American FOI – lessons for the UK media

Speech to the Fleet Street Lawyers Association
Olswang Law Offices
Oct 14, 2004 7pm

Today I’ll be talking about the American law and what we can learn from it in relation to how it is used by government, the public and the media. I worked as a newspaper reporter in the US, covering the Washington State Legislature and then crime in South Carolina for a New York Times regional newspaper. It was the shock of finding so much information forbidden in the UK that prompted me to write my book ‘Your Right to Know’.

You may already be aware, but just to recap: what most people think of as the American FOIA is the federal act. Each state also has its own FOIA and often they are much more open than the federal law. For example, Florida has one of the strongest open records laws in the country.

Most journalists in America are more interested in their state FOIA and public records laws. Papers with a national audience such as the New York Times or Washington Post or regional reporters working in the Washington bureau are most affected by the federal act. However, no matter what law is used, getting information using FOIA can be very time consuming. I talked with one of the lawyers for the Electronic Privacy Information Center and she said it’s not uncommon to wait two years for a response even if requests are granted expedited processing. Obviously this makes them of little use to the average journalist. Instead, many stories based on FOIA requests are the result of information released to campaign organisations that have more time to focus on single issues. The best example of this is the National Security Archive.

Patrick Tyler, the London Bureau chief for the New York Times said he most recently filed requests for his book about China and passed on his letters to the NSA which then continued to work on the issue and got out a whole new pile of documents that were classified about Chinese/US diplomatic relations.

The Archive is basically research institute, a library and archive of declassified U.S. documents obtained through the FOIA, and a public interest law firm defending and expanding public access to government information through the FOIA. It was founded in 1985 by a group of journalists and scholars who had obtained documentation from the U.S. government under the Freedom of Information Act and sought a centralized repository for it. Since then it has become the world’s largest non governmental library of declassified documents.

Of course there are two main obstacles to doing something similar in the UK. The blanket exemption on material from or relating to the main security bodies and the use of Crown and other types of copyright that restrict how government information can be reproduced. As long as the government can control how public information is used, then there can be no real freedom of information.

Already we have seen Crown Copyright used as a method of last resort by the British government when it is desperate to suppress information. When the government’s initial cases against former MI5 intelligence officer David Shayler failed, the government sued him and a London newspaper for breaching Crown Copyright. The Ministry of Defence warned the Guardian’s Rob Evans that if he quoted from a report released under the Open Government code without their permission, legal action would be taken for breach of Crown Copyright. Although this threat was unfounded, it might be enough to deter some members of the public from making information received from an FOIA request widely available.

Contrast this to American FOI activist Russ Kick who was able to publish 288 photographs he received in response to a Freedom of Information request of pictures of caskets coming home to America from Iraq. The photos he received made front-page news around the world in May 2004. Even if such a request were granted in the UK, the government could prevent publication through a restrictive copyright licence.

I’ll just talk briefly now about the US federal FOIA as it is the most influential worldwide and provides some of the strongest access rights to the public. Despite George Bush’s efforts to chip away at public access, the amount of information that has to be disclosed by American public officials and public bodies far surpasses what the British public could get their hands on even if our FOIA is interpreted very narrowly. But there are reasons to be optimistic in this country despite the poor law.

When the US law was first passed back in 1966 the government’s reaction to it was remarkably similar to the attitude on display by our own officials today. The law was passed by Congress in 1966 after a 20-year campaign by the Society of Newspaper Editors. President Johnson threatened to veto the law unless the exemptions were given a broader interpretation. The law was enacted the following year but agencies did all they could to prevent disclosure. They interpreted exemptions very broadly (particularly those relating to national security and law enforcement records), set high fees, made long delays and often claimed the records couldn’t be found. These are all excuses that we will likely find used next year, and many are already becoming familiar.

Fortunately, many of these refusals to disclose were challenged in the courts (the US appeal system is through the courts as there is no information commissioner) and they interpreted the exemptions much more narrowly. They also created procedural remedies against agency truculence. However, even the courts continued to interpret exemption 1 (national defence) and 7 (law enforcement records) so broadly that all investigatory files and all classified documents could be withheld for all time.

The strong act the US has today comes from amendments made in 1974, in response to the Watergate scandal exposed by the Washington Post. The amendments were hotly contested but the political climate was such that any politician who stood in the way of the ‘public’s right to know’ was in danger of losing public support and future elections, so the law passed the House of Reps 383-8 and the Senate, again, by a large majority. But when Gerald Ford became President, he vetoed the bill calling it ‘unconstitutional and unworkable.” Fortunately in the US, there is check on executive power and both Houses overrode his veto and the new amendments went into force just three months after they were passed.

Ever since then, politicians have continued to do battle with the law. A fee waiver was introduced for information released in the public interest and in 1996 the law was extended to electronic information.

I think this shows us that FOIA is never an easy battle but it is one that must be fought and the public cannot rely on politicians to support strong FOI laws. Politicians will always have an interest in suppressing embarrassing or sensitive information. What the US experience shows above all is how important a role the media played in creating the strong law the US has today. Support for the law shifted from party to party but the media always remained constant, pushing for greater public access to government and government records.

The British media has so far not worked together to adopt a similar role of public ‘watchdog’ in this area. Perhaps this is due to the fierce competition involved in British journalism with so many national newspapers competing over the same stories. But the media must be able to unite and lobby for the common cause of freedom of the press and freedom of information. Greater access to information means more stories for all of us, stronger stories and increased public trust.

The government often uses the media’s lack of professionalism in the UK as an excuse for not making more information public. Why give them this leverage? It is hard to argue from a position of strength when reporters are making up quotes and supporting whole stories with unattributed sources. The media needs to improve its game and become more professional if it expects government to do the same.

2 Responses to “American FOI – lessons for the UK media”

  1. C Davidson says:

    Hi Heather:
    I wondered – can anyone outside the US make a FOI request to the US government. I see nothing about additional rules or fees.
    Thanks in advance, Clare Davidson

  2. heather says:

    Yes anyone can make an FOI request to the American federal government. A good primer for making requests is available from the Department of Justice: http://www.usdoj.gov/oip/foi-act.htm

    The Reporters Committee for Freedom of the Press also has a useful guide and an FOI letter generator:
    http://www.rcfp.org/foi_letter/generate.php

    You can find information about state and national FOI laws and how to make requests from the National Freedom of Information Coalition:

    http://www.nfoic.org/web/index.htm

    Hope that helps,
    Heather

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