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This article was coauthored by James Valvo for Americans for Prosperity Foundation’s 2023 Sunshine Week essay series on how government transparency and the Freedom of Information Act have transformed society.
The Freedom of Information Act is the first modern law to guarantee a right of public access to government records upon request. The importance of that right cannot be overstated. Requesters and access professionals alike oft quote the Supreme Court’s memorable description of the FOIA as a “structural necessity in a real democracy.”
This language may seem like a rote recitation at times, especially given the widespread agreement that FOIA is somehow broken.
Agency leaders complain they are unable to adequately staff and fund their FOIA offices. The backlog continues to grow. Requesters, on the other hand, protest that agencies over-redact records (when they deign to provide a response outside of litigation), sometimes under pressure from political appointees, and that courts are overly deferential to the government’s withholding determinations.
Despite the validity of these criticisms and others, FOIA remains a remarkable legislative accomplishment in a citizen-led country. The road to its passage was not an easy one, as anyone familiar with the history of Representative John Moss’s efforts can attest. FOIA also has durable totemic value as a testament to the importance of open government.
In the wake of its passage, FOIA marked the beginning of a global transparency movement that spurred other countries to pass their own access laws. And the impact of that movement can be felt at home, too, as far as FOIA has served as a model for state-level public records laws.
In short, FOIA has made a positive and lasting impact on American political culture and the legal landscape. To appreciate the significance of the paradigmatic shift FOIA effected, one must recall the socio-political milieu in which it was passed, as well as its contemporary alternative, that is, the old access provisions of the Administrative Procedure Act.
As Michael Lemov and Nate Jones have recounted, the historical and cultural context in which FOIA was designed and passed was one of Cold War secrecy.
The growth of the military-security complex during the Second World War, as well as the overall expansion of the federal government—something that started with the New Deal—engendered a culture of severely limited public access to government information.
Even without the need for wartime secrecy following the Allies’ victory, the president, the military, and countless federal agencies continued to overclassify and closely guard their records. The post-war environment and the federal government’s apprehensive attitude toward the press in an era of increasing social upheaval only made matters worse.
On top of bureaucratic inertia and this culture of secrecy, the movement to pass FOIA also faced stiff political opposition at various points. Such opposition was partly due to President Lyndon Johnson’s reservations about signing a law that could let government information get into the wrong hands. But behind these reservations there was a colorable legal basis for political reticence.
To this day, there is no recognized federal constitutional right to access government information. And there was never any robust right of public access in the Early Republic, either under federal statute or common law.
Although there is well-developed and long-standing jurisprudence concerning the right to access records of judicial proceedings, the right to inspect public records in coordinate branches of government, while grounded in the Anglo-American legal tradition, has always been murkily defined, difficult to enforce, and inconsistently analyzed and enforced by the courts.
These jurisprudential criticisms of FOIA continue to hold water. When President Gerald Ford vetoed the 1974 FOIA Amendments—a set of reforms desperately needed to strengthen the law and overcome agency noncompliance—the Department of Justice (DOJ) Office of Legal Counsel, led by Antonin Scalia, was in the background “organizing opposition” to the legislation.
Several years later, then-D.C. Circuit Judge Scalia published an article that not only took a dim view of the practical efficacy and economic efficiency of the FOIA, which he nicknamed the “Taj Mahal of the Doctrine of Unanticipated Consequences,” but also hinted at how FOIA, and especially its standard of judicial review, raised separation-of-powers concerns. Scalia’s arguments should sound familiar to anyone involved in the transparency space today.
Similar separation-of-powers concerns about Congress’s regulation of the Executive Branch’s record-keeping and disclosure practices were raised by DOJ in the 1950s and ’60s. And one can still sense the palpable tension whenever more aggressive ideas for FOIA reform are discussed on the Hill. Another objection—that statutorily conferred informational standing is constitutionally insufficient to justify judicial review—appears to have been resolved with the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins.
But whether one has in mind Article III standing or more fundamental structural objections to FOIA, such matters only highlight the impressive feat that Congress accomplished with passage of FOIA roughly 60 years ago, and which it has repeatedly built on with successful amendments in 1974, 1976, 1986, 1996, 2003, 2007, 2009, and 2016.
In addition to the difficult circumstances—socio-cultural, political, and legal—surrounding the passage of the FOIA, the transformative importance of the statute should also be evaluated in light of the alternative public-access scheme that was previously found in the Administrative Procedure Act, and which—except in instances where a common law right of access could be successfully asserted—governed the disclosure of agency records.
Section 3 of the 1946 APA principally imposed on agencies a series of proactive disclosure requirements. Each agency was required to publish in the Federal Register:
An agency was also obliged to publish or make available for inspection “all final opinions or orders in the adjudication of cases.” Finally, with respect to reactive disclosure, unless otherwise disallowed by law, agencies had to make available documents—specifically, “matters of official record”—to persons “properly and directly concerned” with their contents.
Each of these public-access provisions included broad exceptions. Final opinions and orders, for example, could be kept confidential “for good cause,” so long as they had no precedential value. “[M]atters of official record” sought by “properly and directly concerned” persons—a precondition that by itself would seem to severely limited public access—could likewise remain secret “for good cause.”
All the provisions of Section 3 were subject to two over-arching exemptions, which allowed an agency to keep secret anything “relating solely to [its] internal management,” or which “require[ed] secrecy in the public interest.” Suffice it to say, the APA’s public-information provisions functioned more as a withholding statute than as a reliable way for an interested citizenry to know what its government was up to.
The revolutionary change wrought by FOIA, especially as amended in 1974, should be clear. Congress effectively turned Section 3 on its head, allowing almost any person, regardless of their interest in disclosure, to seek access to a wide variety of records. Disclosure became the general rule, rather than the exception. Most importantly, FOIA gave requesters the right to seek judicial review—something absent in the original APA.
FOIA has its shortcomings. It could do with a fundamental reworking, as the participants in last year’s AFPF Sunshine Week Symposium argued. One could also make a compelling case for how FOIA is severely deficient, especially relative to more recent transparency laws enacted in other countries or in the states.
But regardless of how FOIA might need to be improved to live up to its promise of transparency, or to accommodate increasingly rapid technological developments, its fundamental impact on American political society remains. Passage of FOIA was a remarkable accomplishment given contemporary political and legal objections, and it represented a significant break with the past and the existing public-access provisions of the APA.
FOIA still manages to serve its purpose, albeit imperfectly:
The fact there is such demand for transparency in the public square, as well as widespread recognition that FOIA needs legislative attention, provides the most solid ground for optimism.
This self-realization in the body politic—to say nothing of the freedom to criticize the current state of the law and advocate for its change—is deeply reassuring. Indeed, it is a consequence of the transformative impact FOIA has had on our political culture.
There is no going back. Open government is the future.
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