@Info.Policy: Red tape is threat to FOIA

Robert Gellman

Is the Freedom of Information Act as we know it near the end of its useful life?

Don't get me wrong'the case for open government is just as strong as it ever was, or stronger. The question is whether the FOIA is being proceduralized to death.

What do I mean by proceduralized? Indulge me in a bit of history. In the days before FOIA, bureaucrats controlled most agency information. They often had total discretion to disclose or to refuse. If you wanted a document, you were likely to be asked who you were and why you wanted it. You had to satisfy the agency that it would benefit, or at least not be harmed, by disclosure.

Procedures, politics and power mattered. Whether a document was sensitive was less important or even totally unimportant.

The FOIA revolutionized disclosure. It didn't matter anymore who you were. For the most part, unless a record could be withheld on objective grounds to protect a public or private interest, the record had to be disclosed. The substantive disclosure issue mattered'not status and intent. An agency could not ask who or why unless you wanted a fee waived.

A recent change to the FOIA makes my point about proceduralization. The 2003 Intelligence Authorization Act amended the FOIA to require intelligence agencies to deny requests from foreign governments and representatives of foreign governments. That means all foreign governments'Britain as well as France and Libya.

Of the many controversial changes to the FOIA over the years, this is the most radical. Why? Because it lets agencies ask about a requester's status and intent, not just about a request written on the letterhead of a foreign government.

I can see it now: Requesters will first be asked if they represent a foreign government. Then they will be asked what they plan to do with the information so that the agency can decide whether to believe them. All foreigners will be highly suspect. Lawyers might be grilled about their clients.

Then requesters might be asked to prove a negative: that they do not represent a foreign government. Eventually, someone will decide that if a newspaper publishes a government document, a foreign government could get a copy, and that might be grounds for denial. Stupid? Sure, but it could take five years for an appeals court to quash the idea.

Procedures are a bureaucrat's dream. An administrative process continues for years while information of no sensitivity sits unused and undisclosed. Millions for meaningless correspondence, but not one cent for disclosure. That's what I mean about the death of the FOIA.

I don't believe the FOIA is dead yet. But if we get much more of this pointless and easily evaded procedural nonsense, it could happen.

Robert Gellman is a Washington privacy and information policy consultant. E-mail him at rgellman@netacc.net.

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