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Our view: Fix FOIA, preserve public’s right to know

Ever since Watergate, the federal Freedom of Information Act has helped guarantee public access to data, documents and other information the public is entitled to and needs to hold its government — and its government officials — accountable.

But the act has a loophole, an exemption that allows bureaucrats, politicians and others in government to keep secret documents or other bits of information they deem technically not finished yet. Any writer will tell you nothing is ever done being written, so the exemption is frighteningly broad and even-more-frighteningly ripe for exploitation and abuse.

“Government officials are realizing they can lock up information that should be public just by using a ‘draft’ stamp,” Sean Vitka, the federal policy manager for the Sunlight Foundation, a bipartisan national nonprofit that advocates for open government, wrote in a memo last week to editorial writers, including the News Tribune Opinion page. “Use of this exemption … is at an all-time high.”

One example involves intelligence agencies not disclosing more information about their admitted role in helping apartheid South Africa capture Nelson Mandela, which led to his 27 years in prison.

 “One of the more absurd examples,” Vitka wrote, “is a recent court battle in which the government successfully argued that the last volume of the CIA’s history of the Bay of Pigs disaster — more than 30 years old — is ‘pre-decisional and deliberative.’ The public still can’t read that report. … History shows an alarming number of instances where agencies have abused their discretion — to which we may soon get to add Nelson Mandela and the Bay of Pigs as examples.”

A bipartisan bill in Congress could head off that travesty, however, as well as others that surely would follow. Called the “FOIA Improvement Act of 2014,” the measure would “carefully fix this black hole of secrecy by clearly defining (the exception’s) limits,” Vitka wrote. “The problematic exemption would no longer apply to information withheld from the public for more than 25 years. It would codify the requirement that federal agencies process all requests for information under the presumption that the records should be released — as they were already ordered to do by President (Barack) Obama on his first day in office. …

“Perhaps most importantly, the act would allow courts to consider the public-interest value of releasing records when the government claims they are ‘deliberative,’ (or not yet technically finished), giving judges the ability to weigh the costs and benefits of information’s release rather than simply forcing them to accept agencies’ sometimes disingenuous claims,” Vitka wrote. “Stopping the increasingly disturbing trend of permitting agencies to withhold information that deserves to be public would reinvigorate this cornerstone of federal transparency.”

This summer, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas, introduced the FOIA Improvement Act. See, bipartisan. This fall, it deserves support from Minnesota’s Sens. Al Franken and Amy Klobuchar and passage by all of Congress in the name of continuing to assure the public’s right to know and to promote greater government transparency and accountability.

“Throughout the years, activists, journalists, researchers and others have used FOIA to uncover waste, fraud, abuse and illegal actions by government officials and agencies,” wrote Vitka, of the Sunshine Foundation in Washington, D.C. “It’s the invaluable tool that led to the publication of documents detailing torture at Guantanamo. It’s the tool that unearthed J. Edgar Hoover’s FBI file on Beatles star John Lennon.”

The critical-to-our-democracy Freedom of Information Act is a tool the public can demand remains available — and loophole-free — so any of us and all of us can be assured of government transparency and can better hold our government and our government officials accountable.