America’s State Secrets and the Freedom of Information Act

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As the media and President Trump continue to trade accusations that one anothers’ claims are “fake news,” access to authoritative information about the Federal government remains crucial to the public interest. A powerful sovereign state like the United States has legitimate reasons to keep secrets. But since September 11, 2001, the government has radically expanded the size and complexity of its military-espionage industry. A 2010 Washington Post series dubbed it  “Top Secret America.”

Currently, 5.1 million government employees and contractors hold security clearances. The unmanageable size of this crowd and the present vulnerability of computer data have led to an increase in both hacks and intentional leaks. More serious still, the growth of Top Secret America hinders one legitimate method of bringing secret information to light—Freedom of Information Act requests.

Many agencies effectively deny FOIA requests by nitpicking the details of the request or by charging large fees for copying.

The Freedom of Information Act of 1966 (commonly referred to as FOIA) was the result of a long-term struggle by Congress and private business for information from the ever-expanding executive branch. It contained instructions that required executive agencies to respond to requests for information. It made allowances for withholding details that could harm national security or individuals’ privacy. The act revolutionized history writing and journalism, although the majority of FOIA requests are made by business and other government agencies. Yet making a FOIA request is often a battle for the American public.

For example, investigative journalism organization MuckRock made news in January after pressuring the CIA with FOIA lawsuits for three years finally to release the declassified records of the CIA prior to 1988 on the internet. Previously, these 13 million documents had been accessible only at a closed database located at the National Archives in College Park, MD. Despite existing in electronic format, the CIA long claimed that it would be too burdensome and expensive to put them online.

This is typical of the bureaucratic resistance many agencies make to FOIA requests. Admittedly, with more than 700,000 requests per year, FOIA represents a serious burden for the government. The average response time for requests in many agencies is upwards of one year, in contravention of the law. Many agencies effectively deny FOIA requests by nitpicking the details of the request or by charging large fees for document copying. The FBI recently announced it will require people send FOIA requests by fax instead of email starting in March.

Marsha Woodbury examines the inherently political development of FOIA during another transitional era: the beginning of the Clinton administration. After 12 years of more reluctant enforcement of the law under Republican presidents, Clinton sought to follow through on populist promises to increase the transparency of the government. He passed Executive Order 12356, which greatly expanded the automatic declassification procedure for documents at least 25 years old. Yet in many particular cases, Clinton opposed the applicability of FOIA. Both with regards to personal scandals like the Whitewater affair and emerging technologies such as emails on private servers, the Clinton White House made tactical moves to deny FOIA requests.

These tendencies have become even more pronounced at present, considering the current administration’s populist tone and its demonization of most journalism. Woodbury claims FOIA underpins the “illustration of illusory ideology, where the political myth of participatory democracy confronts the pragmatism of people with a handhold on power.” However, the spread of unauthorized and unsubstantiated information through leaks and innuendo from all branches of government and both parties may evoke nostalgia for a time that “illusory ideology” had political currency.


JSTOR Citations

Clinton, Reno, and Freedom of Information: From Waldheim to Whitewater

By: Marsha Woodbury

Social Justice, Vol. 22, No. 2 (60), Justice Under Clinton (Summer 1995), pp. 49-66

Social Justice/Global Options

Eric Schewe

Eric Schewe holds a PhD in Modern Middle Eastern History from the University of Michigan and currently teaches history at Baruch College, CUNY. He has lived and worked as a journalist in Egypt beginning in 2004, and writes about the region on ericschewe.wordpress.com and @ericschewe.

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