The Freedom of Information Act on its 45th anniversary
COMMENTARY | July 01, 2011
Lyndon Johnson opposed FOIA — said it was a plot against his administration — but a tenacious backbencher from California, John Moss, had pursued it for 12 years and LBJ finally relented, signing the legislation on July 4th, 1966. Here Michael Lemov, author of a new book on Moss and FOIA, recounts events leading to the enactment.
By Michael R. Lemov
July 4th marks the forty-fifth birthday of the Freedom of Information Act (FOIA). Passed by Congress in 1966, and reluctantly signed by President Lyndon B. Johnson on the last day before it would have been pocket-vetoed, FOIA has revolutionized public access to government documents and records. It was used last year more than 590,000 times, by news organizations, citizens and businesses. They mostly succeeded in obtaining the government information they sought.
But at age 45 FOIA faces a new world and new challenges. Decades of terrorism have induced government agencies to over-classify millions of alleged national security items as secret. Extensive delays, sometimes for years, may face those requesting information. And the Internet, with its worldwide impact, has given birth to Wikileaks and its fallout, which could threaten the use of the disclosure process established by FOIA and induce more reliance on leaked government data.
Can FOIA survive and further expand access to government information in this new era?
The law was enacted largely through the tenacious work of John E. Moss, then an obscure Congressman from California. Moss devoted 12 years to a struggle between Congress and presidents of both political parties, to enact a public information law. A hard-luck kid who grew up poor during the Depression in Sacramento, Moss was an unlikely champion of the Act. His victory may offer insight on how FOIA can thrive in a new era.
On a spring day in early 1965 the House Democratic leadership arrived at the White House for its regular meeting with President Lyndon Johnson. The president asked Speaker John McCormack, Majority Leader Carl Albert, and Majority Whip Hale Boggs to explain the status of Congressman Moss’s government information bill. When Johnson was told that the bill was moving forward in the House, the president said it was “terrible” legislation. “What is Moss trying to do to me?” Johnson said. “I thought he was one of our boys, but the Justice Department tells me this goddamn bill will screw the Johnson administration.”
Within an hour Moss was summoned from a hearing of his subcommittee by the Speaker. The President, he was told, was mad as hell about his information bill. It was a shocking thing to do; congressmen aren’t usually hauled out of subcommittee hearings by the leadership, and presidents don’t intervene in the details of most emerging legislation. Years later Moss said he would not have ended his fight for FOIA even if the President had asked him directly.
Moss understood that what he was fighting for was a basic American right, the right of any person to obtain information from the government. It could, Moss believed, be inferred from the First Amendment’s guarantee of the right to speak and publish freely. But Presidents Eisenhower, Johnson, and Kennedy did not favor enactment of a freedom of information law. One of the issues most cited was the danger of releasing information that could compromise national security.
Moss knew he was facing a major hurdle. In a hearing, he responded to these concerns: “No one would want to throw open government files that exposed national defense secrets to enemy eyes,” he said, but neither should government “impose the iron hand of censorship on routine information, even information that might embarrass public officials.” The public’s right to know, and the First Amendment, Moss said, supported the need for the new freedom of information law.
Moss suggested there might be an opening for a compromise over release of possible national security materials. The Department of Justice did not think any compromise was possible. “Because of the scope and complexity of modern government, the possibilities of injury to private and public interest through ill-considered publication are limitless,” a Justice witness said. Highly sensitive FBI reports, containing the names of undercover agents and informers were cited as examples of the dangers of any Freedom of Information Act.
But a compromise was ultimately reached between Moss and the Johnson administration. The Freedom of Information Act would include an exemption from release of information that was “specifically authorized by an executive order and properly classified” to be kept secret in the interest of national defense or foreign policy. The burden of proving a bona fide national security interest to establish the need for secrecy, however, would be on the Executive Branch.
Some asserted that Moss had sold out when he agreed to the compromise, but it has not worked out that way.
A few years after the bill became law, Moss, Senator Ted Kennedy and Congressman Bill Moorhead led a fight that gave the federal courts authority to review the security classification decisions of the Executive Branch to determine whether material was properly withheld from the press and the public.
The number of FOIA requests by the public rose in 2010. The backlog of unfilled requests has declined at many agencies, including Homeland Security and the Defense Department. There have been fewer denials of information since President Obama issued a directive to all agencies to increase access to federal government information on his fist day in office.
According to a recent study of the effectiveness of FOIA by the National Security Archive, “the glass is only half full” because there are still long waits for some information and sometimes significant expense in getting it. But the original compromise has served the public and government well over the years. It demonstrates that where there is an independent third party, such as a federal court, available to review decisions over national security issues and leadership from the White House, progress can be made in opening up government.
FOIA is one of the most powerful tools available to American citizens to hold government accountable for its decisions. Perhaps the best proof lies in the fact that the Freedom of Information Act has been copied by over 60 nations throughout the world. Moss knew the Act was not perfect. Years after it became law he said, “If you compare it with today, we’ve made vast progress in the release of information to the public. If you ask me if we’ve made enough progress, the answer remains “no.”
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Michael R. Lemov is the author of People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights (Fairleigh Dickinson University Press, June 2011). He was chief counsel to John Moss’s House of Representatives subcommittees from 1970 through 1978.