A blunt directive and reminder on FOIA’s 56th birthday

The Freedom of Information Act is a reminder of the obligation of federal officials, including the president, to enforce the laws and the Constitution, even to their detriment or defeat.

The continuing hearings of the Jan. 6 Committee are a message to Americans that we all have a responsibility to uphold the Constitution and laws of our nation. The Freedom of Information Act was in part given to citizens of the US as repayment for the loyalty demanded of our people and officials.

FOIA, signed into law in 1966 by President Lyndon Johnson, is celebrating its 56th birthday on July 4 this year. The law, used by millions of American citizens since its enactment, emphasizes the commitment of our government to every citizen to provide for the free flow of all public documents to Americans.

The stunning hearings of the House Jan. 6 Committee have reemphasized the reciprocal duty of federal officials, even a sitting president, to adhere to and enforce the Constitution and laws of the United States.

Over the years, FOIA has been burdened with expanding exemptions that limit its effectiveness. Though the exemptions have been created allegedly to protect national security, internal agency decisional memoranda and business trade secrets, among other issues, they often have blocked or delayed access to important data that citizens and businesses were intended to have under the Act.

FOIA is an important tool for individuals, the press, businesses and public interest groups to monitor or challenge government actions. And it is used extensively. For example, in 2020 there were almost 800,000 requests for information filed under the procedures of FOIA. Many are still pending.

It was through persistent FOIA requests, after all, that the nation learned of the Trump administration’s attempts to bludgeon Ukraine into lying about an investigation of Hunter Biden in an effort to discredit potential presidential candidate Joe Biden.

In 2020, alone, 758 FOIA lawsuits were filed in an effort to force federal agencies to provide timely, requested information that had been denied. During November of that year, 55 new lawsuits were filed to enforce disclosure requests against the Department of Health and Human Services alone.

In an effort to reverse the damage done to the Act over the years and to American citizens’ right to public information, Attorney General Merrick Garland issued a memorandum in March, as a directive to all federal agencies. It established four new criteria for responding positively to request for government files and stated that the Department of Justice would not defend agencies that failed to follow these directives.

The attorney general’s memorandum restates and expands the “presumption of openness” established by President Bill Clinton and his Attorney General Janet Reno in 1993, but often ignored by succeeding administrations.

The Garland directive also echoes Rep. John E. Moss’s (D-Calif.) original vision for the law he fought for. Moss, who wrote the bill and worked 12 years to push it through a reluctant Congress and an even more reluctant President Lyndon Johnson, saw the law as a way to give ordinary citizens the right to get important information from their government.

In order to pass the bill, Moss and his allies (including Republican Rep. Donald Rumsfeld) had to agree to several important exemptions, such as those relating to national security and other key matters. They have been interpreted over the years to make it more difficult for citizens and the press to access information from the government.

Garland’s memo could reverse FOIA’s downward slide. It states four basic rules that federal agencies must follow: 

1) The memorandum restates a “presumption of openness.” In order to override that presumption, an agency must find that disclosure would harm a specific interest protected by the Act, such as national security or trade secrets. In case of doubt, Garland stated “openness should prevail.”

2)  Agencies are directed to engage in “proactive disclosures.” This would mean that information previously disclosed would automatically be made available to the public in an electronic database.

3) Agencies are told to remove existing barriers to access and reduce backlogs, which have currently reached over 10,000 pending public requests for some agencies.

4) To promote fairer FOIA administration, Garland directed each agency to review its administration of the law, report regularly to the Department of Justice, reduce backlogs and speed decisions.

Will the attorney general’s renewal of the original purpose of open government and of Congress’s intent under FOIA reverse the trend toward delay, denial and ineffectiveness?

Only time will answer this question. But the words of FOIA’s chief author and sponsor, Rep. John Moss, come down to us over the succeeding decades. Years ago when I asked Moss if he was satisfied with the Freedom of Information Act after its 1966 enactment, he answered “Of course not. It’s better than previous law; but am I satisfied? No…. The battle for open government never ends.” 

Michael R. Lemov is an attorney who served as Counsel for the House Commerce Committee under John Moss and is the author of “People’s Warrior:  John Moss and the Fight for Freedom of Information and Consumer Rights”; Fairleigh Dickinson University Press, 2011, and “Car Safety Wars:  100 Years of Technology, Politics and Death”; Fairleigh Dickinson University Press, 2015.