The FOI Act - 38th Anniversary on July 4th 2004
We have much to celebrate as another summer breaks and thaws our bodies, souls and anxieties. And the 4th of July is the perfect opportunity to ponder some of the national treasures that glimmer reassuringly in the Constitution and all the laws of the land that are its accoutrements.
One of those jewels is the Freedom of Information Act. It was not included in the Bill of Rights in 1791. With little more than a Customs Department and a Defense Department there was not much need. But somewhere on the long road that led to a ubiquitous government, a new component in the U.S. system of checks and balances was born out of necessity. The Freedom of Information (FOI) Act was signed into law on Independence Day 1966.
The FOI Act, US Code 532, entitles you to ask government entities what exactly they do and the policy details of how they do it. You can request documents about specific events such as memoranda about specific decision making processes and the data that informed them.
Without effective monitoring processes there would be little capability for citizens to audit the performance of our very extensive government. No hope of getting the real data or producing informed critiques of any complex issues, policies or decisions; from Star Wars to national energy policy, or anything in between.
This makes FOI is important to us all - it is just as essential for liberals as it is for conservatives. Auditing, or the possibility of auditing, is how everybody is kept honest; be it filing taxes, or running a corporation, or running a government agency. FOIA is the people’s auditing tool.
The FOI Act deserves it own public holiday, as acknowledgment of its crucial role, often via hard-fought court battles, extricating from the government important information it did not want to share with us. It represents a revolution of its own in the way we govern ourselves. Over the centuries there have been many laudable off-spring from that bountiful Constitution of 1787, such as universal suffrage, emancipation of slaves, and various other civil rights.
But the FOI Act really was an evolutionary leap in the long road refining government of, by, and for the people. And it is really the prodigy among all those offspring. For it is in the hundreds of unexceptional FOIA requests that are made every day by concerned citizens, that we see democracy truly working among the demos, the people. These citizens are participating in government just as surely as town meeting participants or any civil servant or legislators doing the people's business. It was such a compelling evolutionary advance that it subsequently spawned sunshine and foi laws in all 50 states. By its enthusiastic adoption at all levels of government it surely vies for a place in the Parthenon of “self-evident truths”.
The FOI Act has had the most profound effect on the social contract between the civil service and you, its customers. It is one of the only real guarantees that the government will give you, the taxpayer, regarding services provided. That guarantee entitles you to oversight rights on your government and to review the details of government activity. It allows you to know what your officials and governmental agencies do, and not just what they say. It provides dissatisfied citizens with a more constructive recourse than taking Valium or running amok.
Thus it is an indispensable civic therapy available to reconcile the individual with the execution of those myriad unavoidable regulations by which we live. Our government effectively regulates what we eat, drink, breathe, read, see; on and on, down to the most trivial details of living. Congress has theoretical oversight of the federal infrastructure via its standing committees. But if you have a problem, Washington can seem a long way away and Capitol Hill can be very preoccupied with grand affairs - and less grand ones sometimes. Therefore Congress, in its wisdom, made the local federal courts the arbiter of FOI problems and the enforcer of your foia rights. If you need it, if you deserve it, the FOI law will give you your day in court.
This law is fundamental in that it broadly impacts the whole character of a citizen's relationship to government. For instance civil rights are of little use if they can be abrogated within inscrutable citadels of bureaucracy with no possibility of even detection by the citizen. What you don't know can hurt you, especially if it is impossible to corroborate the details. High-minded departmental policies and procedures are worthless pieces of paper if there is no "consumer protection" and no ombudsman. Abuse, both benign and calculated, is inevitable in any opaque and unreviewable process. On that Independence Day 36 years ago, the FOI Act embraced democracy with Jeffersonian zest and empowered every one of us to stand before the government as our own ombudsman.
In the wake of September 11, Attorney General John Ashcroft sent a memo to all federal departments formalizing the Bush administration's antipathy to this 36-year-old cornerstone of government transparency. The logic was that open government was somehow more vulnerable to terrorist attack than the opaque varieties. The policy might now be couched in terms of "hunkering down and pulling the shades against terrorists". Yet it is fairly certain that terrorists do not file many requests for information via foi requests. They are just not that patient and document dumps about government minutia and procedures do not really open windows that terrorists can fly through.
But there is solid evidence of a well-established antipathy to openness within the current administration that long preceded September 11. Thomas Blanton, Executive Director of the National Security Archive, stated the following on a Bill Moyers program on PBS about Secret Government. President Ford vetoed the FOI Act in 1974 when it was amended and broadened in response to Watergate. Ford's chief of staff was a young man named Donald Rumsfeld. Rumsfeld's deputy was another young man named Dick Cheney. Quoting Blanton; "And he vetoed it because he and Rumsfeld and Cheney believed it took away too much presidential power." Thankfully Congress overrode that veto.
In 2002, presidential executive privilege was weighing in against foia rights over the Enron scandal and public concerns about the administration being dominated and even mired down by oil interests. When the principles of transparent government are effective, society is better protected from cozy relationships and backroom deals. Another illustration of how essential foi-type laws are to a real democracy; without the foi laws in Florida it would not have even been possible to even find out who really won the last presidential election.
In the 36 years since its proclamation, the FOI Act has served the nation well as an administrative tool that allows review and quality control for all those who are subject to the execution of the government's ubiquitous functions. Yes, you.
The law wisely and meticulously designated specific exceptions to disclosure; these "exemptions" serve legitimate competing interests that could be adversely impacted, such as national security, commercial interests, personal privacy, etc.
The Ashcroft memo in 2001 to every corner of the federal government, assured agencies that "when you carefully consider FOIA requests and decide to withhold records….. you can be assured that the Department of Justice (DOJ) will defend your decisions." The memo set in place a new and much more restrictive policy from the administration. It was not a response to a new post-September need for security but merely the formalizing and an endorsement of a well-established trend to curtail the right of review that the FOIA provides to all. If you consider the forgoing arguments in favor of the foi principles, this new policy is a major curtailment of individual rights with no public debate and very little publicity.
As you do triage on attending to all the dangers that are constantly hurled in your face, it might seem silly to worry about some verbose FOI legislative rights that you hardly knew you had. Unfortunately there are a lot of words in that law, and it really suffers for want of a catchy reference point or slogan.
We need something we can get a handle on in elementary school social studies classes. Maybe an amendment to the Constitution - # 28 could just say "the people shall have the right, within reason, to know what their government is doing - see FOI Law for details". A public holiday would be more fun though. And it really is that important.
The FOI Act is essential to good government because it provides the possibility for individuals, organizations and the media to establish quality control on all those ubiquitous government agencies that have been created over the years to serve you and protect you and regulate you. Just as your access to the ballot box is your only hope of an attentive politician, the FOI Act allows you to discern the actions of even your deep-cover bureaucrats within the otherwise faceless mass of government. It holds a daring hope of providing a very democratic antidote to counter an increasingly remote and orwellian state. This fundamental foi accessibility is one of those essential checks and balances that can save us from a juggernaut Washington ever morphing into a Kremlin.
In theory Congress asserts oversight for all the functions of federal government via its standing committees. If someone has a complaint about an agency malfunctioning, or there is a law that needs fine-tuning or repeal, then a special hearing is arranged. Powerful interests with large PR machines and big donors can rig up hearings with alacrity. Fortunately for those of us who do not have millions with which to nurture politicians' priorities, foia rights are our best shot.
And perhaps that is one of the reasons that you didn't hear much about Ashcroft's curtailment of your rights on the 7 O'clock news via Major-Media. The six or so mega- corporations that own most of the media and "anchor" our world view - the news/entertainment industry - make minimal use of FOIA requests and therefore have shown total disinterest in Ashcroft's foray against that law. Their disinterest is an example of why your FOI Act is an endangered species and why you should be paying careful attention on your own behalf. In fact another related hazard for the general public has been the unreported casualty of the investigative reporter and it deserves its own paragraph.
Kristina Borjesson has edited a very seminal book, Into the Buzzsaw, chronicling some heroic struggles by that kindred endangered specie so I will just quote her introduction on the topic.
"…investigative reporting is dwindling, particularly at the major networks, because it is expensive, attracts lawsuits, and can be hostile to the corporate interests and/ or government connections of a news division's parent company."
If these unacknowledged conflicts-of -interest don't make you a little anxious about the mainstream networks' ability to tell you what is really going on, you are seriously disadvantaged and need to read the book. That book gives many compelling examples, by some top prize-winning journalists, convincing me that the citizenry needs the FOI Act now more than ever. Three of the contributions to the Buzzsaw collection relate remarkable details about how the mainstream media dropped the ball with TWA 800. Award winning investigative reporters tell such compelling stories that the book itself became award-winning. Buzzsaw was chosen by the New York Library as one of 2002's 25 most important books and got the National Press Club's award this year for the best review and critique of U.S. media.
This article attempts to draw attention to the federal FOI law's current trend of indiscriminate curtailment, and what we risk losing if our foi rights are abrogated. My awareness has been informed and piqued by my involvement over the last five years in a public interest research group that now spawned three FOIA lawsuits. But that is another story in itself.
It is important to acknowledge here that bureaucratic information withholding is really a bipartisan thing that all administrations and bureaucracies have some penchant for. Bureaucratic stonewalling is so much more convenient. Even as a working engineer, I sometimes have to wear a bureaucratic hat as part of my job in a large state educational institution. So I can understand that it can be inconvenient to have to work in a transparent manner and it can be quite unappealing for everyone to have the right to delve into your mis-steps or errors. But then, my job doesn't usually confer on me drastic power over people's lives. And if, by some engineering mistake I do harm someone, they can in fact sue me and hold me accountable. Accountability can be an inconvenient hassle but its absence can be much more problematic.
With such awareness in mind, the FOIA legislation anticipated that agencies might be very hesitant to provide some documents so they mandated sensible and timely response requirements. They even provided for sanctions against the truly refractory official.
Even prior to Ashcroft declaring his war against the FOI statutes, some agencies were ahead of that curve. Of the 24 FOIA requests that I have filed since 1998 with 9 different federal agencies that were involved in the Flight 800 investigation, 13 of them received no response for 3 years. Ignored, despite legally mandated response deadlines of 10 days. Seven requests were processed and very cavalierly claimed that there was no responsive material found. Four requests were processed and yielded documents that were only peripheral to the material that was actually requested.
The most novel response I received was from the Federal Aviation Administration (FAA) who offered to provide a copy of three magnetic tapes of all the relevant radar data of the accident if I would pay $4,185 in advance. However, they stated, because the equipment to be used was old "..we cannot guarantee a successful duplication process." What a deal! Needless to say, I did not jump at the offer. At least the FAA FOIA section was efficiently responsive in their dealings with me and were able to find the data.
The FOI law was written with the implicit expectation that agencies must file documents, even about their mistakes, competently. Good government requires that and, fortuitously, modern electronic scanning and storage makes it feasible. Any agency that cannot find significant quantities of important documents should not be given a free pass. The law was written specifically expecting that the civil service should serve the public well - high standards, rigor, competence and answerability.
The efforts related above describe the ongoing attempt to apply the FOI Act to uncovering the tightly held secrets of an intensely studied but unsolved mystery. The explosion of a commercial aircraft in suspicious circumstances may seem an esoteric exercise in maintaining or reclaiming open government. But even a rare event like this can have a devastating impact on 230 victims and their families. Such things can impact anyone and if the FOI process cannot serve people in such dire circumstances it is a useless paper shield. Some might think an airplane accident investigation too technical and complicated for the average citizen to even think about. Certainly many journalists treated the subject as beyond their competence to address, modestly and uncritically echoing all government pronouncements at every stage of the investigation.
If newspapers and the media don't commence a campaign against the current panicked rush to give up freedoms, they will soon discover that they are in the front line suffering the constraints of this newest world order. Without an effective FOIA, publishing critiques of government science will become virtually impossible due to the impossibility of extracting the factual data. The horror of September 11 presently has us very focused on the risks of an open society, but this article attempts to illustrate that there are greater dangers in resigning our right to know. Ignorance only affords a false sense of security.
The Bush administration would be happy to continue to neutralize foi rights. Since there is currently no powerful champion out there defending them, he might sweep the field. I have worked as the FOIA request coordinator for the Flight 800 Independent Researchers Organization for some years. During the four years since that organization formed we have very substantial credible evidence that government science can be misappropriated.
Without an adequate freedom of information process there is little hope of getting the real data or producing informed critiques of any complex issues: is global climate change real and avoidable?; is genetically engineered food tested adequately before the FDA approves it?; is the war on drugs working OK or does it need revision?; - insert your own most pressing concern right here.
It is these questions, and our right to get answers more serious and credible than PR announcements from agencies, that makes FOI rights of critical importance to us all.
Your family's well-being and mine, the very future of our planet and our secure place upon it, depends on a well-informed public and an enlightened and rigorous application of government science. Many of the governmental agencies that protect our environment, our air quality, the food and drugs we take and many other aspects of modern life are in the position of making critical decisions about our futures. Currently, political pressures and vested interests can distort or obscure important aspects of the government's science and investigative processes and diminish and sometimes totally subvert the quality of the conclusions. The quality of our future lives, and in some cases our very survival, hangs upon having the highest caliber governmental science assessing safety with impartial rigor and integrity. Without our oversight via FOIA, that is not a realistic hope.
Politicians look ahead as far as the next election; corporations plan as if the universe was going to end with the conclusion of their next three-year business plan. Public service science shapes our whole contemporary existence through its various regulatory agencies; what we eat, drink, see on TV, breathe, buy, sell, etc. Those agencies must be enabled to serve society with a broader and more independent perspective than is allowed by the political forces and corporate influences that are currently crowding around the helm. I repeat, if the people are excluded from being able to monitor the details that probably cannot happen. Just the potential for auditing keeps many processes honest.
Treasures that are not valued, like rights that are not exercised, can atrophy or be come misplaced by humdrum daily life and eventually by history. We have many blessings to celebrate: our land, our climate, our glorious piece of creation, our Constitution. Let us not be the inattentive generation that waived these blessings goodbye.
There has never been a moment in history when access and informed verification of government science was more important. We need the Freedom of Information Law to work as it was conceived like never before.
Graeme Sephton
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FOOTNOTE: In August 2000 the NTSB made their final report on the explosion of Flight 800 and concluded that although they had not actually found any direct evidence, that they believed it was probable that there was a wiring fault. They guessed that high voltage wiring sparked to fuel sensor wiring, which sparked again inside the center fuel tank and caused the aircraft to explode. Some of the many mysterious and anomalous aspects of this investigation are documented at the FIRO web site at:
Graeme Sephton is a registered electrical engineer and works in the Telecommunications Department at the University of Massachusetts, Amherst