FOIA 50 Years Later
The “Freedom From Information” Act: A Look Back at Nader, FOIA, and What Went Wrong
Not long after the Freedom of Information Act (“FOIA”) went into effect, consumer advocate Ralph Nader sent one hundred students out to test whether the statute was working. The students made FOIA requests to more than a dozen federal agencies on a range of consumer topics, from highway safety and airline accidents to environmental pollution and the regulation of pharmaceutical products. Nader, never known for his subtlety, captured the results in the title of the article that followed: Freedom from Information: The Act and the Agencies. As Nader put it early in the piece, “I have reached a disturbing conclusion: government officials at all levels in many of these agencies have systematically and routinely violated both the purpose and specific provisions of the law.
A Resurgence of Secret Law
This much should be uncontroversial: the public should have access to the law and to the government’s interpretations of it. This principle is an imperative not just of due process but also of republican governance. The Freedom of Information Act (FOIA), which the Eighty-ninth Congress enacted half a century ago, included a provision requiring federal agencies to disclose their effective law and policy. A decade after Congress enacted the FOIA, the Supreme Court’s unanimous decision in NLRB v. Sears, Roebuck & Co. construed this provision to require federal agencies to publish their “working law.” The Court explained that “the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted,” and it held that the FOIA requires “[t]hese reasons, if expressed within the agency,” to be disclosed. In subsequent cases, lower courts enforced this rule, repeatedly requiring federal agencies to publish legal memoranda and opinions interpreting or applying the law.
Memorandums to Messages: The Evolution of FOIA in the Age of the Internet
This year marks the fiftieth anniversary of the Freedom of Information Act (FOIA). In the words of President Obama, this law, “which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.” Since its enactment, the FOIA has become an indispensable mechanism for facilitating the public’s understanding of the operations and activities of the federal government. The statute applies to all federal agencies and functions in a straightforward way: virtually anyone, for any reason, can request access to agency records, and agencies, in turn, are required to provide those records unless they are protected from disclosure by nine, carefully crafted exemptions.
Inside FOIA, Inc.
The Freedom of Information Act (FOIA) has a lofty goal: to open the doors of government offices and allow the public a front-row seat in watching over government affairs. In turn, this sort of bright transparency should enhance our participatory democracy and the accountability of our elected officials. To that end, Congress envisioned the news media as among the most important users of FOIA. No doubt, FOIA has served precisely that purpose on many occasions—examples which represent victories for openness and accountability. Yet, journalists and watchdog groups make up a tiny fraction of requesters seeking information under the law.
Is Open Data the Death of FOIA?
For fifty years, the Freedom of Information Act (FOIA) has been the platinum standard for open government in the United States. The statute isconsidered the legal bedrock of the public’s right to know about the workingsof our government. More than one hundred countries and all fifty states haveenacted their own freedom of information laws. At the same time, FOIA’s many limitations have also become evident: a cumbersome process, delays inresponses, and redactions that frustrate journalists and other informationseekers. Politically-motivated nuisance requestsbedevil government agencies. With over 700,000 FOIA requestsfiled every year, the federal government faces the costs of a mounting backlog.