The signing of the Freedom of Information Act (FOIA) represented the realization of the promise of self-governance that was technically born in 1776, but was not fully realized until 190 years later. John Moss, the California congressman who championed its passage, said the Freedom of Information Act was the first law in the history of the republic that gave Americans the right to access the records of federal agencies that are funded with their tax dollars and that are, supposedly, at their service. It is a right, Moss argued, that was as important as the protections contained in the Bill of Rights.
After all, what good is freedom of speech if that speech is not informed by knowledge of what the government is doing in our name, but without our informed consent? What good is freedom of the press if reporters are unable to find out what government agencies are up to?
On July 4, 1966, President Johnson signed the Freedom of Information Act, reluctantly. In fact, he signed the law at his Texas ranch with no signing ceremony and without the usual fanfare. It was hardly an auspicious beginning for a law that resulted in “sunshine laws” in all 50 states; a law that has served as a model for dozens of nations around the world, trying to make government more accessible and accountable to their citizens; a law that set out to make manifest the Madisonian principle of an informed citizenry.
March 16 is the anniversary of James Madison’s birthday (1751) and it is celebrated as Freedom of Information Day throughout the country. Madison was a great advocate of the right of citizens to information about their government and suggested that for people to be their own governors, they must arm themselves with the power that knowledge gives.
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Over the past 42 years, the FOIA has become an invaluable tool for journalists, business, nonprofit organizations and individuals seeking access to the government information to which they have a right. At the heart of FOIA is the notion that people living in a democracy have the right to know what their government is doing, and why. It is a legislative attempt to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.
Not all the news is good on this 42nd birthday. A fundamental part of a democratic government is transparency. The public has a right to know what decisions are being made. But when it comes to transparency in governing it has become increasingly difficult to see what is going on when the White House has a fondness for obfuscation.
Not only has the current administration become one of the most secretive, it has done so while maintaining surveillance without warrant on millions of Americans. It is troublesome that the government, especially at the federal level, used the Sept. 11, 2001 terrorist attacks and the subsequent “war on terror” to carry out major policy decisions in secrecy. Many Americans do not accept the administration mantra: “Just trust us.” The nation’s founders knew such an idea was untenable and established a separation of governmental powers into three autonomous branches.
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The FOIA is further manifestation of that separation, the idea that those who live in a democracy have a right, indeed an obligation, to know what their leaders are doing.
The latest “Secrecy Report Card” from openthegovernment.org shows that, despite growing public concern, there is a continued expansion of government secrecy across a broad array of agencies and actions. Among the information compiled in the report are data on secrecy trends in the courts and military, FOIA use, classification costs and whistleblowers.
The report card looks at trends in classification (down slightly, but still higher than 2000, and costing more measured against declassification); the rise in no-bid contracts (way up); use of “state secret” label to withhold information (more frequent than during the Cold War); FOIA backlogs and costs (up); and other secrecy indicators.
Meanwhile, at the state level, the Associated Press reviewed state laws on public information (ap.org/FOI/foi_031306a.html) that have been enacted since the 9/11 attacks. It found that state legislatures have adopted more than 1,000 laws changing access to information, approving more than twice as many measures that restrict information as laws that open government books.
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Open government is not just good public policy, it’s good business. The FOIA is a critical tool for businesses seeking government information and companies conducting competitive research. A Coalition of Journalists for Open Government (cjog.net) study showed commercial uses of government information outpaced requests by journalists and all others. About two-thirds of the requests were from commercial requesters. The second-largest group of requesters – categorized as “other” and consisting mostly of private citizens – comprised a third of the total.
FOIA use by the media is considerably less than conventional wisdom. “Media” requests accounted for 6 percent of the total. Many reporters say it takes too long to get information through FOIA to make it a meaningful tool for newsgathering. It is used more frequently by journalists working on longer, investigative projects.
Locally, The Shafeek Nader Trust for the Community Interest has sponsored the Freedom of Information Essay Contest in Winsted. For the past 15 years, with the help of the history teachers at The Gilbert School, I teach students about the Freedom of Information Act. They submit essays and three award winners are selected based on their knowledge of the law and its importance. Hundreds of students in Winsted have learned about this democratic tool.
Twice, the Winchester Board of Selectmen has issued proclamations designating March 16 as Freedom of Information Day in recognition of the importance of access to government information in a democracy, and recognizing all the participants in the annual contest.
The Freedom of Information Act has stood the test of time. It has a heritage all the way back to the Magna Carta and has been used as a model all over the world. More importantly, it has made a difference in how the people view their government and how government views its responsibilities to the people.
Charlene LaVoie is the community lawyer in Winsted. Her office is funded by the Shafeek Nader Trust for the Community Interest.
