The federal Freedom of Information Act (FOIA) became effective 43 years ago today, July 4th. FOIA established the public’s right to access government records. California’s equivalent law is the California Public Records Act (Government Code sec. 6250 – 6276.48). These laws aren’t perfect. It’s been said that any law that requires the requestor to turn up at the agency holding the records to see them, which is California’s preferred method for requests, hardly embodies reasonable access. Nonetheless, they establish the presumption that a citizen has the right to know what the government has done. We only need ask, without explaining why. Under FOIA, the burden is on the government to prove why records shouldn’t be released. If a FOIA request is denied, judicial review is guaranteed. The courts don’t always come down on the side of the citizen, but the government faces a high hurdle to justify its denial. Thank you, FOIA.
FOIA doesn’t bring all government records into the cold, clear light of day. Unquestionably, some records must be protected. Attorney-client privilege. Secrets that might genuinely compromise national security. Judicial review is helpful here when there is a difference of opinion between citizen and governmental agency. Or the Executive. Of course, the presidential administration sets the tone for FOIA access. The last Administration successfully defended itself against ACLU FOIA requests for documents related to US-administered torture, and the courts cooperated. The Obama administration is somewhat more open, having released torture documents – but not all of them. More than 2,000 photographs in the ACLU’s FOIA request were first promised by the Obama team, then refused because they could endanger the country’s troops. Makes one wonder what those photos show, that they could be worse than we’ve seen. It’s tempting to not wonder, since our torturous acts are beyond tragic. But since we imperfect humans obviously are capable of tremendous depravity, without transparency the likelihood of our imperfection manifesting itself increases. That’s why the ACLU is continuing to press the government for a full response to its FOIA request,and the burden remains on the government to explain its position. Thank you, FOIA.
Closer to home, League-wise, state FOIA-equivalents can be engines driving audits of statewide elections where governmental officials are uncooperative. The League believes transparency helps imperfect humans be mindful of their responsibilities and accountabilities, and perform accordingly. Transparency increases confidence that every vote cast is counted as it was recorded by the voter. Ideally, citizen audits demonstrating proper governmental election procedures are conducted with the willing cooperation of all involved. Unfortunately, this isn’t always the case. We citizens then have a responsibility to pursue prescribed administrative remedies, providing the government the opportunity to perform nobly. If that fails, we have FOIA. Happy birthday, FOIA. Here’s to another productive, constructive year of inquiry, under your protection. LLII
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