Genuine Freedom of Information

WASHINGTON–Both the media and citizens have an important stake in a Senate bill that comes to grips with the no-fault government and the bureaucratic arrogance it breeds to perpetuate government secrecy in 67ashington. It is S.2543 which by tightening up the Freedom of Information Act (FOIA) of 1966 and making that law more usable by Americans has brought down the concerted wrath of the federal bureaucracy.

The Justice Department has assigned more lobbying resources to block the bill when it comes up before the Senate Judiciary Committee later this month. Other agencies are alerting all hands to stop S. 2543 before these agencies are afflicted with accountability to those citizens whom they have denied information to all these years.

What S. 2543 does is to spot the ways that agencies have gotten around the Freedom of Information law and try to give people the rights and remedies to fight back successfully.

Since bureaucracies have a strong aversion to being accountable to the citizens they are supposed to serve, the chief object of their ire is the section in the bill which authorizes the courts to impose the sanction of suspension without pay up to 60 days for any agency officials who the courts find are withholding information “without a reasonable basis in law.” There is ample reasons for this mild sanction.

Again and again citizens have been denied unlawfully critical information dealing with health, safety or expenditure of taxpayers’ funds. Agencies officials know that they can only be stopped on a case by case basis assuming the person has the funds to find a lawyer and win in court. Even when the person wins the case, as was true regarding meat inspection reports or nursing home surveys, other people requesting these reports have been rebuffed by such lawless agencies.

Putting the responsibility squarely on the individual in the agency who violates the FOIA ends the cynical or cavalier attitude of government officials that they can do so with impunity. Fifteen state FOIA laws have been criminal penalties for state officials who violate them. But the federal FOIA presently has no penalties at all; it is a toothless law that heavily burdens the public’s right to know.

Other sections of S. 2543 would set deadlines for an agency to respond to a citizen’s request for information and to respond to a citizen’s law suit. Contrived delays to wear down the persons requesting such data or reports is a favorite technique of preserving secrecy. When Carl Stern of NBC finally won his law suit to obtain documents about citizen harassment from the Justice Department, he could look back on 26 months of effort before he won. Few people can endure such delays and fewer can sustain the legal costs. Mr. Stern had one of our attorneys represent him on a pro bono basis.

The Senate bill also goes after the “contagion device.” This is the agency excuse which tells people they can’t have any of the information requested because a part of it is legitimately confidential. If this bill passes, the agencies will have to delete such part and release the rest of the material.

In addition to filling several other loopholes, S. 2543 gives the courts authority to award attorneys’ fees and the costs of litigation whenever the citizens seeking the information prevail in court. For example, if a newspaper or magazine sue to obtain information from an agency or department, the court can assess the costs of the suit against the government. At the hearings on the bill, chaired by Senator Edward Kennedy, media representatives said that one of the reasons they had not used the FOIA more was the expense of litigation. Imagine how much more prohibitively expensive lawsuits could be for ordinary people who believe that information is the currency of democracy and their right to have.

Senators will welcome hearing from their folks back home about S. 2543 before they have to decide how they are going to vote. For a free booklet on how to usethe Freedom of Information Act, send a self-addressed envelope to Freedom of Information Clearing House, P.O. Box 19367, Washington, D.C. 20036.