Knowledge Helps Citizens, Secrecy Helps Bureaucrats -
The Freedom of Information Act (FOIA)

excerpted from the book

The Ralph Nader Reader

(Originally appeared in The New Statesman, January 10,1986)

If this year marks the 75th anniversary of Britain s Official Secrets Act, which is little reason for celebrating, it is also the 20th anniversary of the Freedom of Information Act (FOIA) in the United States-and that is something to cheer.

For many years, U.S. agencies were allowed to withhold government documents from the public, if officials decided that secrecy was 'in the public interest.' That vague standard, administered as in the United Kingdom today by the bureaucracy to prevent embarrassing disclosures, cast a cloak of secrecy over many government operations.

In 1966, Congress decided to change the presumption of secrecy and to limit the agencies' discretion to withhold records. Specifically, Congress voted to make all records of federal agencies (Congress and the Judiciary are exempt) available to any person upon request, unless the documents fell within a specific exemption from disclosure (e.g., classified records, trade secrets, sensitive law enforcement records, matters invading personal privacy). This right is not only available to U.S. citizens, but to persons of any nationality.

Congress's hope that this law would usher in a new era of'government in the open' went unrequited, however, as agencies became more creative in their efforts to evade disclosure of their records. In 1974, in the wake of the Watergate scandal and public dissatisfactions with government cover-ups, Congress amended the FOIA to deal with this problem. Specifically, it restricted the types of reference that can be automatically withheld from disclosure and it streamlined procedures which agencies must follow in processing requests for information.

These amendments were largely successful and recalcitrance by agencies in this area has generally been eroded. Despite some occasional foot dragging, agencies now recognize that the Freedom of Information Act is a fact of life and that the public is entitled to know what the Federal Government is up to. (If the government denies a FOIA request, citizens have recourse to the courts. If the denial is not justifiable, government must pay the challenger's legal fees. This encourages citizens to make use of the FOIA and diminishes the government's incentive to drag out litigation against individuals who lack resources.)

Journalists and citizens' groups routinely use the FOIA to uncover examples of government waste and abuse, as well as unsafe products which are on the market. To take but a few examples:

A consumer group used the Act to uncover the evidence of serious defects in certain steel-belted radial tires. These disclosures helped prompt the U.S. Department of Transportation to recall I0 million tires.

Some investigative journalists discovered that not all the billions being spent on national defense are for that purpose. Instead, they learned that the U.S. Navy was using federal funds to make admirals more comfortable on their destroyers to the tune of spending $I4,000 on a sofa and $4I,000 to carpet a wardroom, at a cost of $93 per square yard. These disclosures and others prompted a Senate sub-committee to investigate the matter, after which the navy spelled out criteria for furnishings and announced a settlement with the contractor regarding overcharges, which may save U S. taxpayers as much as $I70 million all told.

A separate investigation by Common Cause, a citizens' group, found that the Pentagon was rubber stamping requests by military contractors to pay for the costs they incurred providing military officials and Congressional personnel with parties, shooting trips, rides on corporate jets and yachts, and free football tickets.

As the manufacturers saw it, these were simply 'costs of doing business' that had to be included in the price of missiles, tanks and other weapons they were selling to the Pentagon. They also sought to have the Defense Department pay for their costs in lobbying Congress for the orders for the weapons systems they would be granted. Following publication of a story outlining these practices, Defense Secretary Caspar Weinberger asked Pentagon officials to clamp down on this practice, a move which can save taxpayers millions of dollars in future years.

The Better Government Association, another citizens' group, used the FOIA to reveal that a major meatpacking company in Colorado had violated numerous rules designed to protect beef from contamination. What made this company especially significant was that it was supplying twenty-four percent of the ground beef purchased for use in the Federal program that provides subsidized lunches to school children. After the story appeared, the Secretary of Agriculture impounded the 6.5 million pounds of ground beef in Federal warehouses and suspended the company from bidding for new school lunch contracts.

Another investigation disclosed that Thomas Reed, one of President Reagan's top security advisors, had been engaging in questionable securities trading practices. Information obtained from the Securities and Exchange Commission, which regulates stock exchanges, showed that Reed had fabricated data and signed other people's names to forms required by his brokerage house to carry out 'insider trading'. Shortly after reports about his activities became public, he resigned.

In I983, the Public Citizen Health Research Group, a consumer group, used the FOIA to uncover evidence that Oraflex, a purported wonder drug for treating arthritis, had been rushed onto the U.S. market, even though the manufacturer knew that dozens of Oraflex patients had died in Britain where the drug was first licensed. Following these and other disclosures, the manufacturer withdrew the drug from the market.

These examples are just the tip of the iceberg, in the sense that disclosures prompted almost immediate reform. While not every revelation leads to change, the FOIA is used extensively by journalists and has been the basis of literally hundreds of news stories over the past decade. The value of these disclosures in terms of improved public awareness of how government is functioning is incalculable.

One of the biggest beneficiaries of the FOIA, though, is neither the press nor the average citizen, but the corporate community. Businesses routinely make use of the FOIA to find out what the government is planning and to keep track of information that has been submitted to agencies by their competitors. At last count, more than 60 percent of all FOIA requests are made by corporations, an indication of how widespread the benefits of the Act have been.

The success of the FOIA inevitably raises the question of whether the Act can be exported to other countries. The answer is 'yes'. Recently, Canada adopted its own version of the Freedom of Information Act that covers Cabinet departments. While journalists and historians in Canada have complained that too much information is still 'off limits', the Canadian law is still a first step in the right direction-and provides powerful support for adoption of a similar law in the United Kingdom.

One of the principal arguments made against adopting a FOIA in Canada was that it would not work because the United States has a clear division between Congress and the Executive Branch of government, whereas the distinctions are not as clear in a Parliamentary system. The Canadian experience should help to dispel that myth. While it is true that Canadian law is overly deferential to the bureaucracy, it does suggest that such a system could be successfully employed in Britain.

Such a reform ought to commend itself to the present British government-though there seems little prospect of that. Although many of the FOIA's initial supporters in Congress were political liberals, the Act can be viewed ideologically as a 'Tory reform.' Political conservatives in both Britain and the United States claim that they are mistrustful of centralized national government and support efforts to limit its scope and power.

What they fail to realize, however, is that knowledge is power and that secrecy is one of the principal tools which an unresponsive bureaucracy can use to perpetuate its existence and its way of doing business, regardless of what reforms are being demanded by the public and elected officials.

A Freedom of Information Act helps to expose more clearly what government is doing on a day-to-day basis, thus promoting public understanding of what programs are and are not working, what abuses are taking place, and what changes are needed.

One of the strengths of a democracy is that it trusts its citizens to make intelligent choices about how they should live and be governed. But knowledge is necessary in order to make such intelligent choices and openness in government helps to achieve that end. Information is the currency of democracy

For most of this century, Britain has lived with an Official Secrets Act, which gives the national government the power to punish the disclosure of information which it regards as damaging. But the presumption needs to be reversed. Instead of an Official Secrets Act, is it not now the time for an Official Disclosure Act?

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