It would be difficult to have Sunshine Week without the Freedom of Information Act (FOIA). Journalists and the public rely so heavily on FOIA to gain insight into government doings; it is easy to forget that up until 1966, the Act didn't even exist. Thankfully, it does—and one of the men we have to thank for that is former Democratic congressman John Moss from California, a good government champion who passed away in 1997. (Moss is in POGO's Good Government Hall of Fame.)
Michael R. Lemov, an attorney in Bethesda, Maryland who specializes in federal regulatory issues, worked closely with Moss to tell the story of his hard-fought struggle to get FOIA passed. The result is the book, People’s Warrior, published in June, 2011. POGO spoke with Lemov about Moss, FOIA improvements, and Obama’s crackdown on leakers.
POGO: How has the FOIA process improved since it was enacted?
Michael R. Lemov: FOIA was John Moss’s great vision, and a breakthrough. The law implemented an American right that is implied in the First Amendment, but not explicitly stated: Americans can’t speak freely if they don’t have access to adequate information. FOIA has improved since 1966 when President Lyndon Johnson signed it into law—specifically with the 1974 amendments, which played a major role in giving federal courts power over the executive branch. Overall though, it’s just like what Moss said to me before he passed: “If you ask me, we are doing better than we were in 1966. But as to whether we are where we should be—absolutely not.”
POGO: How could the process be improved?
MRL: One big thing is reducing the time it takes for investigators—like POGO and the press—to get responses. When too much time elapses, a story becomes useless. President Obama’s focus on open government issues from the top has definitely helped.
POGO: How would you rate President Obama’s dealings with FOIA?
MRL: The Obama Administration is definitely better than what we had before. Repealing the Ashcroft Memorandum (which encouraged agencies to favor the government’s interests over disclosure) was a great step. There is still a huge problem agency by agency with completing FOIA requests in a timely manner, and I think advocates need to keep pushing. There’s a natural inclination for a government agency not to reveal its files. We should remember that Moss fought for 12 years against Presidents Eisenhower and Johnson to get the law passed initially.
POGO: What do you think about President Obama’s unprecedented use of the Espionage Act to prosecute leaks to the press?
MRL: I’m not an expert on the Espionage Act, but I would have to say that it concerns me. I look at it this way—people are still very worried about terrorism, and every administration has to respond to the public’s concerns. But the First Amendment still comes first, and I think the Espionage Act has to yield to the requirements of free speech and free press. Finally, you have to distinguish between the leaker who takes the penalties and risk, and the publisher. The Espionage Act was not really designed to reach the press, unless the press was actually a coconspirator.
POGO: What do you think history would look like without John Moss?
MRL: Moss changed America. We might not have FOIA without his work. Consumer protection laws, like the Consumer Protection Act, the Federal Trade Commission Improvements/Warranty Act and other laws would surely be weaker. Moss’s oversight subcommittee investigations on natural gas overcharges and unnecessary surgery remain the gold standard.
POGO: What do you think is the biggest open government challenge facing the Obama Administration?
MRL: President Obama needs to make sure that he continues to make progress on his promise to open up the government. To date, if you look at FOIA.gov, the backlog has declined rather drastically and overall, progress has been made. The challenge is for Obama to keep it up in the face of the war-hogs of the Republican party, that will challenge him on being weak, and not defending America if he gives in and let’s too much information out.
Dana Liebelson is POGO’s Beth Daley Impact Fellow