The fight to know - requests for Freedom of Information Act documents often delayed

The feds know more than the rest of us. And they like it that way.

In 1987 the Reagan administration came to Congress with an urgent problem: Japanese scientists were exploiting the Freedom of Information Act to snare American space shuttle technology worth millions of dollars. Congress could--must--stop them by exempting the National Aeronautics and Space Administration (NASA) from the information access law.

NASA's complaint was powerful, plausible--and false.

In fact, the Japanese never used the law to get shuttle data; a NASA official later admitted that the tale was "apocryphal." The administration concocted the story to keep American reporters, and the public, from learning the truth about the Challenger explosion. But NASA's effort to squirm out of the spotlight failed; its corner-cutting and deception lay exposed--thanks largely to the Freedom of Information Act.

The Samurai Shuttle episode, as congressional staffers call it, demonstrates the lengths to which some agencies will go to avoid public scrutiny and skirt the law that guarantees public access to government information.

People seeking government documents "just throw up their hands and go away when they see what some of these agencies make them go through," says David Sobel, a lawyer who specializes in the information access law. "They just decide it's not worth it. And I think the agencies are well aware of that."

The Freedom of Information Act (FOIA, pronounced FOY-uh) rests on the premise that government must be accountable to its citizens. It was signed 25 years ago July 4 by a reluctant President Lyndon Johnson, and strengthened over Gerald Ford's veto following the Watergate scandal.

Before FOIA, officials didn't even have to answer requests for government information, much less give it out. FOIA says that anyone can see any official document unless the government can prove that the information is covered by one of nine specific exemptions, including military and law enforcement secrets, sensitive financial and business data, information protected by individuals' privacy rights, some internal government documents and some geologic material.

In theory at least, FOIA bucks the bureaucratic impulse for secrecy. In reality, the executive branch and federal courts are stretching the law's exemptions to give that impulse freer rein. Congress last took a shot at FOIA reform in 1986 -- a compromise that wound up creating new obstacles for requesters -- and since then has paid scant attention to the problems. FOIA's friends can't agree on the next move, if any.

Paul McMasters, a USA Today editor who heads a committee on freedom of information for the Society of Professional Journalists (SPJ), sees this bleak future if the law isn't fixed: "more adverse court decisions, more erosion of access rights, more ignoring of FOIA."

OPEN SECRETS

Journalists and authors sometimes think FOIA was written just for them. Indeed, it has helped to uncover significant stories nationally and locally.

A flood of FOIA requests helped demolish NASA's deceptions after the Challenger exploded in 1986. Documents and photos revealed that NASA had scrimped on testing critical parts and that the crew cabin, contrary to NASA claims, survived the explosion and probably fell intact to the ocean.

Last year, FOIA helped New Jersey reporter Eric Greenberg expose a coverup -- bureaucratic and literal -- of munitions abandoned at the site of an Army arsenal where 20,000 people a day now work, attend college or relax in a park. Greenberg obtained an Army consultant's report that mustard gas, potassium cyanide and ammunition remained buried there. The stories prompted a cleanup that has unearthed 20,000 live artillery shells.

Historian David Garrow, author of Bearing the Cross, the Pulitzer Prize-winning biography of Martin Luther King Jr., used FOIA to get records of the FBI's surveillance of King. Garrow says he could not have written his book without information he got through FOIA in the 1970s; that material, he says, would have been withheld under restrictions imposed in the 1980s.

Yet writers are actually a minority of FOIA users. Ronald Plesser, a lawyer specializing in freedom of information, asks rhetorically, "What other three-page or four-page statute has had the kind of impact on government that the Freedom of Information Act has had?"

Because Ralph Nader's Public Citizen sued, many Department of Agriculture meat inspection reports are now public documents. The nonprofit National Security Archive was able to compel release of parts of Oliver North's diaries and the computer message files from the National Security Council during the Iran-Contra affair.

Barbara Crancer, daughter of Teamsters union leader Jimmy Hoffa, filed FOIA requests for Justice Department records on her father's disappearance. The government says the 16-year-old case is still active. Crancer is suing.

Far and away, most FOIA requesters don't want to make headlines. The Food and Drug Administration (FDA) processed 40,500 requests last year, with just 6 percent from the media and 1 percent from public interest groups. The others came almost entirely from FDA-regulated companies or their representatives, who use the act to untangle the sometimes Byzantine regulatory process -- and to dig up information the government has on their competitors. Despite persistent rumors, business users of FOIA rarely unearth their competitors' proprietary secrets. For example, one manufacturer accused FDA's FOIA staff of releasing a proprietary formula; it had actually been published in the Physicians' Desk Reference.

The act has spawned its own industry. An association of government FOIA officers and those who deal with them carries the optimistic acronym ASAP, for American Society of Access Professionals. There are even professional FOIA requesters, whose clients like the convenience of having someone else endure the hassles. Some clients also appreciate the anonymity; logs of FOIA requests, after all, are public documents.

"They all want everything to be released except their own data," Marlene Bobka, marketing executive for FOI Services Inc., says dryly.

CURSES! FOIA'D AGAIN

For someone who railed against Big Government, Ronald Reagan did more than any other recent president to keep government actions secret from the populace. George Bush, the first CIA director to become president, has followed suit.

"In the past 10 years, it has become more difficult and more expensive [to get information under FOIA]. Agencies are less responsive," says military historian Chuck Hansen. "Sometimes I think they have an actuarial table at their side; they try to guess the age and longevity of the requester."

Hansen, a regular FOIA user, asked the Air Force 10 years ago for documents from the late 1940s and early '50s. The Air Force released some, withheld others. He appealed. Then the incoming Bush administration ruled: It wouldn't give Hansen the remaining documents -- and he never should have gotten the original batch. Cold War secrets remain locked up.

That kind of response plays well in official Washington these days. Justice Department official Mary Lawton, addressing a FOIA conference sponsored by the American Bar Association (ABA) in May, summed up the Reagan-Bush approach with a snarl: "Some of us who have been plagued by this act for 25 years aren't real enthusiastic about this anniversary."

Conflicts between open government and essential secrets are inevitable. But critics note that "national security" sometimes means "politically embarrassing."

The Reagan administration expansively redefined "national security" to cover virtually all aspects of international activity, including research and development and trade. A 1982 executive order told government officials to classify documents whenever in doubt, and even allowed some material already released under FOIA to be reclassified. The Justice Department also reversed a Carter administration policy to withhold documents only if disclosure would cause "demonstrable harm." The new strategy: Fight every possible case, even if the only defense against disclosure is a technicality.

In filling requests, the agencies all seem to be playing by different rules. FOIA is supposed to work this way: You send a letter asking for information. The government has 10 days to fill the request or explain why it won't do so. If the government withholds anything, you can appeal the decision within the agency and in the federal courts. But in many agencies roadblocks are endemic. So are delays, despite the 10-day deadline.

The FDA often takes two years to fill requests, says Bobka; the State Department often takes a year, other requesters say. Last year the FBI calculated that its average response time was more than 300 days. A Navy FOIA officer suggested to one reporter that he'd be better off finding someone to leak the document he wanted. "If you have to file a FOIA request," one media lawyer says, "that means you've failed."

To see how the law is working, Common Cause Magazine filed FOIA requests this spring with 21 agencies, asking for recent FOIA logs -- lists of requests, when and how they were answered. Four of the 21 -- the Federal Aviation Administration, Federal Trade Commission (FTC), Merit Systems Protection Board and Securities and Exchange Commission -- met the 10-day deadline.

Several agencies excused themselves by saying their FOIA offices were mere entry points, and once a request was forwarded to the appropriate office no one tracked its progress. Some agencies have computerized logs, others handwritten tracking sheets -- one had no logs at all, just a routing slip for each request. The Energy Department at first tried to withhold requesters' names; the Justice Department considers them public information.

Most agencies agreed that Common Cause Magazine publishes news and therefore waived fees. The Department of Housing and Urban Development, however, charged $45 for computer time, and the Air Force wanted $509 for copying. Two months after the requests were filed, seven agencies of the 21 were still figuring out how to respond.

The exercise made it clear why statistics about FOIA performance are lacking. The amount and usefulness of the information in the logs differs greatly. There's not much help in the congressionally mandated annual reports on FOIA activities filed by all agencies: They are vague, inconsistent and thus worthless for any serious assessment of compliance government-wide.

"Information about the act itself is much more limited than you would expect," says Robert Vaughn, an American University law professor.

Among FOIA frequent filers, anecdotal evaluations vary widely. The Department of Health and Human Services, with little or no classified information, regularly gets high marks. The State Department and Central Intelligence Agency are considered the worst, while the Pentagon's various components get mixed reviews.

David Evans, a military reporter for the Chicago Tribune, recently asked the Navy for five years' worth of sensitive reports on emergency crew ejections from combat aircraft. They arrived within two months. But when he asked the Air Force for a study of tactical transport, he was told the 10-year-old document was "internal" and thus exempt. Evans, who as a retired Marine officer sees "a particular poignancy" in FOIA abuses, says that episode "points out how capricious this whole business is" -- a complaint echoed by many users who say that success often depends on an official's whim, not the request's merit.

Even critics of agency performance have words of praise and sympathy for some freedom of information officers, whose desire to carry out the law can be frustrated by their bosses.

Quinlan Shea, who worked on freedom of information issues at the Justice Department in the 1970s and at the National Security Archive in the 1980s, blames the Office of Management and Budget (OMB) for ensuring that FOIA offices remain underfunded and understaffed, a universally recognized cause of delay. The Navy's central FOIA office has a staff of two and no fax machine. Emil Moschella, then FOIA director for the FBI, testified last year that his 1991 request for new staff was cut in half by Justice and then "zeroed out" by OMB.

If money is so important, you'd think the administration could tote up the cost of litigating all those FOIA cases. It hasn't. But Justice does track -- and has been known to inflate -- the cost of complying with the law. The department claimed that compliance with one court-ordered FOIA release would cost $75,000. In 1989 the General Accounting Office found that it actually cost $23,500.

Computers are the newest FOIA battleground. When the act was written in the era of carbon paper and file cabinets, the government had some 3,000 computers. Today it has maybe a million, holding the nation's largest collection of information. But FOIA has never been updated to define the rights of access to that material.

Indeed, the Bush administration seems to regard computers as more worrisome than paper files.

The Justice Department last fall surveyed other agencies about access to electronic records -- a process like "polling members of the National Rifle Association on gun control," according to FOIA expert David Morrissey at Indiana University. Among the issues raised: What is an electronic record? Since information can be extracted in virtually any form, can an agency control the form in which it is released? Justice hasn't yet proposed any answers, but the survey's basic premises point toward less FOIA accessibility as more records are put on computer.

"Frankly, I don't understand why there is a problem," Sobel says. If an agency claims material cannot be pulled from a database in the form requested, Sobel would ask if the material could be assembled, say, for the boss to use in testifying on Capitol Hill.

"It seems to me pretty clear-cut that the motivation behind the act is to get information," he says. "Regardless of the form in which it is stored, information is information."

At least one Reagan appointee regrets the hardball approach to FOIA. Roger Pilon, now at the libertarian Cato Institute, filed requests after he and his wife were wrongly accused of leaking intelligence information to the South African government. "What we'd get back is the standard hiding behind government security," he says. "Having served in State and Justice, I can tell you the amount of material that is classified far exceeds the amount that needs to be classified."

Success with a FOIA request may boil down to a question of cost -- and the government decides who must pay and who gets information for free.

The 1986 FOIA amendments were supposed to eliminate search and retrieval costs for reporters and educators and waive copying fees for small requests. The administration turned the reform into an obstacle. Agencies regularly challenge scholars, public interest groups and others to prove that requests are in the public interest. If the government thinks the public knows enough already, it can deny a fee waiver. The FBI, requesters complain, approaches FOIA fees like a car salesman cutting a deal, sometimes offering to waive 10 percent or so.

When a Common Cause Magazine writer asked the State Department in January for documents pertaining to President Bush's past travels, and also requested a fee waiver, the department responded with a questionnaire: Had she looked in the public library? What kind of education did she have, especially in foreign affairs? Would she be paid for the article? How much? When the writer protested, an official said the questionnaire had been sent in error.

THE COURTS CHANGE COURSE

FOIA has never been regarded as a precisely drafted law. Over the years, the federal courts have "breathed policy" into it, spelling out by judges' rulings how the government is to comply.

The D.C. Circuit Court of Appeals, which handles most FOIA cases, and the Supreme Court have in the past several years moved aggressively to expand the government's power to withhold. Journalist McMasters says: "The Supreme Court will let you publish whatever you get your hands on, but won't lift a finger to help you get it."

One problem for FOIA is the changing face of the federal judiciary. Although ideology doesn't necessarily predict votes on FOIA cases, several D.C. Circuit rulings have split between conservatives appointed by Reagan and Bush and liberals appointed earlier. The conservatives hold a majority on the full court.

There's a second, non-ideological problem: FOIA cases eat up too much time. D.C. District Court Judge Louis Oberdorfer says that one of his clerks once spent nearly three months examining thousands of documents the government wanted to withhold. Federal judges don't have the time for such exhaustive analysis anymore -- as Oberdorfer said at the ABA conference, their dockets are overwhelmed by drug cases.

The cumulative effect of court rulings since the mid-1980s has been to give the government greater power to deny public access to information and even to discourage cases from being brought.

* FBI criminal history records -- "rap sheets" -- have been ruled "categorically" exempt from disclosure. The Justice Department seized on the ruling to encourage agencies to designate other documents as exempt.

* The Supreme Court held that unless the requested information itself directly reveals government operations or activities, disclosure isn't in the public interest -- no matter how it will be used.

* The Supreme Court vastly broadened the exemption allowing law enforcement agencies to withhold records. Even Supreme Court Justice Antonin Scalia, a staunch conservative, wrote that the decision created a "hole one can drive a truck through."

* Rulings have broadened the exemption for confidential law-enforcement sources. Anyone who speaks to the FBI now has an essentially "irrebuttable" assurance of confidentiality, even if the bureau never said so.

* Courts rarely question agency claims that disclosure would compromise "national security." The CIA, in a case involving tests of mind-control drugs on unwitting subjects, won a virtual exemption from court review of its decisions to withhold information. Investigative writer Scott Armstrong, who has used the act extensively, says where national security is claimed, "FOIA for all practical purposes is basically dead."

* The "balancing" between privacy considerations and the public interest in releasing information is increasingly out of balance. "Privacy wins every single time these days," says Appellate Judge Patricia Wald. In a case now working its way through the courts, news organizations are asking for the audiotape of the Challenger's last two minutes. The requesters, citing an inaccurate transcript released earlier by NASA, say the tape is the only true record of what happened aboard the shuttle. NASA argues that voice inflections make the tape as private as a personnel or medical file. A decision for NASA could radically expand the privacy exemption.

Taken together, these rulings make it harder to get information, especially from such agencies as the FBI and CIA. Says attorney Jim Lesar, whose practice is primarily FOIA litigation: "We may simply have to have a series of disasters before Congress may be impelled to amend the act again."

THANKS BUT NO THANKS

With all FOIA's problems, from interminable delays to hostile court rulings, you'd think users would be beating a path to Capitol Hill for legislative relief. But there's no consensus that getting Congress involved is a good idea.

Hesitant reformers point to 1986, when Sen. Orrin Hatch (R-Utah) added FOIA provisions to an anti-drug bill that was being rammed through before Election Day. In a hastily reached compromise, conservatives got broader law-enforcement exemptions and liberals got the fee-waiver standards. Some FOIA supporters admit they gave away more than they got.

And some advocates fear that tinkering with FOIA would give opponents an opening to weaken it. They point to the frequent attempts to write FOIA exemptions into other bills as evidence that beneficial reform is a fragile hope. Says one public interest lawyer, "Are there helpful reforms? Yes. Would I want them at the cost of giving the other side what they want? No."

Any new amendments would be tested in increasingly hostile courts -- another reason some advocates say it's smarter to live with the law as it is. For others, the courts' hostility is a major reason to act now. "Given the trend in the courts to read the law narrowly," says Gary Stern of the American Civil Liberties Union, "we believe the statute should be strengthened."

Sen. Patrick Leahy (D-Vt.), chair of the Judiciary Subcommittee on Technology and the Law, may soon ignite the first wide-ranging debate on FOIA in years. For months, his staff has been soliciting comments on draft legislation he hopes to introduce this summer. The bill is expected to clarify the law on electronic records, narrow the recent court rulings on exemptions and impose civil penalties for recalcitrant agencies. It also would require agencies to make information available in public reading rooms and publish indexes of available information.

Some FOIA advocates call it a Pandora's box. But Leahy's staff says FOIA has sustained too much damage to wait any longer. The SPJ's Paul McMasters agrees, saying that if the changes aren't made, "We have a long string of defeats ahead of us."

Meanwhile, everyone pays lip service to open records. Vice President Dan Quayle told a group of newspaper executives in 1989: "An educated and informed public is the foundation of a sound democracy. I have often said that too much government information is classified and that the public would appreciate our national security needs if more data were declassified and released."

It's hard to argue with that. But when Harper's magazine asked the vice president's office how many college graduations Quayle had been invited to speak at this spring, his office first said there were too many to count and then withheld the number, claiming security needs.

Harper's is filing a FOIA request.

COPYRIGHT 1991 Common Cause Magazine
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