Troubling Transparency

The History and Future of Freedom of Information

David E. Pozen, Michael Schudson

• Publisher: Columbia University Press
• Year: 2018
• ISBN:
  9780231545808
• Topic: Langues et linguistique
• Subtopic: Journalisme

Today, transparency is a widely heralded value, and the U.S. Freedom of Information Act (FOIA) is often held up as one of the transparency movement's canonical achievements. Yet while many view the law as a powerful tool for journalists, activists, and ordinary citizens to pursue the public good, FOIA is beset by massive backlogs, and corporations and the powerful have become adept at using it for their own interests. Close observers of laws like FOIA have begun to question whether these laws interfere with good governance, display a deleterious anti-public-sector bias, or are otherwise inadequate for the twenty-first century's challenges.

Troubling Transparency brings together leading scholars from different disciplines to analyze freedom of information policies in the United States and abroad—how they are working, how they are failing, and how they might be improved. Contributors investigate the creation of FOIA; its day-to-day uses and limitations for the news media and for corporate and citizen requesters; its impact on government agencies; its global influence; recent alternatives to the FOIA model raised by the emergence of "open data" and other approaches to transparency; and the theoretical underpinnings of FOIA and the right to know. In addition to examining the mixed legacy and effectiveness of FOIA, contributors debate how best to move forward to improve access to information and government functioning. Neither romanticizing FOIA nor downplaying its real and symbolic achievements, Troubling Transparency is a timely and comprehensive consideration of laws such as FOIA and the larger project of open government, with wide-ranging lessons for journalism, law, government, and civil society.

PART ONE

FOIA’S HISTORICAL AND CONCEPTUAL FOUNDATIONS

1

HOW ADMINISTRATIVE OPPOSITION SHAPED THE FREEDOM OF INFORMATION ACT

Sam Lebovic

AS THE FREEDOM OF INFORMATION ACT made its slow passage through Congress in the early 1960s, it was not popular in President Lyndon B. Johnson’s administration. “We should not kid ourselves about the legislation’s prospects,” declared Senator Edward Long in March 1964, shortly after shepherding a FOIA bill through his subcommittee. “There is intense opposition to the bill from virtually every government agency in Washington.” A year later, when twenty-seven agencies and departments offered their views on FOIA to a House subcommittee, the Civil Service Commission was the lone supporter of the bill. Behind the scenes, the Bureau of the Budget advised the White House to prevent the bill from coming to a vote in the House. LBJ apparently implored the House leadership to “scrap” it.¹

Ultimately, of course, opposition by the agencies could not kill FOIA. By the end of 1965, it had become clear to the White House that congressional pressure to pass the act was unrelenting and that it was not politically feasible to publicly oppose a Freedom of Information bill. Republicans, particularly a young Donald Rumsfeld, were beginning to make partisan hay out of the issue, and the public was fixating on the credibility gap. Sam Archibald, chief of staff for the House Committee pushing for the bill, advised the White House that caving to administrative opposition would be “politically damaging.” As he dryly put it, “the arguments against the legislation are technical ones by bureaus and agencies…. [T]he arguments in favor of the legislation are based on the democratic principle of the informed electorate. They also touch upon God and motherhood.”²

Still, the administration was not willing to abandon the fight completely. Rather than be placed in what White House counsel Lee White described as the “awkward position of opposing freedom of information,” the White House looked for ways to sculpt FOIA to calm the agencies.³ The administration flirted with the idea of referring the problem to a presidential commission, and also tried, unsuccessfully, to encourage Congress to adopt a weaker version of FOIA drafted by the Justice Department.⁴

Then the White House hit upon another, rather desperate, strategy to bring the agencies on board. Congress’s proposed FOIA bill would pass without amendment, but the Department of Justice (DOJ) would draft the House Report explaining the legislative intent behind the bill. To protect FOIA from potential presidential veto, the bill’s champion in the House, California representative John Moss, agreed to the deal. FOIA passed quickly through Congress with a DOJ-written report designed to limit the scope of the act.⁵ As the bill sat awaiting presidential signature in the early summer of 1966, the agencies were polled on their attitudes to FOIA. On July 1, LBJ was informed that “the departments and agencies have been concerned about this bill for many years, but have come around to the view that they can live with it.” The language in the House Report, as well as the promise that the report would provide the template for the administrative implementation of FOIA, had sufficiently calmed the agencies.⁶ Three days later, LBJ signed the bill into law.⁷

What we call the Freedom of Information Act was actually an amendment to the public information provisions of the Administrative Procedure Act of 1946. (Explaining the law in 1967, the attorney general called FOIA the “Public Information Act of 1966.”⁸) The new sections made three important changes that promised to make the administrative state far more transparent. Whereas the old APA had guaranteed access to information only for persons “properly and directly concerned” with a matter, FOIA empowered anyone to request government records, without any need to show “standing.” Whereas the old APA sections had allowed the agencies to withhold information for any “good cause found,” FOIA created a general presumption of disclosure, allowing the withholding of information only in specific instances, outlined in nine exemptions to the act. Finally, whereas the old APA sections had provided no remedy for citizens improperly denied access to information, FOIA empowered the courts to force disclosure.⁹

Despite these laudatory changes, the meaning of FOIA was nonetheless shaped in important ways by the opposition of the agencies. In particular, the drafting of the nine exemptions to disclosure had been a difficult process, and the meaning of the exemptions was unclear. The House Report and the subsequent attorney general’s manual thus played an important role in defining their substance. As John Moss commented sharply during committee debate on the bill, “the tendency in agencies is to regard these [exemptions] very narrowly when we discuss them in committee, and very broadly when they administer them.”¹⁰ In so doing, agency opposition expanded the scope of the exemptions, limiting the scope of transparency.

The opposition of the agencies also provides a unique vantage point from which to consider the broader significance of FOIA. As the administration offered testimony to Congress, drafted alternative legislation, and proposed interpretations of the act to guide the writing of the House Report and the attorney general’s manual, it provided a rich documentary record of state attitudes to such important topics as national security, the regulatory process, the philosophy of good governance, and the relations of the executive branch to the public. Agency opposition to FOIA reveals an important cross-section of the intellectual and political history of the state in modern America, as well as an opportunity to reflect on the normative dimensions of transparency in democratic governance.

This chapter considers agency opposition to FOIA in four parts. First, I explore agency concerns that transparency would undermine state capacity to regulate economic activity and reflect on the significance of corporate use of FOIA since 1966. Second, I look at the lack of agency concern about the threats FOIA posed to national security and explain this lack of concern by arguing that FOIA actually consolidated the legitimacy of national security secrecy. Third, I analyze administration concerns that FOIA would make policy deliberations impossible by requiring governance in a fishbowl and show how FOIA exempted such deliberations from disclosure. The chapter concludes with an examination of the deeper assumptions about the state and the public (and the relationship between the two) that underpinned agency opposition to FOIA.

TRANSPARENTLY REGULATING THE ECONOMY

Of all the agencies that opposed FOIA, only one maintained its opposition to the bitter end. When the Bureau of the Budget surveyed the agencies and departments about FOIA in June 1966, shortly before it was signed into law, the Department of Health, Education, and Welfare (HEW) provided the longest and most detailed response, and it alone continued to believe that passage of FOIA was against the public interest. It was worried that disclosure of correspondence with local and state governments would undermine negotiations over state grant-in-aid programs. It was worried that being forced to disclose the confidential assessments of research grant applications, such as those submitted to the National Institutes of Health, would harm honest and frank evaluations. And it was concerned that revealing staff manuals and procedures for auditing social benefits claims would impede “administration of the social security programs” and “invite fraud.”¹¹

HEW’s opposition to FOIA revealed some consistent themes in the complaints of the agencies. Many of the agencies complained that FOIA would force them to disclose forms of information that would interfere with the state’s ability to interact with civil society, particularly its ability to regulate economic activity.

Some of this was concern that FOIA would undermine the state’s ability to negotiate advantageous contracts. The Department of Defense (DOD), for instance, was one of several agencies worried that if its guidelines for contracts became public, revealing what DOD was willing to concede in contract negotiations, it would be impossible to negotiate more favorable terms for the government. The General Services Administration was likewise worried about revealing its guidelines for the sale of surplus government property.¹² Exempting such material raised possibilities for covering up corruption, but this pushback against FOIA also reflected a desire to protect the taxpayers’ interest in cost-effective government.

Most of the anxieties of the agencies, however, centered on a different point of state-economic relations—the state’s role in regulating the economy. The Department of Agriculture was worried that FOIA could make public the ballots of producers that were collected in the making of marketing orders under the Agricultural Marketing Act of 1937, which could expose some producers to “economic duress” in retaliation for their voting.¹³ The Federal Reserve Board was concerned that the records of the Federal Open Market Committee would be disclosed prematurely, undermining its ability to gather confidential testimony on market conditions and thus manage monetary policy free from the gaze of speculators.¹⁴ The Securities and Exchange Commission fretted that if it could not continue to hold “informal discussions by which business problems are resolved in a businesslike way, administration of the securities laws would be greatly impaired.” The Department of Labor worried about the premature disclosure of its enforcement policies.¹⁵

A number of agencies also worried that their ability to conduct investigations would be impaired if their investigatory files could be requested through FOIA. The National Labor Relations Board feared that informants of labor law violations would stop coming forward if employers would be able to FOIA their names. The Federal Communications Commission had similar concerns about protecting tip-offs from employees of licensees who were engaged in misconduct.¹⁶ The Civilian Aeronautics Board was worried about the frankness of accident reports; so was the National Aeronautics and Space Administration, which also worried about oversight reports about contractors.¹⁷

Such objections unsettle any easy assumptions that agency opposition to FOIA could only have been motivated by cynical self-interest, a hostility to democratic governance, or a wish to conceal abuses. If anything, the concern for protecting the confidentiality of audit and investigation processes suggests a preoccupation with guaranteeing the sanctity of internal agency processes designed to keep the agencies honest. FOIA, in this view, risked reducing government accountability, not aiding it. It is, of course, possible that these arguments were strategic, palatable rhetoric masking more selfish desires. But given that these arguments were made within the privacy of the administration as well as in public, it seems unlikely that these concerns were nothing more than posturing. Opposition to FOIA, in other words, was not necessarily antidemocratic. It could emerge from agency desires to protect the public interest.

These concerns for state efficacy molded many of the exemptions to FOIA. To begin with, FOIA acknowledged that many state functions required secrecy. The fir...