At a time when members of now-President Donald Trump’s 2016 campaign are under investigation for collusion with Russia, and the administration is steadily reducing the amount of publicly available information about the activities of federal agencies while straight out refusing to disclose vital information, such as who has visited the White House, the importance of the Freedom of Information Act (FOIA) could not be more paramount.
Signed into law in 1966 by President Lyndon B. Johnson, the FOIA “establishes a presumptive right for the public to obtain identifiable, existing records of federal agencies. Crucially, however, it does “not [apply] to the President, his immediate staff, the Office of the Vice President” or those components of the Executive Office of the President that advise the president. It also does not apply to Congress.
Prior to the FOIA’s passage, there was no mechanism for citizens to access information about many of their government’s activities. FOIA allowed any person – not just someone “properly and directly concerned” with a matter concerning the executive branch – to obtain information regarding government activities. It also precluded agencies from withholding information not covered by an exemption and authorized courts to compel agencies to produce records.
For the past six decades, FOIA has been the keystone to thousands of seminal news stories, and has enabled various organizations to take action against government malpractice and/or corruption. However, filing a FOIA request does not necessarily ensure that the records requested will be disclosed.
WHAT IS THE FOIA, AND HOW DID IT COME ABOUT?
President Johnson signed the Freedom of Information Act into law in 1966, an initiative that came about as a result of a decade-long campaign by Congressman John Moss to increase government transparency. As written, the FOIA establishes a presumptive public right to the records of government agencies with nine exemptions “intended… to protect against disclosure of information which would substantially harm national defense or foreign policy, individual privacy interests, business proprietary interests, and the efficient operation of governmental functions.” The nine exemptions span from documents pertaining to national security to those that would reveal trade secrets to “‘inter-agency or intra-agency memorandum or letters’ which would be privileged in civil litigation.”
It is the latter — called the “deliberative process privilege,” or Exemption 5 — that is most commonly invoked to shield government documents. The privilege has been invoked so broadly that it is casually referred to as the “withhold because you want to” exemption. In 2015, a pair of bipartisan FOIA reform bills were introduced in the House by Reps. Darrell Issa (R-CA), Elijah Cummings (D-MD), and Mike Quigley (D-IL), and in the Senate by Sens. John Cornyn (R-TX), Patrick Leahy (D-VT), and Chuck Grassley (R-IA), that would have narrowed Exemption 5. As stated in an analysis by the National Security Archive, the 2015 bills “[change] Exemption 5 so that, ‘records that embody the working law, effective policy, or the final decision of the agency’ (such as the Office of Legal Counsel memos) cannot be withheld.” They also would have mandated that information older than 25 years cannot be withheld under Exemption 5. CREW and a slew of other good government and transparency organizations sent a letter expressing support for the initiative; however, while the bills did make headway in reining in use of Exemption 5, a notable omission was language included in a previous Senate bill that would have, according to CREW Chief FOIA Counsel Anne Weismann, “gone even further [in preventing overuse of Exemption 5] by adding a balancing test . . . Under that test, agencies and reviewing courts would have been required to weigh the government’s interest in secrecy against the public interest in disclosure, giving requesters…at least a fighting chance to access the real story behind agency decisions.”
By the time the legislation, codified into the FOIA Improvement Act, reached then-President Obama’s desk in June 2016, the provision that would have mitigated most of the abuse of Exemption 5 was gone, leaving only the 25-year sunset provision for official government documents.
BROAD USE OF EXEMPTIONS IS NOT THE ONLY PROBLEM, HOWEVER
Since its inception, FOIA has been plagued by a litany of persistent problems. Oversight hearings held at the onset of the Watergate scandal between 1972 and 1974 by the House Foreign Operations and Government Information Subcommittee during the 92nd Congress showed that, briefly:
“General problems with the FOIA [included]: excessive delays in responding to document requests…burdensome and costly legal remedies after exhaustion of administrative remedies…inappropriate and inadequate agency regulations and policies regarding the FOIA, poor administration and recordkeeping regarding FOIA processes and a failure to inform members of the public of their rights under the FOIA.”
The problems outlined in the hearings have persisted for over four decades despite repeated FOIA reform. The reforms over the years have made the FOIA process more accessible to the public and have attempted through threat of penalties to bolster agency compliance. At the same time, however, Congress has not given agencies the financial help they need to process an increased volume of requests. As long as Congress refuses to allocate more agency funding for FOIA work, the hard 20-day response deadline established by a 1996 reform will remain totally illusory. The typical agency response time is far, far longer, and often the agency refuses to release any documents at all. To be sure, after 20 days, the requester has a legal right to sue the federal agency over the request, which is often the only way to compel an agency to release records. Unfortunately, this limits effective use of the litigation tool to organizations with a purse and a legal team large and experienced enough to pursue FOIA litigation.
PRESIDENTIAL EXCEPTION PREVENTS TRANSPARENCY IN THE WHITE HOUSE
The FOIA has other significant limitations. Neither the president nor his inner circle are subject to the law, allowing an administration like the present one to blanket the White House in secrecy. A further troubling development is that officials in the Trump White House have been using encrypted messaging applications to communicate which delete messages after receipt. Not only is deleting presidential communications a violation of the Presidential Records Act, but their deletion means we will never know if they contained evidence of criminal wrongdoing or explained a major policy initiative. The reports of these practices prompted CREW and the National Security Archive to file a lawsuit challenging, among other things, the White House’s use of these message-erasing apps as well as its use of executive orders to prevent federal agencies – which are subject to FOIA — from making decisions that could be subject to public scrutiny.
According to the Federal Register, at just over eight months in office, President Trump has filed 46 executive orders. By contrast, then President Obama issued an average of 34 executive orders per year throughout his 8-year tenure, and for most of his time in office, Congress was controlled by the Republican Party. Excessive use of executive orders is objectionable because the records related to those orders are legally shielded from scrutiny, whereas agency decisions are subject to FOIA and held to various regulatory standards such as the Administrative Procedure Act.
Constitutional concerns and executive privilege have led Congress and the courts to grant the president a wide and nearly impregnable zone of privacy. This works better when an administration abides by the ethical standards and norms that accompany the office of the presidency, and with a president that affirmatively makes the White House more accountable — by publishing White House visitor logs, for example.
The FOIA is essential in establishing the American public’s “right to know” how policy is made, but until there is more infrastructure and funding to administer and enforce it, the ideal of a fully informed public remains illusory.