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United States: 30 Years Of The Freedom Of Information Act

  • Robert Lyle

Washington, 16 September 1996 (RFE/RL) - It has been 30 years since the United States adopted the first law to give journalists and private citizens the ability to force the release of a broad range of information from the government. But news editors, legal experts, and even some officials agree that it has fallen short of expectations, and its effectiveness is being eroded.

The United States has always proclaimed its love of a free press. The first entry in its Constitutional Bill of Rights is a guarantee that the congress cannot make a law which abridges "the freedom of speech or of the press."

The constitution says nothing about the people's right, or that of the press, to have access to information the government gathers, however. U.S. Senator Daniel Patrick Moynihan (D-New York) says bureaucracies are naturally inclined to keep the information they have secret.

That natural tendency to keep secrets, Moynihan told a conference marking the 30th anniversary of the U.S. Freedom of Information Act last Friday, was written into law as America entered World War I in 1917, was greatly expanded as the United States entered World War II, and became "positively paranoid" in the anti-communist frenzy of the 1940s and 1950s.

Interestingly, the first push to adopt a law to pry open those government secrets for the public began in 1955 when a high government official, U.S. Congressman John Moss (D-California), was denied access to information on groups of government workers who had been fired for allegedly being disloyal.

It wasn't until the summer of 1966, however, that the act, popularly known as FOIA was finally passed by the congress and was signed, quietly and reluctantly, by President Lyndon B. Johnson.

The original law and updates to improve its effectiveness -- which were over presidential vetoes -- requires federal agencies to publish their general rules, orders and opinions and to make available, upon request, all other records and procedures requested by any person.

It exempts nine classes of information from such public scrutiny, including national defense and foreign policy secrets, information on private individuals, trade secrets, government personnel files, medical records and similar documents.

In 1995, President Bill Clinton issued an executive order designed to make the Freedom of Information Act even more effective. He said the government was keeping too many secrets and he ordered agencies to change their approach. From now on, he said, instead of assuming everything should be private unless a case can be made to make it public, the presumption should be to make information public unless a case can be made to keep it secret.

Thomas Blandon, Executive Director of the National Security Archive at George Washington University in Washington, D.C., says the idea was a good one, but that in giving government agencies five years to implement this change, the order ended up giving many agencies an opportunity to create loop-holes to make even more information secret.

On top of that, say other experts, a recent court case ruled that the White House National Security Council was not a government agency, thereby removing it from being subject to the act. And the U.S. Congress is about to pass a Defense Budget Authorization law which will make it illegal to make public any information whatsoever about three Defense Department agencies dealing with intelligence gathering and drawing maps. In fact, it would make it unlawful for a government official to even admit the three facilities even exist.

The original act allows the head of the Central Intelligence Agency (CIA) to block release of any information which touches upon the agency's "sources or methods" of gathering intelligence. That has been used over the years to label as "government secrets" articles printed in public newspapers.

Steven Aftergood, who publishes a newsletter for the Federation of American Scientists and is considered one of the leading applicants under FOIA procedures, says the CIA has interpreted this to prevent the disclosure of such arcane things as the total of the agency's first budget in 1947. More recently, he says, the director of the CIA proposed making public the current budget for the intelligence gathering agency, but the U.S. Congress voted to keep that information secret.

An even bigger problem, experts and editors agree, is a backlog of requests for information at many agencies. The Federal Bureau of Investigation (FBI), for example, says it is so far behind in answering FOIA requests that it can take four or more years to get a reply. Even, then, they acknowledge, the piece of paper a person receives may have virtually all the writing on it blacked out.

All of this secrecy costs the United States a huge amount of money. Congressman David Skaggs (D-Colorado) says that government agencies spent over $2.7 billion in 1995 and will spend closer to $2.8 billion this year just to keep documents secret. In addition, he says, they spent another nearly $3 billion dollars in 1995 to pay private contractors to store tons upon tons of old documents.

The U.S. government, under the Clinton executive order, is supposed to release up to 15 percent of its backlog of secret documents each year. But with budget cutbacks reducing the size of staff available to handle the process, and a natural inclination, as one Defense Department de-classifier put it, to "err on the side of keeping secrets and to protect your own backside," experts do not expect any major advancements.

In an effort to reawaken general interest in the Freedom of Information Act, a group of professional news societies and organizations last week held a two-day conference to mark the acts 30th anniversary. It was held at the Freedom Forum, a private organization which promotes free press and free society, located in Arlington, Virginia, just across the river from Washington, D.C. In addition to discussions on ways to protect and improve use of the FOIA, the group honored 24 individuals in a Freedom of Information Hall of Fame.