William Fisher

NEW YORK, Jul 1 2005 (IPS) — The American Civil Liberties Union receives thousands of pages of reports from the Federal Bureau of Investigation about prisoner abuse at Guantanamo Bay, Cuba.

Documents from the Environmental Protection Agency reveal that months after the collapse of the World Trade Centre, Ground Zero is still contaminated with asbestos.

And when an airliner crashes in the Florida Everglades, killing 110 people, the Cleveland, Ohio Plain Dealer newspaper obtains documents showing what the government knew about safety problems at the airline.

What these revelations – and thousands of others – have in common is that each was based on facts contained in government documents obtained under the Freedom of Information Act (FOIA), which marks its 39th birthday this Jul. 4.

But this is a law that almost didn’t happen.

During World War II, the U.S. government released little information to the press and public. After the war, the government continued many of its information restriction practices. Republican President Eisenhower presided over a period of unprecedented government secrecy, leading to a battle between the journalists and the Defence Department.

Congress established a committee to investigate. Its investigations found evidence of "blatant and arbitrary government secrecy".

Congressional support for greater transparency in government gradually gained momentum and, by the mid-1950s, had turned freedom of information into an issue that was included in the 1956 Democratic Party platform.

Although the "paper curtain" had been revealed, Congress asked for little more than greater voluntary disclosure from federal agencies in its first actions to ensure freedom of information.

But the press argued for immediate legislation requiring the government to be more systematic and open on the issue of access to information. As a result, Congress amended older laws used by the government to justify withholding information, but failed to create a new law to guarantee a systematic release of information.

But that didn’t happen until 1966, when the legislature passed the U.S. Freedom of Information Act. On Jul. 4, President Lyndon Johnson, despite his own objections, signed the bill into law.

Johnson signed the act on his Texas ranch, far from the nation’s capital, press conferences and television cameras. No one from the small band of legislators, lawyers and journalists who fought so hard for its enactment was on hand. The act had only one day to go before dying of presidential neglect in the form of a pocket veto.

This was hardly an auspicious beginning for a law that eventually spawned parallel "sunshine laws" in all 50 states, and served as a model for many other democracies around the world. Only Sweden’s FOI law is older than the U.S. act.

Yet the original 1966 law was little more than a symbolic bow in the direction of government transparency. It did not contain a timeline for compliance with requests. It did not stipulate penalties for violation. No enforcement agency oversaw agency transgressions. And the law failed to set limits on requestor fees.

These shortcomings were addressed in the amendments of 1974 and 1976, which were motivated by Ralph Nader’s activism and public objections to government secrecy in light of the Watergate scandal.

Today, virtually everyone sees FOIA as an essential check on unlimited government power.

Dr. Jack Behrman, former professor at the University of North Carolina Business School and Assistant Secretary of Commerce during the Kennedy Administration, sums up its value. He told IPS, "The FOIA is a necessary door-opener for the public to view events, policies, and negotiations of government as soon as practicable – if not sooner. The watchdogs always need watchdogs, and the best final arbiter of relevance is the public itself."

Efforts to strengthen FOIA are continuing, today by an unlikely partnership of one of the U.S. Senate’s most liberal members and one of its most conservative.

The odd couple is Senator John Cornyn, a conservative Republican from Texas and Senator Patrick Leahy, a liberal Democrat from Maine. Amid growing complaints about delays and difficulties in obtaining information from federal agencies, the pair has put together two bills.

One would create a commission to identify ways to reduce delays in processing FOIA requests. A second would establish a way for people to track their Freedom of Information Act requests on the Internet and would establish an ombudsman to mediate disputes between agencies and requesters.

Mark Dow, author of "American Gulag", a book describing the U.S. immigration prison system, has used FOIA widely and supports the ombudsman idea.

He told IPS, "Having an ombudsman to resolve disputes sounds like a very good idea, since otherwise the system is inherently biased."

His own experience with the law is mixed: "Some of my FOIA requests to DOJ and INS have yielded important information; others have been rejected without explanation."

On balance, however, he believes "the FOIA system is an essential tool for monitoring our government employees."

A Government Accountability Office (GAO) report notes that during the George W. Bush administration, there has been a dramatic increase in Freedom of Information Act requests – a 71 percent jump from 2002 to 2004; a 68 percent rise in requests processed during that period; and a 14 percent rise in the backlog.

The report, examining requests processed in 2004, says 92 percent resulted in "responsive records" being provided in full. However, those seeking information often have to sue the government to get it.

Norman Solomon, executive director of the Institute for Public Accuracy and author of the new book, "War Made Easy: How Presidents and Pundits Keep Spinning Us to Death", is not surprised.

He told IPS, "Secrecy is always part of the arsenal for domestic war propaganda. Lies for war come in many forms – and no form is more crucial than the blockading of information."

"It’s no coincidence that the current White House efforts to severely limit the utility of FOIA requests in the most ‘sensitive’ cases is underway," he said. "Those who are eager to pursue war policies that can’t stand the light of day are eager to keep those policies in dark shadows."