Jefferson Morley | March 13, 2019
Sunshine Week: Freedom of Information and Its Enemies
It’s Sunshine Week in Washington, a week to celebrate the Freedom of Information Act (FOIA) and other open government laws that enable the public to see what their government is doing.
The FOIA, passed in 1966, is a powerful tool for the public interest.
Even our most secret agency, the CIA, has provided online access to 13 million pages of historical records thanks to FOIA. Such documents are powerful and illuminating. For example, recent requests have revealed that the Interior Department awarded nearly 1,700 offshore drilling safety exemptions, gutting Obama administration safety rules put in place after the 2010 BP Deepwater Horizon ecological disaster. Others have proved that President Trump lied about the size of his inauguration crowd.
But the law is undermined by the very people who are supposed to enforce it, says Nate Jones of the non-profit National Security Archive: the U.S. Justice Department.
The primary reason for the law’s failings can be traced to its oversight by the Justice Department, which views itself primarily as the protector of executive branch prerogatives rather than a promoter of openness. When agencies’ desires for secrecy conflict with FOIA, Justice does not go out of its way to ensure that the public’s right to know triumphs. In a sure sign of conflict, the same department charged with enforcing FOIA also defends agencies in court when they are sued for breaking the law.
I saw this first hand in my FOIA lawsuit for certain JFK assassination records. Justice Department lawyers have argued for 16 years that the public had no right to the records. When the U.S. Court of Appeals overturned their position and forced disclosure of some 500 pages of material about CIA coverup of intelligence operations targeting accused assassin Lee Harvey Oswald, the DOJ lawyers argued that the government didn’t have to pay my court costs because the CIA had acted reasonably.
Last July Justice Brett Kavanaugh cast the decisive vote upholding the DOJ/CIA position.
During a time in which the president has claimed that in the case of public information “the public means the enemy,” Congress must ensure that its law protecting the public’s access to information is being followed. To reduce FOIA delays and the over-redaction of documents, Congress must develop a mechanism to force agencies to actually comply with the Freedom of Information Act, a law that underpins our commitment to open, accountable government.