Toward Increased Freedom of Information
By Quinlan J. Shea Jr.
he Freedom of Information Act has been praised as one of the most powerful tools ever put into the hands of the people of a nation seeking to ensure integrity in their government.
Before the Act was passed in 1966, no law provided for public access to government information. One could ask for information, but, far more often than not, those requests were denied or ignored.
In practice, there was widespread dissatisfaction with the original statute, and it was substantially strengthened in 1974.
The Freedom of Information Act provides that any person can request access to any records of the executive branch of the federal government, and that those records must be released unless protected from mandatory disclosure by some provision of the Freedom of Information Act itself, or of some other federal law. If only a part of a record is exempt, that portion may be excised, but the remainder must be released.
This right of access is enforceable, if necessary, by filing suit in federal court. The government must then prove that the denied material is exempt.
I have long believed that secrecy is the mortal enemy of democracy. The more secrecy, the less democracy. The more that citizens are told that they must trust their government—that they must take on faith its integrity, and the value of what the government is doing and why it is doing it—the greater is the tendency away from democracy as we would like to see it.
The Freedom of Information Act helps us to learn what is actually going on inside our government. Remember that any government, regardless of the party in power, will seek to conceal some of the things it does and, more frequently, the reasons for the actions it takes or fails to take.
While it makes sense that there be some restrictions on freedom of information, such as to protect the personal privacy of individuals and ongoing law enforcement investigations, the post-World War II history of our country is filled with examples of secrecy far beyond any legitimate need.
Fortunately, the overall trend during the past 30 years has been toward greater freedom of information, not less.
The Freedom of Information Act has enabled us to learn more about Watergate, Cointelpro, the assassinations of John F. Kennedy and Dr. Martin Luther King Jr., and other cases of national importance.
For example, Freedom Magazine used the act to obtain documents about chemical and biological warfare testing conducted by the U.S. Army and the CIA, and directed against unwitting travelers in the Washington, D.C., area and perhaps in New York, Chicago, San Francisco and other cities as well.
Organizations like the ACLU, the Church of Scientology, the National Security Archive, the Society of Professional Journalists and Ralph Nader’s Public Citizen have endeavored to shine more light on government. They—and others—have issued publications on how to use the FOIA, have litigated in the courts and have testified before numerous congressional hearings calling for greater openness.
During the Reagan/Bush years, unfortunately, the pro-secrecy faction gained an upper hand. The Reagan administration did away with the FOIA policy of the Ford and Carter administrations, which advocated disclosure of as much information to the public as possible. Gone were the days when FOIA request processers were required to justify withholding information—in the Reagan/Bush era they had to justify releasing information.
The darkest day may have come when President Reagan signed Executive Order 12356 on security classification. This much-criticized order did away with the declassification timetable for government documents and established broad security classification authority, including the power to classify documents after the receipt of a FOIA request.
On October 4, 1993, however, President Bill Clinton and Attorney General Janet Reno issued policy memos directing all agencies to release as much information as possible in response to FOIA requests. Under this policy, the Department of Justice would defend agencies in FOIA litigation only if the agency could show that release of the information would cause harm to the government, even if that information could technically be withheld under the law.
While this failed to solve all problems with the processing of FOIA requests, it was certainly a step in the right direction. Experts on the subject hailed the change but warned that an ingrained attitude of secrecy and plain old bureaucratic inertia will tend to keep the old standards in place for some time.
Things today are a little bit better than they were before the policy change, but we have by no means returned to the processing standards of the Ford and Carter administrations. Changes in FOIA policy do not automatically lead to changes in the results of the processing of FOIA requests. It is too often a question of attitude within the agencies and changing those attitudes in actual practice requires close supervision and monitoring of FOIA operations by presidential appointees.
On the other hand, effective change will result when it truly reflects the attitude of senior agency officials. For example, without the personal involvement of Secretary Hazel O’Leary, the Department of Energy would almost certainly not have released voluminous documents on secret radiation tests on hundreds of innocent victims.
Many instances have shown it is in the best interests of all Americans that we seek and obtain more and more information about the workings of our government.
Mr. Shea was director of the U.S. Justice Department’s Office of Privacy and Information Appeals during the administrations of Presidents Ford and Carter.
