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Freedom of Information
FOIA: It's always there
Debated, disliked, sometimes scorned, it remains the cornerstone of openness

By Paul McMasters
Published in Quill, October 1996

The Freedom of Information Act was not very popular in Washington, D.C., especially among federal officials, on whose shoulders the burden of compliance would rest.

When President Johnson signed the act into law on July 4, 1966, he chose to do so on his Texas ranch, far from the nation’s capital, press conferences and television cameras. No one from the small band of legislators, lawyers and journalists who fought so hard for its enactment was on hand.

The act had only one day to go before dying of presidential neglect in the form of a pocket veto.

Hardly an auspicious beginning for a law that spawned parallel "sunshine laws" in all 50 states. A law that has served as a model for nations around the world trying to make government more accessible and accountable to their citizens. A law that set out to make manifest the Jeffersonian principle of an informed citizenry.

Thirty years later, the friends of FOIA in official Washington remain few and far between and the complaints familiar: The FOIA is an unwelcome drain on scarce resources. It is overused by prisoners and aliens to overtax the system. It is abused by lawyers to circumvent court discovery rules. It is employed by businesses to gain unfair advantage over competitors. It is exploited by journalists to invade personal privacy and endanger national security.

Those complaints aside, the FOIA has compelled federal agencies to yield millions of documents relating to government operations and performance. Every week, a news organization, scholar or public-interest group somewhere reports information of significance to public health or safety or good governance — based on material gleaned from FOIA requests.

Still, the FOIA has been something of a regulatory pariah over its 30-year history. Congressional oversight and agency reporting have been superficial and episodic at best. Funding has been inadequate. Compliance has ranged from enthusiastic implementation to sullen resistance to active interference.

From the outset, the FOIA was considered a journalist’s tool, but journalists never have made up more than a fraction of the requesters. Most journalists either malign or ignore it. That lack of respect and recognition bewilders veteran FOIA advocates.

"Even when journalists don’t use the FOIA, it works for them," said Jane Kirtley of the Reporters Committee for Freedom of the Press. "This law creates a legal presumption of openness and accountability. Given how much of a struggle it is to get access with the law in place, I can’t imagine what it would be like if we didn’t have that kind of legislative mandate."

Nonetheless, journalistic frustration is sometimes palpable.

"We have been led like rabbits down a hole," said Max Jennings, editor of the Dayton Daily News, which recently published an award-winning series on military courts-martial, despite delay and denial of records from the Department of Defense.

The Daily News has filed suit in U.S. District Court in Dayton, but "the federal judge has delayed rulings in the case for almost a year," Jennings said. "My experience is that the FOIA simply doesn’t work most of the time for journalists. There are few news organizations and reporters who have the patience, money and determination to work through what seems an inevitable series of appeals, requests and other roadblocks."

"It’s fair to criticize the FOIA," said Robert Gellman, former chief counsel to the House committee with FOIA oversight, "but the act does positive things and it needs to get credit for that." Now a privacy and information policy consultant in Washington, D.C., Gellman pointed out that "more than 90% of FOIA requesters get everything they want. They don’t always get it on time or with the fee waivers they are entitled to, but the law works—fitfully, slowly, but it works."

It worked more fitfully and slowly during the 1980s, when administration policy confounded much of the act’s intentions.

Then, in October of 1993, President Clinton issued a memo to department and agency heads mandating a new attitude toward the FOIA. "The act is a vital part of the participatory system of government," Clinton said to the officials. "I am committed to enhancing its effectiveness in my administration."

At the same time, Attorney General Janet Reno reversed a Department of Justice policy established in 1981. She said that the department no longer would defend an agency’s denial of an FOIA request merely because there was a "substantial legal basis" for doing so.

There was some follow-through.

The Justice Department, under Reno, has made a number of changes, including reducing request backlogs in some areas; reviewing more than 500 pending cases, resulting in the release of a huge volume of material without court battles; and changing a number of department policies to improve and expedite the release of information.

The Department of Energy has released much more material and changed classification policies in the wake of news stories about human radiation experiments.

On October 16, 1995, Clinton signed Executive Order 12958, which reversed a presumption of secrecy in force for many years and established a mandatory declassification scheme.

On May 16 of this year, Reno surveyed federal agency and department heads to determine how well the administration’s access initiatives have been implemented. She said agencies now are getting more information out to the public and that some agencies have begun to reverse the trend of increasing backlogs, although others have not yet been able to do so.

"Progress on fighting FOIA backlogs can be slow, but we keep shining the light on the problem and are committed to improving our performance," Reno said.

While praising these developments, Kirtley pointed out that the Clinton administration’s record on access is spotted. The Reporters Committee compiles an annual report on restricting access to government information. The 1996 report lists hundreds of instances when the public or press was denied access.

Over the years, this well-established tradition of governmental resistance to releasing information has generated hundreds of court cases, including more than 20 Supreme Court decisions.

With a few exceptions, court decisions have tended to favor the point of view of the agencies, especially in cases involving personal privacy and national security, according to Harry Hammitt, editor of Access Reports and a long-time chronicler of FOI legislation and court cases.

"The courts always start off their decisions with lip-service about the FOIA being a disclosure law and that the exemptions should be construed narrowly, then they go ahead and give away the store to the government," said Hammitt.

That tendency is compounded by the fact that "media people usually will not go to court to challenge denials of their requests," said Hammitt. "Reporters are more than willing to go to court, but editors and publishers have decided they don’t really want to spend the money."

As general counsel of the National Security Archive from 1989 to 1994, Sheryl Walter successfully litigated FOIA cases that established significant precedents for ensuring access to records, and now works inside the government as counsel for the Commission on Protecting and Reducing Government Secrecy and serves as president of the American Society of Access Professionals.

Walter agreed that many times "there is a presumption among judges that what the agency did was rational and responsive to the law." But, she added, "In my experience, the courts have been willing to look beyond that and in some cases rule in favor of the plaintiffs. In fact, I’ve been impressed at how seriously judges take their responsibility and put the government agencies to the test."

In three decades, court decisions, new laws and changing technology have taken their toll on the original promise of the FOIA. Even its most avid supporters concede there are problems that need to be addressed.

Gellman sees the need for "substantive" changes in the act itself. "Some exemptions need to be narrowed. Some need to be eliminated. The law needs to do a better job of describing litigation requirements, and the guidelines for attorneys’ fees need to be revised to provide more money for people who win cases."

Some of the more common complaints circulating within the FOI community:

— The law requires agencies to respond to FOIA requests within 10 days, but actual responses can take years. While there are many reasons for such delays, one important factor is the lack of resources. Agencies simply do not have enough money and people to handle the 600,000 requests that come in each year.
— There are few incentives for government workers to release information, but they face severe penalties if they release information that is sensitive.
— Policies on responding to FOIA requests vary widely from agency to agency.
— There are perplexing contradictions and inconsistencies between language of the FOIA and other laws, such as the Privacy Act, the Computer Matching and Privacy Act, the Government in Sunshine Act, the Federal Advisory Committee Act, the Computer Security Act, the Whistleblower law, and other regulations.
— An increasing compartmentalization of information and development of external systems of communications allow agencies to circumvent the law.
— Monitoring of compliance with the FOIA has not been a priority with either Congress or federal agencies, so proposals for legislative or policy changes must rely on anecdotal evidence. Rep. Carolyn Maloney, D-N.Y., has proposed legislation, now attached to the Electronic Freedom of Information Act, that would require better reporting.

Such problems lend impetus to calls for a reduced reliance on the FOIA.

Gary Bass of OMB Watch, a public-interest organization, said computer technology and the Internet offer a great opportunity. "Using FOIA to get information is costly, time-consuming, and really not as useful to the average citizen as it is to others," Bass said. "The FOIA should become the vehicle of last resort for public access. If government did its job responsibly, it would take the initiative in making information available."

Jennings also champions direct electronic release of government information. "It is technically possible in many instances for government to put its records online at the same time they are generated, and then the American people can access them speedily and completely, without interpretation.

"If we could reach national understanding about making all public records available quickly, online, it would eliminate millions of dollars the government now spends processing an avalanche of individual requests."

Despite the promise of technology, FOIA’s future is fraught with challenge.

Looming large on the horizon are even more intense conflicts between access and privacy concerns. The U.S. government, business interests and electronic industry are feeling increasing domestic and international pressure to be more restrictive about access to government databanks.

Hammitt predicted more court battles over agency records in electronic format. "Who has ownership of these records and what are the obligations of the agency to search for them? Is something government workers download into their computers an agency record? To what extent can an agency trump its obligation to release information by asserting that it is publicly available on a database or the Internet? Add to all this a host of unresolved issues in the area of electronic dissemination of information."

The rush of federal agencies to a paperless government has brought into sharp relief an abysmal record- management system. Recent testimony before the Commission on Protecting and Reducing Government Secrecy predicted massive costs and slowdowns in access to records unless government records management systems are brought into the 21st Century.

Despite these problems and challenges, Walter remains positive about both the FOIA’s past and its future.

"The thing that strikes me is that over all these years, the FOIA has stood the test of time. It has been a model all over the world. It has a heritage all the way back to the Magna Carta. More importantly, it has made a difference in how the people view their government and how government views its responsibilities to the people."

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Paul McMasters is the First Amendment Ombudsman at The Freedom Forum, a former national president of SPJ and served four years as SPJ’s National FOI Chair.