Specific Problems With the Freedom of Information Act

The freedom of information act has made it possible for all of us to enjoy a greater degree of freedom, by making government oppression harder to get away with. By creating the statutory requirement that every government department operates with full disclosure given, an atmosphere of mutual trust is developed.

However, the act is not without its downsides. In this article, I will covre some of the specific problems which have arisen.

Secret Service Files:

In past testimony before Congress, the Secret Service has revealed that many local police departments no longer share information with them because they believe that the Service will not be able to protect the information from mandatory disclosure under the FOIA. By 1977, this problem had grown to such an extent that the Secret Service testified that it recommended against President Carter visiting two cities because of fears that the Service could not protect the President's personal safety. Moreover, in 1981 the Secret Service testified that its informant information had dropped by 75% since the passage of the 1974 amendments to the FOIA.

Commercial Information:

Every year, thousands of businesses submit to the government many of their most important and confidential trade secrets and business records. However, there is no requirement in the FOIA that the government must notify these companies when it intends to release this information to the public. The seriousness of this shortcoming is shown by the recent, unhappy experience of the Monsanto Corporation, As required by law, Monsanto provided to the EPA the formula it had developed for one of its most successful herbicides. Roundup. Though an error of judgment, employees of the EPA disclosed the formula to another company under the FOIA, without even notifying Monsanto. It appears that the FOIA did not actually require the EPA to turn over Monsanto' s secret formula to the requester. However, the fact that Monsanto never received notice of the impending disclosure prevented it from opposing the release either before the EPA or in court. Although the Monsanto matter arose after the Judiciary Committee reported out S. 1730, it shows the wisdom of the bill's provisions requiring government agencies to notify businesses in advance whenever the agency intends to publicly release trade secrets or sensitive commercial information under the FOIA.

Manuals And Examination Materials:

The FOIA often compels the government to release the internal manuals and instructions that government agencies give to their investigators, auditors, and negotiators. Frequently, these materials set forth the government's confidential investigatory techniques and guidelines. Public disclosure of these manuals significantly hampers the government's ability to enforce the law, detect fraud, or acquire goods and services at competitive prices, since subjects of investigations or government suppliers may learn in advance what the government intends to do. Because of the crucial role that manuals and guidelines play in the government's law enforcement and acquisition programs, we strongly believe that they deserve more complete protection.

Personal Privacy:

One can point to many laws Congress has enacted - notably the Privacy Act of 1974 - that exemplify the importance all of us attach to the interest in personal privacy. Anomalously, however, the FOIA often permits a complete stranger to obtain access to government files that contain personal information about us. Often a requester's purpose is chiefly commercial - credit bureaus, employment agencies, and life insurance companies rank among the most common users of the FOIA for this purpose - but disclosure of personal information about us is an invasion of privacy nonetheless. Any system providing for the public disclosure of government records must necessarily provide that information the government compiles about its citizens should be protected from those who would use it to invade our personal privacy.