How Corporations Have Corrupted the Open Records Process

The day before they convened for President Barack Obama’s final State of the Union address, the House of Representatives passed the first major overhaul to the Freedom of Information Act in nearly a decade. Originally passed in 1967, the FOIA requires all federal agencies to disclose information requested unless it is exempted for reasons including personal and national security.

Over the years, the FOIA has been altered either by legislative or executive action. These changes have focused on what information would be exempt, meaning categories would expand and contract depending on the administration. The Obama Administration has promoted increased transparency and was instrumental in digitizing more records and creating an easily accessible online archive. Yet, many critics have said that in spite of this promise of openness, the FOIA process has become cumbersome, with requests getting lost or delayed, and responded to with very redacted documents. Much of the delay has been the nature of government and the sheer volume of documents requested coupled by a reduction in the number of staff able to process them. However, the majority of requesters are not the general public or journalists, but corporations that have found a way to hijack a system that was fought for in the public interest.

The United States of America’s system of government was purposely designed to provide the public with the opportunity to participate in the decisions that affected the nation. The representative government was a unique concept in that it included a checks and balance system to avoid centralizing power in the hands of one person or group. Yet, the power of the people has been the most difficult to maintain over the centuries, as evidenced by the numerous battles fought for voting rights and other legislative victories.

In order to participate in a process, information is key. This is why the press has been called the fourth branch of government, as journalists are the ones that have kept the public informed. Yet, with no guaranteed public right to know the government has historically been adept at controlling what information was disseminated. This battle would take a dramatic turn in the 1950s after the press became the public’s de facto lobbyist.

It was newspaper editors that led a Democratic California Congressman from Sacramento to hold hearings in 1955 on the issue of secrecy in government. It would take John Moss eleven years and a reluctant Democratic president to finally get it enshrined in law that the public had a right to know what their government was doing. While the public had the right to request these documents, it was journalists that would use the process to keep check on politicians.

The digital age and the influx of enormous amount of money has changed not only the political process, but also how the public accesses their government. An entire industry has been created around the voracious appetite for information. Politicians and service contractors pay heavily for advice from consultants, who provide detailed information on what the government is doing. Depending on the size of the requests, the cost can be nominal, even free. These companies then turn around to sell this information to the public at a premium. It is this industry that accounts for nearly 75 percent of all records requested under the FOIA.

The bipartisan legislation passed by the House on January 11 (and now headed to the Senate) decreases the amount of exemptions agencies can use to withhold information, as well as direct them to make all non-exempt records available electronically. By creating a digital archive, these documents would be accessible easily and quickly and, most importantly, for free. By reducing the cost and time to get the information, the public can be more easily informed. Most importantly, for-profit companies will no longer be able to corrupt the process and interfere with Americans’ hard won right to know.