The feds need to stop keeping secrets on national security
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The public needs to know what government is doing. Yet elected officials, government bureaucrats and private contractors may prefer to keep information secret to further their own interests. The Freedom of Information Act (FOIA) is one safeguard that allows anyone to request information from the federal government. The government cannot refuse a request based on the identity of the requester or his or her “need to know,” but it is entitled to refuse disclosure under nine statutory exemptions, including information that could harm U.S. national security interests.

FOIA is heavily used. In fiscal 2016, close to 800,000 requests were filed, though many requesters ask for their individual files or have a commercial purpose, and the government responded to almost 500 thousand requests, denying only 8.6 percent in their entirety. However, if the stakes are high and government wants to keep information out of the public eye, FOIA can be easily abused. This is especially apparent in the national security context.

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Since 9/11, transparency has taken a backseat to security — supportive presidential rhetoric notwithstanding. The George W. Bush administration sought to reduce transparency even before the attack on the Twin Towers. The Obama administration was not much better, facing criticism in a 2015 Associated Press report for its resistance to FOIA requests. This unfortunate history needs to be resisted before FOIA becomes no more than a nuisance to public officials.

 

FOIA may be the only route remaining to achieve greater transparency, but the Trump administration’s priorities suggest cause for concern. Given past problematic practices, exacerbated by current staff reductions and budget cuts, officials may ignore or circumvents costly but essential requests. Only routine, uncontroversial information may be disclosed. As one indication, the National Security Agency refused to search for information on a private contractor connected with the Trump campaign. The administration is trying to avoid responding to oversight requests from Democratic lawmakers, according to a Politico report, leaving FOIA as the only available route.

Some Republican members of Congress are trying to use the legislature’s exemption from FOIA to restrict public access to government documents. The chairman of the House Financial Services Committee announced that all government documents supplied to the committee will be exempt from FOIA requests. This problematic interpretation of the law can delay the release of material that might be embarrassing to the administration.

Information on national security is an especially important aspect of democratic accountability that officials can easily suppress. Yet compared to other countries, the United States is relatively forthcoming about defense contracting, according to Transparency International’s Government Defence Anti-Corruption Index. Detailed budgetary and personal data are publicly accessible, except for covert activities.

Yet it still presents a vexed area for FOIA requests. Insiders may claim they are “protecting the homeland,” but too much secrecy makes it impossible for citizens to hold government to account. Congressional oversight too often concentrates on district-level conflicts over the distribution of facilities and contracts. FOIA is a fallback option that helps the public hold the government to account, but it needs more teeth. The reluctance of the past two administrations to embrace transparency suggests that it will be easy for the Trump administration to circumvent or ignore FOIA with few legal consequences and little public outcry.

There are four interlinked ways to improve the U.S. transparency regime, particularly in the national security arena. First, national security agencies should face the same disclosure regimes as other agencies when they engage in routine activities such as contracting and allocating budgets and personnel. Public welfare can be seriously affected if citizens and civil society groups cannot monitor these activities.

Agencies charged with managing military personnel, deploying weapons, investigating terrorism and engaging in undercover work are particularly likely to abuse their power for both personal gain and power grabs if not open to scrutiny. The exemption for commercial and financial information of private firms should be interpreted narrowly or rewritten to take account of the growing role of private contractors.

Second, even when agencies can plausibly invoke a FOIA exemption, the courts should not routinely defer to their judgments. FOIA lacks an independent oversight body to help agencies manage the process and handle complaints. Although recent amendments have centralized oversight in the Office of Government Information Services (OGIS), this office can only mediate disputes.

Once an agency’s own appellate process is exhausted, the U.S. courts remain the only locus for legal appeals. Furthermore, officials who fail to disclose material subject to release under FOIA face no effective sanctions. The law provides for sanctions, but they appear to never have been imposed. Thus, one option is the creation of an independent FOIA agency that can review denied requests and levy sanctions.

Third, information revealed to one requester should be put into the public domain (with a short delay to give journalists an incentive to obtain scoops) as recommended by David Pozen. FOIA does require such disclosure if material has been requested three or more times, but that standard is arbitrary. Once information is disclosed to one person, it is essentially costless to reveal to others. And fourth, as Jameel Jaffer argues, all government actions with the force of law should be publicly available, including those with national security implications.

The principle of citizen access to information remains an important value. FOIA needs a revival: first, within the existing legal framework as part of the implementation of the 2016 amendments, and second, with statutory changes to enhance its role in promoting democratic accountability, especially in the key area of national security. Information should flow from the state to the public so that citizens can evaluate government, and from the public to the state to assist public officials in making policy choices.

Susan Rose-Ackerman is the Henry R. Luce Professor of Law and Political Science at Yale University. She has written widely on corruption and on administrative law and public policymaking. Her most recent book, authored with Bonnie J. Palifka, is the second edition of Corruption and Government: Causes, Consequences and Reform.

Jonathan Wong, a student at Yale Law School, contributed to this column.


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