7. FOIA IS AN OXYMORON
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.
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."
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.
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
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
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."
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
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."
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
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.