Custodian, Not Owner

Who owns the government? The people do. Who owns government information? The people own that, too. But the Reagan Administration and its allies in Congress want to restrict the people’s access to that information. A bill by Senator Orrin G. Hatch (R-Utah) that is now being considered in committee would amend the Freedom of Information Act to exempt broad categories of information from public scrutiny and grant wide discretion to the government in determining what to release. These changes are unnecessary and inimical to the public interest.

The current law allows the government to charge for searching records and for copying them. The Hatch bill (S 150) would allow the government to charge for reviewing the records for possible deletions, an added financial burden on people making Freedom of Information Act requests. The government maintains that complying with the act costs $40 million to $60 million a year. That does not seem an intolerable expense, considering that the government spends $100 million a year on military bands.

The current law exempts from public scrutiny “personnel and medical files.” The Hatch legislation would add “records or information concerning individuals, including compilations or lists of names and addresses that could be used for solicitation purposes, the release of which could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy.” This language would create a much broader exemption than the current law does, and would give much greater discretion to the government.

The government would also be given greater latitude in deciding whether to release information involving law enforcement. The current law exempts information that “would” interfere with a criminal investigation, disclose the identity of a confidential source, deprive a person of a right to a fair trial or constitute an unwarranted invasion of personal privacy. The proposed bill would remove the word would and substitute the words could reasonably be expected to do any of these things, thereby allowing the government to withhold much more.


Under the Hatch proposal, agencies could “consider whether the disclosure of particular information would, in the context of other information available to the requester,” cause invasion of privacy, denial of fair trial or any of the other envisioned harms. In other words, even if the information itself was harmless, it could still be withheld because of the “mosaic” that it would create.

The Freedom of Information Act has been the law in one form or another since 1966. The Reagan Administration has been eager to eviscerate it, consistent with its policy of cloaking government actions in secrecy. But it has never demonstrated that any harm has resulted from public access to information.

The people are entitled to know what the government is up to. If anything, the current law should be strengthened, not weakened. The government is the custodian--not the owner--of this information, and the people should have the freest possible access to it.