Ah, the American people. They think that the government belongs to them, and that they have the right to know what it is up to.
So, 2,000 times a day, people write Washington and ask for copies of government records, sometimes a single piece of paper, sometimes tens of thousands of documents.
Under the 28-year-old Freedom of Information Act (known as FOIA and invariably pronounced “foya”), requests can come from anyone--reporters, citizens with tax troubles, immigrants trying to keep from being booted out, scholars, corporations, city and state governments, public interest groups, anybody with a yen to know what is in government files. They don’t have to say why they want to know.
And, more often than not, they get what they want. But the emphasis, and the complaints, have been on the “not"--on the times the government has said “no” to FOIA requests, on the times it has come through with incomplete files and, chiefly, on the time it takes to act on requests.
The Clinton Administration is promising to throw open its file cabinets. It says it will say “no” less often, even when it could find legal grounds for doing so.
Organizations that monitor FOIA actions are skeptical, although one requester said that under the new policy he got more information than he dared ask for.
What is less clear is whether the Administration will be able to shorten the time it takes for FOIA to work. Requests can hang fire for months or years, and budget cuts are taking a toll on agency staffs that work on FOIA requests.
Carl Stern knows the frustration of waiting for FOIA to release something. When he was an NBC reporter covering the Justice Department, he once asked whether Billy Carter, President Jimmy Carter’s brother, had paid customs duty on a saddle given to him during a visit to Libya. Stern sent in the FOIA request in the 1970s--and got the answer in the 1990s. (It was no; Billy Carter did not declare the saddle.)
Now he is the chief spokesman at the Justice Department, and one of those pressing to streamline the administration of FOIA.
“I carry my old war stories around with me,” he said. “Anytime I’m asked to assess a policy I think of my old situation.”
President Clinton and Atty. Gen. Janet Reno issued directives telling FOIA officers--every agency has one--to be more forthcoming.
The attorney general said the grounds for rejecting a FOIA request should be invoked “only after consideration of the reasonably expected consequences of disclosure in each particular case.”
And, putting teeth into the policy, Reno said the Justice Department would no longer go to court to defend denials of requests for information if no harm could be foreseen from putting the information out.
In the Ronald Reagan and George Bush administrations, the department defended any agency’s rejection of a FOIA request if a “substantial legal basis” for the denial could be found.
Because the law provides a number of grounds on which requests for information can be refused, FOIA officers have considerable discretion. And some of the old FOIA officers are still at work, with the old mind-set.
As for exemptions:
National security secrets aren’t covered. Information that would harm law enforcement or foreign policy isn’t covered. Information that would violate the privacy of individuals or give away business trade secrets is exempted. So are the internal communications of government officials in the process of making policy.
Prodded by Stern, Justice took another step: It said requests for information concerning issues of government integrity should go to the head of the line.
In Washington, a community of nonprofit organizations has grown up to help requesters, or become requesters themselves--the Reporters Committee for Freedom of the Press, National Security Archive, Public Citizen, American Civil Liberties Union, Landmark Legal Foundation.
One would think they’d be happy with the new system. And most are, mostly. But they say departmental practices haven’t yet caught up with the new principles.
“The Department of Justice is talking a very good fight,” said Jane Kirtley, executive director of the Reporters Committee. “But there still seems to be a great deal of resistance among the people on the line doing the day-to-day processing of these requests. It boils down to this: Until the day comes when information officers feel they have more to lose by withholding a document than releasing it, nothing fundamental is going to change.”
David Vladeck, chief lawyer for Public Citizen, scored what was probably the biggest FOIA victory under the new policy: He got the government files in the Kurt Waldheim case--the Reagan Administration’s decision to bar the former Austrian president from entering the United States on grounds that he participated in Nazi atrocities in World War II.
Vladeck sued on behalf of two journalists who wanted to report what the government had learned about Waldheim’s past, and the case was still in litigation when Clinton took office. The new Administration abruptly decided to release the papers.
“They gave us the documents . . . including documents even we didn’t have the temerity to ask for. . . . The new policy ended up with sweeping and beneficial disclosures that otherwise would not have been made,” Vladeck said.
Mark Levin, director for legal policy at the Landmark Legal Foundation, has no such success story. He’s been trying to get information on what role Justice Department figures may have played after the firing of White House travel office personnel.
“The FBI responded recently with a form letter, after 10 months, which did not even address our FOIA request,” Levin said. “I think this Administration has been the least responsive of any in recent memory.”
Stern, for his part, criticizes reporters who put in “fishing expedition” requests that can tie up FOIA personnel for months. He cites a reporter who asked for all the phone records of the U.S. attorney’s office in Little Rock, Ark., over a two-year period.
Making such a request is easy, but processing it is time consuming.
The Freedom of Information Act is far more than a journalists’ tool. Reporters’ requests for records account for less than 10% of the total.
“Records” is the key word. Agencies are only required to look for existing documents, not to create new records or to do research. FOIA is not intended to turn the government into a reference library. Requesters must be fairly specific in describing what they want.
The Administration invites requesters and FOIA officials to talk things over by telephone rather than engaging in fruitless correspondence.
Americans seem to be catching on to FOIA’s existence.
Harry Hammitt, who publishes the Access Reports newsletter, which monitors FOIA operations, calculates that the government got 589,000 FOIA requests in 1991, the latest year for which he could assemble figures. That was an increase of nearly 100,000 in a single year.
It is costly. Although searching and photocopying fees can be assessed, most agencies provide 100 pages free and many often waive fees, especially on the least time-consuming requests.