The public’s need to know is a constant in a democratic society, but fulfillment of the public’s right to know ebbs and flows. As we mark the 40th anniversary of the Freedom of Information Act, the current ebb tide of public access to government information has been especially severe, drawn down by a secrecy-obsessed administration that too often seems to treat information as the sovereign property not of the people but of the executive branch. The information deficit even extends to Congress and to the knowledge the legislative branch needs for effective oversight.
Here we are in a so-called Information Age, powered by the marvels of the Internet and its ability to collect and distribute information. The federal government itself is harnessing cutting-edge technologies to build unprecedented data gathering, data banking and data mining capabilities. Yet at the very same time that the government is learning more and more about what every citizen is doing, the government is working harder and harder to keep citizens from finding out what the government itself is doing.
James Madison said the people “must arm themselves with the power knowledge gives,” and for 40 years, FOIA has given the American people more of the keys to that information.
FOIA has taken hit after hit in recent years, but it has continued to prove its worth. Consider what we know today that we would not know, but for FOIA. It was through a FOIA lawsuit that government documents describing conditions at Guantanamo Bay were obtained, contributing to evidence presented to the Supreme Court that led to the landmark Hamdan v. Rumsfeld case that overturned the Bush administration’s unlawful military commission process. Through documents uncovered in another FOIA lawsuit, we recently learned that a lucrative government oil reconstruction contract awarded to Halliburton was coordinated closely with the office of Vice President Cheney, contrary to numerous statements denying any such involvement. And through documents obtained in another FOIA lawsuit, the public first learned that Secret Service logs show that disgraced lobbyist Jack Abramoff visited the Bush White House at least a half-dozen times.
But setbacks to the right to know are piling up. They include the overly broad FOIA waiver in the charter for the Department of Homeland Security — the biggest single rollback of FOIA in its history. They also include muzzling government scientists on issues from climate change to drug approvals; shifting the burden of proof in the FOIA process from federal agencies to the public; the expanding use of government secrecy stamps; threats of criminal prosecutions of journalists; and undermining whistleblowers and the laws that protect them.
Federal agencies today operate under a 2001 directive from former Attorney General John Ashcroft that gives them the upper hand in FOIA requests, reversing the presumption-of-compliance directive issued earlier by former Attorney General Janet Reno. According to a recent study by the National Security Archive, today there are 28 different policies throughout the federal government for handling “sensitive, but unclassified information,” resulting in unprecedented restrictions on public access.
Another recent FOIA-unfriendly move is the CIA’s threat to rescind the search fee waivers long granted to the National Security Archive, the independent nongovernment research group that has been a valued information clearinghouse for the press and the public. This change potentially could cost the Archive hundreds of thousands of dollars.
FOIA’s defenders also watched warily this summer as the administration hired academic contractors to lay the “research” groundwork for a federal law that Congress may be asked to pass to take previously public information beyond the reach of public inquiries.
And in a situation that borders on the absurd, intelligence agencies have been quietly reclassifying 55,000 pages of documents that for years were publicly available.
Excessive government secrecy comes at a high cost to the public in lost accountability, bad policies and poorly run government, but the financial costs are also high. In 2003, the federal government spent at least $6.5 billion securing classified information, a staggering $2 billion increase since 2001.
In an odd-couple bipartisan partnership, Sen. John Cornyn, R-Texas, and I have been working together to try to rebalance the FOIA equation. From his earlier public service in Texas, Cornyn has carried forward to Congress his deep commitment to the public’s right to know. We have introduced the OPEN Government Act and two other bills to strengthen FOIA, and we hope to get one or more of them across the finish line this year.
FOIA is 40 years young, but its values of government transparency and openness are timeless in their importance to government of, by and for the people.
Happy Birthday FOIA, and let it be the goal of each generation of Americans to hand over to the next, the legacy of a stronger FOIA than we inherited.
U.S. Sen. Patrick Leahy, D-Vt., was installed in the FOIA Hall of Fame in 1996. He is the author of the Electronic FOIA Amendments of 1996. He also is the sponsor of the RESTORE FOIA Act, a bill that would restore the biggest single rollback FOIA has suffered in its history. That bill would clarify an overly broad provision that allows corporate polluters and others to avoid public disclosure of problems simply by stamping them “critical infrastructure information.” In the current Congress, he has teamed with Sen. John Cornyn, R-Texas, to advance an open government agenda. Together they have introduced three bills to reduce agency delay in processing FOIA requests and to install other reforms to improve the FOIA process. Leahy also led in adding sunset and sunshine provisions to the recently renewed USA PATRIOT Act.
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