The Freedom of Information Act, adopted in 1966, is in many ways the lodestar of the open-government movement. Its premise is simple enough: that the work product of government is the property of its citizens. The history of the act’s implementation, however, shows how law in practice can be quite different from law as written. Anyone who has used the FOIA law knows that the mandated twenty-day window for an official response is a cruel joke. The National Security Archive periodically conducts audits—via FOIA—asking agencies for their oldest outstanding FOIA requests. In 2007, it found a handful of requests across five agencies that were more than fifteen years old. One had been outstanding for twenty years, or roughly half the life of the law itself. These superannuated requests are the exception, but that doesn’t mean the norm is compliance.
These problems predate the Bush administration, but there’s little doubt that they’ve grown over the last eight years. A 2007 study of the FOIA records of twenty-five agencies by the Coalition of Journalists for Open Government discovered a number of disheartening truths. The data suggested that many agencies took longer to respond to requests in 2006 than they had in 2000, and that at least half of the requests at fourteen agencies received a response after the twenty-day window the law requires. In 2006, only 60 percent of FOIA requests processed netted a full or partial response; only 36 percent netted a full response. Both were the lowest numbers since 1998, when the relevant data first were collected. Given that trend, it’s not surprising that the overall number of FOIA requests at these agencies also fell by 25 percent since 1998. “A lot of young reporters, especially, know that there’s something called the Freedom of Information Act, but that’s pretty much the extent of their knowledge,” says James McLaughlin, an associate counsel at The Washington Post. “Often, reporters file FOIA requests and if they get anything, then the feeling is ‘Wow, I got something; that’s really cool.’ And if they get it seven months later, they’re still happy. The expectation is not that this is your statutory right. The expectation is that it’s a bonus.”
Despite this woeful picture, FOIA remains one of investigative journalism’s most-favored tools, especially when it can be paired with lawsuits to shake loose information. Journalism’s emotional attachment to FOIA might have something to do with the industry’s intimate history with the passage of the act. In the 1950s and early 1960s, a coalition of journalists that included Washington Post executive editor J. Russell Wiggins and Clark Mollenhoff, a Pulitzer Prize-winning investigative reporter for The Des Moines Register, worked closely with the act’s congressional sponsor, rallying public support, writing editorials, and even lobbying public officials to ensure first its passage, and then that Lyndon Johnson signed it.
Journalistic norms of objectivity usually forbid advocacy. But freedom of information is an issue for which exceptions have been made. So when some forty years after its passage FOIA seemed threatened, journalists again devised ways to systematically address the relevant issues of openness and transparency in the federal government. Sunshine Week, launched in 2005 by the American Society of Newspaper Editors, was the first major effort by the journalism community to counter the encroachments on openness in the early days of the Bush administration. The goal was, and remains, to spur a national conversation about access issues via a week of news coverage; in 2008, Sunshine Week had about a thousand participants, including radio, television, and Internet outlets.
But there still was no coordinated effort by the various strands of the journalism industry to address openness issues. Protest petitions circulated frequently, and some press associations mixed transparency advocacy with more parochial concerns like postage rates. “It wasn’t sufficient,” says Rick Blum, a former director of OpenTheGovernment.org, a coalition of groups interested in governmental transparency. “There was a moment when the press-freedom groups and the freedom-of-information groups said, ‘We’re going to get clobbered if we don’t start cooperating.’ ”
In June 2003, media and advocacy groups met in Washington. Pete Weitzel, who as managing editor of The Miami Herald had organized Florida newspapers to lobby the state legislature on access issues and defend access rights won in court, proposed an analogous national organization. With that goal in mind, and a grant from the Knight Foundation, the Coalition of Journalists for Open Government was founded. Made up of about thirty press associations, large and small, the coalition sponsored sign-on letters protesting encroachments against openness and commissioned several detailed research projects to examine the damage done to transparency under Bush.