On 40th birthday, Freedom of Information Act faces midlife crisis

July 04, 2006|By DAVID O. STEWART

"Kicking and screaming," according to one who was there, President Lyndon B. Johnson signed the Freedom of Information Act at his Texas ranch on Independence Day in 1966. 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."

More than 200 years ago, James Madison made the same point with greater elegance: "A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both."

That principle animates the FOIA, which was intended to ease citizen access to the government's troves of information. It is a delicate balancing act, to be sure. The government holds national security secrets, embarrassing and irrelevant personal information and valuable proprietary commercial information. To protect what truly needs to be protected, the FOIA provides several exemptions from disclosure.

The balance between disclosure and secrecy can be difficult to strike, particularly when more than 4 million FOIA requests are submitted every year. The Defense Department alone has 500 FOIA offices. Yet there are many symptoms that the current policies fundamentally skew toward secrecy in a manner that can only injure the public interest.

In a secret program, federal agencies have spirited out of the National Archives more than 25,000 previously disclosed records and reclassified them as "secret." These included a 1951 assessment of agrarian reform in Guatemala and a 1948 memo on balloon drops of leaflets into Communist countries.

The CIA has demanded that the National Security Archive, an advocacy group that frequently unearths newsworthy information through FOIA requests, pay the search costs for more than 40 requests, which would run into hundreds of thousands of dollars.

The agency claims that information requests about Taliban leaders in Afghanistan and U.S. policy in the 1970s toward that nation do not meet its definition for "news." For the National Security Archive, and for writers who are part of the Freedom to Write Fund of the Washington Independent Writers, the CIA's cost-charging policy completely neuters the FOIA.

The entire government continues to function under former Attorney General John Ashcroft's 2001 directive that encouraged agencies to deny information requested under the FOIA, assuring them of Justice Department support in defending such denials.

The oldest FOIA request still pending was filed in 1989, with many others of scandalously senior vintage. Losing and misrouting such requests are discouragingly routine in many agencies.

The tightening of FOIA policies parallels other chilling increases in government secrecy. The government has asserted the "state secrets" privilege 25 times in lawsuits in the last five years, compared with 55 invocations over the preceding 48 years (most of which involved the nuclear standoff with the Soviet Union).

Neither Congress nor any court nor the American people knew that the government was eavesdropping on overseas telephone calls or rummaging through private banking records.

There are glimmers of hope. After years of snoozing on the job, the House Judiciary Committee has demanded information about the secret telephone eavesdropping program. An initiative prompted by an executive order in December aims to force each federal agency to improve its FOIA responses; formal plans to do so were posted last month.

Still, both the people and their servants need a much sharper appreciation of the essential connection - captured in the name of the FOIA - between "freedom" and "information." Despotic regimes always have understood, and cynically leveraged, that connection to suppress dissent and extend control over their people.

James Madison understood the connection, too. "A people who mean to be their own governors," he wrote, "must arm themselves with the power which knowledge gives."

With the FOIA now at midlife, and with the government increasingly denying us the knowledge that we need to govern ourselves and to hold it accountable, we must demand greater openness and access to government information.

David O. Stewart, president of the Freedom to Write Fund of the Washington Independent Writers, is the author of a forthcoming history of the Constitutional Convention, "The Summer of 1787." His e-mail is xstewart1@comcast.net.

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