January 3, 2008 The Pump Handle 2Comment

This time next year, the “Openness Promotes Effectiveness in our National Government Act” will be in effect.  The new law, which amends the Freedom of Information Act (FOIA), was signed into law by President Bush on December 31, 2007 and becomes effective in one year.  The bill, sponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), was endorsed by dozens of organizations from the American Society of Newspaper Editors, the Heritage Foundation, the National Security Archive at George Washington University and the Society for Environmental Journalists.  As Senator Leahy noted:

“The bill contains important Congressional findings to reiterate and reinforce the view that the Freedom of Information Act establishes a presumption of openness, and that our government is based not on the need to know, but upon the fundamental right to know.”

The editors’ of central Illinois’ Pentagraph noted:

“Without mentioning former Attorney General John Ashcroft by name, the bill in effect reverses an order he issued in the wake of the 9-11 attacks that directed agencies to lean against disclosure if there was uncertainty about how the information could do harm. In practice, that order encouraged denial of requests.”

The infamous Ashcroft FOIA memo change the tone of FOIA from a law protecting the public’s right-to-know with the government’s penchant for withholding documents from the public eye.  The Attorney General’s October 2001 memo outlined the Administration’s policy on disclosure:

“Any discretionary decision by your agency to disclose information protected under FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of information.  …When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”  (emphasis added)

From my vantage point, Ashcroft’s use of the phrase “protected under FOIA” was key in shifting agencies’ attitude away from disclosure.  It suggested that government agents had a responsibility to “protect” documents, and officials should error on the side of “protection” when it came to government records.  The original FOIA law, in contrast, suggested a “presumption of openness.”  In other words, when in doubt, disclose.

This new law, also called the OPEN Government Act, is designed to undo some of the disclosure obstacles put in place over the last seven years and force more openness.  It:

  • requires agencies to set up a publicly-assessible tracking systems to allow requesters and the public the monitor the status of FOIA requests.  Requesters will receive a tracking number within 10 days of making their request, and will be given an estimated date on which the agency will complete action on their request;
  • clarifies that the 20-day time limit for an agency to respond to a FOIA request commences on the date on which the request is first received by the agency;
  • allows a complainant who substantially prevailed in a FOIA lawsuit to recover attorney fees;
  • prohibits an agency from assessing certain fees if the agency fails to meet the FOIA deadlines;
  • defines “a representative of the news media” to clarify that independent journalists are not prohibited from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity; and
  • creates an Office of Government Information Services in the National Archives and Records Administration (NARA) to review agencies’ compliance with FOIA.

Public health practitioners, activists and journalists have used FOIA for decades (the first U.S. Freedom of Information law was passed in 1966) to investigate hazards and inform the public of health risks.  The Society of Environmental Journalists published a report in 2005 which included nine reporters’ experiences using FOIA to investigate marine fishery policies, mining permits, DOE and Pentagon health studies, and workers’ safety issues.  (See: “A Flawed Tool: Environmental Reporters’ Experience with the Freedom of Information Act” )

Some of my favorite examples (in no particular order) of journalists using FOIA to investigate public health topics are:

  • Ruling the Roost: What’s Bigger than Tobacco, More Dangerous that Mining and Fout to Eat? by Eric Bates, Tom Devine, Joe Fahy, Barbara Goldoftas, Bob Hall and Barry Yeoman.  Southern Exposure, Summer 1989.
  • Lives on the Line—Worker Safety in America by Mike Casey and Russell Carollo. Dayton Daily News, June 2-7, 1991.
  • Dust, Deception & Death: Why Black Lung Hasn’t Been Wiped Out by Gardiner Harris and Ralph G. Dunlop. The Courier-Journal, April 19-26, 1998.
  • Beyond Sago by Ken Ward, Jr.  The Charleston Gazette, November 2006.
  • A Dangerous Business by David Barstow and Lowell Bergman. The New York Times, January 8-16, 2003.
  • Dying to Work by Justin Pritchard. Associated Press, March 2004.

My colleague David Michaels and I have been known to file a FOIA request or two ourselves to investigate public health matters.  Our paper on the federal government’s response to the health hazards faced by workers exposed to artificial butter flavoring agent diacetyl was based in part of the documents we received from OSHA’s headquarters and regional offices through a FOIA request. (See Scientific evidence in the regulatory system: manufacturing uncertainty and the demise of the formal regulatory system. Journal of Law and Policy 2005; 13(1): 17-41.)   Family member victims of workplace fatalities have also learned more about their loved ones’ on-the-job deaths by obtaining documents from OSHA  and MSHA under FOIA.

Next year at this time, we’ll be preparing to inaugurate a new President, and hopefully it will be an individual who will embrace both the letter and spirit of FOIA.  The public and public health will be well served by such a President.

Celeste Monforton, MPH is a lecturer and research associate at The George Washington University School of Public Health.  She belongs to the Society of Environmental Journalists in its academic member category. 

2 thoughts on “Restoring FOIA: Improvements Due by 2009

  1. Celeste, thanks very much for focusing on this important improvment in FOIA. It’s an important win for democracy. Thanks also for mentioning SEJ’s report, which we believe is just the tip of the proverbial iceberg.

    Unfortunately, I’m afraid the Illinois Pentagraph and a lot of other organizations have been misled by the Associated Press story. The bill does *not* explicitly or implicitly overturn the Ashcroft memo. See Steven Aftergood’s Secrecy News: http://www.fas.org/blog/secrecy/2008/01/new_foia_law_does_not_restore.html

    This was confirmed by Patrice McDermott at openthegovernment.org.

    So there’s more work to do. Any incoming administration, Republican or Democrat, could overturn the Ashcroft memo. It’s something we’ll need to work on.

    Robert McClure
    Seattle Post-Intelligencer and member, SEJ First Amendment Task Force

  2. Robert,
    Thanks for setting me straight on what the new FOIA amendments do and do not due with respect to the Ashcroft memo. I respect the work of Patrice McDermott and Steven Aftergood very much, and as I think about it, I guess a bill that explicitedly overturned the Ashcroft memo would not have made it out of the Senate.

    Yes, indeed we’ll need to press the new Administration to dump a bunch of the Bush Administration’s Executive Orders, OMB memorandums, and the like, but I’m not convinced that any of the current candidates are brave enough to make that promise. Even if one does, I’m not sure s/he would keep the promise once in office. Power and control over the agencies seems to come with the job.

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