At 51, FOIA is still relevant, maybe more than ever

Next week, the Freedom of Information Act will be 51 years old. July 4th marks the birthday of the law that, for the first time in U.S. history, gave all persons a sweeping right to obtain government records. FOIA may be middle aged, but it is still very relevant. In fact, the advent of the Trump administration gives the law new immediacy. It can be used to open government records (potentially even memoranda to and from the White House) thus assisting citizens in understanding and acting on their lawfulness and policy implications.

This is important because President Donald Trump has, in the first five months of his administration, pushed the limits of executive power. He has used unilateral actions or executive orders to override national laws and policy in areas including immigration limitations, environmental protection and the enactment of updated consumer and worker safety rules.

For example, Mr. Trump’s environmental protection administrator issued an order canceling the Obama administration’s regulation designed to reduce water pollution from coal-fired power plants. The head of the Occupational Safety and Health Administration delayed a long-pending rule limiting worker exposure to beryllium and silica, two toxic air pollutants.

FOIA requests could determine what supporting data led to these decisions. The Supreme Court has, of course, ruled (in the attempted Reagan administration rescission of the air bag rule) that there must be some valid basis — scientific, economic or other — for a president or agency to rescind an existing federal regulation. Such regulations have long been held to the force of law.

Similarly, the White House recently issued an order requiring that an agency issuing any new regulation must revoke two existing regulations. What FOIA might disclose is whether there are any government records supporting the rationality of this “two for one” policy.

FOIA’s intent was that agencies respond fully and promptly to requests for information. But they don’t always do so. It may take persistence — and effective legal help — to break through an agency attempt to stonewall a FOIA request. The information is often worth the battle to get it. FOIA has repeatedly exposed executive branch abuses. In 2006, for instance, FOIA was used to find that the FBI was spying on environmental and anti war protesters. In 1971, a FOIA request led to reports that the National Security Agency had spread misinformation about who started the Gulf of Tonkin attack that led to the Vietnam War. In 2004, using information from a FOIA request by the ACLU and a lawsuit, a series of articles by Seymour Hersh in the New Yorker detailed how the White House authorized the torture of Iraqi prisoners held at the infamous Abu Ghraib prison in Baghdad.

Such issues are nothing new. FOIA grew out of two comparable national crises. The first was triggered by expanding, unchecked government secrecy during the Cold War era. The second by Senator Joseph McCarthy’s witch hunt and claims of “un-American” disloyalty. Both eras and their threats to democratic institutions angered young Congressman John E. Moss, who authored FOIA and then labored 12 years to get Congress to pass the law.

An open government act was bitterly opposed by every government agency and presidents of both political parties (among them Dwight D. Eisenhower and Lyndon B. Johnson). They appeared to fear shedding the light of public opinion on Executive Branch actions, non-actions and blunders. Surprisingly, FOIA passed the House and the Senate with unanimous bi-partisan support — and Lyndon’s Johnson’s signature, although he had threatened to veto it.

Since then, FOIA has been used as a model for new laws in over 100 nations and has been replicated by legislation in every state of the Union.Today, the use of the Freedom of Information Act by journalists, citizen’s organizations and others can help reveal the factual basis, or lack thereof, of new executive actions. The use of the Freedom of Information Act has time and again strengthened our knowledge and our nation by shedding new light on important national issues. It can continue to serve us well in the future.

Michael R. Lemov (lemovlaw@verizon.net) was House Commerce Committee counsel to Congressman John E. Moss and is the author of “People’s Warrior, John Moss and the Fight for Freedom of Information and Consumer Rights” (Fairleigh Dickenson Press, 2011).

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