December 6, 2001 | Commentary on National Security and Defense

The Right to Know

When Rep. John Moss proposed the Freedom of Information Act in 1965, he did so to "shore up the public right of access to the facts of government, and … provide easier access to the officials clothed with governmental responsibility."

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 public view.

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 requests.

The question is, why? It's likely that journalists simply don't have time to wait for slow-moving bureaucrats to comply with the law.

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 enough time.

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 measure.

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 national security.

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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