The Freedom of Information Act Ten Years On

It would be hard to find anyone familiar with it who does not have the general impression that the FOIA is a “good thing.” With this law, the US pioneered the notion that the public is entitled, with the minimum of re­striction, to know what its government is up to. Since the revised and broadly expanded version of the law was passed over President Ford’s veto and went into effect in February 1975, literally millions of requests for infor­mation have poured into federal departments and agencies to be processed under the Act. Most states and a number of foreign governments have since adopted their own versions of the FOIA, often modeled on the US federal law. Vast quantities of some­ times useful material have been released to various requesters and the FOIA is generally regarded to have been a success.

The present form of the Act dates from a decade ago, when an earlier version was drastically amended and expanded. It emerged directly from the Watergate back­ wash and the determination of a majority in the Congress that no similar cover up should be possible in future. Among other features, it specifically limits the grounds on which information may be withheld. Immediate re­course to the federal courts is provided for if a request is denied or response is delayed beyond the ten-day deadline mandated for agency compliance. It was seen at the time of its enactment as everyman’s Act, enabling the “man-in-the-street” to ask and straightaway receive any official information in which he might have an interest.

Consequently, it contains no provisions limiting this service to US citizens or residents, no requirement to demonstrate a need to know or to circumscribe the volume of documents requested, and no requirement to provide more than the most general descrip­tion of the information sought. As a result of its hasty passage it is poorly drafted, contain­ing many inconsistencies, notably with its sister legislation the Privacy Act, and many of its provisions are so unclear as to require lengthy and complicated interpretation by the courts. Almost no thought was given in 1974 to the annual cost of the Act to the taxpayer, though the figure of $500,000 was mentioned as a rough estimate of the cost government-wide for the first five years.

In 1984 my agency, the Department of  State, alone spent well over $3.5 million on the processing of more than 3,600 requests. Against this the Act allowed the collection of only $8,800 in fees for part of the search costs (no fees may be charged for review, for which the Department has had to hire a large staff to work solely on requests). Other agen­cies, with more requests than State, are spending even more millions.

Admittedly, cost alone should not be the deciding factor. But what deserves question­ing is the extent to which this enormous outlay of money and professional skill is actually benefiting the intended recipient, the average US taxpayer. Because anyone in the world of any nationality, with a fixed address and the price of a stamp, may re­quest material under the Act, the Depart­ment of State has found itself obliged to supply information to communist or anti­-American newspapers overseas, only to dis­cover that selected and slanted versions of the information were published as the osten­sible truth, at the expense of the US taxpay­er. We have even had requests from the Soviet embassy.

This problem, however, is minor com­pared with that of the great increase in size and complexity of FOIA requests in recent years. Many of these requests are brought by a few individuals, primarily from the media, who appear to regard the Act as their private preserve. While the representatives of the media have, of course, the same right of access under the FOIA as any other person, a few seem to believe that they are more equal than others. For example State received 300 requests in two years from one reporter, who is working on his own book, not on current news for his newspaper. These requests were extremely broad and covered a range of recent sensitive material.

The Department of State has found itself obliged to supply information to communist or anti­-American newspapers overseas.

Other agencies have received hundreds of requests from the same individual, whose total now runs into thousands and who has had the use of his newspaper’s computers and research staff to keep track of his re­ quests. This reporter has consistently sought a waiver of even the modest search and copying fees permitted by the Act, on the grounds of public benefit of his work, from which he presumably hopes to derive a per­sonal profit.

In order to process this individual’s re­quest at the speed both he and the law require, the Department would literally have to suspend all work on the requests of every­one else. Other reporters have made almost equally overwhelming demands and some use it for purposes clearly not contemplated by the Act’s authors. One reporter recently admitted publicly that his use of the FOIA was partly to confirm leaks he had already received, and even more to confuse the trail to the leaker, reckoning that even if the document were denied, after many people had handled it during processing, it would be impossible to identify his source when the information was eventually published.

As a result, these practices distort and endanger the FOIA’s basic intent to assist the ordinary citizen who wants to know what the Department has done about hunger in Africa or the legitimate scholar trying to find docu­mentation on the Suez crisis. Such legitimate scholars, many of whom seek information under the mandatory review provisions of EO 12356, are generally disadvantaged be­ cause of the pressure to give priority to FOIA requests.

Because, even with the constantly expand­ing resources the Department is devoting to this program, it is impossible to meet the inflexible deadlines the Act imposes; we face an increasing number of costly and time­ consuming lawsuits, which further delay processing of requests of ordinary citizens. Without some change in the provisions of the law, which has not been significantly revised since 1974, we see this downhill progress accelerating. (Other countries, after studying our law, have been careful to draft their own so as to avoid some of the problems we now face.)

The time has come to return the FOIA to its original principles, so that as far as possi­ble all citizens are equal before it, and the resources they pay for are fairly divided. This could be done by certain realistic changes such as placing reasonable limits on the number and size of requests from a single individual, by creating  more flexible dead­lines, by charging more realistic fees where appropriate, and by making the FOIA avail­able only to US citizens. Simply pouring more money into the program, as we have discovered, can never keep pace with a dete­riorating situation, even if money were avail­able in the present period of budgetary crisis. Unless some practical administrative reform is achieved soon, I believe that processing delays will routinely stretch into years, while those benefiting from the FOIA become ever more elitist. It will be truly unfortunate if the promise of the Act is to end in a Dickensian morass of lawsuits and double book-keeping.

On the other hand, a commonsense ap­proach providing some relief from the pre­sent overwhelming administrative burdens of the FOIA would free resources for other avenues of information access such as access under mandatory review. In particular, it would enable agencies, such as the Department of State, which conduct major systemat­ic review programs to transfer reviewers to that program and would probably enable us to advance the present dateline for the FRUS series—an objective we and the scholarly community have long envisaged but have hitherto lacked the resources to achieve.