The FOIA Wars: Just How Open Is Our “Open Government”?

“American democracy has a disease, and it's called secrecy.”

So begins a July 2011 American Civil Liberties Union (ACLU) report on secrecy laws and the security establishment's heavy-handed use of the classified stamp.

Of course, even unclassified documents don't just magically make their way into the public domain.

Much of the shocking (and sometimes, not so shocking) news we read wouldn't have come to light without the Freedom of Information Act, or FOIA, the open records law passed as an antidote to the secrecy disease in 1966. FOIA was amended for the first time in the wake of the Watergate scandal, and, most recently, by the Open Government Act at the close of George W. Bush's second term.

FOIA was especially important in unearthing the secrets of the Bush presidency, when early rumors of extraordinary rendition, “enhanced interrogation techniques” and “black site” prisons challenged everything Americans thought they knew about their country.

The latest changes to FOIA sought to remedy what basically amounts to bureaucratic bullying – ignored requests, snail-paced responses, and litigious game-playing – by government agencies. But FOIA is still an imperfect cure for the US's secrecy plague.

“We've had to fight over just about every major disclosure we've gotten, particularly with the CIA,” said ACLU staff attorney Alex Abdo, who has been on the FOIA team with the organization's National Security Project for about a year.

Abdo and his colleagues found out that the Bush administration's paper trail – when one exists – is more like a paper ocean. Just one of their FOIA requests – for all information related to the treatment, death and rendition of detainees held in US custody abroad – returned about 150,000 pages of documents, but not without a seven-year fight in the courts that continues today.

“It really is troubling that nowadays you almost have to go to court on these issues to get the documents. That's not the way FOIA was intended to work, and it's not the way FOIA should work,” said Abdo.

Another problem? “There's little way to hold agencies accountable for delinquency.”

Just where is the line between protecting a genuine national security concern, for example, and political playground wars? It turns out that line can be fine indeed. Take, for example, Abdo's team's years-long pursuit of a presidential memorandum or directive thought to be the document authorizing the CIA to establish its black sites abroad. In the case's most recent development, the government's counsel conferred in secret with the court (a privilege granted as fast as you can say “national security matter”) and emerged from behind closed doors with an official answer.

Official, or, in Abdo's words, “ludicrous”:

Sorry, said the government. The memo's font is classified.

Even when documents are returned, they're often heavily redacted. Such was the case with several hundred pages the ACLU obtained on warrantless wiretapping. It turns out transparency is a lot like democracy itself – easy to destroy, hard to bring back. What disappears with the wave of a black pen can take years of legal action to recover – if it's recovered at all.

“You don't know what's there, so you don't know what arguments to make. You're really fighting in the dark with both hands tied behind your back,” said Abdo. (What they did find amid the sea of black was a pattern of Foreign Intelligence Surveillance Act (FISA) “compliance incidents” that persisted at multiple intelligence agencies even after inspectors general identified the problems.)

FOIA requests can cast wide investigative nets – over sprawling secret government spying and torture programs, for example – or they can zero in on something much more specific: you.

“We're getting to the point where the government can very easily, with the click of a few buttons, compile very detailed dossiers about each of us,” said Kade Crockford, privacy rights coordinator for the ACLU of Massachusetts.

Under the Privacy Act and FOIA, individuals have the right to know what information the government has collected about them. That's not to say private citizens won't face roadblocks similar to those confronting the ACLU. The Department of Homeland Security (DHS) is planning a massive new database that would be exempt from the Privacy Act; the FBI has been criticized for sheltering its data from FOIA requesters and others; and last year, the Associated Press reported that “political advisers” were vetting FOIA requests at DHS, delaying those judged to be politically sensitive and requiring DHS employees to list, for example, the party affiliation of Congressional requesters.

“We don't know for sure what goes on behind closed doors in these government FOIA offices,” said Crockford. But there are plenty of ways to maximize your chances for success – check out the “Top Five Ways to Win at FOIA.”*

And your right-wing brother-in-law can play, too. “We are thrilled to see that people from all over the political spectrum are interested in the FOIA process,” said Crockford, “because everyone needs to put pressure on government.” She was talking about Wikicountability, which Karl Rove's Crossroads GPS launched in March as “a repository for Freedom of Information Act requests and other legally obtained official documents” strategically sourced to put the heat on Obama.

That's right: open government is for everyone.

*
Top Five Ways to Win at FOIA
Alissa Bohling, Truthout, and Kade Crockford, ACLU Massachusetts

1. Do your research first. You don't want to waste time on information that's already in the public record.
2. Craft your questions carefully. Knowing what you want to know sounds like a no-brainer, but vague or overbroad questions can result in a denial – or a mountain of useless documents. If you must, start with a broad request and narrow your focus in subsequent requests based on the rest of your new information. “It's almost like sanding a piece of wood from a tree trunk down to a toothpick,” says Kade Crockford, privacy rights coordinator for ACLU Massachusetts.
3. Be as specific as possible, and stick to written information. For example, you can ask for calendars of cabinet members and other officials, standard operating procedures, internal audit reports, memorandums of understanding among agencies, and internal emails. Also learn to think in terms of timelines. Requesting information between two dates ups your chances of an approval and cuts down on time spent combing through documents when they're returned.
4. Be patient. Depending on the size and sensitivity of requests, some can take years to see through to completion.
5. Be prepared to spend some money. Fee waivers are only granted in certain circumstances.

Other FOIA resources for individuals

• The Office of Government Information Services is the new FOIA ombudsman created under the Open Government Act of 2007
• University of Minnesota library FOIA help index
• Public Records Tracker (a private company)