Giving Compass' Take:
- Margaret Kwoka explores the ways the FOIA has helped expose wrongdoing in the past and what weakened enforcement of the act may mean for society.
- What can donors do to strengthen the sharing of fact-based information?
- Read other articles related to the topic of journalism.
- Search Guide for Good for nonprofits in your area.
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When President Trump named Oklahoma’s Scott Pruitt to head the Environmental Protection Agency (EPA) in 2016, he was a controversial pick. But Pruitt’s policy positions quickly became overshadowed by another set of problems when it was revealed that he crossed various ethical lines while in office. In one instance, he rented a condo co-owned by the wife of an energy lobbyist at a below-market rate. In another, he hired a dubiously massive security detail. In the end, it was these scandals that forced his resignation, and a big part of the reason these scandals ever came to light was that journalists on the EPA beat used the Freedom of Information Act (FOIA) to obtain records that helped them write their exposés.
That’s hardly the only recent example of FOIA making a difference. One journalist broke the story, using FOIA, that established the political origins of the Justice Department’s 2017 request that the census include a citizenship question (rather than the stated law enforcement justification). Yet another reporter used FOIA to document a pattern of negligent medical care in immigrant-only private prisons run under a federal government contract. While no single news story typically provokes immediate change, these pieces were among the reasons why Pruitt’s tenure at the EPA came to an end, the citizenship question was not included on the census, and the federal government announced in 2016 that it would let its contracts with privately run prisons expire.
Unfortunately, though, while these examples demonstrate FOIA’s potential, they represent bright spots amidst a sea of frustration and failure. By and large, journalists’ loudest complaints about FOIA are not that its guarantees of access to information are inadequate, but that agencies are not complying with them. This noncompliance is not sporadic; it is endemic. Despite hundreds of dedicated personnel working in FOIA offices across the federal government who believe in transparency, compliance failure is baked into FOIA’s structure because of incentives that systematically cut against releasing information to the public.
When the Freedom of Information Act was enacted in 1966, it was revolutionary. Its basic premise—that ordinary citizens have a right to know what the government knows—radically reimagined the relationship between the public and the federal government. Through FOIA, “people are permitted to know what their government is up to,” the Supreme Court explained in 1989, quoting historian Henry Steele Commager. To accomplish this lofty goal, Congress adopted a simple model: Anyone can request any government record for any reason, and the government must hand it over within 20 business days, unless the record falls within one of a limited number of exemptions to disclosure meant to protect interests such as privacy, national security, and trade secrets. The press was at the helm of the decade-long advocacy effort that led to FOIA’s passage, and the news media championed a vision of access to public records under which the public would use the law to hold government to account and to further our democratic ideals.
At times, this vision has come into spectacular reality. Journalists have used FOIA to uncover government waste and corruption, learn what kinds of outside influence impact government decision-making, and peek behind the curtain of the national security state. But more than a half-century after Congress passed this landmark legislation, it is clear that FOIA largely has not—and cannot—live up to its mission.
The core problem is this: There is no arm of the U.S. government that champions transparency. No government agency embodies a transparency mission; no court possesses transparency expertise. FOIA provides a core right for the public to access government records, but it lacks a locus for implementation and enforcement. Offices that administer FOIA are nested within every government agency but are often seen as detracting from—or at least distracting from—the agency’s core mission, whether that mission is protecting the environment, securing our borders, or guaranteeing the integrity of our economic marketplaces. Because they are not centrally organized, these agency FOIA offices can’t bring their collective wisdom to bear on FOIA implementation. With no mission-driven body at the helm to poke and prod and pester and inspire agencies to see their transparency obligations as being of central importance to their work and to the public, FOIA has atrophied. We need a transparency guardian.
Read the full article about the Freedom of Information Act by Margaret Kwoka at Democracy Journal.