by Joseph J. Thorndike -- firstname.lastname@example.org
Transparency turned 50 this month. On July 4, 1966, President Lyndon Johnson signed the Freedom of Information Act, opening a new chapter in American democratic government. FOIA was not a perfect law -- far from it. But it was still a watershed moment in American history, establishing the necessity of keeping public documents, well, public.
If that proposition seems obvious now, it wasn't then. Federal officials of the postwar era paid lip service to the value of open government, but in practice secrecy was often the norm. Gradually, the tide of public opinion forced sunshine into the dark recesses of government activity. But over the decades, government officials have continued their fight to keep the shades drawn.
This year, Congress celebrated the FOIA anniversary by passing legislation that bolsters disclosure requirements. One aspect of the FOIA Improvement Act of 2016 limits the deliberative process exemption, a provision that often leaves official records secret for decades. The new law limits that exemption to 25 years, ensuring that the truth will come out -- eventually.
As my colleague Amy S. Elliott has pointed out, this change to FOIA Exemption 5 is important -- although perhaps not for the IRS, which is already required to disclose many types of documents. Still, Elliott notes, the change to Exemption 5 could "open the door to disclosure of records concerning tax policy calls made in the years following the Tax Reform Act of 1986" -- a thought that warms the hearts of policy wonks everywhere.
This year's victory in the fight for official transparency is worth celebrating. But the history of FOIA, including its operation in the tax community, offers a sobering lesson. This is not the sort of battle that gets won and stays won. Rather, it's a continual and often ambiguous fight, pitting the need for transparency against the sometimes legitimate -- but often spurious -- case for official secrecy.
When Johnson signed the original FOIA legislation while vacationing on his ranch in Texas, he apparently wasn't happy about it. "Documents from the LBJ library show that the normally gregarious president, who loved handing out pens at bill signings, refused even to hold a formal ceremony for the FOIA," noted the National Security Archive, a watchdog group that maintains a comprehensive set of historical materials on FOIA.1 "The event does not even appear in LBJ's Daily Diary, which is the first indication that something was amiss."
Indeed, Johnson was no fan of official openness. He "personally removed strong openness language from the press statement," according to the National Security Archive, and agreed to approve the bill only in conjunction with a signing statement that undercut some of its most important elements.
FOIA was the legislative offspring of Rep. John Moss, a California Democrat who had been beating the drum for transparency since the mid-1950s. His crusade won him few friends, at least in the executive branch, where presidents harbored a penchant for secrecy. As the Electronic Frontier Foundation has observed, "History shows that empowering the citizenry as a check on the government has worried many members of the executive branch, including presidents of both parties, and reminds us that citizens must be constantly vigilant to protect hard-earned transparency rights."2
After Democrats seized the White House in 1960, Republican lawmakers took a new interest in transparency. Among the most eager was a young GOP House member from Illinois, Donald Rumsfeld, who agreed to cosponsor Moss's legislation. But Johnson and his staff remained obdurate, resisting disclosure legislation even as it gathered steam on Capitol Hill.
Johnson was none too pleased with Moss, who was a party leader in the House. "What is Moss trying to do, screw me?" he complained (according to comments that Moss himself related after sanitizing some of LBJ's saltier language). "I thought he was one of our boys, but the Justice Department tells me his goddamn bill will screw the Johnson Administration."3
But Moss was unrelenting. "Our system of government is based on the participation of the government," he declared on the House floor, "and as our population grows in numbers it is essential that it also grow in knowledge and understanding. We must remove every barrier to information about -- and understanding of -- government activities consistent with our security if the American public is to be adequately equipped to fulfill the ever more demanding role of responsible citizenship."
Rumsfeld echoed Moss on the need for transparency -- and the official inclination to resist it. "Certainly it has been the nature of government to play down mistakes and to promote successes," he told his colleagues. "This has been the case in the past administrations. Very likely this will be true in the future."
Even if passed, Rumsfeld acknowledged, FOIA would not eliminate the official preference for nondisclosure. But FOIA would help constrain it. "The bill will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of government or on how an individual government official is handling his job," Rumsfeld said.
Resistance from the executive branch began to weaken, especially in the face of public support and overwhelming pressure from the nation's journalists and editorial boards. After the Senate passed a version of the bill, the Johnson administration decided to get on board, albeit with some evident reluctance. Eventually, FOIA passed the House by a convincing vote of 307 to 0, and Johnson signed it shortly thereafter.
But the president was still unhappy with the legislation. He personally nixed the idea of a signing ceremony and threatened to pocket veto the legislation until the very end. As his press secretary, Bill Moyers, later recalled:
- I knew that LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House.4
In his signing statement, Johnson endorsed a few platitudes about the value of transparency in a democracy. But he took special care to delineate zones of secrecy. "The welfare of the nation or the rights of individuals may require that some documents not be made available," he declared. Military secrets were an obvious necessity, but so were other aspects of official activity. "Officials within government must be able to communicate with one another full and frankly without publicity," he insisted. "They cannot operate effectively if required to disclose information prematurely or to make public investigative files and internal instructions that guide them in arriving at their decisions."
Johnson's signature was not the end of the story. Less than a decade later, in the wake of the Watergate crisis, Congress moved to strengthen FOIA by establishing deadlines, time frames, and sanctions to encourage official openness. Since the law's initial passage, executive branch officials had continued to drag their feet in complying with the law. "Passage of the FOIA did not lead to a new era of open government," notes the National Security Archive. "In a series of oversight hearings from 1972-1974, Congress heard extensive testimony describing bureaucratic resistance to the FOIA."5
In response to the foot-dragging, lawmakers drafted a series of strengthening amendments to the original FOIA law. And President Ford was initially inclined to sign the new legislation. But at the urging of his chief of staff, Rumsfeld, and the head of the Justice Department's Office of Legal Counsel, Antonin Scalia, he eventually vetoed it. Congress promptly voted to override.
Rumsfeld's turnaround in 1974 was a fine example of Miles's Law: Where you stand depends on where you sit. As a legislator, Rumsfeld was eager to force disclosure on a reluctant executive branch (especially one controlled by the Democrats). But once ensconced in a White House office of his own, Rumsfeld changed his tune.
More changes came to FOIA in 1976 when Congress passed the Government in Sunshine Act (which Ford signed after expressing various reservations in his signing statement). And 1996 brought yet another enhancement to the original FOIA legislation, this time in the form of the Electronic Freedom of Information Act Amendments, which expanded and clarified FOIA mandates for a new era of electronic communication. "Our country was founded on democratic principles of openness and accountability, and for 30 years, FOIA has supported these principles," declared President Clinton in signing the bill. The new legislation "reforges an important link between the United States government and the American people," said Clinton.
Not every president has been a foe of transparency, as Clinton's statement suggests. But even supportive administrations are prone to drag their feet when it comes to actual legislation. This year's bill, for example, got a cool reception in some corners of the Obama administration. As Andrew McGill and Chris Haugh pointed out in The Atlantic, the Department of Justice, the SEC, and the Federal Trade Commission all voiced concerns about the legislation before its enactment.6
FOIA in the Tax World
FOIA has had a major impact in the tax world, illuminating the often-murky world of tax administration. As an organization, Tax Analysts has been at the forefront of the effort since the early 1970s. As Tax Analysts President and Publisher Chris Bergin observed in a 2007 speech, "Tax Analysts took as one of its missions the use of the FOIA to bring the IRS's working law out of the shadows and into the light of day."
The history of that mission is not entirely encouraging. Yes, there have been victories for openness, but there have been numerous setbacks, too. Over the decades, the IRS has consistently tried to construe its disclosure responsibilities in the narrowest possible terms. "Since the Freedom of Information Act went into effect in 1967," Bergin said in his speech, "I think that when there is a doubt about what to disclose, government agencies should respond to the FOIA by issuing more information, not less. That's not how the IRS views things."
In practice, the IRS reluctance to disclose -- really just a subgenre of the broader official preference for secrecy -- has required a near constant legal battle to keep the information flowing.
And to some degree, that's what FOIA is for: to make those suits possible. But the ongoing legal struggle to pry information from a reluctant IRS is a reminder that the fight for government transparency is not a one-shot war. It's a continuing struggle against the natural preference for the shadows that afflicts government everywhere.
1 National Security Archive, "FOIA@50" (July 1, 2016), available at http://nsarchive.gwu.edu/NSAEBB/NSAEBB554-FOIA@50.
2 Electronic Frontier Foundation, "History of FOIA." Available at https://www.eff.org/issues/transparency/history-of-foia.
3 George Kennedy, "How Americans Got Their Right to Know," The American Editor, Oct. 1996, available at http://www.johnemossfoundation.org/foi/kennedy.htm.
4 Bill Moyers, "In the Kingdom of the Half-Blind," National Security Archive (Dec. 9, 2005), available at http://nsarchive.gwu.edu/anniversary/moyers.htm.
5 National Security Archive, "Veto Battle 30 Years Ago Set Freedom of Information Norms" (Nov. 23, 2004), available at http://nsarchive.gwu.edu/NSAEBB/NSAEBB142.
6 Andrew McGill and Chris Haugh, "Can the Freedom of Information Act Be Fixed?" The Atlantic, June 30, 2016, available at http://www.theatlantic.com/politics/archive/2016/06/foia-gets-a-makeover/489137.
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