Thread by @weareoversight

Did you know Independence Day is also the anniversary of the Freedom of Information Act?

President Lyndon B. Johnson signed FOIA into law on July 4, 1966.

For this #FOIAFriday, we’re celebrating FOIA’s anniversary with a thread about its past, present, and future.

LBJ was hesitant to sign FOIA. Records show LBJ personally removed strong language supporting open government from the press statement and that he only agreed to sign it after DOJ suggested he include a signing statement.

nsarchive.gwu.edu/briefing-book/…

In his signing statement, LBJ praised the importance of openness to democracy and said the legislation affirmed American principles. But he also wrote that he felt some documents shouldn’t be available to the public.

nsarchive2.gwu.edu//nsa/foia/FOIA…

White House Press Secretary Bill Moyers later said that “LBJ had to be dragged kicking and screaming to the signing.”

Nevertheless, FOIA has become an important part of LBJ’s legacy.

After the Watergate scandal, President Gerald R. Ford wanted to approve amendments in the Privacy Act of 1974 to strengthen FOIA. Donald Rumseld, then White House Chief of Staff, and his deputy Dick Cheney were worried it could allow leaks.

Future Supreme Court Justice Antonin Scalia, then Assistant Attorney General for the Office of Legal Counsel, said the bill was unconstitutional and even asked the CIA to lobby one White House staffer against it.

So Ford vetoed it but Congress overrode his veto, creating the core of FOIA that’s still in place today.

FOIA has been amended many times over the decades, but let’s fast forward to the most recent FOIA act: the FOIA Improvement Act of 2016.

The bill strengthened the FOIA ombuds, put a time limit on the use of the deliberative process exemption, mandated more proactive openness, wrote into law a specific presumption of openness, and more.

Four years after the Improvement Act, it’s clear FOIA needs more reform to ensure the public fair access to records.

For example, while the use of Exemption 5 has decreased after 2016, it is still regularly overused to withhold documents.

pogo.org/analysis/2020/…

There are also significant issues with enforcing the reforms. FOIA ombuds offices have little actual authority to ensure agencies adhere to FOIA laws. Often, this results in arduous delays.

FOIA also requires “prompt” production of records, but many agencies continue to underfund their FOIA operations and as a result develop significant backlogs that delay responses.

The lack of timely responses undermines FOIA’s ability to inform citizens about what the government is up to when that information is still pertinent rather than stale.

The informal practice of “consultations” with other agencies, and especially the White House, can also cause lengthy and undue delays in productions. Reforms should impose time limits after which the consulted entity is assumed to have consented to release.

Still, each anniversary of the Freedom of Information Act is an opportunity to celebrate the principle that the government should be open and that the public has a right to know what our leaders are doing on our behalf.