Huntingdon College program in Political Science and Public Affairs:

Behind Closed Doors:
the Freedom of Information Act,
NOW with Bill Moyers, PBS,
broadcast 5 April 2002.
Page compiled by Jeremy Lewis.

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                               A popular Government without popular information or the means of acquiring it, is
                                but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever
                                govern ignorance, and a people who mean to be their own Governors, must arm
                                themselves with the power knowledge gives. James Madison

                                That statement, by the fourth President of the United States, opens A CITIZEN'S
                                GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF
                                1974. The guide has been published by mandate of Congress every year since
                                1977. The scope of the Freedom of Information Act (FOIA) is surprising ó see
                                some results below.

                                            Behind Closed Doors
                                 THE FREEDOM OF INFORMATION ACT

                                   History: The Freedom of Information Act, enacted in 1966, was the first law
                                  that gave Americans the right to access the records of federal agencies. The
                                  legislation was the brainchild of California Congressman John Moss. Due to
                                  his zeal for making information public, Moss's own FBI file, recently obtained
                                  under FOIA, grew to two inches thick. In 1974, after the Watergate scandal
                                  the act was amended to force greater agency compliance. In 1991 the
                                  General Accounting Office reported over 1.9 million FOIA requests.

                                    Federal FOIA Web Sites: Recent revisions to the Freedom of Information Act
                                  mandate that every federal agency maintain a FOIA web page. The
                                  information available gives a glimpse into the breadth of FOIA. On the
                                  Occupational Safety and Health Administration web site, you can access a
                                  database of U.S. businesses with the worst health and safety records ó
                                  they've all been sent official warnings. The National Security Agency's web
                                  page includes quick links for those making common FOIA requests. The
                                  names of agency employees are confidential and "NO RECORDS EXIST" on
                                  U.F.O.s.

                                    Changes: One of the crucial aspects of the Bush administration's stand on
                                  the FOIA will be interpretation of the standard on withholding information if
                                  there is a "sound legal basis" for doing so. This is an alteration from the
                                  previous test, instituted in 1993, which said FOIA applications should be
                                  complied with unless "disclosure would be harmful."

                                    Recent FOIA Cases: Among FOIA cases are the following:

                                       Clinton EPA chief Carol Browner ordered to restore files deleted from
                                       office computer.
                                       In 2000, the Justice Department was ordered to pay $355,000 in legal
                                       fees in a case relating to the FBI crime lab. The department must also
                                       place the 53,000 pages in question available on its web site.
                                       In March 2002, the CIA refused to release a 1917 recipe for invisible
                                       ink.
                                       A new book by Johns Hopkins Professor Piero Gleijeses discloses new
                                       information, retrieved through FOIA, about U.S. involvement in Angola
                                       as early as 1975.
                                       The Palm Beach Post lost its three-year bid for information on nuclear
                                       testing on a Boca Raton base in the 1950s. The government cited
                                       national security as the reason for denial.



                                                       FOIA Cases Past
 
The Department of Transportation and other agencies are sued for information in the famous Ford Pinto gas tank case, 1978: car recalled
FDA sued for information on Red Dye #2 in 1971: substance banned in 1977
Veterans groups began using the FOIA to obtain records from the Department of Defense on defoliants used in  Vietnam: Agent Orange became a public concern
FDA released results of studies on aspirin and Reye's Syndrome in children, 1982: mandatory warning label
CIA released papers showing they  requested poison information on the Tanganykian crocodile gall bladder: reported in FEDERAL TIMES, 4/9/79
Law students at George Washington  University forced release of 2,500 pages of federal and state documents: Vice President Spiro Agnew  resigned
IRS released 40,000 page manual on auditing procedures, 1972: accountants and tax preparers  have new insight
FBI chief J. Edgar Hoover instigated a  four-year investigation of women's  rights groups: LA Times, NY Times and  Washington Post break story,  2/6/77
Sources: The Associated Press; THE NEW YORK TIMES; THE SAN FRANCISCO CHRONICLE; THE TIMES OF LONDON; THE GUARDIAN; NEWSDAY; THE NATIONAL REVIEW; THE WALL STREET JOURNAL; Scripps Howard News Service; THE JOURNAL OF BLACKS IN HIGHER EDUCATION; THE JOURNAL (Newcastle, England); "Freedom of Information Around the World" by David Banisar, Harvard Univeristy, March 2002; COMMITTEE REPORTS, 107th Congress, 2d Session, House Report 107-371, 107 H. Rpt. 371; PAST SECRETS, David Hendricks, 1979.


Transcript, NOW with Bill Moyers, PBS, broadcast 5 April 2002.

                                 BILL MOYERS: Eileen Welsome learned just how  hard it is to find out what government doesnít
                                 want us to know. She won a Pulitzer Prize for  searching out secrets dating back fifty years, to
                                 the dawn of the atomic age.

                                 EILEEN WELSOME (AUTHOR, THE PLUTONIUM FILES): I had come across a footnote in a scientific
                                 report describing 18 humans who had been injected with plutonium during the Manhattan Project.

                                 MOYERS: The Manhattan Project created the first atomic bomb. To study the
                                 effects of radiation on human beings, scientists working on the bomb injected
                                 unsuspecting Americans with radioactive plutonium. It was all top secret.

                                 WELSOME: The names of the scientists and the names of the patients were
                                 blacked out. And I was simply horrified. I wanted to find out who they were, why
                                 were they injected, did they develop cancer, did they have pain? What happened
                                 to them and why was it done?

                                 MOYERS: She started her search in 1987. But the patients were identified only by
                                 number. Welsome wanted their names. So she turned to a law passed by
                                 Congress twenty years earlier to safeguard the publicís right to know. Itís called
                                 the Freedom of Information Act...also known as FOIA.

                                 WELSOME: All of these individuals were found with the help of scraps of
                                 information that came from the FOIA request that I filed.

                                 MOYERS: She found that, with one exception, none of the patients had any idea
                                 what had been done to them. And none of their relatives knew for fifty years.

                                 WELSOME: ...If the Freedom of Information Act means anything, it ought to mean
                                 that I should get documents on these 18 forgotten people.

                                 MOYERS: Over many years, using the Freedom of Information Act, she forced the
                                 Department of Energy to release thousands of documents ó a shocking story of
                                 half a century of official deceit and dangerous science.

                                 WELSOME: We were able to take these people who had lost their humanity and
                                 had been reduced to numbers by the federal government and restore to them
                                 their names.

                                 MOYERS: Her reporting brought an official apology from the government and a
                                 condemnation of the secret experiments.

                                 JANE KIRTLEY (PROFESSOR OF MEDIA ETHICS & LAW, UNIVERSITY OF MINNESOTA):
                                 Government does make mistakes. And I donít think the public demands infallibility
                                 from its government. I certainly donít. Accountability is what we demand. And we
                                 should have the tools that make it possible for us to compel the government to
                                 tell us what itís up to, how itís carrying out our business and to instruct the
                                 government to take corrective steps when mistakes are made. Ultimately what
                                 weíre really talking about is not so much looking back, but looking forward to
                                 make sure that the mistakes that have been made in the past are not repeated.

                                 MOYERS: There have been other hard-won battles to open government archives in
                                 the almost 40 years since the Freedom of Information Act became law. We have
                                 learned about Medicare fraud, CIA assassination manuals, the My Lai massacre.
                                 We have learned about underage children forced to work in factories, and how
                                 wealthy corporate farms pocket taxpaper subsides.

                                 THOMAS SUSMAN (FREEDOM OF INFORMATION ACT EXPERT):
                                 Agencies have never thought it a very good idea to make information public. Surprise!
                                 Itís more work. It may, in fact, reveal something that you donít want known about
                                 your decision-making. And itís always a lot easier to operate in the shadows.

                                 MOYERS: President Richard Nixon knew all about operating in the shadows, as we
                                 learned from tapes he recorded in secret.

                                 NIXON tapes:

                                 PRESIDENT NIXON: "We're up against an enemy, a conspiracy. They're using any
                                 means. We are going to use any means. Is that clear?"

                                 MOYERS: The President of the United States is about to give his aides an
                                 extraordinary order. He is instructing them to break into a respected Washington think
                                 tank.

                                 NIXON tapes:

                                 PRESIDENT NIXON: "Get it done. I want it done. I want the Brookings Institute's
                                 safe cleaned out and have it cleaned out in a way that it makes somebody else look
                                 bad."

                                 MOYERS: If Richard Nixon had had his way, we might never have heard him
                                 ordering that illegal break-in. He claimed the tapes belonged to him and would not be
                                 made public.

                                 KUTLER: He made his decision on the 6th to resign Ė and he leaves on the 9th. And
                                 there really wasn't much chance to pack up everything, but things were being packed
                                 up and were going to be shipped to California.

                                 And on September 10th, there is an agreement between the Ford Administration Ė the
                                 General Services Administration and Nixon Ė for the disposal of this material that
                                 would have him allowed him to even to destroy it.

                                 MOYERS: But Congress stepped in with emergency legislation and declared
                                 the tapes to be public property. The act would eventually be broadened to set a
                                 new standard of openness for the records of all future Presidents.

                                 KUTLER: For twelve years after he leaves office, the President has exclusive access
                                 to his papers. In other words, Presidents then are free to peddle their memoirs, use
                                 their papers for money. The recent President of the United States has sold his memoirs
                                 for $9 million. At the end of twelve years, however, those papers ó which were
                                 generated with public funds, by public servants, belong to the public.

                                 There was a wonderful consensus that we owe something to our history and to
                                 ourselves as a people, to understand what happened. History that's made up is the
                                 endeavor of a totalitarian state ó not this state.

                                 MOYERS: Gerald Ford was sworn in as President three minutes after Nixon
                                 resigned. Ford swiftly signed the legislation declaring Nixonís Presidential records
                                 public property.

                                 But when Congress Ė in another reaction to the Nixon scandals ó moved to
                                 strengthen the Freedom of Information Act, the Ford administration resisted.

                                 MOYERS: The year was 1974. President Fordís chief of staff at the time was a
                                 young man named Donald Rumsfeld. Rumsfeldís deputy was another young man
                                 named Dick Cheney.

                                 THOMAS BLANTON (EXEC. DIRECTOR, NATIONAL SECURITY
                                 ARCHIVE): President Ford vetoed the Freedom of Information Act as we know it
                                 today. And he vetoed it because he and Rumsfeld and Cheney believed that it took
                                 away too much Presidential power. It allowed courts to order the release of
                                 documents even when the President said they shouldnít be released. Then, these guys
                                 fought it tooth and nail and lost. Now - these guys are re-opening those battles, and
                                 with ninety percent approval ratings, they think they can win.

                                 MOYERS: Back then, Congress overrode Ford's veto of the Freedom of Information
                                 Act.

                                 Today, Dick Cheney is the Vice President of the United States, Donald Rumsfeld, the
                                 Secretary of Defense.

                                 KIRTLEY: President Bush, itís hard to say what his personal views are, but he has
                                 included people in his administration who have indicated in the past their predilection
                                 towards secrecy and what I would characterize as their outright contempt for the
                                 public right to know.

                                 MOYERS: Soon after he took office, George W. Bush made his own feelings known.

                                 QUESTION FROM AUDIENCE (PRESS CONFERENCE TAPE): Would you
                                 take this moment to articulate your own view of First Amendment freedoms and give
                                 us a sense of the fundamental message that you will send to your Administration as it
                                 makes decisions on whether to open or close access to government information?

                                 President BUSH (FROM TAPE): Yeah. I Ė uh Ė heh Ė yes. There needs to be
                                 balance when it comes to freedom of information laws. There are some things that
                                 when I discuss in the privacy of the Oval Office Ė or national security matters Ė that
                                 should just not be in the national arena. I'll give you one area, though, where I'm very
                                 cautious and that's about e-mailing. I used to be an avid e-mailer. And I e-mailed to
                                 my daughters or e-mailed to my father. And I don't want those e-mails to be in the
                                 public domain. So I don't e-mail any more. Out of concern for freedom of information
                                 laws, but also concern for my privacy. And, uh, but we'll cooperate with the press
                                 unless we think it's a matter of national security or something that's entirely private.

                                 SUSMAN: The President sets the tone for the executive branch. When the President
                                 says, "Iíve stopped using e-mail because of the Freedom of Information Act", you
                                 know, I think that that sends the wrong message to those government employees who
                                 generate documents on e-mail that constitute official public records. And so to
                                 somehow inhibit the generation of records that constitute our nationís history, is setting
                                 the wrong tone.

                                 MOYERS: Once the tone was set, the policy followed. On November 1st of last
                                 year, President Bush quietly issued a sweeping Executive Order that ó despite its title
                                 ó effectively repealed the Presidential Records Act. Even some of his strongest
                                 supporters were taken aback.

                                 CONGRESSMAN BURTON: Weíre talking about things that are not national
                                 security issues. Weíre talking about other issues that need to be explored and looked
                                 at very thoroughly.

                                 MOYERS: Republican Dan Burton had fought to impeach Bill Clinton over White
                                 House secrets. Now, it is the President from his own party whose secrecy alarms him.

                                 CONGRESMAN BURTON: The Executive Order very simply says that unless the
                                 previous President or the President want those documents from the archives released,
                                 they cannot be released unless whoever wants them goes to court to get them.

                                 MOYERS: In other words, if a scholar, historian, teacher, or any citizen wants
                                 access to records of previous Presidents, a lawsuit is the only way to get it.

                                 STANLEY KUTLER (PRESIDENTIAL HISTORIAN): And more than that ó
                                 more than that ó itís wonderful the kind of guarantees that are built in here. If, for
                                 example, some obscure history professor somewhere wishes to challenge a former
                                 Presidentís refusal to release his materials and takes him to court, this Executive Order
                                 provides that the Department of Justice will defend the former President. You know,
                                 Richard Nixon spent a young fortune on lawyers for the better part of twenty years,
                                 much of which was spent resisting this kind of thing. Now, Richard Nixon had to pay
                                 for that himself, which explains why he wrote so many books to pay for these things.
                                 But itís true. Itís true. Now, here though, President Bush is giving legal cover to his
                                 predecessors.

                                 BLANTON: Not only could the former President veto, the former President's kids,
                                 and representatives ó and former Vice Presidents. This Executive Order is the first
                                 time that Vice Presidents have ever been given their own executive privilege, separate
                                 from the President. And I don't think it's exactly coincidence that the first Vice
                                 President who gets to use this new privilege is George W. Bush's father, from his
                                 tenure under Reagan.

                                 President REAGAN (FROM TAPE): "To eliminate the widespread but mistaken
                                 perception that we have been exchanging arms for hostages, I have directed that no
                                 further sales of arms of any kind be sent to Iran."

                                 REPORTER (FROM TAPE): Vice President Bush, did you know about the Contra
                                 aid, or not, sir?

                                 MOYERS: Under the Presidential Records Act, tens of thousands of pages from the
                                 Reagan administration had been readied for release in January, 2001. That very month,
                                 George W. Bush, the son of Reagan's Vice President, was sworn in as President.

                                 Not only are his own father's papers now protected by the executive order, he will be
                                 able under the order to deny future scrutiny of his own administration.

                                 KUTLER: I knew at the beginning of President Bushís term that the law was in some
                                 trouble because one of his aides said, well, twelve years may not be enough time. And
                                 I asked whether what do you need? Fifteen, twenty, twenty-five, a hundred? Or is any
                                 too many? And I think thatís it. Any is too many.

                                 KUTLER: And then September 11th happened. An Executive Order that Iím sure
                                 had long been in the works came down. And it was justified in the name of national
                                 security, and in effect September 11th. And it has nothing to do with September 11th.

                                 MOYERS: It wasnít only the Presidential Records Act the current Bush
                                 administration set out to cripple. In a directive also drafted before September 11th,
                                 Attorney General John Aschroft encouraged federal agencies to resist Freedom of
                                 Information requests.

                                 BLANTON: On October 12th, Attorney General Ashcroft sent around a memo to all
                                 the agencies. And the memo simply said, If you can find any good reason, legal reason
                                 Ė the exact phrase was "sound legal basis" Ė for withholding information, we'll back
                                 you up.

                                 KIRTLEY: What heís saying is, the deliberations of the agencies, the information that
                                 they obtain and exchange, the whole, how we get to where we are in our governmental
                                 policy is not gonna be something that will be readily available to the public. Thatís not
                                 democracy in my view. It may be an efficient way for a government to operate, but I
                                 donít think we can call it a democracy.

                                 BLANTON: The Ashcroft message is cover your rear, cover our rear. Don't let
                                 information out. And get technical, get legal and damn the torpedoes. Weíll deal with
                                 the litigation when it comes.

                                 SUSMAN: Unlike constitutional principles that will survive one Congress after
                                 another, one administration after another, the Freedom of Information Act is more
                                 fragile. It's something that I think we all take for granted.

                                 TOM BLANTON: The peopleís right to know is on the run right now. We have an
                                 administration in Washington that - they see their job in Washington to recoup all the
                                 ground that the peopleís right to know has gained over the last thirty years. We gained
                                 that ground for the peopleís right to know in order to prevent another Vietnam or
                                 another Watergate or a kind of unaccountable Washington that we used to have.

                                 CONGRESSMAN BURTON (R-IN): I'm a Republican and George W. Bush is
                                 one of my heroes. He's a Republican. I think he's doing a fine job in the war and the
                                 economy. But this flies in the face of openness in government. And while I understand
                                 every President wants to protect their turf and keep people from overseeing what
                                 they're doing, it's the responsibility of Congress to do just that. I believe a veil of
                                 secrecy has descended around the administration and I think that's unseemly.

                                 MOYERS: America is at war and Washington is in a state of high alert. In the name
                                 of national security, the white house has denied Congress information it has sought,
                                 restricted reporters in their coverage, decreed secret military tribunals, and sealed off
                                 thousands of pages of public records.

                                 KIRTLEY: Security and secrecy are not synonymous, but the Bush administration
                                 acts as if they are. What's happening here is that the Bush administration, I feel, is
                                 exploiting the publicís legitimate concern about national security and turning that into
                                 carte blanche to say, anything we decide we donít want to share with the public we
                                 will withhold on grounds of secrecy.

                                 The irony of all of this is that at the very time when I think the actions of government
                                 need to be scrutinized very closely, the roadblocks that have been set up by the Bush
                                 administration are going to make it very difficult for the public, for Congress, really for
                                 anybody who has an interest in the outcome, which is all of us, to find out whatís going
                                 on. And the attitude of the Bush administration, frankly, seems to me to be that itís
                                 none of our business.

                                 MOYERS: But the accountability of power is the publicís business. Just ask Eileen
                                 Welsome. Without the Freedom of Information act, what the government did to its
                                 own citizens ó secretly injecting them with radioactive plutonium ó might never have
                                 been known. And Elmer Allen might have remained...just a number in a filing cabinet.

                                 WELSOME: I went back to Elmer's grave and his family had put up a beautiful new
                                 headstone. Elmer Allen, the tombstone said, "One of America's human nuclear guinea
                                 pigs." He had been a human being up until he was injected with plutonium and from
                                 that date in 1947 until the day he died, he was a number.

                                 WELSOME: What are reporters gonna be finding out fifty years from now about
                                 what is going on right now in the post-September 11th period. I mean are we gonna
                                 find out horrendous things in fifty years about whatís been happening in the last four
                                 months? And is it going to take fifty years to find out this information?



Commentary:  Bill Moyers on the Freedom of Information Act

In the interest of full disclosure you should  know that the "Freedom of Information Act"  was passed when Lyndon Johnson was President and I was his Press Secretary. He  signed it on July 4, 1966; signed it with  language that was almost lyrical; signed it,  he said, "With a deep sense of pride that the  United States is an open society in which the  people's right to know is cherished and  guarded."

                                   Bill Moyers on the Freedom of Information Act

Well, yes, but what few people knew at the time is that LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House. Only the courage and political skill of a Congressman named John Moss got the bill passed at all, and that was after a twelve-year battle against his elders in Congress who blinked every time the sun shined in the dark corridors of power. They managed to cripple the bill Moss had drafted. And even then, only some last-minute calls to LBJ from a handful of newspaper editors overcame the President's reluctance; he signed "the damned thing," as he called it (only I'm paraphrasing, out of respect for PBS standards); he signed it, and then went out to claim credit for it.

It's always a fight, to find out what the government doesn't want us to know. It's a fight we're once again losing. Not only has George W. Bush eviscerated the Presidential Records Act and FOIA, he has clamped a lid on public access across the board. It's not just historians and journalists he wants locked out; it's Congress... and it's you, the public and your representatives.

We're told it's all about national security, but that's not so. Keeping us from finding out about the possibility of accidents at chemical plants is not about national security; it's about covering up an industry's indiscretions. Locking up the secrets of those meetings with energy executives is not about national security; it's about hiding the confidential memorandum sent to the White House by Exxon Mobil showing the influence of oil companies on the administration's policy on global warming. We only learned about that memo this week, by the way, thanks to the Freedom of Information Act. May it rest in peace.