FOIA at 50: There’s more to be done

Did you know?

• The federal government turned down cash and more than $400 million worth of oil offered by countries overseas to aid in America’s recovery from Hurricane Katrina.
• Federal auditors who reviewed the records of just four health insurance companies in 2007 found billing errors — mostly overpayments — worth millions of dollars in Medicare Advantage health plans. In one sample of 1,005 patients, Medicare paid the wrong amount for almost two-thirds.
• From 2005 to 2012, the IRS seized more than $242 million from the bank accounts of Americans who in many cases did nothing more than conduct multiple cash transactions under $10,000. The agency took the money under a law that allows it to monitor such ‘suspicious’ transactions, which actually are common for many small businesses; to reclaim their funds, the owners had to prove their innocence in litigation against the Department of Justice.
• Federal inspectors reviewing nursing home records concluded that from 2011 to 2014, at least 165 nursing home residents across America were hospitalized or died because of mistaken treatment with a popular blood-thinner.

These stories are among thousands of scandals and threats to public health and safety that would have remained secret but for the federal Freedom of Information Act (FOIA). Thousands more government secrets have been exposed thanks to state FOI laws and local ordinances.

Secrecy is democracy’s mortal enemy. It encourages corruption that squanders taxpayer dollars and erodes public confidence in government. We can’t hold our elected and appointed officials accountable if we can’t find out what they’re doing.

That’s why it’s especially fitting that President Obama began the long weekend celebrating Independence Day — our democracy’s birthday — by signing legislation late Thursday to update and strengthen FOIA.

The bill is the first major federal FOIA overhaul in years; it codifies an Obama policy directing agencies to make available all records that are not expressly exempt from disclosure requirements. The revision also makes FOIA more user-friendly, creating an online portal for FOIA requests across the federal government. Different agencies currently handle requests in different ways, often at substantial cost to and lengthy delays for the requester.

There is still much more to be done, in Washington and our state capitols. FOI laws still carry exemptions that shield vital public information from public view. Too many laws still allow officials to treat the public’s business as a private matter, burying records and stonewalling FOIA requests from journalists, groups, and individual citizens. To cite just one prominent example, Congress exempts itself from the federal FOIA.

Common Cause, the organization I’m privileged to lead, is almost as old as FOIA and has worked on FOI issues since our founding in 1970. We spearheaded the passage of Wisconsin’s FOIA, the first such state law, in 1972, and our state offices still work the issue is almost every legislative session.

Just last month, Pam Wilmot, our executive director in Massachusetts, and her staff had a hand in passing the first legislation in 40 years significantly strengthening the Bay State’s public records law, which had been rated among the nation’s weakest FOI statutes.

As we work to strengthen FOIA, we’re joining in the next battle in the fight for government transparency. The growing open data movement seeks to take the types of public information that FOIA makes available — and more — and make it immediately accessible — by default, online, at no charge, in formats conducive to electronic processing and analysis, and without licensing or registration requirements.

For all their virtues, FOI laws generally require that the person or group seeking information know exactly what to ask for and have the ability and tools to organize and analyze it. FOI laws often also require requesters to pony up substantial sums of money to cover the cost of fighting in court for information the government doesn’t want to provide and to reimburse the government for copying and providing it.

In some federal and state agencies, substantial bureaucracies have grown up to process and respond to FOIA requests, at substantial cost to the taxpayers. Open data requirements would shrink those operations, opening the government’s books at the click of a mouse and truly putting “free” into Freedom of Information.