In theory at least, the 25 year old Freedom of Information Act (FOIA) bucks the bureaucratic impulse for secrecy. In reality, however, the executive branch and federal courts are stretching the law’s exemptions to give that impulse freer rein. As a result, this precious piece of legislation is fading into obsolescence.
Paul McMasters, a USA Today editor who heads a committee on freedom of information for the Society of Professional Journalists, sees this bleak future if the law isn’t fixed: “more adverse court decisions, more erosion of access rights, more ignoring of FOIA.”
The erosion of FOIA over the past ten years coincides with a new and particularly hostile attitude towards the public’s right to know which was ushered in with the Reagan-Bush administration. The new administration expansively redefined “national security” to cover virtually all aspects of international activity. A 1982 executive order told government officials to classify documents whenever in doubt, and even reclassified material already released under FOIA. The new strategy became: Fight every possible case, even if the only defense against disclosure was a technicality.
Justice Department official Mary Lawton, addressing an FOIA conference sponsored by the American Bar Association summed up the Reagan-Bush approach: “Some of us who have been plagued by this act for 25 years aren’t real enthusiastic about this anniversary.”
FOIA is supposed to work this way: You make your request and the government has 10 days to fill the request or explain why it won’t do so. But in most agencies roadblocks are endemic. So are delays, despite the 10-day deadline. The FDA often takes two years to fill requests, the State Department often takes a year. Last year the FBI calculated that its average response time was more than 300 days. A Navy FOIA officer suggested to one reporter that he’d be better off finding someone to leak the document he wanted. “If you have to make a request,” one media lawyer says, “that means you’ve failed.”
A major source of the problem lies with the Office of Management and Budget for insuring that FOIA offices remain under-funded and understaffed. The Navy’s central FOIA office has a staff of two and no fax machine. Emit Moschella, then FOIA director for the FBI, testified last year that his 1991 request for new staff was cut in half by Justice and then “zeroed out” by OMB. To make matters worse the D.C. Circuit Court of Appeals, which handles most FOIA cases, and the Supreme Court have moved aggressively to expand the government’s power to withhold. One would think that the press would find such a vital access issue to be of importance, yet finding significant coverage is as difficult as obtaining it through a FOIA request.
SSU CENSORED RESEARCHER: ANNE BRITTON
SOURCE: COMMON CAUSE
2030 M Street, NW, Washington, DC 20036, DATE: July/August 1991
TITLE: “The Fight To Know”
AUTHORS: Peter Montgomery and Peter Overby
COMMENTS: The authors note that freedom of information is a subject that journalists talk a lot about — among themselves. ‘The discussions typically focus on individual cases and immediate problems. We found very little written about the issue in general-circulation publications; for example, they barely glanced at the NASA cover-up attempt described in our lead. But while reporters were griping to each other, the Reagan and Bush administrations not only expanded but institutionalized loopholes in the Freedom of Information Act. Common Cause Magazine, a frequent FOIA user, decided it was time to try bringing the subject into public debate.”
The benefit of more public discussion of the threat to FOIA boils down to two basic truths according to the authors. “First, democracy depends on citizens’ access to government information. Second, given the choice, governments will always operate in secrecy. If the public, and the press as-its representative, don’t continually demand access, information will be available only to the government and its friends. As events from Watergate to Iran-Contra show, the nation suffers when that happens. If citizens have a better understanding of FOIA’s importance, they may more actively defend it. Exposure of FOIA abuses may encourage efforts to strengthen the law or to hold accountable those who flout it.”
On the other hand, the authors add, “A lack of coverage makes life easier for any government officials who prefer less oversight to more. It allows enemies of free access to information to continue to undermine the public’s right to know. It also, unfortunately, serves many in the media who don’t want to make waves. Using FOIA is never quick, often provokes a battle and usually produces stories that upset lots of people — e.g., the realization that the Challenger explosion was an avoidable catastrophe. The 1980s saw a strong and continuing shift away from that style of investigative journalism.”
Although the article was circulated to newspapers around the country, just one reprinted it while several others wrote editorials based on it. While there has been some action in the Senate, Senator Pat Leahy (D-Vt.) introduced FOIA reform bills, and in the courts, the authors report that there has been no reversal of the trend they reported.