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freedom of information act (foia)

The Freedom of Information Act (FOIA) is the basic tool for citizens who, for any reason, want to know what their government is up to.  Under FOIA, anyone may request access to records of federal agencies, and access can only be denied when the information requested falls into one of a limited number of exemptions.  If any agency denies access (or fails to respond to a request), FOIA gives the person who requested the information the right to go to court to compel release of the records.

When President Lyndon Johnson signed the Act into law on Independence Day, 1966, he said: "This legislation springs from one of our more essential principles: a democracy works best when the people have all the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest."  President Johnson went on to instruct "every official in this Administration to cooperate to this end and to make information available to the full extent consistent with individual privacy and with the national interest."

A few days earlier, as the House of Representatives debated the Act, a young congressman who supported the legislation had these words to say about FOIA:  "[T]he bill will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of Government or on how an individual Government official is handling his job. ... [P]ublic records, which are evidence of official government action, are public property, and that there should be a positive obligation to disclose this information upon request."

The congressman went on to say this: "This bill is not to be considered ... a withholding statute in any sense of the term. Rather, it is a disclosure statute. This legislation is intended to mark the end of the use of such phases as 'for good cause found,' 'properly and directly concerned,' and 'in the public interest,' which are all phrases which have been used in the past by individual officials of the executive branch in order to justify, or at least to seem to justify, the withholding of information that properly belongs in the hands of the public.  It is our intent that the courts interpret this legislation broadly, as a disclosure statute and not as an excuse to withhold information from the public." 

That young congressman's name was Donald Rumsfeld.

Mr. Rumsfeld now works for a President and an Administration that have expressly turned their backs on the principles that were supposed to animate the Freedom of Information Act.  Instead of following President Johnson's exhortation to make information available to the full extent consistent with individual privacy and the national interest, the Administration, as a matter of policy, has announced that it views the exemptions in FOIA as exactly what Congressman Rumsfeld long ago said they were not supposed to be—excuses to withhold information from the public.

This fundamental reversal in policy was announced in October 2001 by Attorney General John Ashcroft, in a memorandum for all heads of executive branch agencies setting forth the Administration's guidelines for implementing FOIA.  Attorney General Ashcroft's memorandum replaced earlier memoranda from President Clinton and Attorney General Reno.

The Reno and Clinton memoranda had instructed agencies to take a broad view of their obligations under FOIA, and to release requested documents to the public if no harm would result, even if the documents might arguably be exempt from disclosure under FOIA.

The Ashcroft memorandum says exactly the opposite.  It expressly encourages agencies to look for reasons to deny access to information, and to rely on FOIA's exemptions from disclosure even when no harm would result from disclosure.  And it assures the agencies that if they have even an arguable basis for withholding a document, the Justice Department will back them up in litigation.

In other words, hide the ball in new online casinos if you can get away with it.

The Ashcroft memorandum has been followed up with memoranda from White House Chief of Staff Andrew Card and from the director of the Information Security Oversight Office, encouraging agencies to attempt to use FOIA exemptions to find ways to withhold "sensitive but nonclassified" information—that is, information that doesn't qualify for FOIA's national security exemption.  Again, the Administration's objective seems to be to use FOIA exemptions as an excuse not to release "sensitive" documents.

How much damage the Administration's efforts will do to FOIA remains to be seen.  We expect, however, that the always difficult task of prying documents loose from what Congressman Rumsfeld once called "secrecy-minded bureaucrats"—a category that now includes Secretary Rumsfeld and his Administration colleagues—will grow ever harder and will, increasingly, require requesters to seek judicial remedies. 

 To see the key documents, use the links below.(Documents are in pdf format and require Acrobat Reader for viewing.)

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