Posted on 11/16/2016 5:50:38 PM PST by Dan Baker
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| How our government is supposed to work is well-documented in the Constitution and in countless laws, judicial rulings, and civil traditions handed down to us since the United States was founded.
Now while theory is fine, a more critical need of citizens is to know how our government actually works in the real world. To discover that, officials, reporters, and citizens simply must have free access to documents, media, and internal records of their government. This transparency or openness is key to running any free republic that’s truly accountable and responsive to the citizens who rule that republic.
The law that directs this free flow of information at the federal level is a 1966 law, the Federal Freedom of Information Act (FOIA). Over the years countless news stories testify to the great value citizens have gained through FOIA requests that exposed the inner workings of government.
But all is not well with the FOIA today. An expert who’s been actively involved with the FOIA law for 25 to 30 years, claims the Act has totally outgrown its usefulness, and it’s high time for the 50-year-old statute be totally rewritten from scratch.
That expert is Charles Davis, a one-time Director of the National Freedom of Information Coalition, and now the Dean of the Henry W. Grady School of Journalism and Mass Communication at the University of Georgia.
I recently attended a highly informative lecture Charles gave on the FOIA law. What follows here are portions of his talk recast as an interview, including an FOIA backgrounder, two sample cases showing why the law is now seriously flawed, and Charles’ analysis of why the law needs to be rewritten top to bottom.
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| Dan Baker: Charles, I quite enjoyed your lecture. It really opened my eyes to what the FOIA is about and why changes in the law are so necessary now. How did you first get active in following the FOIA? |
| Charles Davis: Thanks, Dan. I’m not sure how many people out there care about this topic other than a few literary scholars and reporters, but it’s incredibly important. Following the FOIA has certainly been a passion of mine for almost three decades. Many times I’ve chased public information by responding to phone calls and emails. And I got lots of letters from people whose information requests were jammed up: I was eager to help people get access to info that was rightfully theirs.
So, on the occasion of the 50th anniversary of FOIA, I got a phone call from Daxton “Chip” Stewart a former doctoral student of mine and now a professor at Texas Christian University. And Chip said, “Hey, maybe we should cook up something for the 50th anniversary to explain to the public why the current law should be dismantled and stripped bare so we can start over fresh and get it right.”
I agreed with Chip and that led me to write down my thoughts in a rather long-winded 45-page document — and giving the lecture you attended at the library.
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| Curious to know how the Freedom of Information Act got started in the first place? |
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Well, the predecessor of the FOIA was a 1946 law that essentially tried to open up government records in the aftermath of World War II, when, of course, so much federal information was held secret. So the thought at the time was to open records up so citizens and the press could properly watchdog their government. |
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It was in 1966 that Lyndon Johnson put a new and improved FOIA law on the books, though he did so reluctantly. In fact, Bill Moyers wrote a funny column telling how as press secretary he had to drag Johnson twice down the hallway to get him to sign it.
The FOIA started with a very noble premise, the idea that government information should be freely released to the people of the US citizens. |
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The Act was born with bi-partisan support and the presumption was of absolute openness — with only nine exemptions or exceptions. And those exemptions pertained to matters like: national security; info on the location of oil and gas facilities (very logical), and the most contentious exemption was about protecting personal and private data.
But over the decades the FOIA has been amended and re-interpreted so many times, that it got litigated and lawyered to death. Today its exemptions are meaningless: the law defies all logic, and you better have a good cause for your request because the government can withhold almost anything.
Sadly, the FOIA today serves to obstruct the free flow of information. It no longer enables it.
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| What’s meant by “personal privacy” by the way? Would that be your address, phone numbers, and marital status?
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| Well, in its origins, it was something more intimate than that. When the law was written, the law makers were thinking about highly intimate information of no interest to the general public — that information that you had a keen interest in keeping to yourself. In the FOI context, it’s information that clearly constitutes an invasion of personal privacy — and that has been given meaning by the courts.
Of course, the scope of what constitutes privacy has evolved over time. And new interpretations of the law were given life by the courts. Since 1966, the Supreme Court has heard 12 cases on exemption six alone, and that’s a lot. And out of those 12 cases, 11 were ruled in favor of the government. And the one case the government lost involved a poor Air Force cadet whose disciplinary record was released! It was the most clear-headed of the bunch.
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| What is it about these exemptions to the FOIA that have gummed up the works and made the law so ineffective? |
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Well, there’s much to be said about each of the exemptions, but let’s center this discussion around exemptions 6 and 7.
Exemption 6 concerns personal privacy. And exemption 7 is the law enforcement exemption that largely mirrors exemption 6, but for criminal records. Exemption 7 says that law enforcement records that implicate personal privacy shall not be disclosed.
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Now perhaps the most significant of the Supreme Court cases around exemption 7 was called “Reporters Committee for Freedom of the Press vs. Department of Justice.”
Walking quickly through that case will show you how the judicial rulings have thrown a monkey wrench into the FOIA’s original intent. |
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The 1989 case involved the US News & World Report and a congressman named Daniel Flood who was censured and removed from office from the State of Pennsylvania due to corruption charges.
Charles Medico was a guy straight off the Sopranos set. He had multiple convictions and had done business with a lot of criminal enterprises. So this mafia-connected guy who was guilty of bribery and steering government contracts through Rep. Flood, who has been kicked out of Congress, is of great interest to the reporters. So the reporters sent their request: “Dear Department of Justice, I would like access to Charles Medico’s criminal record.”
Now criminal records at the DOJ are kept in something called the NCIS, the national criminal information system, a humongous database that gives you everything and everywhere facts about people arrested, arraigned, convicted, pulled — everything is there.
Here’s how the NCIS data is compiled. Say I’m a criminal mastermind, and I am arrested in Athens, and then convicted in Atlanta. Later on I am arraigned in Rome on another charge. I get arrested again in Augusta, right? So Charles Medico has a long rap sheet, and every one of those events is recorded in the NCIS’s miracle database and if you query that database, out comes a list that tells you everywhere Charles Medico has been.
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| Being able to tap into a consolidated database would certainly make a newspaper reporter’s job a lot easier. |
| True, the US News reporters were probably chuckling to themselves, “Heck, getting the rap sheet on Medico is gonna be easy.”
However the DOJ denied their request. Which meant that the only way you could pull together a criminal history on Medico was to actually walk into the Georgia courthouses in Rome, Athens, Augusta, and Atlanta, and say, “Do you have any records regarding Charles Medico?” And if they had anything on Medico at all, they’d hand it over. But you have no way of knowing which courthouses the guy had been in, so you’re just guessing without access to the database.
Remember, back in 1989 computer recording-keeping at the courthouses was a new thing because the PC revolution had just begun. And the automated uploading of data to central databases was in its infancy too.
Think about it this way: seven years later in 1996 when the Supreme Court heard another DOJ-related case on the Communications Decency Act, the justices needed their clerks to log them on to the Internet! So they could see the full impact of internet-enabled FOIA requests and it scared the hell out of them. They worried that smart people would use FOIA requests to suck a lot of information out of DOJ records. So they ruled on the side of caution: they didn’t want to give citizens carte blanche access to that.
Bottom line: the Court denied the information request. Reason given? They said: “Acquiring the information did not meet the central purpose test of the FOIA.” Now nobody had ever heard of this “central purpose test”. There was no precedent for it. No one in any lower US court — or even Great Britain for that matter — had ever heard of such a thing. So this central purpose test idea was a fresh rabbit the judges pulled out of their hats in 1989.
So they ruled that “the central purpose of the Federal Freedom of Information Act is to shed light into the workings of the government. However, in this particular case, the request sheds light on the workings of a criminal. Therefore, the Court found that the information request didn’t fit the central purpose of FOIA.
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| Wow, that “central purpose” ruling pretty much shuts down getting info on criminals. I mean, it’s way too time-consuming and expensive to visit all these courthouses. So criminal info is practically obscured from public view. |
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Absolutely true — in the aggregate sense. An individual police report, for example, is public and easy to obtain, so long as you know where the arrest took place. And so are court records, but again, only if you know where to go. And the ruling also begs another big question. If the purpose of the FOIA is to expose the workings of government, how can you truly examine government wrongdoing when you’re only allowed to look inwardly at government?
I mean, government business is about interacting with the public, including characters in the underworld, criminals, etc. So looking at the activities of those people is pretty darn important.
However, with this new “central purpose” interpretation of Exemption 7, you cannot access information from the central NCIS. You need to, as you said, go to each courthouse to look up that information located in paper files and computer records there.
Another point: who was the actual subject of the request? A mobster — a locally convicted felon sitting in a central prison. Should a guy like that have the same expectation of privacy? Don’t you surrender a little bit of privacy when you’ve killed people or done other awful things? If you are a convicted felon, should you not have lesser privacy rights in the interest of the greater public being able to know?
So sad to say, this ruling effectively exalts the privacy rights of an utter total scumbag in the interest of protecting other terrible scumbags.
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| Charles, so what about low profile cases that don’t involve big publishers like US News? Can you give us an example of what goes wrong when a local newspaper makes an FOIA request? |
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Well, Dan, maybe the most outrageous local case I got involved in was Brady-Lunny vs. the Department of Justice.
Brady-Lunny was a journalist in Altman, Illinois. She worked as a journalist for a newspaper called the Alton, Illinois Pantagraph. She was seeking access to the records of federal inmates in a county jail in DeWitt County, Illinois. Every week reporters go to jails all over the country to find out who had been checked in there. Then they write up a list of who the new inmates of the jail. These are a popular section of newspapers all over the country — and access to jail logs has been a no-brainer public record.
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| OK, so one day Brady-Lunny walks into this small, minimum security county jail in Alton and who does she see there but some enormous guys in orange jumpsuits. Some of these guys had face tattoos and big, bulging biceps — clearly the jail’s population had changed overnight.
Long story short, the sheriff in Alton, Illinois had agreed to take these prisoners from other facilities. |
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Sure enough, the Pantagraph submitted a FOIA request and got back a fast reply saying they cannot have that information because of exemptions six and seven (c) of the federal Freedom of Information Act. The Justice Department argued that this is criminal justice information that will violate someone’s rights of privacy if released.
But whose privacy was that again? A prisoner’s. And what’s so intimate about why someone is in a prison? So here’s a perfect example of the madness of the law we have today.
What happened next? Well, the Pantagraph sued because they were denied information, but they lost the case at the district court level. Appealing to the circuit court, they lost again.
Fortunately, somebody at the paper had the bright idea to check county purchasing records: they asked for a list of airport transportation costs paid on behalf of the sheriff’s department. The county soon sent us back a manifest for six months of shuttle trips from the airport to the jail. They got the story — no thanks to the federal Freedom of Information Act.
So this story well illustrates why a radical revision of the FOIA is necessary.
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| Charles, thanks for this highly interesting analysis of the Freedom of Information Act. In your opinion, then, where do we need to go from here? |
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Dan, when there’s no specificity in the language of the law, then we must turn to the courts to interpret the language. The courts are happy to do so. That’s their job, right? But 50 years of fiddling with the FOIA has destroyed the law. The FOIA is now a roadblock to the free dissemination of government information.
The law is in such bad shape, there’s no sense in amending the current Act. We need to cut new from whole cloth. Now I’ve got friends who disagree, saying, “Are you off your meds or something? What you suggest is too radical.” But there is no other way to go. You can’t walk back the law we have; it would require too great an effort.
And nobody wants to point the gun either. Our lawmakers are happy to keep the Rubic’s Cube the FOIA has turned into. Fixing it is not a priority, except in rare cases: hell hath no fury like a Congressman being denied information!
The irony, of course, is that information today has never been more free and abundant. The Internet makes it easy to search all kinds of info — except that which the federal government doesn’t want you to know. And the legally hollowed out FOIA is the culprit.
So yes, it’s high time our federal government got busy rewriting the FOIA. It’s a critical task. We need to enable citizens and journalists to watchdog our government and ensure it continues to serve the needs and protect the security of We the People.
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Charles N. Davis is Dean at the Henry W. Grady College of Journalism and Mass Communication at the University of Georgia since 2013. Prior to his appointment here, he has spent 14 years as a professor at the University of Missouri School of Journalism, after serving for 10 years as a journalist after his graduation from North Georgia College, working for newspapers and a wire service in Georgia and Florida. He earned a masters degree from Grady College and then went on to get a doctorate in Mass Communication from the University of Florida. Davis went on to Georgia Southern University and Southern Methodist University before joining as a faculty at Missouri where he served as a department chair and executive director of the National Freedom of Information Coalition. His teaching awards include the Scripps Howard Foundation National Journalism Teacher of the Year Award in 2008, the Provost’s award for outstanding junior faculty teaching in 2001, and the Faculty-Alumni Award from the University of Missouri in 2008. Reach him via email. |
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Dan Baker is Research Director of the Technology Research Institute, an analyst firm that’s been following software and operating system strategies in the telecom industry, in areas such as big-data analytics, revenue assurance, billing, wholesale, and network systems. In 2015, Baker authored a global study on Telecom Fraud Management Services, Systems and Strategies. He is also editor of three on-line zines: Black Swan Telecom Journal, Top Operator, and Telexchange Journal. |
There should be absolutely no reason for the Freedom Of Information Act when we have such a magnificent MSM that does honest, unbiased investigative journalism to perfection.
After all, some of the most comforting words are: “I’m from the government and I’m here to help”.
Come now, you must not trust your government. /s/
When those in power are able to decide what laws to enforce and upon whom they are to be enforced, the clearest, most unambiguous statutes aren’t worth the paper they’re written on. Ain’t that right, Hillary?
That’s one of the flies in the ointment re the Covention of States. Yeah, we can have new amendments and regulations restricting the Government, that they ‘have to’ abide by.
But who’s going to enforce them if, make that WHEN, they’re broken?
To paraphrase: What form of government have you created? A BANANA republic, if you can keep it...
FOIA info bump for later read.
Very interesting and informative, thanks for sharing.
When those in power are able to decide what laws to enforce and upon whom they are to be enforced, the clearest, most unambiguous statutes aren’t worth the paper they’re written on. Ain’t that right, Hillary?
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I got nothing back except an excuse letter from my last FOIA request ... to the SEC ... they simply don’t enforce the record-keeping requirements in various laws and therefore I was “SOL” in getting the data they were required to gather but failed to do so...
I asked for some info on George W., and was informed that there were 400 pages relevant to my request...
of which I was offered 14 pages. The rest of the pages were held back.
We diffidently need to up date this act...
Could it be that we’re so used to being fed minimal information from our government, that we cannot imagine what true openness would be like?
Economic statistics, for example, are clouded in secrecy. And yet the IRS collects very detailed records on citizens that if thoroughly anonymized could point to many business opportunities or regional pockets of the country where business conditions are alarming.
Ideally, a lot of this statistically data should be put in a huge big data system.
Immigration, economic stats, employment records, health care stats, criminal justice data, there’s tons of data to be gathered and examined.
And yet what did the mainstream media complain about today? President-elect Trump is having a private dinner party with his family in New York, and the press they were not invited.
Time to open up the our government records so the Washington press corps has more serious “news” to write about.
All new government data (and most existing data) is in computer databases. This data can be easily divided into two types of data:
1) Personal data about an individual, name, address, age, SSN, etc. This is called PHI/PII data.
2) Data that is not PHI/PII data. This is data about government agencies, government contractor firms, and statistics rolled up from individual data that loses the ability to de-identify individuals and their personal data.
No tech reason exists to prevent public access to the Non-PHI/PII data. Each new IT system/application could allow this at no additional cost. It would probably be cheaper.
Fixing poorly designed existing systems to do this would cost money. If private donors want to put up the money (or manpower) then it should be done. How much taxpayer money should be spent on fixing old systems just for this reason is debateable.
Making PHI/PII data available is a very debateable topic. Early on I was involved in the hi-tech publication of public school salaries and benefits in IL including the name of each teacher, principal, superintendent and their income, pension, bonus, etc.
How far should that go? Should the name and amount of money of each person on welfare be public? If Medicaid is part of that welfare, should the name of each person who visited planned parenthood for family planning be public? How about the Medicaid recipient who visits a pro-life clinic for adoption and wishes to remain anonymous in that adoption?
I suggest we go for the non-PHI/PII data and not touch the PHI/PII data.
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