This is Part 3 of a 5-part series on the government’s silence of silence and the Freedom of Information Act (FOIA). Parts 1 and 2 should be read first and can be found here:
In brief, these articles describe the circumstances surrounding the rupturing of a coal fly ash containment pond in Roane County, Tennessee. Government sponsored research that reported the health and environmental risks of such ponds was buried, redacted or otherwise hidden from public view.
Problems such as these were meant to be addressed by the Freedom of Information Act (FOIA). Enacted in 1966, FOIA grants the public the legal right (also referred to as sunshine laws) to request information from the federal government. It “provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure.”
The spirit of FOIA embodies the essence of our American democracy. We hold that a representative government by the people can, through its collective capacity, understand and prescribe solutions to threats against us. We hold that a representative government for the people will utilize such knowledge for the security of its citizenry. We hold that a representative government of the people will be served by the sacred trust we bestow upon our elected leaders.
Instead, we find that our government often defaults to the interests of a select few, frequently under the guise of security. The precedent was codified in the 2001 Ashcroft Memo in which the then-Attorney General reassured agencies that their deliberations would remain confidential so long as they were “safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.”
Attorney General Ashcroft concluded to the agencies, “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.”
Of course, there are many sensitive issues for which government secrecy is in the national interest. But the Ashcroft Memo established a sweeping protection for agencies to deny data from the general public as long as they could make some argument about how disclosure would jeopardize law enforcement effectiveness, security, business or privacy. Given that nearly every issue of import touches at least one of these four categories, FOIA requirements could essentially be ignored at the government’s discretion.
The Bush administration took full advantage of this latitude. When a 2004 EPA study recommended that hydrofracking fluids, which are injected into the ground during the shale gas extraction process, be regulated under the 1974 Safe Drinking Water Act, then-Vice President Cheney intervened. Using the business provision of the Ashcroft memo, Cheney had the study redacted by claiming it revealed “trade secrets.”
This secrecy has consequences. When leaks and spills contaminate local streams and water supplies, scientists are limited in assessing the impacts. Without knowledge of leaks’ chemical compositions regulation is difficult to justify and contamination is hard, if not impossible, to detect. All of this serves to reduce the gas industry’s accountability for harms it might cause. This attendant ambiguity made it easier to pass a provision in the 2005 Energy Policy Act that explicitly exempted fracking fluids from the Safe Water Drinking Act.
It is easy to imagine other circumstances in which the “trade secrets” clause could prove dangerous. If a train, truck or barge carrying hazardous, but classified, materials were to crash, the secrecy exemption could put first responders in grave risk.
Sometimes, the government decides that even admitting records exist will damage national security or lead to stigmatization. This justifies the so-called “Glomar response” which allows agencies “to neither confirm nor deny” (read: ignore) FOIA requests. The Department of Justice, the agency responsible for FOIA enforcement, has broadly supported this right on numerous occasions.
While about 70 countries have their own forms of FOIA, many are plagued by similar issues. Ireland allows easier access to documents, but many remain unsigned which reduces accountability. Israel does have an appeals process, but such a request can take years and there are no real penalties for non-compliance. Even in the European Union, which tends to be more open, the scope of the right remains unclear partly because of the governments’ unwillingness or outright failure to clarify the issue.
In part 4 of this series, we will examine how the widespread hope offered by President Obama’s Open Government Initiative has largely gone unmet.