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FOIA at 40

Published: July 05, 2006
Last Updated: July 18, 2006

On July 4, 1966, President Lyndon B. Johnson signed the Freedom of Information Act—reluctantly. Very reluctantly.

In the ensuing 40 years, FOIA has become an invaluable tool for journalists, business, nonprofit organizations and individuals seeking access to the government information they have a right to see.

At the heart of FOIA is the notion that people living in a democracy—a system for, by and of those people—have the right to know what their government is doing, and why.

On the occasion of FOIA's 40th anniversary, several media and nonprofit organizations weighed in with data, opinion and other thoughts about the state of the act, how it might be fixed and why it's so vital to our nation.

Below is a sampling of some of the offerings specifically marking the occasion and the importance of access to government information, as collected by Sunshine Week staff and our able research assistant, Google Alerts. If you've got or know of others that should be included, please e-mail them to Sunshine Week Coordinator Debra Gersh Hernandez.

RTNDF-Sunshine Week Video

To mark Sunshine Week 2006, journalist Judy Woodruff hosted a video history of the Freedom of Information Act. The production was completed in conjunction with the Radio-Television News Directors Foundation. To download a .mpg file, click here; go here for a .mov file.

National Security Archive Posts LBJ Papers

"Documents from the LBJ Library show that the normally gregarious president, who loved handing out pens at bill signings, refused even to hold a formal ceremony for the FOIA, personally removed strong openness language from the press statement, and only agreed to approve the bill after the Justice Department suggested the tactic that has become President Bush’s favorite—a signing statement that undercut the thrust of the law." And that's just the National Security Archive's introduction to the comprehensive collection of documents it has collected about the genesis of FOIA and the roles of some key players who even today are influencing the flow of government information.

The National Security Archive tells the story of Congressman John Moss, who pushed hard for enactment of FOIA despite White House opposition and pushback from the 27 federal agencies and departments, including the Justice Department which had declared it unconstitutional.

Even the most die-hard FOIA enthusiasts are likely to learn more from the write up and original documents on the National Security Archive Web site.

CJOG Finds Request Backlog Increasing; Looks at Who's Using FOIA

In two new reports released in conjunction with FOIA's 40th anniversary, the Coalition of Journalists for Open Government analyzed reports and logs from federal agencies and departments to determine the state of FOIA and who's filing the most requests.

In the first report, Federal Government Continues to Fall Behind in FOIA Requests, CJOG discovered that the "backlog of requests, a critical indicator of information delays, rose from 20 percent in 2004 to 31 percent in 2005, despite a decline in the volume of requests…. Had these departments and agencies maintained their 2004 level of processing requests, there would have been no significant backlog."

Further, CJOG's analysis found that, "Agencies also said 'no' more often—and spent more to do so.

CJOG also reported in Frequent Filers: Businesses Make FOIA Their Business that commercial interests file about two-thirds of FOIA requests. Media account for about 6 percent, and nonprofits about 3 percent.

OpenTheGovernment.org Examines FOIA Plans

OpenTheGovernment.org, in collaboration with 11 open-government and journalism organizations studied the FOIA improvement plans required of federal agencies by President Bush's Dec. 14 Executive Order.

What they found was that, surprisingly, "many of the improvement areas were either not addressed or rated as poorly addressed, especially for the non-Cabinet agencies," OTG Director Patrice McDermott explained.

The full report is available online here; the table of agency ratings also has been posted.

Agency FOIA Improvement Plans

The Department of Justice has posted the federal agency FOIA improvement plans submitted as required by President Bush's Dec. 14 Executive Order on its Web site.

FOIA Around the World

FreedomInfo.org, a network for global freedom of information advocates, on July 4 released a report on the access laws in 68 nations. The report is online here.

"We Need Fewer Secrets," President Jimmy Carter, The Washington Post: "The U.S. Freedom of Information Act (FOIA) turns 40 tomorrow, the day we celebrate our independence. But this anniversary will not be a day of celebration for the right to information in our country. Our government leaders have become increasingly obsessed with secrecy. Obstructionist policies and deficient practices have ensured that many important public documents and official actions remain hidden from our view…. Policies that favor secrecy, implementation that does not satisfy the law, lack of a mandated oversight body and inaccessible enforcement mechanisms have put the United States behind much of the world in the right to information…. We cannot take freedom of information for granted. Our democracy depends on it."

"FOIA as Business Strategy," Jeff Tyler, Marketplace, American Public Media: "Each year Americans file more than one million requests using the Freedom of Information Act, or FOIA. Michael Doyle is a McClatchy newspaper reporter who combed through government logs to find out exactly who files all those requests…. Doyle says just keeping up with requests is costly."

"LBJ had doubts about the Freedom of Information Act," Ted Bridis, The Associated Press, Washington:: "President Lyndon Johnson had deep reservations when he signed the law that opened the government's filing cabinets to its citizens, worrying that it might force the disclosure of damaging national secrets, newly disclosed records show. Forty years later, the Freedom of Information Act still creates tension between the government and citizens, corporations, researchers and journalists. The law's staunchest advocates think its principles are imperiled, threatened by what they describe as the Bush administration's penchant for secrecy and concerns about revealing strategies to terrorists." [Also from AP, "Tips on Seeking Government Records Under FOIA".]

"On 40th Birthday, Freedom of Information Act Faces Midlife Crisis," David O. Stewart, The Baltimore Sun: "On its 40th birthday, the aging FOIA needs help from a Congress that is learning the high costs of secret government, and from executive agencies that too often ignore that lesson. The problems with the FOIA could not be more current as radio talk shows thump The New York Times for having the temerity to inform Americans about what their government is doing. This nation should heed the advice Dean Wormer delivered to John Belushi's character in the movie Animal House: 'Fat, drunk and stupid is no way to go through life.' "

"City Lawyer Writes a Book on Freedom of Information Act," Roy L. Williams, The Birmingham (Ala.) News: "The FOIA was passed by Congress to give the public greater access to records of the executive branch. A Birmingham lawyer who has written a new book examining the act says much of the public's right to know is being whittled away under the name of the war on terror. Stephen Gidiere, an environmental and public records lawyer for Balch & Bingham, says that while it's understandable the federal government wants to keep the wraps on some information in the wake of the 9/11 terrorist attacks, he feels the administration has gone too far."

"Open Records Law Remains Critical," Burlington (Vt.) Free Press: "The Freedom of Information Act turns 40 on Tuesday—as important in 2006 as it was when President Lyndon Johnson signed the act on July 4, 1966…. The United States is among more than 60 countries that have some form of law that tries to shine the light on government secrecy, and all states have access to information laws. These laws are a significant part of life in a free and democratic society. But government doesn't always see it that way…. When it comes to processing public records requests, the government is in no hurry…. The nation's Freedom of Information Act deserves more respect."

"Our Freedom Thrives on Information," John Nichols, The Capital Times, Madison, Wis.: "The signing of the Freedom of Information Act represented the realization of the promise of self-governance that may have been born on July 4, 1776, but that was never fully realized until 190 years later…. As John Moss, the crusading California congressman who secured its passage, frequently noted, the Freedom of Information Act was the first law in the long history of the republic that gave Americans the right to access the records of federal agencies that are funded with their tax dollars and that are, supposedly, at their service. That is a right that, Moss argued, was every bit as essential to realizing the full potential of American democracy as the protections contained in the Bill of Rights. And, of course, he was correct. What good is freedom of speech if that speech is not informed by knowledge of what the government is doing in our name but without our informed consent? What good is freedom of the press if reporters are unable to find out what government agencies are up to?... If Americans want on this Fourth of July to honor the democratic values that are this country's greatest strength, perhaps the best way to do so is by making a resolution to contact our representatives in the House and Senate and tell them to support the Open Government Act. The enactment of this simple reform would renew the promise not just of the Freedom of Information Act but of the Declaration of Independence and the American experiment." [Similarly, Nichols writes in The Nation.]

"The Public Has a Right to Know," The Charleston (W. Va.) Daily Mail: "What is going on in the federal government? The public is making fewer requests for public information, and yet the backlog for processing those requests grows. This is absurd…. The problem is not the law, but rather administrators who fail to take it seriously…. President Bush signed an executive order on Dec. 14 telling agency heads to get the lead out. He gave them until next Feb. 1 to report on their progress. Here is hoping that helps. The people have the right to know."

"Pentagon's 'Redacting' is Nothing More Than Censorship," Thomas Peele, Times Watchdog, Contra Costa (Calif.) Times: "Redaction is simply another word for censor. Other than not answering requests at all, citing privacy concerns to censor documents is the federal government's way of making the FOIA impotent…. People have a right to expect responsible actions and transparency from their government. They don't get it when the first reaction of the information keepers to request for documents is to pop the top off a black marker."

"Governing in the Dark Grows Distrust," Corvallis (Ore.) Gazette Times: "Do you feel safer in the dark? It’s a question that the public needs to ask in light of an expanding cloak of secrecy that shrouds more federal activities, committee meetings, patent applications and even special-interest legislation than at the height of the Cold War…. Some added security might be justified in our battle against terrorism, but the sheer volume of secrets being created by the government runs counter to the recommendations of both the 9/11 Commission and the congressional joint inquiry into 9/11…. Standing between an informed citizenry and a secrecy-prone government is the Freedom of Information Act, which celebrated its 40th birthday, appropriately, on the Fourth of July…. If more government agencies took the position that the public’s business is, in fact, public, then they’d find that releasing information generally was in their interest. This would help repair trust between the people and their government."

"Little Freedom in FOIA, Critics Say," Wendell Cochran and Coral Davenport, Cox News Service, Washington: "The historic [FOIA] law is widely seen as broken. The backlog of requests is growing, with some Americans waiting years for information from government agencies. Each administration since 1966 has used every tool at its disposal to thwart disclosure of information that it deems dangerous or embarrassing. The Bush administration is no different, often citing the changed security environment after the Sept. 11, 2001, terrorist attacks as justification for secrecy."

"Freedom of Information not so Freely Accessible," The Daily News, Longview, Wash.: "The federal Freedom of Information Act, or FOIA, the single most important tool available to Americans seeking access to government documents, marks its 40th anniversary today. It's fitting that this law took effect on Independence Day. FOIA is a powerful force for open government, which is essential to maintaining the free society envisioned by the Founders. But FOIA, itself, is in need of maintenance on this Fourth…. We can be reasonably sure the long delays on FOIA requests have nothing to do with guarding legitimate state secrets, since FOIA allows for national security exemptions. They most likely stem from a government-wide determination that transparency will take a back seat to expediency. In any event, excessive secrecy isn't key to making the nation safer. Indeed, it can have just the opposite effect…. A number of changes in FOIA have been proposed over the past year to counter this post-9/11 drift toward more government secrecy…. These are sensible changes that could help ensure the government transparency that citizens must have in order to make informed choices."

"Freedom of Information Act Turns 40 Today," The Examiner, Washington: "Another measure that continues the spirit and expands the scope of government transparency pioneered by the FOIA is now before Congress. It is the Federal Funding Accountability and Transparency Act (S. 2590)…. The FFATA would put virtually all federal spending within a few mouse clicks for every citizen, subject to reasonable exemptions for considerations like national security, law enforcement and personal privacy.... The House has already passed a similar measure, but it contains a serious flaw because it covers only federal grants while excluding federal contracts…. With or without competitive bidding, the point is to apply the principle of transparency and accountability to contracts and grants, regardless of the process by which they are awarded."

"FOIA Turns 40, But Getting Info is Harder," Heather Haddon, Herald News, West Patterson, N.J.: "Forty years ago, New Jersey residents would face an uphill battle in finding out if they were being exposed to toxins in the environment or dangers in the workplace. For the most part, the opposite is true today.Residents and advocacy groups have persistently petitioned for this type of vital information through the Freedom of Information Act, a law requiring that federal agencies answer public requests for documents. Today, FOIA marks 40 years of making information available to the public—everything from FBI files to public contracts."

"Duct Tape Isn't Good for Transparency," Herald News, West Paterson, N.J.: "A fundamental part of a democratic government is transparency. The public has a right to know what decisions are being made. However, it has become increasingly difficult to see through the windows of government when the White House has a penchant for duct tape…. Last week's 40th anniversary of FOIA coincides, sadly, with one of the darkest times in this nation's history, especially when it comes to transparency in governing. Not only has the Bush administration become one of the most secretive White Houses, it has done so while simultaneously maintaining surveillance without warrant on millions of ordinary Americans…. Today it is troublesome, however, to discover that the government, especially on the federal level, is increasingly using the Sept. 11 attacks, and the subsequent "war on terror," to carry out major policy decisions in virtual secrecy and then stonewall the public, the media or anyone who seeks information about it. More troubling is that too many Americans bought into the Bush administration mantra: Just trust us. The founders of this nation knew one another well enough to know such an idea was untenable. That's why they established a separation of governmental powers into three distinct and autonomous branches, none of them meant to hold sway over another. The Freedom of Information Act is further manifestation of that separation, the idea that those who live in a democracy have a right, indeed an obligation, to know what their leaders are doing."

"40 Years Later, Continue Fight for Information," The Kalamazoo (Mich.) Gazette: "Americans should be grateful that, despite [President] Johnson's reservations, he signed the ground-breaking [FOIA] bill. It was the first law to guarantee that Americans would have access to government information, unless that information would harm national security…. But we know from history that volumes of information have been hidden from public scrutiny because they would reveal government incompetence or corruption. And during times of war or insecurity, incompetent or corrupt government officials have been more than willing to claim the nation's safety is at risk when they withhold information about their actions…. Government officials, journalists and everyday American citizens will forever clash over what the public has the right to know. For our part, we will continue to campaign for openness. It is our contribution to ensuring that our government becomes neither farce nor tragedy—and that Americans remain their own governors."

"Freedom of Information Act: Forty Years Ago, Public Gained Its Right to Know," Mike McGraw, The Kansas City Star: "Little known, poorly understood and, it seems, constantly embattled, the act stands as one of the most important pieces of legislation ever passed by the U.S. Congress. So important, in fact, that the Congress quickly exempted itself from its provisions…. Today, the act remains the public’s only legislative window on how government really works — or doesn’t…. But there is a mighty force working against open government. And that is the government itself."

"Freedom of Information Law Reaches 40," James W. Crawley, Media General News Service, Washington: "While everyone is celebrating the Fourth of July on Tuesday, let me suggest a little flag waving and fireworks for the 40th birthday of the Freedom of Information Act. As the law reaches middle age, it needs a celebration. The statute is looking a little shopworn as government officials erect new barriers to obtaining public information and the concept of open government is under assault, fueled by fears of terrorists and officials' embarrassment over leaks…. Despite the tumultuous times, the Freedom of Information Act has survived 40 years of service to America. So, let us raise a glass of iced tea—after checking Food and Drug Administration records—in salute of the Fourth and open records."

"Shedding Light on the Confidential," Martin E. Halstuk, The Patriot-News, Harrisburg, Pa.: "The FOIA is 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…. The Congress of 40 years ago gave 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 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." [Similarly, Halstuck writes about FOIA in "Making Freedom of Information Stronger" for The Mercury News, San Jose, Calif.]

"FOIA is Everybody's Law," The Plain Dealer, Cleveland: "Editorial pages raise such a fuss about the importance of free access to government information—and the Freedom of Information Act, which supports that access—that some readers might think it's all just our special interest pleading for special rights. But news media requests form only a small fraction of FOIA petitions—6 percent, according to research by the Coalition of Journalists for Open Government covering requests filed last September…. As with justice, information delayed is information denied. That's why the government's myriad delaying agencies ill-serve Americans who, for whatever reasons, seek records, documents and other information to which they are fully entitled. That's why studies like the CJOG endeavor are important, and why the Freedom of Information Act needs to be stronger."

"Records Access Helps Preserve the Union," The Times, Shreveport, La.: "Something to consider: Seldom will your government's timetable for disclosure match that of the media in fulfilling [their] First Amendment-backed freedom to keep the public informed. That's part of the healthy tension a free society needs. The nation continues to stand because the public always manages—eventually—to sort out fact from fiction, harm from hype, public interest from politics. But it all starts with information. Crucial to that end, both for private citizens and media watchdogs, is public access to government records…. And yet, those bureaucrats who would thwart the intent of the FOIA to make government more open and accessible have found an effective counter-measure in simply dragging their feet."

"Bush Does it In the Dark," David C. Vladeck, Georgetown University Law School, TomPaine.com: "FOIA has had an illustrious history, but it has fallen on hard times of late. When the complicated legacy of President George W. Bush is written, one thing is certain: He will be remembered as the 'secrecy' president…. The administration’s obsession with secrecy has not been limited to its assault on FOIA. The administration has tried to mute the press by threatening prosecutions and issuing an avalanche of subpoenas to reporters. The administration has refused to cooperate with Congress by providing information on hundreds of occasions—even when the requests came from Republicans. And the administration has even taken its secrecy campaign to the courts, routinely asking the courts to dismiss cases outright because they involve 'state secrets'—such as cases challenging the government’s domestic spying operations…. The 40th anniversary of FOIA is a good time to take stock of whether our nation is living up to basic ideals of open government that have had such an illustrious history. Clearly we are not. The time has come for us to renew our commitment to openness and reaffirm the basic principle that secrecy is an anathema to democratic government."

"Checks, Balances and FOIA's 40th Anniversary," Stephen Gidiere, Balch & Bingham LLP, USA Today: "Forty years later [since FOIA was signed], we have come full circle. Even before 9/11, President Bush has repeatedly asserted his constitutional power to hide information from the American people, Congress and the courts…. FOIA's 40th anniversary is the perfect opportunity for Congress to reassert its role. There will always be secrets, and good government requires a balance between secrecy and openness. This balance must be constantly adjusted as circumstances change. But right now, Bush is pulling hard on his side of the rope, and no one is pulling back."

Open government, and its evil twin secrecy, were fodder for editorial cartoonists during Sunshine Week. On the occasion of FOIA's anniversary, they're well worth revisiting online here.