagined, the nature of those which actually have been made is mis- judged, and animosities are exaggerated; thus the public is quite naturally put in that mood of sus- picion and excitement which renders it incapable of judging calmly when apparently startling facts suddenly emerge.
Secret diplomacy destroys public confidence. ”

“ There are clear reasons for barring the public from the FBI investigative files, for these [Pg 14] files contain much unevaluated rumor and many unauthenticated documents. Also, as FBI Director J. Edgar Hoover has pointed out, much mischief could be done by the underworld and subversive elements if they had access to FBI files.
But while we are using a limited secrecy to guard our chief federal investigative agency, we must realize that law enforcement agencies can go wrong if there is not some regular scrutiny from the outside. ”

“ In answer to questions I said I did not object to specific legislation to cover areas of government where secrecy was essential. I emphasized that “if the record of the government must be confidential, it is not too much to ask the executive department to give a reason. Democrats and Republicans in Congress have an equal interest in obtaining ... the whole story, all of the information behind the decisions of the executive agency.” ”

“ The desire to reduce excessive rates should not blind us to the greater evil. It is far better that one public utility win one more legal skirmish in its struggle against regulation, than that we abandon legal standards and let the regulatory agency run riot.
We start here with the exploitation of the public through an unholy alliance between two public utility companies-Penn Water and Consolidated. ”

“ The conditions of the Public Health Acts, and of the Factory and Workshop Regulation Acts, are utterly disregarded, and existing systems of inspection are entirely inadequate to enforce their provisions even if no divided authority tended to weaken the hands of the Inspectors. ”

“ For you must understand—at least as soon as you can—that though the men who make up companies are no worse than other men, and some of them, as you ought to know, very good men; yet what they have to look to is their profits; and the less water they supply, and the worse it is, the more profit they make. For most water, I am sorry to say, is fouled before the water companies can get to it, as this water which runs past us will be, and as the Thames water above London is. ”

“ Little guidance can be taken from the personal feeling of the persons immediately interested. The opinion of the riparian owner 5 miles down stream may differ materially from the popular will of the voters of a city, and it is likely to receive a more favorable hearing from the court. Statutes and legal precedents are the safest guides.
226. Preliminary Treatment.—If the sewage to be disposed of by dilution contains unsightly floating matter, oil, or grease, no amount of oxygen in the diluting water will prevent a nuisance to sight, or the formation of putrefying sludge banks. ”

“ EPA, supra note 29, 541 F.2d at 24-25, we pointed out: Questions involving the environment are particularly prone to uncertainty. Technological man has altered his world in ways never before experienced or anticipated. The health effects of such alterations are often unknown, sometimes unknowable. While a concerned Congress has passed legislation providing for protection of the public health against gross environmental modifications, the regulators entrusted with the enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decisionmaking. ”

“ This court has previously noted that some uncertainty about the health effects of air pollution is inevitable. [48] And we pointed out that " (a) waiting certainty will often allow for only reactive, not preventive (regulatory action) ." Ethyl Corp. v. EPA, supra, 541 F.2d at 25. Congress apparently shares this view; it specifically directed the Administrator to allow an adequate margin of safety to protect against effects which have not yet been uncovered by research and effects whose medical significance is a matter of disagreement. ”

“ But one cannot follow the work of the public health guardians without feeling the cumulative force of progress. As I have said, the newspapers have been a vital element in awaking the public. Associations are being formed the country over for the prevention of disease. There is a steady increase in the power and authority of those officially charged with hygienic control. Makers of deleterious or poisonous foods, and the vultures who prey on the sick through fraudulent patent medicines are being curbed by pure food and drug laws. ”

“ In the third place, more important than reforming business is the problem of keeping it on a high level, much as the preservation of health transcends the curing of disease, and what preventive medicine is to the public health "pitiless publicity" is to the level of business morals. It is only in a political atmosphere that is potentially critical that those in charge of large business can be expected to be on their good behavior. If every would-be agitator were put under lock and key, the tone of business life would undoubtedly sink to a lower plane. ”

“ Some prosperous American communities hold human life so cheaply that they maintain no public health service at all. Others—and there are many of them—have a mere skeleton service. The citizens imagine that if they appoint a health board consisting of doctors, all will be well with them. The suggestion that the board be provided with money to carry on its functions would be regarded as wanton extravagance. ”

“ We have underfunded the public health infrastructure. Communities of fewer than 25,000 people are being served by public health units of which fewer than two-thirds have fax machines or an Internet connection. The ability to communicate between public health units once something is suspected or identified between the public health entities is absolutely critical. ”

“ So extensive and so numerous are the conditions of modern civilization which certainly affect health, that boards of health generally do not pretend to cover them all. For example, the construction and maintenance of public water supplies and sewerage systems, although undertaken by the public at the public expense, are not conducted by health authorities but by private corporations or special municipal departments. Likewise the collection and disposal of garbage, and even the cleaning of privies, is often done by other than public health authorities. ”

“ In the past, individual physicians and local medical associations and societies have brought a scattering fire to bear upon the inactivity and ignorance of the general public in matters which pertain to public health. ”

“ In any event, man's health depends on the success of his efforts to adapt his environment to his needs, more than it does on the adaptation of himself to his environment. Health interests are fused with social and economic development, but should undoubtedly dominate rather than be dominated by them.
Our lack of interest in matters of health is more apparent than real. It is characteristic of many of us that where our most vital interests are involved, we betray the least public concern. ”

“ Congress can be of great service to a cabinet officer in keeping his agency clean. If a congressional committee is unreasonable, or brutal, or oversteps its jurisdiction, such abuses, it must be remembered, take place in public where they can be seen and remedied. The President and others in the executive branch have the personnel and facilities for pointing out the abuses so they can be eradicated in the face of public opinion. ”

“ In the United States the question is often asked whether greater congressional freedom in questioning officials of the executive branch would not interfere with the efficiency of the government. Much of the business of federal government is simply keeping records and preparing testimony to account for the custodianship of the government agencies. In most instances it would take an official far less time to go before a committee of Congress and give a frank account of the activities of his agency than it has taken to devise cover-ups for frauds, mismanagement, and embarrassing oversights. ”

“ Any possible presidential immunity from the enforcement of legal process does not extend to the heads of departments and other Federal agencies. Judicial opinions have never recognized any inherent right in the heads of Federal agencies to withhold information from the courts. The courts have stated that even where the head of the department or agency bases his action on statutory authority the courts will judge the reasonableness of the action in the same light as any other claim of privilege. The courts have held that the mere claim of privilege is not enough. ”

“ Schwartz continued: “‘Executive privilege’ is not available to an independent agency like the Civil Aeronautics [Pg 118] Board as a possible basis for the withholding of information from the Congress. The Civil Aeronautics Board, as the Supreme Court has recognized, is an independent agency whose members are not subject to the removal power of the President. Such a body cannot in any proper sense be characterized as an arm or an eye of the Executive. It is instead an arm of the Congress, wholly responsible to that body. ”

“ Publicity at regular intervals of earnings and conditions by railway, industrial and other corporations creates confidence where confidence is merited, while exposing weakness where weakness exists. By eliminating that which is unsound and dangerous, it benefits the sound and the safe, and removes grounds of suspicion injurious to all.
Secrecy is the defense of the weak, and they naturally shirk the light; but the public interests demand that all the large corporations submit to it, and stand or fall according to their merits. ”

“ The spirit that rules the playground. What is it that secures co-operation, obedience, and good temper on the playground? Is it the fear of punishment? No, it is the same force which in organized society secures obedience to law and respect for the rights of others, namely, the influence of public opinion. Public opinion, in other words an inherent sense of fair play among the players, is what really rules the playground. Bullying or meanness in any form results in unpopularity. ”

“ And so, also, freedom can not produce its best effects, and often breaks down altogether, unless means can be found of combining it with trained and skilled administration. There could not be a moment's hesitation between representative government, among a people in any degree ripe for it, and the most perfect imaginable bureaucracy. But it is, at the same time, one of the most important ends of political institutions, to attain as many of the qualities of the one as are consistent with the other ”

“ If the human race would only understand, and take the trouble to realise, that government by the state can be nothing better than government by a multitude of clerks, it would cease to be enamoured of this misconception. Government, absolute and unelastic, by a million of Bumbles, the elevation to supreme and most meddlesome power of a Bureaucracy employing an army of spies and informers in its service; this is all that the rule of the state can ever be, or can ever mean, for mankind. It is impossible that it should ever be otherwise. ”

“ Details in an administration cannot be examined and criticised without examining the conduct and bearing of the administrators. The fatal fault in a Bureaucracy is that the administrators believe they are the rulers and construe all that is said against themselves as being said against the Government and when one of the administrators combines in himself a judicial function as well he becomes thoroughly and personally interested. ”

“ The strong desire for secrecy in the management of corporations, especially with life insurance companies, is obviously in defiance of public sentiment, and the Legislature should now make the house-cleaning thorough while it is about it. ”

“ The poorest of all treasuries is the one with a surplus that it never uses; the mission of a minister of finance is to fling gold out of the windows. It will come back to him through the cellars; and you, you want to hoard it! The thing to do is to increase the offices and all government employments, instead of reducing them! So far from lessening the public debt, you ought to increase the creditors. If the Bourbons want to reign in peace, let them seek creditors in the towns and villages, and place their loans there; above all, they ought not to let foreigners draw interest away from France ”

“ I deal with this issue every day. I deal with the issue of guns every day. I deal with almost everything you asked, as a chief executive.
This is what I would do. I would have the following principles. In our health care plan, my new health care plan, no new bureaucracy. Every American shares, along with businesses, the state and the federal government. I would focus on prevention. I would also ensure that the first thing we do is deal with the bureaucracy and inefficiencies in our health care system. Thirty-one percent of our health care goes to inefficiencies and bureaucracy. ”

“ The experience of government boards has not been long enough to prove whether they are likely to be of permanent value, but the results are encouraging to those who believe that through conciliation and arbitration the industrial problem can best be solved.
202. Public Welfare.—There can be no reasonable complaint of the interference of the government. The government, whether of State or nation, represents the people, and the people have a large stake in every industrial dispute. Society is so interdependent that thousands are affected seriously by every derangement of industry. ”

“ Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final and conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, and interferes with his personal liberty, then it is for the courts to scrutinize the act, and see whether it really relates to and is convenient and appropriate to promote the public health. ”

“ From all the public servants responsibility is secured, by their being representatives, mediate or immediate, for short terms, and their powers defined. It is, on the whole complexion of it, a government of laws, not of men. ”