How the Freedom of Information Act (FOIA) Works | Stuff You Should Know Podcast (Transcript)
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Length: 54 mins
Welcome to you Stuff You Should Know, from howstuffworks.com
Josh Cark: Hey and welcome to the podcast. I‚Äôm Josh Clark, there‚Äôs Charles W. Chuck Bryant, we‚Äôve got guest producer Matt over here. That makes this Stuff You Should Know Sunshine Edition.
Charles W. Chuck Bryant: The storms are gone.
JC: Oh, plus they say sunshine is the greatest disinfectant.
CB: Oh, really?
JC: Yeah, you shine a light in the dark corners and it reveals truth.
CB: Got you.
JC: Plus, you know, people are less shady in the sunlight.
CB: So this is episode 2 of our recording sesh of freshly being without power, Irma going through Atlanta, dead cats.
CB: And I‚Äôm going on vacation.
JC: Oh, good.
CB: So if anyone wants to meet me at the Isle of Palm, South Carolina, build a time machine.
CB: [Laughs] Go back a few weeks and you‚Äôll find me drinking gin and tonics on the beach.
CB: Sans child.
JC: Oh, really? Wow, you‚Äôre vacationing vacationing?
CB: [Laughs] Yeah.
CB: Not frustratingly running around trying to get sand out of sunscreen.
JC: Right, yeah.
CB: Off a small child.
JC: That‚Äôs a losing proposition.
CB: Yeah man, can‚Äôt wait.
JC: Good. Well, enjoy yourself.
CB: We were originally going to Folly Beach, but it was damaged.
CB: The house was, but this one was not.
CB: So they moved us.
JC: I‚Äôve never been to Isle of Palm. Is it shaped like a palm like in Dubai?
CB: No. It‚Äôs just one of Charleston‚Äôs, I don‚Äôt know what the call them, Low Country border islands?
JC: That‚Äôs what they call them now.
CB: Right next to Sullivan‚Äôs Island and James Island and Folly Beach are all kind of right there.
JC: Got you.
CB: Great area.
JC: Yeah, Charleston‚Äôs amazing.
CB: Yeah, we‚Äôre gonna go in for dinner and stuff.
CB: And try to throw a little money in their economy, but I think they had some really bad flooding. So, I hope everyone‚Äôs all right there.
JC: Yeah, I think like three or six feet storm surge or something like that.
CB: They were on the outskirts.
CB: Of Irma.
JC: Yeah, it‚Äôs true.
CB: They were not even in the path in the end.
JC: Not good stuff.
CB: No, not good.
JC: Well, I‚Äôm glad Charleston made it, and I‚Äôm glad you‚Äôre going to Charleston.
CB: Man, I can‚Äôt wait. I‚Äôm gonna eat so much seafood.
JC: Yeah. All right, so Chuck, as I was saying, sunshine is the greatest disinfectant.
CB: Yeah, let‚Äôs hope.
JC: There‚Äôs actually something called Sunshine Week. Have you heard about that?
JC: It‚Äôs a week that celebrates openness in government. It‚Äôs as simple as that. It‚Äôs the Reporter‚Äôs Committee for Freedom of the Press.
JC: It‚Äôs their thing and they‚Äôre trying to shine a light on the idea of shining a light on government, right?
CB: And that existed until this year?
JC: [Laughs] It‚Äôs still around.
CB: [Laughs] Okay.
JC: No, actually it‚Äôs funny, like, the last guy gets a lot of credit and praise for being open, but in retrospect, supposedly, it was very much a lot of smoke and mirrors.
CB: Oh, yeah?
JC: Yeah, it was not a very open administration either.
CB: Well, you know what they say, politics is politics.
JC: [Chuckles] Who says that?
CB: I don‚Äôt know.
JC: Is that an Isle of Palm saying?
CB: [Laughs] Yeah.
JC: Yeah. ‚ÄúPolitics is politics, have another crawfish.‚Äù
CB: Yeah, pass the Frogmore stew.
JC: Is there a frog in that?
CB: No, that‚Äôs just like a Low Country boil.
JC: I got you.
CB: Frogmore stew.
JC: Yeah, yeah, I love Low Country boil.
CB: I‚Äôm gonna make that.
JC: I think you should.
CB: My own self.
JC: I think you should bring some back here for me. Yeah?
CB: I don‚Äôt know if it‚Ä¶ I guess it would keep.
JC: [Laughs] It depends.
CB: So I don‚Äôt want to be like, ‚ÄúHere‚Äôs a week old Frogmore stew, Josh.‚Äù
JC: Yeah, I‚Äôd probably still eat it.
CB: I know you would.
JC: So the idea of government giving up its secrets, right? It‚Äôs actually fairly new.
JC: Here in the States.
CB: For sure.
JC: There‚Äôs a time, not too long ago, where, if you wanted classified information or any information from the federal government, you had really no way to ask for it and even if you could figure out who to ask for it from.
CB: They would say, ‚ÄúNo.‚Äù
JC: They would say, ‚ÄúNo,‚Äù and then, you‚Äôd say, ‚ÄúWell, what next?‚Äù ‚ÄúNothing next, man. Go back to sleep, Citizen.‚Äù
JC: That was your role, to just shut up and stop asking questions.
CB: [Laughs] Yeah.
JC: And thankfully for those of us who believe that government should be way more transparent than it is, there was a guy named, Representative John Moss, from California. He was a congressman back in the 60s, and he became concerned that the federal government, the executive branch, was getting a little too opaque.
JC: And specifically, there was a report that he asked for that concerned the firing of some civil servants, ostensibly because their loyalty to the administration had been questioned.
JC: And so they got fired and he wanted to look into it and the federal agency he requested the documents from said, ‚ÄúNo.‚Äù
CB: And he was a congressman?
JC: Yes, he was. So he said, ‚ÄúI‚Äôll be back.‚Äù
CB: Yeah, Arnold style.
CB: And then this was, what, 13 or so years after the American Society of Newspaper Editors published a study about secrecy in the government and basically said what you said, which is, citizens have no access to records, no recourse.
CB: If they‚Äôre denied records.
CB: That was in 1953. Kind of surprising to me it was that early.
CB: That they were kind of, ‚ÄúRing the bell for this.‚Äù
JC: Sure, but I think the Cold War almost immediately‚Ä¶ The development of the bomb and the Cold War really drove this desire to keep everything secret.
JC: And the federal government, the executive branch, keeps everything secret by classifying everything.
JC: There is this kind of mentality that is, ‚ÄúClassify everything. When in doubt, classify it.‚Äù
JC: Because not only does it obscure what you‚Äôre doing from, say, your enemy, it also obscures what you‚Äôre doing from your citizenry so you can‚Äôt be questioned, you can‚Äôt be criticized, you can‚Äôt be exposed as incompetent.
JC: If no one knows what you‚Äôre doing, they can‚Äôt see if you‚Äôre doing it poorly.
JC: And that they could actually do it better or know somebody who could do it better or could elect somebody who could do it better. The way that you do that is just classify everything; keep it a secret.
CB: Yeah. I‚Äôve always had the feeling that, if the federal government in the United States had its druthers, they would operate in complete isolated secrecy.
JC: Yeah, well, they‚Äôre trying to.
CB: Like 100%. Like you wouldn‚Äôt even have press conferences.
CB: they would just shut it down and say, ‚ÄúDon‚Äôt you guys worry about anything.‚Äù
JC: ‚ÄúWe have it covered.‚Äù
JC: ‚ÄúYou just go about your day. Go about your business.‚Äù
CB: [Laughs] So Moss went to fellow Democrat President Lyndon Johnson and said, ‚ÄúYou know, I think we, should change the way we‚Äôre doing things here,‚Äù and Johnson said, ‚ÄúI don‚Äôt know about that.‚Äù
JC: [Chuckles] That‚Äôs a pretty good Johnson.
CB: Johnson, we should‚Ä¶ He‚Äôs a very interesting, I think, conflicted dude.
CB: We should do a show on him at some point.
JC: I‚Äôd be happy to.
CB: Very ambitious domestic policies like he wanted to be FDR, like the second coming.
CB: Didn‚Äôt know a lot about foreign policy.
JC: Oh, that‚Äôs not good.
CB: No. He‚Äôs a very interesting dude. Anyway‚Ä¶
JC: He was a domestic guy, huh? I never realized that he didn‚Äôt know about foreign policy.
CB: It was not his specialty.
JC: I got you.
CB: I think he wanted to do great things for this country in his heart.
CB: But I don‚Äôt know, it‚Äôs interesting. I think ever since I saw the Cranston play, in New York.
JC: What is it called?
CB: All The Way I think. And they made it into‚Ä¶ I didn‚Äôt see the movie version, but I saw the play.
JC: All The Way, that‚Äôs what it‚Äôs called?
CB: I think so.
JC: I think that‚Äôs like a‚Ä¶
JC: Tawdry John Ritter film or something like that.
CB: [Laughs] No, that‚Äôs Let‚Äôs Go All The Way.
JC: Oh, okay.
CB: [Laughs] Oh man. I miss John Ritter.
CB: He was the best. So anyway, Johnson said, ‚ÄúI don‚Äôt know about that.‚Äù All the, the federal departments and agencies said, ‚ÄúI definitely don‚Äôt know about that; bad idea,‚Äù but the bell had been rung and, in 1966, the House, and this is something that is kind of fun to look back on, when these days, how things are, how they are, how divisive they are.
CB: Back then, the House voted 307 to 0 to pass the Moss Freedom of Information Act, the FOIA, and Johnson signed it and didn‚Äôt have a big press conference when he signed it, like they do lot of big laws and bills.
JC: He signed it in secrecy.
CB: Yeah, he did. Like, ‚ÄúWe‚Äôll sign it, but maybe if people won‚Äôt know about it.‚Äù
CB: ‚ÄúThey won‚Äôt go off to‚Ä¶‚Äù
JC: ‚ÄúWe don‚Äôt have to go around shooting our mouths off about it.‚Äù
CB: But he did say, ‚ÄúNo one should be able to pull the curtains of secrecy around decisions which can be revealed without injury to the public interest. I sign this measure with a deep sense of pride that the United States is an open society. But no one heard that, right?‚Äù [Laughs] Like, ‚ÄúThe doors are shut, correct?‚Äù So yeah, he signed it in secrecy, which is a little weird and also opened the door for‚Ä¶ that second part of the first sentence is ‚Äúdecisions which can be revealed without injury to the public interest.‚Äù There‚Äôs a big caveat attached to that.
JC: Right, exactly. ‚ÄúDon‚Äôt forget, we have ways around this.‚Äù
JC: And you said that it was heartening to hear that Congress unanimously passed the FOIA act, right?
CB: Yeah, a little bit, right?
JC: It is. This is not the only time Congress has come together unanimously in defense of FOIA. In 2014, which we‚Äôll talk about later, they did.
JC: With John Boehner at the helm of the House and Obama in the White House and Congress divided as much as it‚Äôs ever been, the House came together unanimously for this FOIA act or amendment act. There was also a time, when Gerald Ford was president, where Congress overrode the veto of his.
JC: As far as FOIA. So FOIA is this one thing, because, for those of you who don‚Äôt know, it only pertains to documents in the control of the executive branch of the federal government. Just the executive branch, just the White House. So any secrets the president‚Äôs administration is keeping, that‚Äôs what it‚Äôs pertaining to, okay? So Congress very frequently comes together and is like, ‚ÄúNo, we want you to share this information with everybody including us.‚Äù
JC: And they look like the good guys too for coming to the aid for open and honest and transparent government. Just to clarify, Chuck, it‚Äôs not just the White House.
JC: There‚Äôs tons of agencies, federal agencies, that fall under the executive branch.
JC: Including the FBI or the CDC.
JC: basically any agency, any federal agency, is probably under the purview of the executive branch, so therefore, FOIA would apply to it as well.
CB: Correct. Very nice to point that out because you confused even me off mic.
JC: Sorry about that. [Laughs]
CB: I think this bears reading, this quote. There‚Äôs a journalist named John Wiener, or Weiner, who he tried for 14 years to get John Lennon‚Äôs FBI files through FOIA requests, and he, very succinctly, wrote this and it kind of sums it up to me, ‚ÄúThe basic issue was that government officials everywhere like secrecy. By keeping the public from learning what they have done, they hope to avoid criticism, hinder the opposition, and maintain power over citizens and their elected representatives. Classified files and official secrets lie at the heart of the modern government bureaucracy.‚Äù I have such a hard time with that word.
JC: That‚Äôs a tough one. It‚Äôs almost impossible to spell too.
CB: Oh, I don‚Äôt even try. ‚ÄúAnd permit the undemocratic use of power to go unrecognized and unchallenged by citizens.‚Äù
CB: And he was just trying to get John Lennon‚Äôs files.
JC: All right.
CB: That‚Äôs how riled up he got.
CB: You know?
JC: You don‚Äôt want to rile up a journalist, but that‚Äôs who this pertains to for the most part. I should say not entirely, but, yeah, for the most part, it‚Äôs accurate, journalists. Journalists are the ones who are supposed to be reporting on the goings on of the government especially when it comes to exposing wrongdoing, corruption, waste.
JC: All this stuff. That‚Äôs one of the main roles of the media, right?
CB: Yeah, journalists are more and more now activists.
CB: Thankfully; citizen activists.
JC: Right, and one of the reasons why citizen activists have gotten in on this is because the journalists aren‚Äôt doing it enough.
JC: But early on, the journalists were largely in support of FOIA, Congress was like, ‚ÄúSure, why not? It‚Äôll probably make the president who we don‚Äôt like look bad.‚Äù And now we have, as of the 1966 Act, the Freedom of Information Act, right?
CB: Yeah, which officially‚Ä¶ I mean people know what this is. This is the ability of a citizen of the world, very important there, you don‚Äôt have to just be an American citizen.
CB: To request records of an executive branch, like you said, government agency.
CB: And along with that act, originally, in 1966, said ‚ÄúThese are available to the public with 9 exemptions,‚Äù which we‚Äôll go over later, ‚Äúthat will protect the agency under certain circumstances. And if you are denied, there is also now a process in place to appeal that denial.‚Äù
CB: Very important.
JC: And so when LBJ signed it in the law, it was basically like, ‚ÄúYeah, I guess just go along with it, but if you don‚Äôt feel like it, you don‚Äôt have to.‚Äù
CB: That‚Äôs kind of how it went for a while.
JC: Yeah, until Watergate.
JC: The Watergate scandal really changed people‚Äôs relationship with government big time.
CB: That changed government‚Äôs relationship to government.
JC: Yeah, and one of the things that happened was there was an update to FOIA and a strengthening of FOIA so that there were greater sanctions if you didn‚Äôt follow through on supplying the requested information.
JC: It was harder to just say no, to deny it.
CB: Yeah, they had a specific time frame finally.
CB: Like you couldn‚Äôt just say, ‚ÄúYeah, we‚Äôll get to it.‚Äù
JC: Right. So Congress puts these FOIA amendments or updates on Gerald Ford‚Äôs desk to sign and he‚Äôs like, ‚ÄúNo.‚Äù
CB: He looked around the room and said, ‚ÄúWhat should I do?‚Äù
JC: Right, and the two people that piped up for Donald Rumsfeld, his Chief of Staff, and Antonin Scalia, who was the Chief Legal Counsel for the Justice Department, and they both said, ‚ÄúDon‚Äôt sign it.‚Äù
CB: Yeah, and apparently, at least this article says that Rumsfeld early on was a supporter of FOIA.
JC: Right, I think in the very easily manipulated version.
JC: Yeah. But when it came time to‚Ä¶
CB: Give it teeth?
JC: He said, ‚ÄúNo, don‚Äôt.‚Äù Ford argued that it was unconstitutional and Congress said, ‚ÄúYou‚Äôre wrong and we‚Äôre overriding your veto.‚Äù
JC: That does not happen very‚Ä¶
JC: You say ‚Äútat-too.‚Äù
JC: That doesn‚Äôt happen very often that a veto is overridden. Have we ever done one on vetoes?
CB: No; we totally should.
JC: Because I have no idea how often it happens, but I guarantee you it‚Äôs not often.
CB: All right. So let‚Äôs take a break. We‚Äôre just getting heated up here on this one, and as you‚Äôll see in the coming segments, FOIA changes, gets more teeth and less teeth, over the years depending on who‚Äôs in office, and we‚Äôll be right back with Ronald Reagan.
CB: All right, Ronnie. He‚Äôs here.
JC: No, it‚Äôs Gipper, remember?
CB: [Laughs] That‚Äôs right.
JC: Ronnie‚Äôs the weirdo.
CB: So like I promised, over the years, FOIA has had more teeth and less teeth depending on who is running the show.
CB: Probably not so surprisingly, when Ronald Reagan got into office in 1982‚Ä¶ Or in 1982, he created‚Ä¶ He made it much tougher to get information; made it easier for agencies to withhold stuff.
CB: Bill Clinton comes along, relaxes things.
CB: It kind of goes like that in our country.
JC: Well, Reagan also, one of his things was he definitely helped spearhead that classify everything mentality.
CB: Oh, in the 80s, yeah.
JC: Under his administration.
CB: Yeah, he said, ‚ÄúManufacture as many classified rubber stamps as you can.‚Äù
CB: ‚ÄúEvery office needs about a hundred of them.‚Äù
JC: And I think, especially during the Cold War, the Soviets served as a real boogeyman for keeping citizens.
CB: Oh, yeah.
JC: In the dark.
CB: For sure.
JC: ‚ÄúWe don‚Äôt want the Ruskies to find out, so no.‚Äù
JC: ‚ÄúWe don‚Äôt trust you with this because you might hand it over to the Ruskies.‚Äù
JC: That was what they said. And they said ‚ÄúRuskies‚Äù too.
CB: They did. So like I said, Clinton comes along and there were a few big events in his administration.
JC: But hold on, think about it. When Clinton comes along, no more USSR.
CB: Well, true.
CB: No more bogeyman.
CB: ‚ÄúThey were good times, man.‚Äù [Laughs]
JC: ‚ÄúLet‚Äôs party.‚Äù Did you like my Clinton?
CB: Yeah, it was good.
JC: It was not.
CB: I think, together, we do the perfect Bill Clinton.
CB: [Laughs] He, during administration, had a big impact on FOIA. We‚Äôre calling it FOIA, right?
JC: Yeah, Freedom of Information Act. It‚Äôs a perfect acronym because it takes all words into account, FOIA.
CB: Yeah, and it‚Äôs not fake.
CB: No one just cooked up some weird word to throw in there to make it a word.
JC: Right, It is FOIA.
CB: [Laughs] So the release and archiving of previously classified Cold War documents was a big one. And then in 1996, a really big sea change is when Clinton said, ‚ÄúGet with it and digitize all this stuff.‚Äù
JC: Right. [Laughs]
CB: Like, ‚ÄúThis is the future. We don‚Äôt need everything on paper documents. Make it easier to file and store the stuff, A, and make it easier to distribute this stuff.‚Äù
CB: ‚ÄúUnder FOIA.‚Äù
CB: And also, they extended that timeline, I don‚Äôt think we initially said it, it was 10 days.
JC: Yeah, you had 10 days to respond to a FOIA request as a FOIA‚Ä¶
CB: Oh yeah, officer.
CB: And then that was extended to 20 days, although it says in here that that wasn‚Äôt so much of a big deal. Just give them a little more time, basically.
CB: No, because an agency that‚Äôs not frequently contacted for FOIA information and is not running a backlog is probably gonna do it in about 10 days anyway, right?
JC: An agency that is running a backlog is still not gonna get in touch with you within 10 days or 20 days.
JC: So it really had no effect.
JC: But it is on the books still to this day, they have 20 days to respond to you before you can appeal their lack of response.
CB: So George W. Bush comes along, of course, and tightens restrictions again after September 11. That was the perfect time to tighten the belt on FOIA again because the bogeyman is back
JC: USA Patriot Act.
CB: So after September 11, he ordered, or the administration ordered thousands of documents and data removed from websites, agency websites‚Ää‚Äî‚Ääthings like airport safety data, things like pipeline maps, environmental data.
JC: I got to tell you, I don‚Äôt disagree with all of that.
CB: This is a double-edged sword? This topic itself, to unpack this fully.
CB: Like it‚Äôs hard to make an argument for full transparency or full secrecy.
JC: Sure, yeah. I don‚Äôt think I would argue for full transparency. I think, just by definition, we would have to get so far away from being the world‚Äôs police.
CB: Yeah, you just can‚Äôt do it.
JC: And having military everywhere and being interventionist and adventurists and all. Just basically completely change the complexion of the modern United States.
JC: To be able to be fully transparent.
CB: Yeah, you can‚Äôt.
JC: And even then, it might be kind of foolish.
CB: Like Norway can be fully transparent.
JC: But even still, can they?
CB: [Laughs] Probably.
JC: Maybe somebody would be like, ‚ÄúI want to practice being a terrorist, so I‚Äôm gonna start on Norway.‚Äù
JC: ‚ÄúBecause they publish all their pipeline information.‚Äù
JC: ‚ÄúSo maybe I‚Äôll just go see what happens when I blow that up.‚Äù
CB: Or the great wooden shoe scandal of the‚Ä¶
JC: Was that Norway or the Netherlands?
JC: I don‚Äôt think they wear wooden shoes in Norway.
CB: Oh, I just‚Ä¶ I just think they all wear wooden shoes all over the place over there.
JC: But they don‚Äôt.
JC: We have listeners there, man, they‚Äôre gonna hear you.
CB: I know, but they know we‚Äôre kidding, right?
JC: I don‚Äôt know. The Australians thought we were serious about drinking Foster‚Äôs down there.
JC: Yeah, didn‚Äôt you see how many emails we got that were gently correcting us that no one actually really drinks Foster‚Äôs in Australia.
CB: [Laughs] That‚Äôs funny.
CB: Bush also, what he made a move to do was limit access to records of former presidents, which was sort of a big move. And then, in the Intelligence Authorization Act of 2002, wanted to limit requests by foreign governments or international organizations.
JC: Right. So again, okay, I don‚Äôt really disagree with all of it. One of the other things that Bush did too was he expanded who could get cheap or free access to FOIA.
JC: Journalists, I think as part of the Watergate expansion or maybe the Clinton expansion, journalists were offered expedited and cheap, if not free, FOIA requests.
CB: Yeah, we should point out, you have to pay for this stuff.
CB: It ain‚Äôt free.
CB: The journalists get a break.
JC: They say that. And apparently, there‚Äôs not a standard fee. It‚Äôs just that, as part of the law, an agency can recover costs directly associated with the search, right? So it could be $11 an hour, it could be $200 an hour depending.
JC: Journalists get faster, expedited service, on paper at least, and then they get their fees waived or else pay a reduced fee. And then what Bush did, with the changes to FOIA under his watch, were to expand who qualifies as a jo