Published as chapter 4 of
G. David Garson (ed), Handbook of Public Information Systems
(NY: Marcel Dekker, 2000).
Draft as submitted by Jeremy
R. T. Lewis
Huntingdon College, Montgomery Alabama
| Text of article I Table of Contents | Table of Executive Orders | Bibliography |
Federal official information policy has developed primarily since the Administrative Procedures Act 1946 (which mandates public notice and comment periods, appellate and other quasi-judicial forms of administration.) Amending its section 3 is the Freedom of Information Act (FOIA), primarily known for requiring the release of records once requested by the public, with extension by other lesser legislation such as the Privacy Act, Sunshine Act, and Advisory Committee Act. The background of federal information policy also includes the Copyright Act, which bars the U.S. government (unusually among developed states) barred from copyrighting documents prepared at public expense. Despite codification, these statutes do not harmonize in language, nor are they limited to narrow categories of records. As a consequence, with valuable data at stake, this area of policy has been highly litigious. The FOIA alone accounted for 3,000 lawsuits by 1990 involving two dozen Supreme Court decisions by 1998. Other information statutes have produced few requests or lawsuits. Overall, the history of FOIA and of other lesser legislation on information policy provides the setting for public information systems at the start of the twenty-first century.
II. PREVIOUS POLICY CYCLES.
FOIA was passed and amended in regular cycles almost once per decade: a minor act of 1958 was purely symbolic; an act of 1966 was strengthened in 1974, amended in 1986, and extended in 1996. Conventionally, policy historians analyze policy cycles in stages such as initiation, formulation, legitimation, and regulation, followed by the weaker stages of implementation, adjudication, investigation, and evaluation, leading to a new cycle. We shall present three histories: cyclical, judicial and legislative.
During the preliminary cycle of FOIA policy (1955-1958, following the McCarthyite and Cold War excesses of official secrecy), the House FOIA subcommittee of Rep. John Moss pressured agencies through intensive hearings to open more documents to the public. Although there was amending legislation in 1958, however, these amendments were minor. During the 1960s cycle, stimulated by the "credibility gap" over the Vietnam War, Moss joined Senators Long and Hennings of Missouri to enact Freedom of Information legislation (5 USC 552) as an amendment to the 1946 Administrative Procedures Act. However, the principle that "any person" could have access to public records in section (a) was tempered in a compromise, with section (b) permitting secrecy under nine broad exemptions. The 1966 act set down the principle of open government.
In the 1970s cycle, extensive House hearings in 1972 found that implementation of the FOI Act had been feeble. In 1974, amid the Watergate confrontation and President Nixon's resignation, both chambers amended the FOIA to render it effective. President Ford's veto was overridden on November 21, alongside passage of the Privacy Act and other post-Watergate reforms for government accountability. Procedures for responding to requests, charging of fees, administrative appeals, and judicial review were tightened. The exemption for classified material was symbolically restricted, moreover, and the law enforcement records exemption was spelled out more carefully.
We shall explore the Supreme Court decisions; then the political environment; 1980s non-FOIA legislation; the 1986 FOIA reform act; staff formulation; changed political environment and national security. The 1996 Electronic FOIA enjoys its own chapter.
III. SUPREME COURT OPINIONS
A. Prior Opinions of the 1970s
The Supreme Court issued several decisions in the 1970s, closely upon the language and legislative history of the FOIA. In EPA v Mink (1973) it found no statutory cause to question improper national security classification designations, which Congress promptly corrected by amendment. In that decision, the Court recognized the broad purpose of the FOIA. Shortly thereafter, in NLRB v Sears (1975), it echoed that interpretation, only to adopt a narrower one in NLRB v Robbins (1978) explicitly removing pretrial discovery from the purpose of FOIA. When the Sunshine Act 1976 amended the FOIA's exemption (B)(3) for conflicting statutes to close a loophole, Justices Powell and Brennan dissented in NLRB v Robbins that Congress had rejected the solution the majority was adopting. Marshall's opinion in GTE Sylvania v Consumers Union (1980), based upon a reading of legislative intent, defined the goal of the FOIA as a philosophy of full agency disclosure. In the 1970s, the Court had learned about the FOIA and applied its principle of disclosure to basic procedural matters. In the final decision of the 1970s, Chrysler v Brown (1979) the Court permitted reverse suits (where a business having submitted data to government sues to prevent it being distributed to a FOIA requester).
B. Opinions of the 1980s.
In the first cases of the 1980s, procedural issues continued. In twin GTE Sylvania v CPSC cases (1980), a submitter and a requester both filed suit in separate venues. The Supreme Court allowed consolidation of cases and barred withholding documents simply because a reverse suit had been filed. Balancing this, however, was a decision permitting withholding of data. In Forsham v Harris (1980) a medical contract research group, although federally funded, was not subject to daily supervision or use of the raw data by the department of Health, Education and Welfare; hence they did not have to release data as an agency would have to.
National security issues attracted considerable deference from the Court. In Dept of State v Washington Post (1982), it found American citizenship files for Iranian politicians protected by the FOIA's privacy exemption. Then in CIA v Sims (1985) the Court upheld broad "sources and methods" protection of the 1947 National Security Act as a conflicting statute under the FOIA, exempting records from release. This prompted disapproval from Congress in 1992. In Dept ofJustice v Julian (1988) the majority (finding no technical basis for withholding) ordered release of prisoners' presentencing reports.
C. Opinions of the 1990s.
The watershed legal decision between the two decades came in Dept of Justice v Reporters Committee (1989) in which the Court took advantage of an employee mailing list issue to pronounce the core purpose of the FOIA: checking the activities of government. It interpreted this as a limitation on the ability of FOIA requesters to obtain employee addresses that would not reflect on governmental conduct. The following case, Dept of State v Ray (1991) protected the names of Haitian immigrant interviewees. The Court did not universally protect foreign policy, intelligence, defense and law enforcement records, however. Its decision in Dept of Justice v Landano (1993) rejected the FBI's claim to universal implied confidentiality for its sources, ruling instead that the confidentiality of sources must vary with the circumstances.
Although the pattern of more conservative decisions in the 1990s was visible, there were signs of disagreement in Justice Thomas's opinion in Dept of Defense v FLRA (1994) which adhered to the narrow Reporters Committee core purpose doctrine, despite concurrences from Justice Souter and Justice Ginsburg that indicate that at least she, having risen to the highest court, no longer felt the need to uphold the core purpose doctrine on grounds of deference: "no such limitation appears in the text of any FOIA exemption." She invited Congress to overturn the doctrine, as it did in the EFOIA of 1996. The Court in a brief per curiam decision, Bibles v Oregon Natural Desert Association (1997) nonetheless upheld the core purpose doctrine.
IV. LEGISLATION OF THE 1980S.
In the in the 1950s, 1960s, and 1970s federal
information policy which had been associated with broad support for open
government among Democrats and many moderate Republicans. The era contrasted
with that of the so-called Republican revolution. The Reagan administration
represented a substantial watershed of general policy compared to the Carter
administration, and the Republican-captured Senate experienced a significant
shift of committee chairs, subcommittee chairs, and hence staff. On FOIA
policy matters, The Senate Judiciary Committee's subcommittee on Administrative
Practice and Procedure (chaired and staffed by Sen. Kennedy in the 1970s)
yielded to the subcommittee on the Constitution (chaired and staffed by
Sen. Hatch in the 1980s.) This plate-tectonic shift resulting from the
1980 election would test the hitherto bipartisan consensus on the FOIA.
Moderating this influence, however, was the narrow majority in the Senate,
the relatively narrow presidential majority in the election, and the consensual
folkways of the Senate.
A. User Fee Act 1982
A predecessor of the reinvention efforts in the Clinton administration, this Reagan administration era law provided guidelines for establishing fees for government services, leading to potential conflict with the FOIA's limitation on fees to the marginal cost of dissemination.
B. Protection of Operational Files of the CIA Act (1984)
On October 15, 1984, Congress enacted the Protection of Operational Files of the CIA bill, by adding a new Title VII to the National Security Act of 1947. It gave a broad exemption [in section 701 (a) and (b)] to the CIA from the FOIA, even from having to search its records, for files of the Offices of Operations, Science and Technology, and Security. It also [in subsection (f)] limited judicial review--which under the FOIA at least in theory is extensive and de novo (afresh)--to in camera (private) inspection and a heavy reliance on the documentary record. It even limited pretrial discovery of documents. However, it also required (section 702, 50 USC 432) a Director's review every 10 years of the possible removal of exempt categories of files in the light of "historical value or other public interest." Even this requirement, though, was protected from all but cursory judicial review.
In return for this unique exemption from FOIA searches, the CIA was only obliged to concede (in a section 3) an unclassified report on a declassification feasibility review for classified document collections, and every 6 months a report on improving progress on FOIA requests. On balance, then, official information policy changes in 1984 must be counted a substantial victory for the Reagan administration.
C. Investigation and Evaluation: Staff Reports of the 1980s
The Office of Technology Assessment laid some groundwork in April 1986 with its report on Intellectual Property Rights in an Age of Electronics and Information. Analyzing the economics of electronic information, it considered possible new rules for publishers and libraries. A useful OMB Report on Noncompliance with FOIA's Affirmative Disclosure Requirements, 1986 showed that many agencies (US OMB, 1986) did not comply routinely with the requirements of the FOIA's section (a) to publish listed agency materials such as indexes to public records systems.
D. Paperwork Reduction Act, 1986
In the guise of reducing paperwork, this Act, guided by Senate Republicans and by the Reagan administration's zeal to deregulate U.S. business, funneled new regulations through the bottleneck of OMB's small OIRA staff. It also discussed electronic data. The Act was subjected to reauthorization in 1990 (when FOIA language was added temporarily but lost before passage) and then amended significantly in 1995.
E. FOIA reform act, 1986
With Senate Republicans holding the majority and hence chairing committees, FOIA amendments were hastily attached (Rader, 1982) by Sen. Hatch, (R-UT) as a rider to the Anti-Drug Abuse amendments of 1986. While attempting to draw distinctions between different classes of requester purely for the purpose of charging fees, these amendments loosened the reins on the law enforcement agencies, permitting greater secrecy. FOIA supporters, led by Sen. Leahy, (D-VT) bargained to prevent the act being undercut. Given little time to develop a consensus (Adler, Gellman, Rader, et al., interviews) members of both chambers resorted to reading material into the Congressional Record to guide judicial interpretation of the amendments.
A Reagan administration Executive Order on Pre-Disclosure Notifications of 1987 also required that under some circumstances, an enterprise would, after submitting documents to an agency, have opportunities to argue for their protection from release under the FOIA.
V. FORMULATING CONCEPTS FOR THE 1990S LEGISLATION
OMB's 1986 Circular A-130 (while considering various information policy issues) urged agencies to use private contractors rather than in-house resources for the creation, maintenance, and dissemination of some electronic databases. If widely implemented, this would have reduced the scope for FOIA requests, and through higher fees would have reduced the information available to less wealthy firms or individuals. The circular is better seen as preparation for the 1990s than as a conclusion to the 1980s cycle.
A. Perritt Report; ACUS and ABA Recommendations, 1988-1990
Subsequent to the work of Professor Henry Perritt (1988, 1989) the Administrative Conference of the United States (ACUS) adopted an influential Recommendation 88-10 (1988), also adopted by the American Bar Association via its Council on Administrative Law, October 21, 1989. This called upon U.S. agencies to consider electronic records equivalent to those on paper and then release them accordingly. Retrieval of data from a database should no longer be considered creation of a new record and hence not required under the FOIA. On the other hand, agencies should not under the FOIA have to create large new databases to benefit private sector requesters. Generally, agencies should find the appropriate degree of effort to extract data for release via a standard of reasonable effort. They should recover fees at marginal cost consistent with the 1986 FOIA Reform Act and subsequent OMB Guidance.
ACUS's Recommendation B called for electronic acquisition of data that would be used in that medium. Recommendation C called for three levels of public access to be applied appropriately to data: "access" by individual consumers; "disclosure" via particular locations; and wide "dissemination" or publishing. Under D, cost-benefit analysis would determine whether forms of release should be augmented, and, if so, by public or private means. Under F, it urged a ban on monopolies: exclusive control of public information, whether direct or via a private vendor. The ACUS report did, however, acknowledge that it was leaving aside perennial issues such as FOIA budgets and administration, privacy, commercial confidentiality, and database security. Nonetheless, the ACUS and ABA report was widely influential in Washington. A number of agencies increased their release of electronic data in advance of the EFOIA of 1996.
VI. NON-FOIA ISSUES IN THE 1990S
Leaving aside the 1996 Electronic FOIA for its own chapter, let us survey legislative and administrative developments of the 1990s. Generally, the Perritt reports represent the agenda-setting and formulation stages of the 1990s cycle. But there were still aftershocks of the 1980s cycle (liberating the intelligence and law enforcement community from restrictions) to come.
A. JFK Assassination Records Act (1992)
Prompted by an assassination conspiracy theory film by Oliver Stone, the modest side issue of declassification and release of the Kennedy assassination records, in view of the voluminous records, grew into a substantial program. At the Central Intelligence Agency for instance (Strickland, 1998, p.1), it employed 35 full-time personnel as just one of many, compartmented information review and release (IRR) programs.
B. The FBI Counter-intelligence Telephone Subscriber Information Bill (1993)
The 103rd Congress, which marked the terminus of half a century of Democratic control of the House, on 17 November 1993, loosened restrictions on the FBI's ability to obtain telephone user data for foreign counterintelligence purposes. It required reason to believe that the target was a foreign agent under section of the Foreign Intelligence Surveillance Act (FISA) of 1978 engaged in contacts either with terrorism or with clandestine intelligence activities. Armed with the user data, the FBI would find it more feasible to apply for warrants to conduct telephone surveillance.
C. Issues of Archiving Electronic Data, 1990-93
The first need for electronic records is perhaps to ensure their longevity despite deterioration of media and the pace of technological obsolescence, which sometimes leaves data dependent on extinct species of machinery. Some development at the National Archives (NARA) was prompted by a 1990 U.S. House report on Archival Preservation, which suggested improvements both in practice and in law. Further, in reauthorizing the National Historical Publications and Records Commission, the House Committee on Government Operations (1993) found that "[v]irtually all materials that are printed today exist at some point in an electronic format that could also be used to support dissemination using other technologies." Subsequently, looking forward to the 1990s legislation, it called for online dissemination.
D. NPR FOIA Reinvention Team (1995)
Evaluating the problem of deficient indices to records systems, a Department of Interior (1995, p. 11) task force observed, "The public has no efficient and accurate way of learning what information the agency has," and no knowledge of "how the files are arranged, how long they are kept, or where they are stored."
E. Nazi War Crimes Records Act (1996)
The 104th Congress, the first in half a century with a Republican majority in the House, showed surprising interest in the release of documents in the case of the Nazi War Crimes Records Act (1996). Marking the fiftieth anniversary of the end of the Holocaust and the thirtieth anniversary of the 1966 FOIA, recognizing the opening of records by former Cold War adversaries, and President Clinton's Executive Order to declassify some national security materials over 25 years old, the Act was prompted by the notice that the United States had withheld files on the Nazi past of Kurt Waldheim (Austrian president and United Nations secretary general). The Act--while exempting records created by the Justice Department's Office of Special Investigations into Nazi war crimes--declared (in section 2) a "sense of the Congress that U. S. Government agencies in possession of records about individuals who are alleged to have committed Nazi war crimes should make these records public."
F. Human Rights Information Bill, (1998)
It seems that the comprehensive nature of FOIA is a blessing compared to the alternatives. The House again considered a proposal (HR 2635) in 1998 to order release of information on human rights abuses. The CIA testified that it had been conducted extensive review and release of records concerning human rights in Central America under the existing FOIA program and several other programs covering El Salvador, Honduras, and Guatemala in particular. These were mandated by multiple sources such as the NSC and litigation. It was a misperception (Strickland, 1998, p. 3) that records release programs consisted of "just FOIA" with occasional "special tasking": "The universe of information review and release (IRR) is complex and balkanized--competing programs, contradictory rules, divergent drivers, and growing costs." The CIA considered the Human Rights Bill (Strickland, 1998, pp. 4-5) to be inconsistent with Executive Order 12958 on declassification, the National Security Act, and the FOIA. It preferred the FOIA to remain the "bedrock" of information release activities--particularly since the Human Rights bill contained much broader provisions for judicial review of administrative decisions, and could trigger comprehensive reviews of Central American records at the behest of several parties including some foreign ones.
G. Federal Advisory Committee Act Court Action
Although court cases under the Federal Advisory Committee Act are rare, Judge Stanley Sporkin of the District of Columbia district ruled (Hammitt, 1996, pp.14-15) in Fertilizer Institute v EPA (1996) that he would not substitute his judgment for that of the agency as to what constituted a fair balance of membership of an advisory committee setting standards for airborne concentrations of hazardous materials.
H. Government Copyright and Equivalent Issues
In contrast to Britain and some Commonwealth countries where Crown copyright is a powerful factor, and in contrast to European Union nations where some nonregulatory official material is copyrighted, the North American tradition is not to copyright official records. Canada tends to honor Crown copyright in the breach (Grace, 1992, p.27), while the U.S. government is forbidden from copyrighting its own works. In both countries, government copyright has not really been upheld since independence, the first U.S. statute recognizing this (Gellman, 1995, p.1024) being the 1895 Printing Act. Official records are public records (and considered prepared at public expense) with exemptions controlled by the FOIA and some gray areas such as software (information or tool?) and commissioned or contracted data.
The public records principle is enshrined not only in the FOIA but also via the Copyright Act of 1976, which bans official assertions of copyright, and OMB Circular A-130 which directs agencies in general to release their records. Nonetheless, some argue that agencies have been skirting these prohibitions by charging user fees (Wise, 1991) for information or restricting access to official information. The culprits are said (by a former congressional counsel) to be (Gellman, 1995, p.1069): "loopholes created by unfortunate ... interpretations of the law, by lack of resources, or by poorly drafted legislation; the ease of exercising dominion over information in electronic formats; the absence of organized opposition to restrictive agency activities; the lack of effective oversight and enforcement by the Congress and the executive branch; and misplaced agency zeal, entrepreneurial or otherwise."
One controversial example of a legislated user fee that undercut the open records statutes was the fee applied to remote access to the Federal Maritime Commission's new online submission-and-dissemination ATFI system of public tariff files (although not to local access). These records are data required by law to be given to the FMC, and several industry groups testified against the imposition of this user fee. Commented president Bush (1992, p. 2281) in his (reluctant) signing message: "These provisions impede the flow of public information from the Government. They run counter to federal information policy and the traditions of the copyright act and the FOIA."
Another example of an attempted user fee was the Department of Education's 1991 attempt to obtain revenue from licensing the Education Resources database, ERIC. At a maintenance cost of $7 million per year, funded by appropriations, ERIC generated some $4 million per year for third parties. (House Education Committee Report 102-845, pp. 41-43.) Revenue was intended to fund improvements in the database by the contractor. This attempt (Gellman, 1995, p. 1062-1064) aroused sufficient opposition that it was killed by a 1992 education statute.
I. GATT Uruguay Round (Intellectual Property) Agreement (TRIPS) (1994)
The Intellectual Property agreement (Peters, 1998, p. 5) caused three changes in U.S. copyright law, of which the most important was to restore copyright protection to a vast quantity of foreign works for reasons such as failure to complete U.S. procedure or lack of copyright relations with the host country. While automatically restoring copyright, the provision caused numerous complications of liability insulation for "reliance users" (those who had used the work in the public domain before its copyright was restored) who might need to sell off stock in now-copyrighted works. Given a 2-year window, Notices of Intent to Enforce Copyright (NIEs) flooded in primarily for Spanish language films but also for those in French and German, and famous operas and literary works. The final NIE list (April 1998) covered 14,000 titles and filled 80 pages of the Federal Register.
VII. THE 1990S EVALUATION OF THE NATIONAL SECURITY CLASSIFICATION SYSTEM
Stemming from a series of executive orders, discussed in 1974 FOIA hearings, and recognized in law by the FOIA's exemption (b)(1), the classification system had continued to grow in scale and costs such as document storage and human clearance.
A. The Classification System in the 1980s and 1990s
National Security Classification--criticized in House hearings in 1971 as having grown excessively and consequently lost respect for genuine secrets--was muzzled at least in theory by President Carter's Executive Order (EO) which required automatic declassification dates be placed on documents. However, classification in the 1980s and early 1990s was unleashed by President Reagan's Executive Order 12356, which virtually eliminated the requirement for automatic declassification. The EO permitted, instead of a date for declassification, an "Originating Agency's Determination Required" (OADR) marking. The option of OADR became a nearly universal stamp, replacing the date of automatic declassification. By 1992, 95% of new classified documents had this marking, according to GAO Report GAO/NSIAD-93-127 (1993). With documents often stored by other agencies, finding the original classifying unit (or even officer) years later to ensure declassification became a cumbersome process.
Note that of the presidential executive orders, those by Democrats Carter and Clinton had more comprehensive public access features than those by Republicans Eisenhower and Reagan (Table 1). The basis for classification in the 1990s was the Clinton EO 12958 of 1995, the sixth such executive order. Although "Top Secret" classification was given to 20 officials and delegated to only 1336 "original classifiers," derivative authority was still spread to two million officials and one million contractors. The Information Security Oversight Office found in 1995 about 22,000 "original" Top Secret designations and 374,000 "derivative" designations.
In 1995 the intelligence community estimated some one and a half billion pages of classified documents aged more than 25 years were subject to declassification review under the Clinton order. For instance, FOIA staff at the State and Energy departments (interviewed) accelerated the declassification process, 1993-1999. Clinton's energy secretary Hazel O'Leary also ordered FOIA training and reduced backlogs of requests. However, a 1998-99 spying scandal caused investigations and secretary Bill Richardson's tightening of security (Associated Press, June 23, 1999).
B. Moynihan Commission on Protecting and Reducing Government Secrecy (1995-1997)
Created by Title IX of the Foreign Relations Authorization Act (1994), the Moynihan Commission was charged with producing "comprehensive proposals for reform" ... "to reduce the volume of information classified and thereby to strengthen the protection of legitimately classified information" and to improve security clearance procedures. The bipartisan commission was appointed by the president and by the majority and minority leaders of both chambers, and included several officers or consultants involved in the intelligence community. These were balanced (Moynihan Commission, 1995) by a member and staff member from the FOIA community: White House official (John Podesta, formerly on Senator Leahy's staff) and public interest group counsel (Sheryl Walter of the National Security Archive).
The Commissioners were interested in the cost-effectiveness of classification and personnel clearance, and a culture resistant to accountability. They quickly realized (Working Plan, 1995) a lack of definitions of national security concepts. The commission was the first statutory investigation body (Report, 1997, pp.xxxii-xxxiii) on national security secrecy other than the 1955 Wright Commission during the 50 years of the intelligence charter, the National Security Act 1947.
The Report (1997, pp. xxii-xxix) called for: a statute to set forth the principles for what may be declared secret; adoption of a life cycle of secrets; a national declassification center at the NARA; a coordination office for classification and declassification; requiring officials to weigh costs and benefits before classification; a Director of Central Intelligence directive to limit the use of "sources and methods" protection (under the NS Act of 1947) as a rationale for classification; and reallocating personnel clearance effort from initial clearance toward more effective, ongoing scrutiny. For contractors' special access programs, it recommended standardization of security practices. For automated information systems, it called for greater cooperation on protection from hacking.
C. Personnel Clearance
While for various reasons initial security clearance checks are virtually useless--neighbors do not give useful information, and spies rarely decide upon their activity until in mid career they are corrupted by financial incentives--polygraph screening is highly controversial. Becoming extremely common at some agencies in the 1980s, and generating through voluntary admissions virtually all of the derogatory information on security risks (NSA, 1993), the polygraph is widely trusted by senior intelligence officers. Unfortunately, scientific testing (OTA, 1983) has commonly cast serious doubts about its validity and effectiveness. One controlled Defense study (Moynihan Report, 1997, p. 90 and p. 94, n. 20) found polygraph results worse than chance. With differing practices on security clearance at different agencies, reciprocal work on declassification is difficult at best.
D. Cost-Effectiveness of Automating Review, Redaction, and Release of Records
There is some emerging evidence that digital systems for document manipulation can actually achieve cost-effectiveness (Moynihan Report, 1997, p. 61): the National Security Agency saved $330,000 over 3 years via electronic redaction. The National Performance Review's 1996 Hammer Award (Moynihan Report, 1997, p. 61) was given to the Air Force for improving its declassification program with discarded computers, reservist staff, and computer aided training.
VIII. CONCLUSION: THE FEDERAL INFORMATION POLICY CYCLES OF THE 1980S AND 1990S
During the first three cycles of FOIA policymaking, a few liberal Democrats reacted to excessive administration claims to secrecy and developed a broad, bicameral, and bipartisan consensus. Contrary to the usual expectations of feeble congressional oversight, Congress has shown a long attention span with repeated rounds of investigation of the executive agencies' practices in this area. A public-interest group strategy of educating judges to the FOIA disclosure principle was highly successful from the mid-1970s to the mid-1980s, particularly in the District of Columbia where judges were more experienced with the Act. In part this was helped by the Carter administration's sympathetic appointments to the federal bench.
Given the many Reagan administration appointees to the District of Columbia bench, however, the balance turned and public interest groups became wary of pursuing disclosure in the D.C. courts. Although an "information-conservative" appointment pattern was expected to be moderated by the Clinton administration, the difference did not stretch to the highest court. In two dozen FOIA decisions, The US Supreme Court, increasingly populated with conservative appointees, has tended to rule in favor of withholding records, and often reversed earlier federal information policy decisions, especially those made in the District of Columbia courts.
The executive's national security classification system has long evolved without comprehensive reform. Unlike civilian law enforcement files, security records are protected by broad judicial and legislative deference. Although agencies release declassified records, they remain in control. Despite declassification at the Clinton administration's State and Energy departments and the Moynihan commission's report, the 1990s will have modest influence on long term classification matters. The Clinton administration observed a more open information policy than its Republican predecessors. The Justice department's guidance documents indicate more open policy and active leadership (FOIA Update newsletters, 1995-1999; usdoj.gov/oip/foia). Given contemporary information issues, the 1966 FOIA enshrining public access to government records, offset by exemptions and a specified process, has shown considerable adaptability.
However, Clinton faced scandal in 1998 involving denials and admissions of a liaison with a White House intern; dubious testimony to grand juries; the Starr Report (1998) and failed Senate trial of impeachment. For the first time, Secret Service officers testified about presidential behavior. No freedom of information statute could have exposed the presidential office as did the judicial and congressional investigations.