Making freedom of information stronger

Martin Halstuk

Forty years ago, on July 4, 1966, the Freedom of Information Act (FOIA) was signed into law after a long and hard-fought campaign led by a little-known Democratic congressman from Sacramento, John Moss. At the time, the idea of a federal open-records law was considered radical. It took Moss and other open-government advocates in Congress, the newspaper industry and the American Bar Association 173 hearings spanning 10 years before the groundbreaking legislation was passed.

The FOIA created a public right of access to the vast storehouses of information compiled by the dozens of federal administrative and regulatory agencies, along with the Cabinet departments. FOIA users vary widely and include journalists, public-interest groups, businesses, historians and advocacy organizations as ideologically disparate as the activist environmental organization Greenpeace and the conservative watchdog group Judicial Watch.

In pushing for the controversial law’s passage, advocates of transparent government emphasized that the FOIA was grounded in the belief that in an open and democratic society, citizens must have a right of access to government-held information so they can hold officials accountable for their actions and make informed decisions pertaining to self-rule.

A 1965 Senate FOIA report instructs: “Government by secrecy benefits no one. It injures the people it seeks to serve; it injures its own integrity and operation. It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty.”

Over the decades, the FOIA has been used to reveal waste, fraud and deception in the federal government and to identify unsafe consumer products, harmful drugs and serious health hazards. Decades ago we learned from records obtained under the FOIA why Ford Pinto gas tanks exploded, how defects in the Hubble Telescope limited its capabilities and when the FBI ordered illegal FBI surveillance of the Rev. Martin Luther King Jr.

The FOIA still works.

More recently, we viewed images of rows of military coffins, draped with American flags, returning from Iraq. We learned that the government ignored sexual-assault charges brought by women in the military against enlisted men and officers. We also found out that 22 percent of soldiers who died in Iraq died outside combat; suicides were an ongoing problem among American troops in Iraq; and about 16 percent of returned soldiers required treatment for mental problems.

On the other hand, the FOIA has also suffered some significant setbacks. The Supreme Court ruled in 2004 that there is a “presumption of legitimacy” when it comes to official government investigations that involve private individuals.

The court held that if someone uses the FOIA to request law enforcement records to aid in an investigation of government corruption or incompetence — and the records contain personal information about a private individual — then the FOIA requester must show evidence of wrongdoing in advance to justify getting access to the materials. The obvious Catch-22 is that documents that can reveal evidence of government misconduct are often in the government’s hands.

The judiciary has also given the government tremendous leeway in how agencies can use executive privilege as an exemption to the FOIA. The Supreme Court has so broadly interpreted executive privilege that a federal agency can shield reports provided to the agency by a private outside consultant — paid by tax dollars — even if the consultant has a direct interest in the outcome of the agency decision.

In 2005, executive privilege was also the rationale for the federal Circuit Court of Appeals in the District of Columbia to rule that the National Energy Policy Development Group headed by Vice President Dick Cheney (the federal energy task force) can withhold policy recommendations made to the task force by the Department of Energy, the Department of the Interior and the National Resources Defense Council. (In a related but non-FOIA case, the lower federal courts also ruled that the even the names of the task force’s members can be withheld from the public.)

Finally, the Central Intelligence Agency still enjoys a near-blanket FOIA exemption granted to the spy agency by the Supreme Court 20 years ago, despite the fact that the CIA was explicitly subject to the FOIA under the original legislation. The CIA’s widely publicized failures in connection with the Sept. 11 terrorist attacks illustrate the folly of unchecked secrecy, which not only cloaks questionable agency activities but also conceals grave problems in management.

These problems were further evidenced in the CIA’s miscalculations and false assessments of Iraqi weapons strength, which were used to justify the American invasion of Iraq.

Moss led the Congress of 40 years ago in giving the nation a blueprint for government transparency and access to the kind of information necessary for meaningful public discourse on the vital policy questions facing this nation. Today’s Congress is currently reviewing at least two bills to strengthen the FOIA so that citizens can learn more about what the government is up to. Let us hope the lawmakers set the record straight.