How the Freedom of Information Act (FOIA) Works | Stuff You Should Know Podcast (Transcript)

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How FOIA Works | Stuff You Should Know Podcast (Transcript)

Length: 54 mins

Welcome to you Stuff You Should Know, from

Josh Cark: Hey and welcome to the podcast. I'm Josh Clark, there's Charles W. Chuck Bryant, we've 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: Right.

CB: And I'm going on vacation.

JC: Oh, good.

CB: Tomorrow.

JC: Good.

CB: So if anyone wants to meet me at the Isle of Palm, South Carolina, build a time machine.

JC: Right.

CB: [Laughs] Go back a few weeks and you'll find me drinking gin and tonics on the beach.

JC: Nice.

CB: Sans child.

JC: Oh, really? Wow, you're vacationing vacationing?

CB: [Laughs] Yeah.

JC: Wow.

CB: Not frustratingly running around trying to get sand out of sunscreen.

JC: Right, yeah.

CB: Off a small child.

JC: That's a losing proposition.

CB: Yeah man, can't wait.

JC: Good. Well, enjoy yourself.

CB: We were originally going to Folly Beach, but it was damaged.

JC: Sure.

CB: The house was, but this one was not.

JC: No?

CB: So they moved us.

JC: I've never been to Isle of Palm. Is it shaped like a palm like in Dubai?

CB: No. It's just one of Charleston's, I don't know what the call them, Low Country border islands?

JC: Sure.

CB: Maybe?

JC: That's what they call them now.

CB: Right next to Sullivan's Island and James Island and Folly Beach are all kind of right there.

JC: Got you.

CB: Great area.

JC: Yeah, Charleston's amazing.

CB: Yeah, we're gonna go in for dinner and stuff.

JC: Yeah.

CB: And try to throw a little money in their economy, but I think they had some really bad flooding. So, I hope everyone's all right there.

JC: Yeah, I think like three or six feet storm surge or something like that.

CB: They were on the outskirts.

JC: Yeah.

CB: Of Irma.

JC: Yeah, it's true.

CB: They were not even in the path in the end.

JC: Not good stuff.

CB: No, not good.

JC: Well, I'm glad Charleston made it, and I'm glad you're going to Charleston.

CB: Man, I can't wait. I'm gonna eat so much seafood.

JC: Yeah. All right, so Chuck, as I was saying, sunshine is the greatest disinfectant.

CB: Yeah, let's hope.

JC: There's actually something called Sunshine Week. Have you heard about that?

CB: No.

JC: It's a week that celebrates openness in government. It's as simple as that. It's the Reporter's Committee for Freedom of the Press.

CB: Nice.

JC: It's their thing and they're 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's still around.

CB: [Laughs] Okay.

JC: No, actually it's 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't know.

JC: Is that an Isle of Palm saying?

CB: [Laughs] Yeah.

JC: Yeah.  "Politics is politics, have another crawfish."

CB: Yeah, pass the Frogmore stew.

JC: Is there a frog in that?

CB: No, that's just like a Low Country boil.

JC: I got you.

CB: Frogmore stew.

JC: Yeah, yeah, I love Low Country boil.

CB: I'm 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't know if itÔøΩ I guess it would keep.

JC: [Laughs] It depends.

CB: So I don't want to be like,  "Here's a week old Frogmore stew, Josh."

JC: Yeah, I'd probably still eat it.

CB: I know you would.

JC: So the idea of government giving up its secrets, right? It's actually fairly new.

CB: Yeah.

JC: Here in the States.

CB: For sure.

JC: There's 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,  "No."

JC: They would say,  "No," and then, you'd say,  "Well, what next?"  "Nothing next, man. Go back to sleep, Citizen."

CB: Yeah.

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.

CB: Yeah.

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.

CB: Yeah.

JC: And so they got fired and he wanted to look into it and the federal agency he requested the documents from said,  "No."

CB: And he was a congressman?

JC: Yes, he was. So he said,  "I'll be back."

CB: Yeah, Arnold style.

JC: Right.

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.

JC: Right.

CB: If they're denied records.

JC: Yeah.

CB: That was in 1953. Kind of surprising to me it was that early.

JC: WellÔøΩ

CB: That they were kind of,  "Ring the bell for this."

JC: Sure, but I think the Cold War almost immediatelyÔøΩ The development of the bomb and the Cold War really drove this desire to keep everything secret.

CB: Yeah.

JC: And the federal government, the executive branch, keeps everything secret by classifying everything.

CB: Right.

JC: There is this kind of mentality that is,  "Classify everything. When in doubt, classify it."

CB: Yeah.

JC: Because not only does it obscure what you're doing from, say, your enemy, it also obscures what you're doing from your citizenry so you can't be questioned, you can't be criticized, you can't be exposed as incompetent.

CB: Right.

JC: If no one knows what you're doing, they can't see if you're doing it poorly.

CB: Yeah.

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've 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're trying to.

CB: Like 100%. Like you wouldn't even have press conferences.

JC: Right.

CB: they would just shut it down and say,  "Don't you guys worry about anything."

JC:  "We have it covered."

CB: Yeah.

JC:  "You just go about your day. Go about your business."

CB: [Laughs] So Moss went to fellow Democrat President Lyndon Johnson and said,  "You know, I think we, should change the way we're doing things here," and Johnson said,  "I don't know about that."

JC: [Chuckles] That's a pretty good Johnson.

CB: Johnson, we shouldÔøΩ He's a very interesting, I think, conflicted dude.

JC: Yeah.

CB: We should do a show on him at some point.

JC: I'd be happy to.

CB: Very ambitious domestic policies like he wanted to be FDR, like the second coming.

JC: Right.

CB: Didn't know a lot about foreign policy.

JC: Oh, that's not good.

CB: No. He's a very interesting dude. AnywayÔøΩ

JC: He was a domestic guy, huh? I never realized that he didn't 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.

JC: Right.

CB: But I don't know, it's 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 intoÔøΩ I didn't see the movie version, but I saw the play.

JC: All The Way, that's what it's called?

CB: I think so.

JC: I think that's like aÔøΩ

CB: No?

JC: Tawdry John Ritter film or something like that.

CB: [Laughs] No, that's Let's Go All The Way.

JC: Oh, okay.

CB: [Laughs] Oh man. I miss John Ritter.

JC: Sure.

CB: He was the best. So anyway, Johnson said,  "I don't know about that." All the, the federal departments and agencies said,  "I definitely don't know about that; bad idea," 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.

JC: Right.

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't 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,  "We'll sign it, but maybe if people won't know about it."

JC: Right.

CB:  "They won't go off toÔøΩ"

JC:  "We don't have to go around shooting our mouths off about it."

CB: But he did say,  "No 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?" [Laughs] Like,  "The doors are shut, correct?" So yeah, he signed it in secrecy, which is a little weird and also opened the door forÔøΩ that second part of the first sentence is  "decisions which can be revealed without injury to the public interest." There's a big caveat attached to that.

JC: Right.

CB: Openness.

JC: Right, exactly.  "Don't forget, we have ways around this."

CB: Yeah.

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'll talk about later, they did.

CB: Yeah.

JC: 2014.

CB: Yeah.

JC: With John Boehner at the helm of the House and Obama in the White House and Congress divided as much as it's 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.

CB: Yeah.

JC: As far as FOIA. So FOIA is this one thing, because, for those of you who don't 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's administration is keeping, that's what it's pertaining to, okay? So Congress very frequently comes together and is like,  "No, we want you to share this information with everybody including us."

CB: Yeah.

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's not just the White House.

CB: Right.

JC: There's tons of agencies, federal agencies, that fall under the executive branch.

CB: Yeah.

JC: Including the FBI or the CDC.

CB: Right.

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's a journalist named John Wiener, or Weiner, who he tried for 14 years to get John Lennon's FBI files through FOIA requests, and he, very succinctly, wrote this and it kind of sums it up to me,  "The 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." I have such a hard time with that word.

JC: That's a tough one. It's almost impossible to spell too.

CB: Oh, I don't even try.  "And permit the undemocratic use of power to go unrecognized and unchallenged by citizens."

JC: Right.

CB: And he was just trying to get John Lennon's files.

JC: All right.

CB: That's how riled up he got.

JC: [Laughs]

CB: You know?

JC: You don't want to rile up a journalist, but that's who this pertains to for the most part. I should say not entirely, but, yeah, for the most part, it's 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.

CB: Yeah.

JC: All this stuff. That's one of the main roles of the media, right?

CB: Yeah, journalists are more and more now activists.

JC: Right.

CB: Thankfully; citizen activists.

JC: Right, and one of the reasons why citizen activists have gotten in on this is because the journalists aren't doing it enough.

CB: Yeah.

JC: But early on, the journalists were largely in support of FOIA, Congress was like,  "Sure, why not? It'll probably make the president who we don't like look bad." And now we have, as of the 1966 Act, the Freedom of Information Act, right?

CB: Yeah, which officiallyÔøΩ I mean people know what this is. This is the ability of a citizen of the world, very important there, you don't have to just be an American citizen.

JC: Right.

CB: To request records of an executive branch, like you said, government agency.

JC: Right.

CB: And along with that act, originally, in 1966, said  "These are available to the public with 9 exemptions," which we'll go over later,  "that will protect the agency under certain circumstances. And if you are denied, there is also now a process in place to appeal that denial."

JC: Right.

CB: Very important.

JC: And so when LBJ signed it in the law, it was basically like,  "Yeah, I guess just go along with it, but if you don't feel like it, you don't have to."

CB: Right.

JC: Right?

CB: That's kind of how it went for a while.

JC: Yeah, until Watergate.

CB: Yeah.

JC: The Watergate scandal really changed people's relationship with government big time.

CB: That changed government's 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't follow through on supplying the requested information.

CB: Yeah.

JC: It was harder to just say no, to deny it.

CB: Yeah, they had a specific time frame finally.

JC: Right.

CB: Like you couldn't just say,  "Yeah, we'll get to it."

JC: Right. So Congress puts these FOIA amendments or updates on Gerald Ford's desk to sign and he's like,  "No."

CB: He looked around the room and said,  "What should I do?"

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,  "Don't sign it."

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.

CB: Right.

JC: Yeah. But when it came time toÔøΩ

CB: Give it teeth?

JC: Right

CB: Yeah.

JC: He said,  "No, don't." Ford argued that it was unconstitutional and Congress said,  "You're wrong and we're overriding your veto."

CB: Yeah.

JC: That does not happen veryÔøΩ

CB: Vee-too?

JC: Yeah.

CB: [Laughs]

JC: You say  "tat-too."

CB: [Laughs]

JC: That doesn't 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's not often.

CB: All right. So let's take a break. We're just getting heated up here on this one, and as you'll see in the coming segments, FOIA changes, gets more teeth and less teeth, over the years depending on who's in office, and we'll be right back with Ronald Reagan.

CB: All right, Ronnie. He's here.

JC: No, it's Gipper, remember?

CB: [Laughs] That's right.

JC: Ronnie's 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.

JC: Sure.

CB: Probably not so surprisingly, when Ronald Reagan got into office in 1982ÔøΩ Or in 1982, he createdÔøΩ He made it much tougher to get information; made it easier for agencies to withhold stuff.

JC: Yeah.

CB: Bill Clinton comes along, relaxes things.

JC: Right.

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,  "Manufacture as many classified rubber stamps as you can."

JC: Right.

CB:  "Every office needs about a hundred of them."

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:  "We don't want the Ruskies to find out, so no."

CB: Yeah.

JC:  "We don't trust you with this because you might hand it over to the Ruskies."

CB: Yeah.

JC: That was what they said. And they said  "Ruskies" 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.

JC: Yeah.

CB: No more bogeyman.

JC: Right.

CB:  "They were good times, man." [Laughs]

JC:  "Let's party." Did you like my Clinton?

CB: Yeah, it was good.

JC: It was not.

CB: I think, together, we do the perfect Bill Clinton.

JC: [Laughs]

CB: [Laughs] He, during administration, had a big impact on FOIA. We're calling it FOIA, right?

JC: Yeah, Freedom of Information Act. It's a perfect acronym because it takes all words into account, FOIA.

CB: Yeah, and it's not fake.

JC: No.

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,  "Get with it and digitize all this stuff."

JC: Right. [Laughs]

CB: Like,  "This is the future. We don't need everything on paper documents. Make it easier to file and store the stuff, A, and make it easier to distribute this stuff."

JC: Right.

CB:  "Under FOIA."

JC: Yeah.

CB: And also, they extended that timeline, I don't think we initially said it, it was 10 days.

JC: Yeah, you had 10 days to respond to a FOIA request as a FOIAÔøΩ

CB: Request.

JC: Officer.

CB: Oh yeah, officer.

JC: Right.

CB: And then that was extended to 20 days, although it says in here that that wasn't so much of a big deal. Just give them a little more time, basically.

CB: No, because an agency that's not frequently contacted for FOIA information and is not running a backlog is probably gonna do it in about 10 days anyway, right?

CB: Right.

JC: An agency that is running a backlog is still not gonna get in touch with you within 10 days or 20 days.

CB: Right.

JC: So it really had no effect.

CB: Yeah.

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 — things like airport safety data, things like pipeline maps, environmental data.

JC: I got to tell you, I don't disagree with all of that.

CB: This is a double-edged sword? This topic itself, to unpack this fully.

JC: Right.

CB: Like it's hard to make an argument for full transparency or full secrecy.

JC: Sure, yeah. I don't think I would argue for full transparency. I think, just by definition, we would have to get so far away from being the world's police.

CB: Yeah, you just can't 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.

CB: Yeah.

JC: To be able to be fully transparent.

CB: Yeah, you can't.

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,  "I want to practice being a terrorist, so I'm gonna start on Norway."

CB: Right.

JC:  "Because they publish all their pipeline information."

CB: Yeah.

JC:  "So maybe I'll just go see what happens when I blow that up."

CB: Or the great wooden shoe scandal of theÔøΩ

JC: Was that Norway or the Netherlands?

CB: [Laughs]

JC: I don't think they wear wooden shoes in Norway.

CB: Oh, I justÔøΩ I just think they all wear wooden shoes all over the place over there.

JC: But they don't.

CB: [Laughs]

JC: We have listeners there, man, they're gonna hear you.

CB: I know, but they know we're kidding, right?

JC: I don't know. The Australians thought we were serious about drinking Foster's down there.

CB: Really?

JC: Yeah, didn't you see how many emails we got that were gently correcting us that no one actually really drinks Foster's in Australia.

CB: [Laughs] That's funny.

JC: Yeah.

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't really disagree with all of

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