TO ITS PROPONENTS, openness in government is as American as motherhood and apple pie. But for all its virtues -- and they are considerable -- openness in government is not an unmitigated blessing.
The experience of one agency -- the Consumer Product Safety Commission (CPSC), which since its creation by Congress in 1972 has striven for total openness -- points up the drawbacks.
Consider these examples: 1. Efforts to Improve the Safety of Chain Saws
In 1979 alone, there were 56,500 injuries and 13 deaths associated with chain saws in the United States. Studies showed that "kick-back" -- an unexpected rearing up of the saw toward the operator -- caused a major share of the accidents. Our staff began seeking ways, through design changes, to reduce kick-back.
In June 1978, the commission began a cooperative effort with the Chain Saw Manufacturers Association to develop a voluntary safety standard. Over the next 18 months, every meeting that CPSC staffers held with the industry, individual firms, consumers, foreign manufacturers, technical experts and other government officials was open to all. Sessions were usually held in a "fish-bowl" environment: A meeting between two or three persons might be observed by a dozen or more.
The effort ended in frustration. A common criticism -- voiced by industry members and agency staffers alike -- was that the glacial pace of the undertaking stemmed from its total openness. There was much public posturing and little candor. The exchanges were stilted, engendering distrust on both sides. Manufacturers' motives were questioned because they were wary about disclosing marketing plans or technological advances to competitors in attendance.
Breakthroughs by certain firms could not be discussed lest a competitive advantage be lost. Deserved criticism of fellow industry members who were dragging their feet went unstated. Key sales and economic data were withheld.
In short, what might have been said and accomplished in the privacy of a closed meeting was never said, never discussed. This lack of complete and candid exchange resulted in a two-year delay in developing safety standards. The cost to American consumers was tens of thousands of injuries. 2. Efforts to Deal With Formaldehyde
Early in 1980, the CPSC received information indicating that formaldehyde may be carcinogenic in rats. The sketchy data caused alarm, due to formaldehyde's importance as a basic building block in industry. Some 9 billion pounds are produced yearly, the bulk of it used in plywood, particle board and home insulation.
Instead of meeting immediately with staff scientists to evaluate the data, the commissioners waited almost two weeks until an open public meeting could be held. In the interim, the industry issued a press release playing down the potential risk. The commission -- instead of informing itself immediately so that it could, if necessary, alert the public to the risk -- waited to meet in the open, only to find itself reacting to distorted accounts.
Obviously, the agency should not have met hastily and reached a regulatory decision based on preliminary data. But the agency should have taken immediate steps to learn about the new data. Observing all the procedural niceties only served to confuse the public. Ironically, when the commission finally did conduct its open meeting, not a single member of the public attended. 3. Matters Involving Adjudication
In addition to rule-making which affects an entire industry, the CPSC decides individual cases involving specific firms. A recent case involved an electric fan which the agency sought to remove from the market-place.
At open deliberations, CPSC staff urged a particular regulatory approach and various commissioners challenged its wisdom. The manufacturer was thus put on notice that the commission itself was not completely persuaded by the merits of the case. Also, the company learned which element of the proposed plan the commission questioned. As any skilled negotiator knows, telegraphing which elements of a position are not firm is tantamount to conceding them. Openness enabled the company to opt for a lesser recall at the expense of the larger public interest.
By contrast, a case involving baby cribs reportedly linked to several infant deaths underscores the advantages of limiting access when debating stategy. Since the manufacturer had failed to report promptly its awareness of the hazard, the CPSC could assess a sizable civil fine.The commission needed to balance the tradeoff between a reporting penalty and a comprehensive corrective plan. Frank, free-flowing discussion of all alternatives was vital -- without tipping the agency's hand.
Here, the commission availed itself of an exemption to the Sunshine Act designed to protect potential litigation strategy. Meeting behind closed doors, the agency candidly reviewed all options and tradeoffs. As a result, the CPSC secured one of the most wide-ranging, innovative recalls in its history, plus a $175,000 fine. Had those strategy meetings been open, discussions would have been sharply curtailed and the ensuing recall far less advantageous to consumers. 4. Public Disclosure of Product Information
The CPSC's commitment to openness extends beyond the Sunshine Act's requirements for open meetings; it also embraces the Freedom of Information Act (FOIA), which is meant to provide public access to government records.
Commission policy provides extraordinary access, making disclosure the rule and withholding the exception. Unlike most other agencies, only rarely does the CPSC invoke the FOIA's discretionary exemptions.
Last May, the commission voted 3 to 2 to release results from certain cellulose insulation tests conducted by its lab. Disclosure of those test results identified the levels of noncompliance that trigger enforcement action. Due to its small staff and limited resources, the CPSC must use discretion in enforcing its standards.Industry's awareness of CPSC enforcement strategy undercuts future enforcement activity, as well as the credibility of the standard itself.
A recent Supreme Court decision points up another conflict between FOIA openness and other important policy goals. The television industry sought to enjoin the CPSC from releasing, in response to FOIA requests, accident reports identfying specific brands and models of TVs. A unanimous court ruled that policy concerns other than openness were overriding and ordering the commission to take steps to assure that any information disclosed is "accurate" and "fair in the circumstances." In other words, fairness to the TV firms which submitted the data was the paramount policy concern -- instead of unqualified public disclosure.
It is important to ask who benefits from openness. Do the news media flock to our meetings? Do the public interest groups vie for seats in packed hearing rooms? Do interested consumers wait in line to hear debates on the hazards they face? Hardly.
But, without fail, you'll find lawyers and lobbyists representing special interests. Predictably, those attending our meetings and burying us in FOIA requests are the very ones against whom the commission is considering action. They are paid to do just that.
In enacting the Sunshine and Freedom of Information acts, Congress wanted to give specific powers and tools to the public to guard against undue influence by the multitude of special interests. Yet the very interests meant to be watched over have become the watchdogs.
In the end, openness serves two principal purposes. First, it reduces the possibility of any impropriety, or the appearance of it. When agency decision-making is open to scrutiny from beginning to end, each step can be closely monitored. By allowing this outside impartial review, the final decision should better withstand challenge.
Second, open access permits anyone who shares a stake in the decision to present a point of view. If all interested persons have access, everyone concerned can be confident that the final judgment will be based on relevant information, not extraneous data or one-sided contacts.
But openness aims only to improve the process of decision-making by helping to achieve the purposes and goals upon which agency performance is judged. These goals -- in in the case of the CPSC, preventing accidental injury and death -- are paramount. When agencies substitute process for purpose, they ignore the very reason for their existence. Even praiseworthy means do not justify poor regulatory results.
Ideally, when a formal regulatory decision is at hand, openness should be preserved to the extent possible. Such decisions may have major economic or social ramifications. They can affect so many people in such significant ways that it is important for all concerned parties to participate in the process.
But when an agency is simply exploring issues devoid of any immediate regulatory impact -- and especially at an early or preliminary stage -- unfettered discussion should be encouraged. If candid dialogue is inhibited by openness, if the overriding public interest does not suffer from any one person's exclusion, then preserving openness in those circumstances is not vital.
Lord Macaulay urged, "Reform, that you may preserve." It is time to reassess the real benefits and costs of openness in government decision making.
By all means, let the sunshine in -- remembering always, however, that too much of a good thing can be harmful. CAPTION:
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