Category Archives: Right to information

War by media and the triumph of propaganda

 
http://johnpilger.com/articles/war-by-media-and-the-triumph-of-propaganda

War by media and the triumph of propaganda
John Pilger, 5 December 2014

Why has so much journalism succumbed to propaganda? Why are censorship and distortion standard practice? Why is the BBC so often a mouthpiece of rapacious power? Why do the New York Times and the Washington Post deceive their readers?
 
Why are young journalists not taught to understand media agendas and to challenge the high claims and low purpose of fake objectivity? And why are they not taught that the essence of so much of what’s called the mainstream media is not information, but power?
 
These are urgent questions. The world is facing the prospect of major war, perhaps nuclear war – with the United States clearly determined to isolate and provoke Russia and eventually China. This truth is being turned upside down and inside out by journalists, including those who promoted the lies that led to the bloodbath in Iraq in 2003.
 
The times we live in are so dangerous and so distorted in public perception that propaganda is no longer, as Edward Bernays called it, an “invisible government”. It is the government. It rules directly without fear of contradiction and its principal aim is the conquest of us: our sense of the world, our ability to separate truth from lies.
 
The information age is actually a media age. We have war by media; censorship by media; demonology by media; retribution by media; diversion by media – a surreal assembly line of obedient clichés and false assumptions.
 
This power to create a new “reality” has been building for a long time. Forty-five years ago, a book entitled The Greening of America caused a sensation. On the cover were these words: “There is a revolution coming. It will not be like revolutions of the past. It will originate with the individual.”
 
I was a correspondent in the United States at the time and recall the overnight elevation to guru status of the author, a young Yale academic, Charles Reich. His message was that truth-telling and political action had failed and only “culture” and introspection could change the world.
 
Within a few years, driven by the forces of profit, the cult of “me-ism” had all but overwhelmed our sense of acting together, our sense of social justice and internationalism. Class, gender and race were separated. The personal was the political, and the media was the message.
 
In the wake of the cold war, the fabrication of new “threats” completed the political disorientation of those who, 20 years earlier, would have formed a vehement opposition.
 
In 2003, I filmed an interview in Washington with Charles Lewis, the distinguished American investigative journalist. We discussed the invasion of Iraq a few months earlier. I asked him, “What if the freest media in the world had seriously challenged George Bush and Donald Rumsfeld and investigated their claims, instead of channeling what turned out to be crude propaganda?”
 
He replied that if we journalists had done our job “there is a very, very good chance we would have not gone to war in Iraq.”
 
That’s a shocking statement, and one supported by other famous journalists to whom I put the same question. Dan Rather, formerly of CBS, gave me the same answer.  David Rose of the Observer and senior journalists and producers in the BBC, who wished to remain anonymous, gave me the same answer.
 
In other words, had journalists done their job, had they questioned and investigated the propaganda instead of amplifying it, hundreds of thousands of men, women and children might be alive today; and millions might not have fled their homes; the sectarian war between Sunni and Shia might not have ignited, and the infamous Islamic State might not now exist.
 
Even now, despite the millions who took to the streets in protest, most of the public in western countries have little idea of the sheer scale of the crime committed by our governments in Iraq. Even fewer are aware that, in the 12 years before the invasion, the US and British governments set in motion a holocaust by denying the civilian population of Iraq a means to live.
 
Those are the words of the senior British official responsible for sanctions on Iraq in the 1990s – a medieval siege that caused the deaths of half a million children under the age of five, reported Unicef. The official’s name is Carne Ross. In the Foreign Office in London, he was known as “Mr. Iraq”. Today, he is a truth-teller of how governments deceive and how journalists willingly spread the deception. “We would feed journalists factoids of sanitised intelligence,” he told me, “or we’d freeze them out.”
 
The main whistleblower during this terrible, silent period was Denis Halliday. Then Assistant Secretary General of the United Nations and the senior UN official in Iraq, Halliday resigned rather than implement policies he described as genocidal.  He estimates that sanctions killed more than a million Iraqis.
 
What then happened to Halliday was instructive. He was airbrushed. Or he was vilified. On the BBC’s Newsnight programme, the presenter Jeremy Paxman shouted at him: “Aren’t you just an apologist for Saddam Hussein?” The Guardian recently described this as one of Paxman’s “memorable moments”. Last week, Paxman signed a £1 million book deal.
 
The handmaidens of suppression have done their job well. Consider the effects. In 2013, a ComRes poll found that a majority of the British public believed the casualty toll in Iraq was less than 10,000 – a tiny fraction of the truth. A trail of blood that goes from Iraq to London has been scrubbed almost clean.
 
Rupert Murdoch is said to be the godfather of the media mob, and no one should doubt the augmented power of his newspapers – all 127 of them, with a combined circulation of 40 million, and his Fox network. But the influence of Murdoch’s empire is no greater than its reflection of the wider media.
 
The most effective propaganda is found not in the Sun or on Fox News – but beneath a liberal halo. When the New York Times published claims that Saddam Hussein had weapons of mass destruction, its fake evidence was believed, because it wasn’t Fox News; it was the New York Times.
 
The same is true of the Washington Post and the Guardian, both of which have played a critical role in conditioning their readers to accept a new and dangerous cold war. All three liberal newspapers have misrepresented events in Ukraine as a malign act by Russia – when, in fact, the fascist led coup in Ukraine was the work of the United States, aided by Germany and Nato.
 
This inversion of reality is so pervasive that Washington’s military encirclement and intimidation of Russia is not contentious. It’s not even news, but suppressed behind a smear and scare campaign of the kind I grew up with during the first cold war.
 
Once again, the evil empire is coming to get us, led by another Stalin or, perversely, a new Hitler. Name your demon and let rip.
 
The suppression of the truth about Ukraine is one of the most complete news blackouts I can remember. The biggest Western military build-up in the Caucasus and eastern Europe since world war two is blacked out. Washington’s secret aid to Kiev and its neo-Nazi brigades responsible for war crimes against the population of eastern Ukraine is blacked out. Evidence that contradicts propaganda that Russia was responsible for the shooting down of a Malaysian airliner is blacked out.
 
And again, supposedly liberal media are the censors. Citing no facts, no evidence, one journalist identified a pro-Russian leader in Ukraine as the man who shot down the airliner. This man, he wrote, was known as The Demon. He was a scary man who frightened the journalist. That was the evidence.
 
Many in the western media haves worked hard to present the ethnic Russian population of Ukraine as outsiders in their own country, almost never as Ukrainians seeking a federation within Ukraine and as Ukrainian citizens resisting a foreign-orchestrated coup against their elected government.
 
What the Russian president has to say is of no consequence; he is a pantomime villain who can be abused with impunity. An American general who heads Nato and is straight out of Dr. Strangelove – one General Breedlove – routinely claims Russian invasions without a shred of visual evidence. His impersonation of Stanley Kubrick’s General Jack D. Ripper is pitch perfect.
 
Forty thousand Ruskies were massing on the border, according to Breedlove. That was good enough for the New York Times, the Washington Post and the Observer – the latter having previously distinguished itself with lies and fabrications that backed Blair’s invasion of Iraq, as its former reporter, David Rose, revealed.
 
There is almost the joi d’esprit of a class reunion. The drum-beaters of the Washington Post are the very same editorial writers who declared the existence of Saddam’s weapons of mass destruction to be “hard facts”.
 
“If you wonder,” wrote Robert Parry, “how the world could stumble into world war three – much as it did into world war one a century ago – all you need to do is look at the madness that has enveloped virtually the entire US political/media structure over Ukraine where a false narrative of white hats versus black hats took hold early and has proved impervious to facts or reason.”
 
Parry, the journalist who revealed Iran-Contra, is one of the few who investigate the central role of the media in this “game of chicken”, as the Russian foreign minister called it. But is it a game? As I write this, the US Congress votes on Resolution 758 which, in a nutshell, says: “Let’s get ready for war with Russia.”
In the 19th century, the writer Alexander Herzen described secular liberalism as “the final religion, though its church is not of the other world but of this”. Today, this divine right is far more violent and dangerous than anything the Muslim world throws up, though perhaps its greatest triumph is the illusion of free and open information.
 
In the news, whole countries are made to disappear. Saudi Arabia, the source of extremism  and western-backed terror, is not a story, except when it drives down the price of oil. Yemen has endured twelve years of American drone attacks. Who knows? Who cares?
 
In 2009, the University of the West of England published the results of a ten-year study of the BBC’s coverage of Venezuela. Of 304 broadcast reports, only three mentioned any of the positive policies introduced by the government of Hugo Chavez. The greatest literacy programme in human history received barely a passing reference.
 
In Europe and the United States, millions of readers and viewers know next to nothing about the remarkable, life-giving changes implemented in Latin America, many of them inspired by Chavez. Like the BBC, the reports of the New York Times, the Washington Post, the Guardian and the rest of the respectable western media were notoriously in bad faith. Chavez was mocked even on his deathbed. How is this explained, I wonder, in schools of journalism?
 
Why are millions of people in Britain are persuaded that a collective punishment called “austerity” is necessary?
 
Following the economic crash in 2008, a rotten system was exposed. For a split second the banks were lined up as crooks with obligations to the public they had betrayed.
 
But within a few months – apart from a few stones lobbed over excessive corporate “bonuses” – the message changed. The mugshots of guilty bankers vanished from the tabloids and something called “austerity” became the burden of millions of ordinary people. Was there ever a sleight of hand as brazen?
 
Today, many of the premises of civilised life in Britain are being dismantled in order to pay back a fraudulent debt – the debt of crooks. The “austerity” cuts are said to be £83 billion. That’s almost exactly the amount of tax avoided by the same banks and by corporations like Amazon and Murdoch’s News UK. Moreover, the crooked banks are given an annual subsidy of £100bn in free insurance and guarantees – a figure that would fund the entire National Health Service.
 
The economic crisis is pure propaganda. Extreme policies now rule Britain, the United States, much of Europe, Canada and Australia. Who is standing up for the majority? Who is telling their story? Who’s keeping record straight? Isn’t that what journalists are meant to do?
 
In 1977, Carl Bernstein, of Watergate fame, revealed that more than 400 journalists and news executives worked for the CIA. They included journalists from the New York Times, Time and the TV networks. In 1991, Richard Norton Taylor of the Guardian revealed something similar in this country.
 
None of this is necessary today. I doubt that anyone paid the Washington Post and many other media outlets to accuse Edward Snowden of aiding terrorism. I doubt that anyone pays those who  routinely smear Julian Assange – though other rewards can be plentiful.
 
It’s clear to me that the main reason Assange has attracted such venom, spite and jealously is that WikiLeaks tore down the facade of a corrupt political elite held aloft by journalists. In heralding an extraordinary era of disclosure, Assange made enemies by illuminating and shaming the media’s gatekeepers, not least on the newspaper that published and appropriated his great scoop. He became not only a target, but a golden goose.
 
Lucrative book and Hollywood movie deals were struck and media careers launched or kick-started on the back of WikiLeaks and its founder. People have made big money, while WikiLeaks has struggled to survive.
 
None of this was mentioned in Stockholm on 1 December when the editor of the Guardian, Alan Rusbridger, shared with Edward Snowden the Right Livelihood Award, known as the alternative Nobel Peace Prize. What was shocking about this event was that Assange and WikiLeaks were airbrushed. They didn’t exist. They were unpeople. No one spoke up for the man who pioneered digital whistleblowing and handed the Guardian one of the greatest scoops in history. Moreover, it was Assange and his WikiLeaks team who effectively – and brilliantly – rescued Edward Snowden in Hong Kong and sped him to safety. Not a word.
 
What made this censorship by omission so ironic and poignant and disgraceful was that the ceremony was held in the Swedish parliament – whose craven silence on the Assange case has colluded with a grotesque miscarriage of justice in Stockholm.
 
“When the truth is replaced by silence,” said the Soviet dissident Yevtushenko, “the silence is a lie.”
 
It’s this kind of silence we journalists need to break. We need to look in the mirror. We need to call to account an unaccountable media that services power and a psychosis that threatens world war.
 
In the 18th century, Edmund Burke described the role of the press as a Fourth Estate checking the powerful. Was that ever true? It certainly doesn’t wash any more. What we need is a Fifth Estate: a journalism that monitors, deconstructs and counters propaganda and teaches the young to be agents of people, not power. We need what the Russians called perestroika – an insurrection of subjugated knowledge. I would call it real journalism.
 
It’s 100 years since the First World War. Reporters then were rewarded and knighted for their silence and collusion. At the height of the slaughter, British prime minister David Lloyd George confided in C.P. Scott, editor of the Manchester Guardian: “If people really knew [the truth] the war would be stopped tomorrow, but of course they don’t know and can’t know.”
 
It’s time they knew.
 
Follow John Pilger on twitter @johnpilger
 

Dutch government refuses to reveal ‘secret deal’ into MH17 crash probe

http://www.strategic-culture.org/news/2014/11/20/dutch-government-refuses-to-reveal-secret-deal-into-mh17-crash-probe.html

Dutch government refuses to reveal ‘secret deal’ into MH17 crash probe
EDITOR’S CHOICE | 20.11.2014

The Dutch government has refused to reveal details of a secret pact between members of the Joint Investigation Team examining the downed Flight MH17. If the participants, including Ukraine, don’t want information to be released, it will be kept secret.

The respected Dutch publication Elsevier made a request to the Dutch Ministry of Security and Justice under the Freedom of Information Act to disclose the Joint Investigation Team (JIT) agreement, along with 16 other documents. The JIT consists of four countries – the Netherlands, Belgium, Australia and Ukraine – who are carrying out an investigation into the MH17 disaster, but not Malaysia. Malaysian Airlines, who operated the flight, has been criticized for flying through a war zone.

Part of the agreement between the four countries and the Dutch Public Prosecution Service, ensures that all these parties have the right to secrecy. This means that if any of the countries involved believe that some of the evidence may be damaging to them, they have the right to keep this secret.

“Of course [it is] an incredible situation: how can Ukraine, one of the two suspected parties, ever be offered such an agreement?” Dutch citizen Jan Fluitketel wrote in the newspaper Malaysia Today.

Despite the air crash taking place on July 17 in Eastern Ukraine, very little information has been released about any potential causes. However, rather than give the public a little insight into the investigation, the Dutch Ministry of Security and Justice is more worried about saving face among the members of the investigation.

“I believe that this interest [international relations] is of greater importance than making the information public, as it is a unique investigation into an extremely serious event,” the Ministry added, according to Elsevier.

Other reasons given for the request being denied included protecting investigation techniques and tactics as well as naming the names of officials who are taking part in the investigation. The Ministry said it would be a breach of privacy if they were revealed. “If the information was to be released then sensitive information would be passed between states and organizations, which would perhaps they would be less likely to share such information in the future,” said the Ministry of Security and Justice.

Dutch MP Pieter Omtzigt, who is a member of the Christian Democratic Party, has made several requests for the information to be released to the public.

“We do not know what the Netherlands has committed itself to. The government neither published the agreement when we asked for it, nor did it show it to parliament,” he said in reaction to the ministry’s decision. “It is perfectly normal that the Netherlands cooperate with other countries in this complex investigation. Yet they even kept the existence of the agreement secret a first and that was unnecessary.”

Journalists walk behind parts of the Malaysia Airlines plane Flight MH17 as Dutch investigators (unseen) arrive near at the crash site near the Grabove village in eastern Ukraine on November 11, 2014 (AFP Photo)

Malaysia is the only country to have directly negotiated with the anti-Kiev militias in the East of Ukraine, while the country’s Ambassador to the Netherlands said he was unhappy that Malaysia had not been included within the JIT. Dutch Prime Minister Mark Rutte flew to Kuala Lumpur on November 5, but Malaysia says it still did not receive an invitation to join.
“We must first be included in the JIT, otherwise it would be hard for us to cooperate in the investigation. The parties inside the investigation must include us in the team, right now we are just a participant,” said the Malaysian Inspector-General of Police Khalid Abu Bakar in Kuala Lumpur on Wednesday, which was reported by the New Straits Times.
A preliminary report by the Dutch Safety Board, which was released September said the MH17 crash was a result of structural damage caused by a large number of high-energy objects that struck the Boeing from the outside.
Dutch investigators added that “there are no indications” that the tragedy was triggered “by a technical fault or by actions of the crew.”
RT

Israel bans radio advert listing names of children killed in Gaza

Israel bans radio advert listing names of children killed in Gaza

Human rights group B’Tselem will petition Israel’s supreme court after advert was deemed to be ‘politically controversial’
in Jerusale
The Guardian,
Aid agencies said on Wednesday that a child had been killed in Gaza on average every hour for the preceding two days. Photograph: Khalil Hamra/AP

The Israeli Broadcasting Authority has banned a radio advertisement from a human rights organisation which listed the names of some of the scores of children killed in Gaza since the conflict began 17 days ago.

B’Tselem‘s appeal against the decision was rejected on Wednesday. It intends to petition Israel‘s supreme court on Sunday in an effort to get the ban overturned.

The IBA said the ad’s content was “politically controversial”. The broadcast refers to child deaths in Gaza and reads out some of the victims’ names.

In its appeal, B’Tselem demanded to know what was controversial about the item. “Is it controversial that the children [aren’t] alive? That they’re children? That those are their names? These are facts that we wish to bring to the public’s knowledge.”

In a statement, the human rights group said: “So far more than 600 people have been killed in bombings in Gaza, more than 150 of them children. But apart from a brief report on the number of fatalities, the Israeli media refrains from covering them.” By Thursday morning, the death toll in Gaza had exceeded 700.

B’Tselem went on: “IBA says broadcasting the children’s names is politically controversial. But refusing to do so is in itself a far-reaching statement – it says the huge price being paid by civilians in Gaza, many of them children, must be censored.”

Aid agencies said on Wednesday that a child had been killed in Gaza on average every hour for the preceding two days, and more than 70,000 children had been forced to flee their homes. There has also been a spike in the number of premature births.

“The shocking number of children being killed, injured, or displaced in Gaza demands an unequivocal international response to stop the bloodshed,” Save the Children said. “Entire families are being wiped out in seconds as a result of the targeting of homes.”

Dr Yousif al Swaiti, director of al-Awda hospital, said: “We have witnessed many premature births as a result of the fear and psychological disorders caused by the military offensive. The number of cases of premature births per day has doubled, compared to the average daily rate before the escalation.”

Turkey shuts off YouTube after ‘Syria invasion plan’ leak

Turkey shuts off YouTube after ‘Syria invasion plan’ leak

http://rt.com/news/turkey-block-youtube-twitter-649/

RT.COM,  March 27, 2014

Access to YouTube has been cut off in Turkey after an explosive leak of audiotapes that appeared to show ministers talking about provoking military intervention in Syria. Other social media have already been blocked ahead of tumultuous local elections.

The latest leaked audio recording, which reportedly led to the ban, appears to show top government officials discussing a potential attack on the tomb of Suleyman Shah, the grandfather of the founder of the Ottoman Empire.

The tomb is in Syrian territory, but protected by Turkish soldiers.

On the tape, Turkish Foreign Minister Ahmet Davutoğlu is heard to say that Prime Minister Recep Tayyip Erdogan sees any attack as an “opportunity” to increase Turkish presence in Syria, where it has staunchly supported the anti-Assad rebels. Security chief Hakan Fidan then goes one step further, and suggests staging a fake attack to give Turkey a casus belli to intervene in the conflict.

Turkish officials have recently vowed to protect the tomb as its “national soil.”

The Foreign Ministry in Ankara reacted to the tape by issuing a statement, calling the leak a “wretched attack” on national security. It also claims the tape was “partially manipulated.”

“These treacherous gangs are the enemies of our state and people. The perpetrators of this attack targeting the security of our state and people will be uncovered in the shortest time and will be handed over to justice to be given the heaviest penalty,” the ministry said.

A source inside the office of President Abdullah Gül, who has taken a softer line than Erdoğan over the series of government leaks, told Reuters that access to YouTube may be restored if the sensitive content is removed, even though the original video has been deleted.

Invoking national security and privacy concerns has been the government’s tactic in fighting off a stream of leaks showing top officials engaging in unsavory or downright illegal practices.

Erdoğan has also repeatedly claimed that most of the audio recordings are fakes. He labeled the latest audio revelation “villainous” during a stump speech in Diyabakir.

Twitter, another popular source for leaks, has already been shut down in Turkey since March 20, after a court order.

Since then, the California-based social network and organizations have fought in several courts to have the decision reversed, calling it “disproportionate and illegal.”

A court ruling in Ankara on Wednesday supported the appeal, but the country’s regulator has a month to unblock Twitter, leading to speculation that any such move would only take place after the election.

The incumbent party also enjoys the benefit of robust privacy legislation passed last month, which makes it easy to cut off any website even before any violation has been legally proven.

The US has led the chorus of international condemnation, calling the government’s moves “censorship” tantamount to “21st century book-burning.”
OSCE slams YouTube ban

Turkey is deliberately ignoring the fundamental right of freedom of the press by blocking access to social media platforms, Dunja Mijatović, the OSCE Representative on Freedom of the Media stated.

“A regulator exercising censorship by blocking is unacceptable in democracies, and it breaches numerous OSCE and other international standards that Turkey has committed to,” Mijatović said.

The OSCE calls on Ankara to immediately restore access to YouTube and Twitter.

“I call on the authorities to preserve the free flow of information and media freedom both online and offline, and immediately restore access to YouTube. I also urge TIB to reinstate Twitter services without delay following yesterday’s court decision annulling the ban on the website,” added Mijatović.

http://rt.com/news/turkey-block-youtube-twitter-649/ (http://rt.com/news/turkey-block-youtube-twitter-649/)

Constructing the secret EU state: “Restricted” and “Limite” documents hidden from view by the Council

Constructing the secret EU state: “Restricted” and “Limite” documents hidden from view by the Council
http://www.statewatch.org/analyses/no-240-restricted-documents.pdf

– Over 117,000 “RESTRICTED” documents produced or handled by the Council since 2001 but only 13,184 are listed in its public register of documents

– 103,839 “RESTRICTED” documents not listed in the Council’s public register due to the “originators” right of veto?

– The Council seeks to stop the publication of unreleased “LIMITE” documents, which are defined as “sensitive unclassified documents”

– The Commission has failed to implement the Lisbon Treaty to ensure that all legislative documents are made public as they are produced  – this means that 60% of Council documents relating to legislative decision-making  are made public after “the final adoption” of measures

– The Council uses Article 4.3, the “space to think”, to refuse access to 50% of requests for access to legislative documents under discussion

Tony Bunyan, Statewatch Director, comments:

“The Council have constructed a two-tier system of secrecy to keep from public view thousands and thousands of documents. This has been compounded by the failure of the European Commission to put forward proposals to implement the provision in the Lisbon Treaty to make all documents concerning the legislative procedure public.

In place of the need to deepen democratic openness and accountability in EU the Council has entrenched a system of secrecy based on its discretion to decide whether and when to make documents public.

The result is that the European legislature – the Council of the European Union and the European Parliament – meet in secret trilogues to decide over 80% of new laws going through the EU.”

Declaration of Principles on Freedom of Information in Africa

Declaration of Principles on Freedom of Expression in Africa

At the 32nd Ordinary Session of the African Commission on Human and Peoples’ Rights ( Banjul, The Gambia, 2002) African countries adopted a Declaration of Principles on Freedom of Expression in Africa which states that:

i) Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.

ii) The right to information shall be guaranteed by law in accordance with the following principles:

  • everyone has the right to access information held by public bodies;
  • everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
  • any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
  • public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
  • no one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and
  • secrecy laws shall be amended as necessary to comply with freedom of information principles.

iii) Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

Access to court records: Lugosch v. Congel

FROM BARBARA W. WALL: LEGAL WATCH
COURT MAY NOT POSTPONE RULING ON ACCESS TO SUBMITTED DOCUMENTS

http://www.gannett.com/go/newswatch/2006/january/nw0120-5.htm

A court may not postpone deciding whether documents submitted in connection with a request to dismiss a case should be open to the public, a federal appeals court recently said. (Lugosch v. Congel, Jan. 10, 2006.) The trial judge in the case had refused to rule on a request for public access until after it decided whether the case should be dismissed. This decision strongly reaffirms that when the public has a right of access to judicial records, that right is for immediate access.

In 2000, a group of businessmen sued some of their business partners who operate a group of shopping malls. The plaintiffs claim that their partners defrauded them by shifting millions of dollars in profits from malls they owned together to malls in which the plaintiffs had no stake.

The defendants filed a motion for summary judgment in May 2004, asking the court to dismiss the case without a trial. Attached were 4,000 pages of documents, but they were sealed. The plaintiffs' response also included 15 volumes of sealed documents.

Many courts have recognized a presumptive right of access to court records in civil cases. That right can only be overcome if sealing is necessary to prevent serious harm and is limited to the minimum necessary to avoid such harm. However, not every document filed with a court is considered a "judicial record" for which there is a right of access. Some courts have ruled that records not relevant to a decision need not always be open to the public.

The Syracuse Post-Standard and the Albany Times Union asked the trial court to unseal the documents in June 2004. The court, however, did not rule until a year later. And when it did, the court decided to further postpone the newspapers' motion until after it ruled on the motion for summary judgment.

According to the trial court, it could not determine whether the documents were judicial records for which there is a presumptive right of access until after it ruled on the motion for summary judgment. Only then would it be able to know which, if any, of the documents were relevant to its decision. Nor could it determine if any right of access was overcome before deciding that question.

The U.S. Court of Appeals for the Second Circuit, however, disagreed.

The appeals court first concluded that the public has a presumptive right of access to the records. While merely filing a document does not make it a judicial record, it said, all documents submitted in connection with a motion for summary judgment are.

Moreover, this presumptive right is for immediate public access to the documents, the court emphasized. The trial court effectively denied this right by postponing a decision, which blocked the benefits of public access to judicial records, it said. "The public cannot properly monitor the work of the courts with long delays in adjudication based on secret documents."

The appeals court did not order the documents released because the trial court had not determined whether the right of access was overcome in this case. However, it ordered the trial court to do so, and to "make its findings quickly."

Complicated cases often drag on for years. If the public is denied access to court documents until key issues are finally decided in these cases, interest may wane and oversight of the judicial system may be stymied. This case is a strongly worded declaration that the First Amendment and the common law do not allow such delays to undercut public access to court records.

Inter-American Court Finds Fundamental Right of Access to Information

In the first decision of its kind from an international tribunal, the Inter-American Court of Human Rights ruled yesterday that there is a fundamental human right to access government information.

12 OCTOBER 2006
Inter-American Court Finds Fundamental Right of Access to Information

http://www.freedominfo.org/news/20061012.htm

In the first decision of its kind from an international tribunal, the Inter-American Court of Human Rights ruled yesterday that there is a fundamental human right to access government information.

In the case of Claude Reyes and others vs. Chile, the Court found in favor of three environmental activists who in 1998 sought information from the Chilean government about a controversial logging project. By failing to provide access to the requested information, the Court held that Chile had violated Article 13 of the American Convention on Human Rights, which guarantees freedom of thought and expression.

According to the Court, Article 13 contains an implied right of general access to government-held information, and States must adopt legal provisions to ensure the right is given full effect. The Court specifically ordered Chile to provide the requested information about the Rio Condor logging project or to issue a reasoned decision for withholding it, as well as to adopt adequate administrative procedures to protect the right in the future and to train public officials to uphold the public's right to information.

International advocates of transparency in governance and the right-to-know applauded the precedent-setting court decision. "The Court has ruled that freedom of information is a fundamental personal, social, and civic right, and a critical component of a full transition to democracy," said Peter Kornbluh who directs the Chile Documentation Project at the National Security Archive. According to Helen Darbishire, Executive Director of Access Info Europe, the decision "will be invaluable for activists who need government information to defend other human rights, protect the environment, and fight corruption."

Related Materials

Read the decision [in Spanish]

English summary of the case and decision [PDF]

Access Info Europe press release [PDF]

Read the amicus brief filed in the case by Article 19 and the Open Society Institute Justice Initiative [PDF]