Legal Issues In the News

Fifty Years of the Freedom of Information Act


Fifty years ago, the Freedom of Information Act, or FOIA, became the law of the land.  Gaining passage of FOIA took years of work by its champions, California Congressman John Moss and a collection of journalists.  Its enactment was opposed by a host of federal agencies.  Once the hearings were concluded and FOIA was eventually was passed by Congress, President Lyndon Baines Johnson thought about vetoing it.  But he signed the law, and FOIA became the prime tool to get documents from the federal government.

FOIA’s key provisions create a presumption in favor of public access to all government information.  It puts the burden on the government to demonstrate that a particular piece of information falls outside that presumption, and may properly be kept secret.  But the government may keep information secret only if it falls within nine specified exemptions.  These exemptions concern national security, law enforcement proceedings, trade secrets, personnel files, and other sensitive matters.

Of course, most agencies would prefer to withhold information that shows them in an unflattering light.   So FOIA now includes response time requirements as well as an appellate process, and also has a provision that permits requestors to file lawsuits if information is not provided. 

Through the decades, FOIA has provided the mechanism to uncover untidy management and unsavory conduct.  For example, this year, FOIA documents revealed that the Transportation Security Administration paid over one million dollars for a simple program that randomly displays an arrow pointed to the right or left on personnel iPads.   The program is used so that TSA employees can direct passengers to the right or left for airline security screening.

Also this year, FOIA documents confirmed that Pentagon officials deliberately misled Congress on the Defense Department’s handling of sexual assault cases in order to undermine reform legislation.  Older FOIA disclosures documented how the federal government turned down millions of dollars in aid from its allies after hurricane Katrina.  And FOIA materials also showed that Ashton Carter, the Secretary of Defense, used his personal email account to conduct government business in violation of Defense Department Rules, even after news broke about Hilary Clinton’s personal emailing while Secretary of State. 

Occasionally, a FOIA’d document reveals something just plain amusing, such as the fact that former attorney general Eric Holder used Kareem Abdul-Jabbar’s birth name, Lew Alcindor, as his official email address.  Apparently, he is a fan.

One unintended consequence of FOIA has been a shift in communication styles.  In response to the revelation about personal email accounts, defense Secretary Ashton Carter’s spokesman, Peter Cook, advised that Mr. Carter “strongly prefers to conduct communications on the phone or in person, and like many of his predecessors rarely uses email for official government business.”  This is not surprising;  FOIA cannot be used to find out who is meeting with whom, or to get information about what was said at meetings, unless it’s memorialized in some way. So FOIA encourages a shift to verbal communications and limited record-keeping.

There are also state Freedom of Information Acts, and they, too, have enforcement problems.  For example, the Illinois Legislature amended the Illinois FOIA in 2009 to create an appeals process for requestors who were improperly denied access to information.  But the Illinois legislature then created an exception to the right of appeal for documents the legislature itself failed to produce.

According to Supreme Court Justice Louis Brandeis, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”   Getting that light to fully illuminate what should be seen remains the challenge.