The Freedom of Information Act at 52: New challenges to the people’s right to know
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The Freedom of Information Act (FOIA) turned 52 years old on July Fourth this year. That birthday marked five decades of the Act’s effective use by citizens and the press to open up government files, force discovery of misinformation and expose outright lies.

FOIA is currently under attack through an almost secret war against public information. The current administration has embarked on a new level of opposition to open government. It is using new—and some old—tactics to avoid providing information to the public and the press

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In the first year of this administration, requests for information by newspapers, reporters, public interest groups and ordinary citizens increased by more than 5 percent to a record of 823,000 annually. Yet denials and censorship (known as redaction) climbed even faster--to all or part of 78 percent of records requested, according to a recent Associated Press report.

Waiting times for responses to FOIA requests at government agencies such as the Environmental Protection Agency (EPA) grew by more than 20 percent, George Washington University’s FOIA Project reports. This is not surprising since the EPA is charged by the White House with implementing much of its broad environmental deregulation policy that would repeal or delay dozens of existing and proposed clean air and water rules. By law, such actions regarding any existing rule must be supported by evidence as to its reasonableness and necessity.  

Denial and delay of citizen requests to obtain that evidence is a primary means of blocking the effective use of FOIA. To gain access to the information, requestors are often forced to file administrative agency appeals or ask the courts to help enforce the act.

Forcing citizens and the press to appeal or sue is a way of delaying and perhaps denying access to vital government information. Lawsuits are expensive and take time. Nonetheless, lawsuits against federal agencies for release of relevant documents rose by 26 percent in first 500 days of this administration.

For example, a lawsuit under FOIA by Public Citizen was necessary to force the White House to open its meeting logs to the public for the offices of Management and Budget, Science and Technology and the Council on Environmental Quality. A report earlier this year in Politico found that eight Cabinet heads failed routinely to release information on their planned travel schedules and appearances. Six more failed to release appointment calendars. These might show who is influencing their decisions. Or a least who has access to the policy makers.

Delay and denial are only two tactics the administration is using to attempt to undermine FOIA. It is also failing to collect information in the first place or deleting existing information, particularly scientific studies.

According to a report published this month by Public Citizen, the administration scrubbed information about climate change from numerous government web sites.

Similarly, in April the Union of Concerned Scientists reported that EPA deleted from its website information critical to understanding how its environmental policy was developed. The scientists used three separate FOIA requests to collect documents demonstrating that the EPA is violating its own “transparency” policy. The group also said the agency used the denial strategy by wrongly claiming some of the requested documents contained exempt “trade secrets” and so-called “private” information.

There are other ways the administration is shedding information. The president supported and signed congressional legislation that cancelled an Obama administration rule that required contractors bidding on federal construction projects to disclose serious workplace safety violations. Also abandoned by the Office of Management and Budget was a proposed rule that would have required large companies to collect pay data by gender and race, in order to determine patterns of likely discrimination.

The Department of Education has been trying to water down a rule that would allow the government to gather information to evaluate the effectiveness of for-profit career-training schools. The information would compare student debt to post-graduate earnings. But under DOE’s proposal, significantly less data would be gathered and it would be skewed, since only the top-ranked 50 percent of graduates would be included.

Thus, statistics and scientific data valuable to business, the public and students are being eliminated and placed outside the reach of the Freedom of Information Act.

Enacted in 1966, through a determined twelve year effort by Rep. John E. Moss (D-Calif.), FOIA was pushed to passage by a coalition of Democrats and Republicans. It represented a bipartisan attempt to establish, for the first time, a practical route for citizens and the press to learn what their government was doing.

FOIA arose in a different era of turmoil when fear of Russia and Communism caused greatly increased government secrecy. Since then, FOIA has shined a bright light in the dark corners of the Executive branch. Now, in its 52nd year, FOIA faces some of its greatest challenges. Ultimately, the determination of the press and the public will decide the outcome of these attacks on the people’s right to know.

Michael R. Lemov is an attorney who served as Counsel for the House Commerce Committee under John Moss and is the author of People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights; Fairleigh Dickinson University Press, 2011.