A troubling trend regarding FOIA requests

Photo by Roman Kraft on Unsplash

By Deron Snyder

Regardless of your political orientation – red, blue, or polka-dot – all of us can agree with the tagline recently adopted by a major newspaper: “Democracy Dies in Darkness.” None of us should feel so comfortable with our elected officials – whether they received our support or opposition – that we put blind faith in their leadership. History has been unkind to societies that did not have checks and balances to keep their leaders in line.

James Madison was absolutely correct when he said a democratic government that withheld information from the people would be “the prologue to a farce or tragedy” (Carsti & Davie, 2018, p. 667). Lord John Acton, a noted English historian, put it this way: “Power tends to corrupt, and absolute power corrupts absolutely.” Even the best men and women with the most altruistic intentions need to be monitored and held accountable, just in case base impulses begin to take root. Human nature is such that it cannot be left to its own devices.  

Wisconsin’s founders understood that principle way back in 1848, when their state became the nation’s first with an “open records” law. A century passed before the federal government acknowledged the need for transparency with the 1946 Administrative Procedure Act. Even though that legislation arguably did more harm than good in promoting public access – giving the government too much leeway in responding to information requests – it put us on the path to the Freedom of Information Act (1966), when plenty of questions were being raised about the civil rights movement and Vietnam War.

Watersheds like those and, say, the Watergate scandal, make the need for FOIA abundantly clear. But there are numerous, less-publicized cases involving federal agencies and policy decisions that the public should know about. Though unelected, members of the federal bureaucracy wield tremendous power and influence on life in America, often through rules and regulations hammered out beyond public view in conjunction with associates who may or may not have conflicts of interest. That is why an Associated Press report about numerous FOIA requests going unfulfilled is deeply troubling.

Over its final two years, the Obama administration set records for denials, sluggish response time, forced payments, and coming up empty on FOIA requests. When challenged in court, the government acknowledged “it had been wrong to initially refuse to turn over all or parts of records in more than one-third of such cases, the highest rate in at least six years” (Bridis, 2017).  Adding to the concern, the number of FOIA lawsuits filed by news media and nonprofit advocacy organizations surged in the Trump administration’s first year. The stockpile of cases climbed even faster. “Indeed, the backlog is already approaching 900 cases and unless steps are taken may top a thousand in the near future”  (FOIA Project Staff, 2018).

This means the public most certainly is being denied access to information that it is entitled to receive. The lack of transparency and openness is disturbing, because it potentially conceals actions and considerations that many might oppose. When government is allowed to operate outside of sunlight, the odds of malfeasance and misconduct are greater. Take, for instance, the makeup of President George W. Bush’s National Energy Policy Development Group, an advisory committee. If, in fact, oil industry lobbyists played an instrumental role in formulating policy, public disclosure might have mitigated their potential bias. Instead, the White House claimed that the group was not in violation of the Federal Advisory Committee Act – designed to promote open government – and refused to identify the members (Carsti & Davie, 2018).

When the government drags its feet, creates barriers to access, and/or flat-out denies  legitimate FOIA requests, ethics must be questioned. U.S. judges are instructed to “avoid impropriety and the appearance of impropriety in all activities,” and to perform their duties “fairly, impartially and diligently” (U.S. Courts, n.d.). The FOIA does not apply to judges (or Congress), so the public is limited in ascertaining their compliance. However, when the executive branch agencies and bureaus resist the public’s attempt to know what is happening, it is natural to wonder if something is being hidden.

Resisting open government measures causes good faith to waver and distrust to grow. A perfect example is the new Interior Department rule that could make it harder for news organizations and nonprofits to get public information from the agency (Green, 2018). Slipping in such policy changes quietly, with no news release, during the week between Christmas and New Year’s Day, does nothing to inspire confidence that the public’s best interests are being served.

Unfortunately, remedies for this situation are few. We have seen that lip service, such as President Obama’s promise to be open and transparent, does not always translate into action. Prospects for public access are even grimmer when a Commander-in-Chief like President Trump frequently refers to the media as “enemy of the people.” Whether a president is openly hostile or smiles warmly while denying requests, the tone set by the White House trickles down throughout the Cabinet.

Granted, concerns about national security, foreign policy, trade secrets, privacy, and other issues are valid reasons for exemptions to some FOIA requests. The public’s desire to know everything and the government’s desire to conceal certain things creates a natural, unavoidable clash. While folks might disagree that “this natural antipathy usually results in a healthy adversarial relationship that benefits the public,” there is likely a consensus that “tensions arise when the need for government secrecy appears to conflict with the rights of citizens to access records and meetings” (Carsti & Davie, 2018, p. 702).

The best course of action is continuing to fight. Advocates must insist that FOIA and other open government laws are followed, pressing legal challenges when necessary. They should raise the issue at town halls, board meetings and every chance they get. They also should ensure that candidates for office understand and respect the need for public access, and vow to defend it. Opponents who strive for less transparency usually have political and economic interests to keep them highly motivated. These foes will not be defeated easily, only through consistent, sustained effort.

Even then, a clear-cut, long-lasting victory seems unlikely. The best-case scenario is probably a draw, winning some individual battles while losing others.

References

Bridis, T. (2017, March 14). In Obama's final year, U.S. spent $36 million in FOIA lawsuits. Retrieved from PBS News Hour: https://www.pbs.org/newshour/nation/obamas-final-year-u-s-spent-36-million-foia-lawsuits

Carsti, D., & Davie, W. R. (2018). Communication Law: Practical Applications in the Digital Age. New York: Routledge.

FOIA Project Staff. (2018, January 16). FOIA Lawsuits Surge in Trump Administration's First Year. Retrieved from FOIA Project: http://foiaproject.org/2018/01/16/lawsuits-trump-first-year/

Green, M. (2018, December 31). New Interior FOIA rule could make it harder to get public documents. Retrieved from The Hill: https://thehill.com/policy/energy-environment/423328-new-interior-foia-rule-could-make-it-harder-to-get-public-documents

U.S. Courts. (n.d.). Code of Conduct for United States Judges. Retrieved from United States Courts: https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges