August 9, 2004

August 9, 2004 | Commentary on Legal Issues

Taming the Nanny State means saving the FOIA

Right-thinking members of Congress have long talked about cutting it down to size, but the Nanny State on the Potomac keeps growing. Maybe it's time for a new approach, something "out of the box," as Newt Gingrich would say.

Fortunately, one need look no further than the 1966 Freedom of Information Act, originally co-sponsored by then-Illinois GOP congressman Donald Rumsfeld. He knew then what the Right should rediscover now; that the FOIA can be the Nanny State's worst enemy. But it needs help.

Please understand that this is no invitation to join a bunch of America-hating college professors or other zealots on the Left mindlessly protesting the Patriot Act. Reasonable people across the political spectrum have reached differing conclusions about that one in a debate that is entirely separate from the issues at hand here.

What this is about is understanding the FOIA has been subverted from its original intent - shining light in all corners of the federal establishment - and used instead by the bureaucrats, special interests and politicians who live off the Nanny State, especially those hiding behind closed doors in places like Health and Human Services, the Education Department and Housing and Urban Development.

Originally, the 1966 FOIA made clear that "public records, which are evidence of official government action, are public property," subject only to a few common-sense exceptions designed to protect legitimate national security, law enforcement and commercial interests, Rumsfeld said.

The new law was needed, said the House Report on the 1966 FOIA, because the 1946 law it replaced "was designed to provide public information about government" but had "become the government's major shield of secrecy."

That happened as bureaucrats who were "most familiar with the inadequacies of the present law ... learned how to take advantage of its vague phrases," Rumsfeld said.

Opponents of the 1966 FOIA included executive branch bureaucrats with "a vested interest in the machinery of their agencies and bureaus" who resent "any attempt to oversee their activities either by the public, the Congress or appointed department heads," Rumsfeld said.

Over time, such folks had widened the loopholes, redefined and broadened the exceptions, and generally mucked up administration of the 1946 law. We see the same process now of subversion by entrenched bureaucrats and their corporate, union and non-profit buddies outside of government. They want citizens to see only government information that makes them and the Nanny State look good.

Therein lies the opportunity to regain the initiative in the campaign to arrest and even reverse the growth of government by restoring accountability and transparency in Washington. As Abraham Lincoln said, "let the people know the facts and all will be safe."

The paralysis of the current FOIA has become more evident as the Nanny State's power and prerogatives have so vastly expanded in recent decades. A 2003 survey by the National Security Archive of 35 federal agencies that receive 97 percent of all FOIAs illustrates the results. The NSA survey "revealed a federal FOIA system in extreme disarray. Agency contact information on the Web was often inaccurate; response times largely failed to meet the statutory standard; only a few agencies performed thorough searches including e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress."

Federal bureaucrats - who handle 99.9 percent of the approximately 2.3 million FOIAs sent to the government annually - know that for the most part they are immune from penalties for mishandling or even ignoring FOIA requests they find inconvenient or disruptive. There are no criminal penalties for violating the FOIA, and appeals through the administrative and court systems are prohibitively expensive and time-consuming.

So journalists resort to other more difficult means to obtain critical information. Frequently, they simply go on to other stories.

How important is putting teeth and energy into the FOIA? Consider that the federal government annually spends in excess of $250 billion - more than the entire federal budget of 1966! - via contracts with 300,000-plus companies buying everything from aspirin and management consultants to office furniture and laptop computers. Data on how well those contracts are managed and fulfilled is contained in the government's Past Performance Information Retrieval System and other sophisticated government databases. But such data are exempted from FOIA disclosure.

Would you be more or less likely to overcharge the government for inferior goods or to look the other way when a friendly contractor cuts corners on quality if you knew nobody was watching? How about if you knew PPIRS data could be easily obtained by any congressional aide, reporter or individual citizen just by asking for it?

Similarly, as the Nanny State has exploded, legions of management consultants, educational services contractors, academic specialists and non-profit "experts" with ideological agendas have received billions of tax dollars every year in return for services of dubious value to federal agencies.

Things have gotten so bad that Bruce Vladeck, who ran the Center for Medicare and Medicaid Services in the Clinton years, said his old agency long ago became the center of a "Medicare-Industrial Complex."

So "there are plenty of $400 toilet seats in the Medicare program because Medicare cannot deliver services to its beneficiaries without providers and because providers are major sources of employment, political activity and campaign contributions in every congressional district in the nation."

That open government is the first line of defense against the Nanny State was axiomatic for the Founders. James Madison, chief architect of the Constitution, said: "Nothing could be more irrational than to give the people power, and to withhold from them information without which power is abused." Madison viewed the First as the most important of the amendments we know today as the Constitution's Bill of Rights.

Patrick Henry put it more succinctly: "The liberties of a people never were, or ever will be, secure when the transactions of their rulers may be concealed from them."

Even the cranky old Federalist John Adams got it right, saying the people "have a right, an indisputable, unalienable, indefeasible divine right to the most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers."

Only those with something to hide need dread a reinvigorated FOIA, so why do entrenched bureaucrats and their friends prefer a gutless FOIA? Will anybody in Congress - or the news media - ever demand to know why?

Mark Tapscott is director of the Center for Media and Public Policy at The Heritage Foundation (heritage.org).

About the Author

Related Issues: Legal Issues

Distributed nationally on the Knight-Ridder Tribune wire