How FOIA public records requests help keep politicians honest

FOIA Freedom of Information Act

In the USA we have the greatest form of government that has ever existed.  Our representative democracy has protected our freedoms and allowed our economy to thrive.  A key component of our governmental system is accountability.  Our laws allow us to keep our politicians honest and give us the ability to replace them when there is wrongdoing.  One critical way we keep our government accountable is the Freedom of Information Act (FOIA).

FOIA is the short title of comprehensive federal legislation enacted in 1965 that took effect the next year.  It was drafted as a more formal standardized version of the earlier US Administrative Procedures Act.  The explicitly stated purpose of the law is to “implement a philosophy of full government agency disclosure”.  The provisions of the law apply solely to the federal government, but virtually every state has a similar law for the local government.

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FOIA has undergone a lot of modifications since its initial passage under President Lyndon B. Johnson as Public Law 89-487 with a full-text length that was just two pages long.  Drastic evolution began two years later with the passage of essentially identical legislation and continued strong influence under former President Gerald Ford during the Watergate aftermath that led to the passage of the Privacy Act during 1974.

An especially notable FOIA variation emerged during the Clinton Administration with E-FOIA passage in 1996 that requires all federal agencies to make official documents publicly accessible via electronic media formats.

Yet another development was Congress’ unanimous vote that approved passage of the 2014 FOIA Oversight & Implementation Act to mandate establishment of a centralized online forum to accept initial requests and subsequent progress tracking.  Per sponsor Congressman Darrell Issa (CA-Rep.), the bill was intended to shift the burden of proof from requesters to government agencies to demonstrate valid grounds for denial.

Public records obstacles

While a great deal of progress has been made with FOIA, much work is still left to be done before U.S. voters will have won complete transparency with their government.

For instance, the U.S. Federal Bureau of Investigation is beta testing an electronic online request form designed to streamline requests for documents that were once processed in hard-copy paper format.  Although the FBI expresses optimism that its new system will enhance efficiency, government watchdog groups opine that extra requirements will likely offset any benefits.  Besides limitation to one request per day, web portal users must upload a legible image of valid government-issued personal identification.  For some reason most people seem to have a problem with providing the FBI with a photo ID to make a public records request.

Another example is Barak Obama having given his word multiple times during his campaign for a more transparent government but reneging once he won his U.S. Presidential bid with Executive Order 13526 to reclassify documents that were once subject to mandatory FOIA disclosure.

How FOIA keeps government accountable

FOIA’s primary governmental accountability aspect is legally mandated disclosure of official documents to the public on demand.  This affords citizens two main benefits in a purely theoretical sense.  The first is from deterring official misconduct  by providing a mechanism for such acts to be fully exposed and punished accordingly.  The second is facilitating prompt access to pertinent information that directly affects private citizens’ legal rights or interests.

Of course, not all activities of the government are available to the general public.  For example, classified documents, trade secrets, and oversight of financial institution are some of the things you cannot get from a FOIA request.  The world is better off if it doesn’t know everything that the government is doing.  Unfortunately, most the language that exempts data from mandatory disclosure provisions is highly subjective and is open to interpretation.

A major complication lies in the fact that federal agencies are typically the custodian and have sole discretion about whether to grant or deny FOIA requests.  Not to mention that there is a strong incentive to protect government vs. public interests by withholding potentially damaging but nonexempt data from disclosure.  Perhaps the most common scenario entails pending investigation of crimes or other misconduct about which officials refuse to disclose relevant details.  There’s no way to know for sure if the administration of justice would be compromised by disclosure or seriously jeopardized by withholding requested information from public view.

Balancing government transparency and secrecy

On the other side of the issue is that the government can be too transparent.  Certain activities should be kept secret for the benefit of our country and its citizens.  One example that clearly defines the battle between government transparency and secrecy is the story of Edward Snowden.

During 2013, Edward Snowden made a controversial move by leaking top-secret National Security Agency (NSA) data to various media outlets.  A former CIA staffer and computer expert, Snowden worked as an NSA contractor when he discovered files that pertained to various global surveillance programs maintained by the NSA in cooperation with European nations and telecommunications firms.  Snowden gained worldwide publicity when reports were featured about his unauthorized disclosures by various high-profile news media outlets.

The documents and information that Snowden leaked were particularly damaging to the government of the US and many of its strongest allies.  It also provided information to our enemies that was damaging to our country’s interests.

In late June 2013, the U.S. Department of Justice announced two counts against Snowden for the Espionage Act of 1917 violations and government property theft. Two days later, Snowden fled to Moscow, Russia, where he was reportedly granted a three year asylum.

People have differing opinions of the actions of Edward Snowden.  Some people view him as a patriot, whistleblower and hero while others view him as a criminal traitor guilty of treason.  His actions sparked vehement debate over the proper balance between individual privacy and national security interests.

Snowden’s actions are clearly illegal as he released classified information to the general public.  However, they also highlight some of reasons that government officials can and should be able to deny certain FOIA public records requests.