Why is there a Freedom of Information Act—and does it do any good?

In 1966 the United States enacted a law granting "any person" (any person in the world, of any age, for any reason) the right to request information held by the federal government— and the right to take the government to court if the request is denied. The first nation to have a law of this sort was Sweden—in 1766. But the American act brought the idea into the modern age. The American version became the model for many other nations that came to adopt similar laws in the past half century.

The American law—the Freedom of Information Act (or "FOIA")—bold as it is, has two notable limitations. First, it does not cover the Congress or the courts. Only agencies of the executive branch of government are covered by the law. Second, the law lists nine "exemptions"—conditions that justify the government in refusing to release information to the requester. Among these conditions are that disclosure of the requested information bears on national security; that it violates the privacy rights of an individual; that it exposes legitimate trade secrets; or that it exposes deliberation (rather than final decisions) inside an executive agency. In this last case, the rationale for the exemption is that if internal deliberations were subject to FOIA requests, participants would censor themselves; open and unrestrained discussion would be constrained at exactly the moments when free-flowing discussion is most crucial to good decisions.

FOIA has changed over time. Amendments to the law in 1974 did much to make the law tighter and tougher—for instance, it set time limits for agencies to respond to requesters. That made the prospect that a requester could sue when information is refused much more likely.

Where did this law come from? It was not something the American founders ever discussed. And while it became law in the 1960s, it came out of a legislative effort that began in 1955 in the midst of the Cold War. At that time, several forces converged to give it traction. The executive branch of government was rapidly growing and so was the eagerness with which the executive classified information and kept not only the press and the public at arm's length but also the Congress. Both Republicans and Democrats in the Congress wanted to regain some control over the executive.

Moreover, there was an available Cold War rhetoric conveniently at hand for slamming efforts to withhold information from the American public. John Moss, the California Democrat who chaired a House of Representatives subcommittee on governmental information, regularly attacked the executive branch for building a "paper curtain" between the government and the public. This played on the familiar Cold War phrase, "the iron curtain," that shielded the Soviet Union and eastern Europe from information flowing in from the West. To accuse the US government of building a "paper curtain" was to suggest that its information policies were distastefully Soviet-like. There was every effort to credit American government and society with an open mind, a tolerance for difference of opinion, and a scientific spirit. "The Americans" were portrayed as everything that totalitarian societies like the Soviet Union were not.

The result was that John Moss and his allies in the House, the Senate, and the press corps successfully and repeatedly embarrassed the Eisenhower administration and later the Kennedy administration for withholding information where there was no reason to do so, other than bureaucratic habit or bureaucratic arrogance. Eventually, Congress approved FOIA, and a reluctant Lyndon Johnson signed the act into law.

Not everybody loved FOIA. It drew criticism from the beginning. Consumer activist Ralph Nader called it the "Freedom From Information Act." Even later, after several amendments were passed to strengthen it and streamline its use, reporters, historians, and others who attempted to use it have found it slow and frustrating. It affords the government all kinds of ways to defer and delay and, even when releasing information, to release far less than requested. A New York Times correspondent in 2008 called it a "cruel joke." Sarah Cohen, then a Washington Post reporter, testifying before Congress on the subject in 2011, observed, "I have never received a final response to a FOIA (request) within the required time frame. Some reporters joke about sending birthday cards to their FOIAs, as the response times are measured in years, not days."

Still, Cohen listed many important stories that, in her words, "could not have been done without access to records locked inside technological and physical file cabinets throughout the government." For her, the FOIA process was frustrating—and indispensable. It has also been one of the great legislative exports of the United States—today there are more than one hundred freedom of information laws around the world. Some have advantages and efficiencies greater than the US law does—say, covering the legislature as well as the executive, or requiring faster turnaround, or providing a means of rapid response to adjudicate FOIA requests if they are denied.

 
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