The Freedom of Information Act: Common Sense Written into Law

The Freedom of Information Act (FOIA) was created to address basic concerns about the openness (or lack thereof) of the American government. Because democratic governments are supposed to be open for theoretical, pragmatic, and symbolic reasons, lawmakers in the late 1960s grew increasingly concerned with the obsessive secrecy of the executive branch under President Johnson (especially regarding the Vietnam War). The FOIA of 1967 systematically opened up the processes and decisions of the American government by requiring the publication of all policy decisions and the disclosure of requested government records. However, because everyone involved recognized the need for secrecy in some cases (such as those involving threats to privacy or government effectiveness) numerous exceptions were written into the law. In short, it was a measured effort to legislate some sort of common sense into the way the American government balances the notions of openness and secrecy. As is usually the case when common sense is written into a law, the FOIA set the stage for a veritable flood of litigation owing largely to the always-surprising range of interpretations of what "common sense" actually means.

The first wave of litigation prompted by the common sense of the FOIA had to do with the basic definitions of words in the law. Because the law stated that any "agency" must disclose any "record" in its "possession," many lawyers found work in their quest to determine what words such as "agency" and "record" and "possession" could possibly mean. Eventually, the courts decided upon definitions that were more or less related to the common sense understanding of these concepts. While refining the legal dictionary certainly created a good deal of work for lawyers, the bulk of the litigation prompted by the FOIA was related to the common sense exceptions to the disclosure requirement.

The government was permitted to refuse disclosure of certain records for exactly the sort of reasons one would imagine. Information about individuals is protected for basic reasons of privacy, especially regarding medical and other personal records. Business information is protected to ensure that the FOIA is not used as a tool of industrial espionage between competitors, and to encourage businesses to continue their cooperation with the government's information-gathering efforts. Finally, government information is protected in order to facilitate its effectiveness whenever necessary, such as with matters of national security or law enforcement. However, in each of these cases, lawyers have found seemingly endless reasons to challenge the supposedly common sense rationales for secrecy. In this way, definitions of things like "invasion of privacy" and "trade secrets" have been refined while the balance of openness and secrecy has been debated and modified regarding subjects such as the internal deliberations of government agencies and the accountability of elected officials.

In the end, the FOIA created more work for lawyers simply because it gave them the chance to litigate the nature of common sense as it relates to the governmental balance between openness and secrecy. The lawmakers who created the FOIA recognized that they could not possibly anticipate every reason that a given request for information might be reasonable or unreasonable, and thus did not provide a clearly-defined set of approved reasons. They fully realized that such a vague law would require an endless series of litigation to interpret it, providing generations of lawyers with work and the American people with a reasonable system that could adapt to the times and with individual circumstances. At the cost of expensive and endless litigation, the Freedom of Information Act has indeed made the American government more open and responsive to the public it has always been meant to serve.