Fireworks for FOIA
Freedom of Information Act turns 50 on the Fourth of July
Want to know if your city officials are piping lead-tainted water into your home? Or if fracking is taking place in the waters right off your favorite beaches?
Just ask, right?
And when public officials refuse to release any information, what then?
For 50 years, that’s when Americans have turned to the Freedom of Information Act, which was signed into law by President Lyndon Johnson on July 4, 1966.
But if you’ve ever tried to get your hands on a piece of public information that public officials don’t want you to have, you’ve learned the hard way that information is, indeed, power. And all too often, those in power only begrudgingly give it up — stalling, stonewalling, and simply refusing, even when the law says they must turn it over.
Still, the Act is the best tool we’ve got to pry public information from the grip of public officials. Here at the Center for Biological Diversity, information gained through FOIA requests is critical to our work, often triggering legal petitions to protect imperiled species or lawsuits to protect the air and water we all depend on.
The Center recently used the Freedom of Information Act to uncover records revealing the previously undisclosed fact that without any public involvement or knowledge, federal officials permitted more than 1,200 offshore fracks in the Gulf of Mexico from 2010 to 2014. And the fracks were allowed with no site-specific analysis of the threats to imperiled species or the environment.
In May, information gained through a FOIA request spurred the Center and partner conservation groups to file an emergency petition calling on the U.S. Fish and Wildlife Service to take immediate steps to bolster protections for the world’s only wild population of red wolves, which has declined by more than 50 percent in just two years, to as few as 45 wolves. Using FOIA, the Center obtained records that showed the Service had ignored biologists’ recommendations to strengthen red wolf protections and eliminate loopholes in regulations that have enabled excessive illegal shootings of red wolves.
Even using the FOIA laws to discover the absence of records can be helpful in our work. Back in 2004, the Center FOIA’ed the U.S. Fish and Wildlife Service for records to support the Bush administration assertion that protecting critical habitat for species protected by the Endangered Species Act does not provide additional protection to the species, and that the cost of critical habitat protections outweighs any benefits. The Service responded that it had “no documents responsive to such a request,” meaning the Bush administration had no research to back up its absurd claims.
As a result, the Center was able to successfully overturn Bush-era decisions that had attempted to thwart science and the law in order to limit habitat protections for endangered species.
But despite those success stories, countless requests for public information are routinely buried beneath the ever-growing weight of agency back logs.
In an attempt to remedy that problem, in March, the U.S. Senate unanimously passed a bipartisan bill to expand and strengthen FOIA. The House cleared the way for final passage of the FOIA Improvement Act on June 13 by agreeing to the Senate’s version of the bill.
Perhaps most importantly, it would reduce federal agencies’ ability to abuse the over-used “deliberative process” privilege, which has allowed federal agencies to withhold any information they choose by simply claiming the information is part of their ongoing deliberations. The Improvement Act will also limit agencies’ ability to withhold information to instances when they can demonstrate the disclosure is likely to cause a “foreseeable harm.”
But there’s concern President Obama will not sign the bill. During the previous congressional sessions, the Obama administration strongly opposed FOIA reform and lobbied behind the scenes to prevent it from ever getting to the president’s desk.
Despite the president’s pledge for transparency, there have been more FOIA lawsuits filed against the federal government during his two terms than any other president. But while our current President has been called “the least transparent president in history,” his desire for secrecy may pale in comparison to the presidents who follow him into office.
All of which only heightens the importance of one of the nation’s most important laws.
So while you’re watching the fireworks this weekend, raise a glass to FOIA, which like the fireworks, is there to light up the darkness.
Margaret Townsend is the open government attorney at the Center for Biological Diversity, where she oversees the organization’s pursuit of public records through the Freedom of Information Act.
