FOIA at 50

WASHINGTON, D.C.—Stay-at-home mom LeeAnne Walters was desperate when she called Virginia Tech professor Marc Edwards in April 2015. Walters, a Flint, Mich., resident, couldn’t let her twin 4-year-old boys drink the orange-tinted, foul-smelling water coming from the faucet in her home. She would buy jugs of water, boil the water in pots, and then mix it with cool bottled water just to bathe them.

“We only do the bathing thing once a week,” Walters told Michigan Radio. “We do baby wipe baths in between.”

After failing to spark action out of state and local officials who assured her the water was safe, Walters read about Edwards, an environmental engineering professor who had exposed lead poisoning in the Washington, D.C., water system more than a decade ago. Once Edwards agreed to help, Walters sent him water samples via FedEx, and his testing revealed the worst lead levels he’d ever seen—so high that a glass of water would qualify as toxic waste.

But Walters still had a problem: She needed to convince government officials to acknowledge the danger. Edwards’ solution: file Freedom of Information Act (FOIA) requests to obtain documents that would reveal what officials knew and when. Soon the Flint water crisis was a national scandal.

“FOIA is the equivalent of throwing a live hand grenade at the agency you’re FOIAing,” said Edwards, who noted it can be a career-threatening move for academics who rely on government grants. “It’s an act of war.”

President Lyndon B. Johnson begrudgingly signed FOIA into law 50 years ago this summer, and since then it’s more often criticized as a symbol of government dysfunction than praised as a tool for empowering citizens. Many problems remain, even after President Barack Obama signed a modest reform bill into law on June 30, but a scan of the last five decades shows FOIA, while flawed, is worth the effort.

In Flint, once documents proved harm, three officials eventually came under indictment, an Environmental Protection Agency employee resigned, and hundreds of millions of dollars in aid is now flowing to the city.

“All of the good things that happened in Flint—coming to grips with what happened—none of that would have happened without the FOIAs,” Edwards said. “If you ever want a textbook study of the power of FOIA as a tool for justice and good, this would be it.”

BEFORE FOIA, citizens had to justify to the government why they needed documents or information. A decade of congressional hearings helped build bipartisan support for an open records law, and in June 1966 the House unanimously passed a bill that required the government to justify not releasing documents and information. President Johnson signed it on July 4, but not because he favored it: “He hated the very idea of the Freedom of Information Act,” former White House aide Bill Moyers recalled.

Johnson would not be alone: Future administrations set their own FOIA compliance guidelines, and often they encouraged government employees to disclose as little as possible. “It does not matter which party controls the White House—government agencies are reluctant to disclose embarrassing or inconvenient facts,” said Rick Blum, director of The Sunshine in Government Initiative, a coalition of media associations that promotes FOIA.

President Barack Obama vowed to usher in a new era of transparency and reinstituted an assumption of disclosure in 2009, but under his administration FOIA backlogs have reached record levels. A recent Associated Press analysis of government data found FOIA requesters last year received partial files or none at all 77 percent of the time—up from 65 percent the first full year of Obama’s presidency.

The FOIA statute requires the government to respond within 20 days, but that often doesn’t happen—except to inform the requester to expect a monthslong wait. Edwards, who has filed scores of FOIAs with cities and states around the country, has had appeals pending with the Centers for Disease Control and Prevention since 2006. Appeals should be settled within 30 days.

The administration attributes increasing delays to a spike in demand, but critics say agencies are withholding more information and go to greater lengths to conceal it—deleting emails, claiming documents are lost, and using communication methods outside FOIA’s reach. They sometimes try to scare off requesters with exorbitant fees: In February the Department of Defense estimated a cost of $660 million to fulfill a single request. Predictably, last year federal FOIA lawsuits reached a record high of 498, according to the Transactional Records Access Clearinghouse at Syracuse University.

“The executive branch, all these agencies, have become very skilled at evading FOIA—they think that’s part of their job description,” Edwards said. “Nobody has ever gone to jail for blatantly breaking the FOIA law, and people have figured that out.”

Edwards said agencies always find a way to withhold embarrassing information about themselves, so he’s learned to find documents through the entities with which they communicate. In the Flint water case, Edwards knew he wouldn’t get anything from the Environmental Protection Agency (EPA), so he filed requests with the city of Flint. That’s how he found out the EPA was telling the city its water was safe.

Lawmakers on both sides of the aisle have long recognized FOIA compliance problems and tried—sometimes successfully, sometimes not—to pass various reforms since the 1970s. The latest effort began almost a decade ago. In June Obama signed a bill that, among other things, codifies an assumption of disclosure on all FOIA requests, ending the seesaw between administrations; sets a 25-year limit on how long agencies can withhold certain documents; and creates a single FOIA portal for agencies to receive requests, an effort to make the system more user-friendly and speed up the process.

FOIA advocates on and off of Capitol Hill recognize the legislation as a modest set of reforms, but the Justice Department still raised objections to Obama’s signing it. Rep. Darrell Issa, R-Calif., who partnered with Rep. Elijah Cummings, D-Md., to write the House measure, told me it’s an important step toward greater reform: “Real FOIA reform will probably take 30 or 50 years to really pass.”

IS FOIA WORTH THE TROUBLE? The Sunshine in Government Initiative has compiled a list of more than 700 stories journalists, government watchdog groups, and individual Americans have uncovered using FOIA requests. They show that, despite uneven implementation, FOIA is responsible for some of the biggest stories of recent decades.

In 2005, Marine Corps Times used FOIA to discover the Marine Corps issued faulty body armor to troops in Iraq, even after ballistics experts rejected it due to life-threatening flaws revealed during testing. When faced with the imminent publication of the investigation, the Corps recalled 5,277 vests.

In 2014, The Arizona Republic used FOIA to show Department of Veterans Affairs (VA) administrators knew for at least two years that employees manipulated patient wait times—allowing employees at just one office to collect cumulative performance bonuses exceeding $10 million. The stories exposed a broader VA pattern, sparked dozens of other investigations, and led to the resignation of VA Secretary Eric Shinseki and other top officials.

A still-unfolding story represents another example of FOIA’s importance. In 2014, documents obtained under FOIA directly led to the creation of the House Select Committee on Benghazi—which subsequently learned former Secretary of State Hillary Clinton exclusively used private email on a private server to conduct official business. Why did she do that? Seemingly to avoid FOIA.

“You should be aware that any email would go through the Department’s infrastructure and subject to FOIA searches,” a State employee wrote in an internal exchange, noting the secretary had an official account. Although personal email use was allowable for nonclassified work communication, such correspondence should have been promptly forwarded to Clinton’s official “.gov” email account for preservation and potential FOIA requests. Clinton turned over some 30,000 emails in December 2014—almost two years after she left office.

Judicial Watch, a conservative watchdog group, in June released documents showing internal State Department concern that Clinton’s emails were going to spam folders, but even then the secretary didn’t want to use official email: “Let’s get separate address or device but I don’t want any risk of the personal being accessible,” Clinton wrote in a 2010 message.

In early July the FBI ended its investigation without recommending charges, but numerous FOIA-related lawsuits remain in the courts. In one of them, Judicial Watch has requested permission to depose Clinton. While the State Department and Clinton’s lawyers are resisting those efforts, in a filing State conceded Clinton’s email arrangement was not an “appropriate method of preserving federal records or making them available for FOIA searches.”

The debate over Clinton’s email practices has understandably focused on national security, but it also poses a critical transparency question: Can government employees flout FOIA with impunity?

In one sense, Clinton’s apparent efforts to evade transparency are not unlike what scores of other bureaucrats do every day. Lawmakers must address the accountability in future reforms, advocates say, but other questions come first, including whom to hold accountable for stonewalling. Should responsibility lie with the employee who controls the records, the FOIA officer handling the case, or the person who heads the FOIA office—or the agency itself?

“Right now the system doesn’t allow us to hold the right people accountable,” said Blum with the Sunshine in Government Initiative, but “for every FOIA problem there is a solution.”

Allowing FOIA officers direct, searchable access to all documents—rather than requesting them from those with a vested interest in disclosure—would be one step toward accountability.

“Right now we’re relying on the goodwill of people who have none,” Edwards said. “We don’t take the FOIA law seriously. … If there’s no punishment, people will blatantly break the law.”