December 6, 2001 | Commentary on National Security and Defense
The California Democrat wanted to make it easier for the public
and our constitutionally sanctioned watchdogs -- the news media --
to get information from and about government. And in the years
since it was enacted, the FOIA has become an important tool for
investigative journalists and others interested in ferreting out
problems in government that would otherwise remain hidden from
Curiously, though, it's usually not journalists who use the
FOIA. According to a recent study by The Heritage Foundation's
Center for Media and Public Policy, those most frequently evoking
FOIA are lawyers and private corporations. For example, of the
1,475 FOIA requests received by the Environmental Protection Agency
between Jan.1 and June 15 of this year, 702 came from corporations
and 337 from law firms. Working journalists submitted a mere 44
The question is, why? It's likely that journalists simply don't
have time to wait for slow-moving bureaucrats to comply with the
Earlier this year, the Media Center asked five federal agencies
for a list of all FOIA requests they received between Jan.1 and
June 15, 2001. Such information is not exempt from disclosure under
the FOIA, and we knew it wouldn't be hard to produce such a list
within 20 business days, as required by law.
Unfortunately, there's no penalty for agencies that ignore the
law -- and little fear they will be taken to court when they do.
Perhaps it's no surprise, then, that none of the five federal
agencies met the 20-day deadline. One never responded, and the rest
took more than four months to come up with the information.
It can take months for a request to weave its way through the
bureaucratic maze of a federal agency's FOIA office, even though
all have employees whose sole job it is to respond to such
inquiries. It's not as if these federal departments and agencies
have no experience with the FOIA, because journalists and others
submit thousands of these requests annually.
The problem is that journalists face endless deadlines --
pressures that figure only to get worse. In today's
all-news-all-the-time media environment, journalists must produce
more stories more quickly, which means they often have to "write
around" -- that is, do without -- information that ought to be
easily available via the FOIA.
The act isn't outdated, according to Steve Ponder, a professor
of journalism at the University of Oregon. But, he says, some
officials who supervise the FOIA process and other open-records
laws actively discourage their use.
"Journalists who, as citizens, wish to use their statutory
rights to information find that the process of obtaining records is
difficult, time-consuming and often expensive," says Ponder.
"Basically, it's no longer a useful tool for reporters to use to
file stories in a timely manner."
This isn't what Rep. Moss envisioned. He wanted government
officials to help journalists get needed information without
frustrating delays and needless hassles. He understood government
would need some time to make sense of FOIA requests and respond to
them, and 20 business days -- a month -- seemed like more than
But, as the Media Center's study suggests, agencies violate the
20-day rule with impunity, and there is danger that the entire
process is becoming useless, except perhaps as a symbolic
With America immersed in a war against terrorism, journalists
are beginning to face longer FOIA reply periods, and official data
on government Web sites disappearing from public view for security
reasons. Recently, the Department of Justice told federal agencies
it will stoutly defend them when they deny FOIA requests that bear
even a remote potential for permitting a disclosure that damages
That's the wrong direction for the FOIA -- and the public's right to know.
Nicole Taylor is program coordinator for the Center for Media and Public Policy at The Heritage Foundation.
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