Today in 1967: The Freedom of Information Act takes effect

July 5, 2013

Today in Legal HistoryU.S. citizen Edward Snowden is currently seeking political asylum in any country that will accept him.

Why?  Because the U.S. government has filed criminal espionage charges against him, and is currently seeking his arrest.

These charges stem from events last month, when Snowden leaked the details of top-secret U.S. and British government mass surveillance programs to the media.

The programs were revealed to be collecting not only communications metadata (caller ID, time, date, location, etc), but also communications information from undersea cables between countries, including the collection of actual message content (more on that in this post).

Snowden’s own explanation as to the motivation behind his actions was “to inform the public as to that which is done in their name and that which is done against them.”

Coincidentally, there’s a federal law that took effect 46 years ago today with largely the same purpose: the Freedom of Information Act (FOIA).

The Act’s stated purpose is “to clarify and protect the right of the public to information,” and it does just that: outlines procedures to mandate the disclosure of information by the government to the public.  And it was the first federal law to give the American public the right to access the records of federal agencies.

Why did the nation reach almost 200 years of age before such a seemingly common sense law was passed?

There are a variety of reasons, but a few factors played particularly important roles.

First, the Cold War led to a sharp decline in government transparency.

At the same time, and likely because of this increased government secrecy, there was increased public interest in government activities, especially from journalists and newspaper editors.

Of course, pressures to increase government transparency during the height of the Cold War were strongly opposed by the government itself.

That is likely why the Act, which was proposed by California Democratic Congressman John Moss in 1955, took 11 years to get signed into law.

And even when it was signed into law by President Lyndon Johnson on July 4, 1966, it was done so reluctantly.

According to Johnson’s then press secretary Bill Moyers,

LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House.

In addition, Johnson’s signing statement spent more time talking about the necessities of government secrets than the virtues of the Act itself (although he did close his statement with the sentence, “I sign this measure with a deep sense of pride that the United States is an open society”).

Johnson knew, however, that, with Congress heavily supporting the bill (the House passed the bill by a vote of 307-0), his veto would have undoubtedly been overridden.

Just because Johnson signed the Act into law doesn’t mean that the Executive branch was suddenly willing to cooperate with the law’s requirements.

In the aftermath of the Watergate scandal and the ardent opposition from the Nixon White House to release documents and other information, Congress held oversight hearings on the effectiveness of the FOIA.

During these hearings, there was quite a bit of testimony about opposition from the government bureaucracy to information release requests under the FOIA that made such requests too expensive, too time-consuming, or impracticable for some other reason.

To address this, Congress amended the FOIA in 1974 by adding many new requirements, timeframes, sanctions for wrongly withheld information, and waivers of fees for journalists and public interest groups.

President Gerald Ford, who assumed office with a new promise of open government, initially supported the amended FOIA, as he had supported the original as a congressman in 1966.

However, Ford’s White House chief of staff Donald Rumsfeld and deputy chief of staff Dick Cheney strongly recommended that he veto the bill.

In addition, the Justice Department’s then Office of Legal Counsel, Antonin Scalia, also strongly urged Ford to veto the FOIA amendments, giving legal arguments that it was unconstitutional.

In the face of overwhelming opposition from these and many other individuals within his administration, Ford vetoed the FOIA amendments.

Nevertheless, as Johnson feared would happen to his potential veto of the original FOIA, Ford’s veto was overridden by Congress, and the new amendments became the FOIA that we know today (although the Act again saw more minor amends in 1976, 1986, 1996, and 2007).

Although the FOIA gives the public significant power in obtaining government documents, the original FOIA contains an exemption (which survives to this day) allowing documents and information related to national security to be withheld.

On the other hand, the information leaked by Snowden for which he is currently being criminal charged – that the U.S. government is spying on nearly all of the communications of its citizens – affects the public very substantially.

Ironically, this is information that would never have been accessible by the public through FOIA procedural channels.