The U.S. Freedom of Information Act at 50

W. Wat Hopkins

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9781138576087
• eBook ISBN: 9781351271103
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

The federal Freedom of Information Act (FOIA), which recently turned 50, has been hailed as the primary means by which US citizens can know about how their governors operate in a democratic republic. Recently, however, it has been criticized as ineffective because it is cumbersome and full of loopholes. This book examines the role and effectiveness of the FOIA, comparing the FOIA world with the pre-FOIA world, rating its effectiveness compared to other access laws internationally, examining ways in which it can be improved, and questioning whether it should be dismantled and replaced.

This book was originally published as a special issue of Communication Law and Policy.

THE PEOPLE’S RIGHT TO KNOW: COMPARING HAROLD L. CROSS’ PRE-FOIA WORLD TO POST-FOIA TODAY

DAVID CUILLIER

Journalists and politicians often disagree over whether the state of freedom of information is better or worse since the passage of the Freedom of Information Act in 1966. This study attempts to provide some historical context by comparing the state of access in 1953 as outlined in detail in The People’s Right to Know by Harold L. Cross, the first comprehensive review of case law and statutes in the United States regarding access to public records at local, state and federal agencies. Analysis indicates that the legal right to information, particularly for police records and federal documents, is better today than it was in 1953, but challenges persist regarding compliance, enforcement and the prevalence of exemptions. Recommendations are provided for the next fifty years, including renewal of Cross’ urging for a First Amendment right to know.

“Public business is the public’s business. The people have a right to know. Freedom of information is their just heritage. Without that the citizens of a democracy have but changed their kings.”¹

These words opened the 1953 book by Harold L. Cross that fueled the twentieth century transparency movement in the United States² and “became the Bible of the press and ultimately a roadmap for the Congress regarding freedom of information.”³ In the more than six decades since the publication of Cross’ book, citizen access to government documents has been codified through the federal Freedom of Information Act,⁴ enshrined in dozens of states through modernized public record laws, and interpreted by state and federal courts. The United States is regarded as a world leader in freedom of information,⁵ and the legal right to access government documents is touted as fundamental to democracy,⁶ and essential for the press’ ability to provide citizens the information they need to self-govern.⁷

Journalists and public officials, however, disagree over whether freedom of information is actually better today than in the past. President Barack Obama declared his administration the most transparent in the nation’s history,⁸ yet, journalists say the Obama administration has been the most secretive.⁹ In 2015, the Society of Professional Journalists and fifty-two other journalism organizations sent a letter to the White House urging an end to excessive information controls by public information officers, “essentially forms of censorship – that have surged at all levels of government in the past few decades.”¹⁰ Investigative reporter Ted Gupp wrote in 2007: “Today America is a nation of secrets, an increasingly furtive land where closed doors outnumber open ones and where it is no longer ‘the right to know’ but ‘the need to know’ that is the measure against which access is determined.”¹¹

Access advocates also point to the relative weakness of U.S. FOIA, at least on paper, in relation to the more than 100 other countries that have adopted freedom of information laws. According to one international assessment, U.S. FOIA’s provisions place the strength of the law at fifty-first in the world, below, among others, Mexico, Russia and Kyrgyzstan.¹² In some parts of the globe, unlike in the United States, the right to know is not just a statutory right but also a constitutional right,¹³ and in some cases, a fundamental human right.¹⁴

This disconnect begs the question: Since passage of FOIA in 1966 and its subsequent amendments, including those in 2016,¹⁵ as well as the adoption of modern state public record laws, do citizens and the press have more or less access to government information? Are citizens better or worse off than they were before Congress enacted FOIA fifty years ago?

Some argue that passage of a law is irrelevant, and that statutes have little causal effect on the actual ability for a citizen or journalist to acquire government information; that the mood of the citizenry and times dictate cultural norms and practices; and that transparency and secrecy ebb and flow depending on societal forces, such as war and attitudes toward privacy.¹⁶ Michael Schudson suggests a change in culture occurred between 1960 and 1980 in the United States toward information openness, a shift in opinion, beliefs and “structures of feeling,” which led to creation of FOIA laws – not caused by the laws.¹⁷

David Banisar points out that despite the flood of FOIA laws enacted around the world in the early 2000s:

The culture of secrecy remains strong in many countries. Many of the laws are not adequate and promote access in name only. In some countries, the laws lie dormant due to a failure to implement them properly or a lack of demand. In others, the exemptions and fees are abused by governments… New laws promoting secrecy in the global war on terror have undercut access.¹⁸

Some studies suggest that FOIA laws actually hinder access by providing public officials legal rationales for delays, excessive copy fees, and denial. For example, Lindita Camaj interviewed journalists in Kosovo regarding their experience in accessing information since the country adopted FOIA in 2003. Journalists reported that the law was little use to them because of long delays and that public officials co-opted the law to obstruct access, not facilitate it.¹⁹

Researchers are limited in their ability to compare the state of access before FOIA to the state of transparency today. Surveys of journalists and public officials who were working in the 1950s are not possible – those individuals would be a minimum of 85 to 100 years old today, unlikely still employed and unable to compare the state of access. Today’s public access audits and empirical studies examining agency transparency provide good snapshots of access today, but were unheard of then. Scholars can examine the development of statutes and case law over time, as legal scholars conduct for specific access issues,²⁰ but these studies generally do not address actual access on the streets, nor do they examine freedom of information in a broad sense.

Given the relatively little research comparing pre-FOIA access to modern times, this study seeks to provide at least some glimpses through the examination of a written artifact from 1953 that offers a window into the state of access before Congress enacted FOIA: The People’s Right to Know by Cross. The 405-page book, commissioned by the American Society of Newspaper Editors, was intended to lay out the state of access at all levels of government in the United States, including the statutes, case law and actual practice, as it existed in the early 1950s. Cross examined hundreds of court decisions regarding access,²¹ studied the two dozen states that had some form of public record law at the time, and discussed the state of access to federal records. He also noted what journalists told him worked and what didn’t work in practice.

This article begins by providing background for the post-World War II access movement and how Cross embarked on the study. The article then describes the state of public record access law in the 1950s at the state and federal level, as laid out by Cross, and compares his description to today’s legal landscape. The discussion summarizes overall themes of how, based on Cross’ report, transparency in the United States is stronger since the 1950s, how it is weaker, areas that have remained the same, and what journalists, access advocates and government officials can le...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Introduction
• 1 The People’s Right to Know: Comparing Harold L. Cross’ Pre-FOIA World to Post-FOIA Today
• 2 The Fiftieth Anniversary of the Freedom of Information Act: How it Measures up Against International Standards and Other Laws
• 3 The News Media and the FOIA
• 4 Bringing Back Full Disclosure: A Call for Dismantling FOIA
• 5 Controlling Discourse, Foreclosing Recourse: The Creep of the Glomar Response
• Index