The Freedom of Information Act: Common Sense Written into Law

The Freedom of Information Act (FOIA) was created to address basic concerns about the openness (or lack thereof) of the American government. Because democratic governments are supposed to be open for theoretical, pragmatic, and symbolic reasons, lawmakers in the late 1960s grew increasingly concerned with the obsessive secrecy of the executive branch under President Johnson (especially regarding the Vietnam War). The FOIA of 1967 systematically opened up the processes and decisions of the American government by requiring the publication of all policy decisions and the disclosure of requested government records. However, because everyone involved recognized the need for secrecy in some cases (such as those involving threats to privacy or government effectiveness) numerous exceptions were written into the law. In short, it was a measured effort to legislate some sort of common sense into the way the American government balances the notions of openness and secrecy. As is usually the case when common sense is written into a law, the FOIA set the stage for a veritable flood of litigation owing largely to the always-surprising range of interpretations of what "common sense" actually means.

The first wave of litigation prompted by the common sense of the FOIA had to do with the basic definitions of words in the law. Because the law stated that any "agency" must disclose any "record" in its "possession," many lawyers found work in their quest to determine what words such as "agency" and "record" and "possession" could possibly mean. Eventually, the courts decided upon definitions that were more or less related to the common sense understanding of these concepts. While refining the legal dictionary certainly created a good deal of work for lawyers, the bulk of the litigation prompted by the FOIA was related to the common sense exceptions to the disclosure requirement.