The federal Freedom of Information Act has been contentious ever since its enactment over a half century ago, naturally pitting citizens seeking to hold their government to account against officials whose impulse, nefarious or not, is to control information. Decades later, it is by and large a case study in good intentions gone awry.
But the clinching 307-0 vote in the House vindicated the efforts of the bill’s creator, Rep. John Moss, a Democrat from California. He was ultimately able to muster such overwhelming bipartisan support with co-sponsorship by a young Illinois Republican, Rep. Donald Rumsfeld.
Moss had for years presided over hearings shining a light on government secrecy as the chair of the Committee on Government Operations’ Foreign Operations and Government Subcommittee, on which Rumsfeld also sat.
His Illinois colleague, the future Defense Secretary under the second President Bush, argued for the legislation by chiding the Johnson administration for its “continuing tendency toward managed news and suppression of public information that the people are entitled to have.”
Main Article: FOIA Bureaucrats Have Our Number: Catch-22
As David McCraw, lead litigation attorney for FOIA lawsuits brought by the New York Times, recounted in a 2016 Yale Law Journal article, consumer advocate Ralph Nader conducted an early test of the law by sending one hundred students out to make FOIA requests of numerous federal agencies. Nader concluded in a 1970 article, “Freedom from Information: The Act and the Agencies,” that “government officials at all levels in many of these agencies have systematically and routinely violated both the purpose and specific provisions of the law.”Yet decades after writing his critical article, Nader would do something of an about-face. While acknowledging federal agencies’ continued reluctance to openly share information, he lauded the statute, noting that “compared to the pre-FOIA laws, our ability to find out what the government is or is not doing is almost like night and day.”
FOIA’s Bipartisan Critics
You’d be hard-pressed to find an issue on which journalists and activists of all stripes are more united than in their frustration with the federal government’s treatment of FOIA requests.It shows in the criticism even otherwise favorable sources have heaped on every president in recent memory.
As the coalition wrote in a letter to the DOJ—which typically issues such guidance and monitors FOIA compliance: “Noncompliance is at a decade-long high even while requesters are waiting longer than ever to initiate litigation. We once again appeal to you to act.”
Reed Rubinstein, senior counselor for America First Legal, who has helped RealClearInvestigations draft several FOIA requests, does not believe the Biden administration is practicing what it preaches, telling RCI it has taken FOIA obstruction “to a different level,” and arguing that its email-related requests “suggest that the White House has imposed a new requirement to slow down or frustrate requesters.”
Those RCI interviewed suggest that administration guidance like Garland’s is typically perfunctory.
Michael Bekesha, a senior attorney at Judicial Watch, says that while some administrations distinguish themselves by saying “they’re going to be more proactive towards disclosure, like the Obama administration … That doesn’t mean they are. It just means they talk the talk. But the agencies very rarely walk the walk.”
Seth Moulton, senior policy analyst at the Project on Government Oversight, notes that “through almost every administration, what changes is in the margins … You get an administration that comes in that says, ‘We want you to … put more resources to it, release more information here or there,’ [generate] a little bit of improvement maybe …”
William Cohan, author of several New York Times bestselling books about Wall Street—most of which he says began with a FOIA request—says that irrespective of “the administration, or the politics of the administration, or even the statements of the administration leaders about wanting to be open and transparent and trying to improve the process … every single FOIA request is met with delay and obfuscation.”
The numbers seem to tell this story.
The government’s backlog of FOIA requests swelled by a staggering 97 percent from 2012 to 2020—that is, across vastly different administrations.
Cohan is adamant: “I think FOIA is a joke … to pretend that we have anything like a Freedom of Information Act that actually works and does anything for a working journalist is also a joke.”