‘Phooey on FOIA’
Public universities are supposed to be repositories of information; why is it so difficult to get them to answer the public’s queries?
In the last few years, I’ve become interested in extracting bits of information from public colleges and universities. It is a bit like prying nails out of old boards. They don’t come easily, and you aren’t really doing it to collect the nails. You really want to see how badly damaged the boards are and whether they can be repaired.
The best tool for extracting actual nails is the claw end of a crow bar. The best tool for getting information from a public university is a freedom-of-information request. Such requests are a rather modern invention. The ancients didn’t have them. Nathan resorted to allegory to get David to fess up. Pericles had no need to hide secrets under the Parthenon. Lincoln kept his own counsel. So where did FOIA come from?
In 1966, Congress passed the Freedom of Information Act. It was meant to open up the records of federal agencies to the public. The law came about because of public unhappiness with the way the federal government had been handling things since the end of World War II. With the Nazis and the Imperial Japanese vanquished, Americans might have imagined that the country would return to older norms of governmental openness. The days of “loose lips sink ships” were behind us.
But by then the Cold War had made its chilly entrance, and in 1946 Congress passed the Administrative Procedure Act (APA), which created the postwar template for how our vastly larger collection of federal agencies would go about their business. This meant the galaxy of new agencies created under the New Deal as well the expanded powers of the wartime government now had their own rule of law, crafted to keep them within Constitutional bounds. I am no expert on these matters, but the APA included in Section 3 a license for federal agencies to exercise their own discretion over the information they disclosed.
Of course, there were always state secrets, many of them zealously guarded, and there were other no-go areas such as not compromising law enforcement operations or disclosing the private information of individual citizens. But Section 3 of the APA gave federal bureaucrats many more zippers to zip and buttons to button up. And whether it was justified fear of the Soviets or the unjustified arrogance of Washington paper pushers, the flow of information from the federal government on matters of legitimate concern to the general public had slowed to a trickle by the mid-1960s. In 1966, Congress acted by wresting the disclosure rules out of the APA and giving them their own separate standing as the Freedom of Information Act.
Did that suddenly mean we could count on federal agencies to disclose their questionable practices and flubs, or even their everyday haplessness? Not really, but if we had any doubt about that, it was put to rest in 1971 by Daniel Ellsberg, a RAND Corporation economist who was himself just put to rest June 16, at age 92. In 1971 Ellsberg leaked what became known as the Pentagon Papers to the New York Times. This work—3,000 pages of analysis and 4,000 more pages of documentation— was an internal study commissioned by Secretary of Defense Robert McNamara in 1967 of how the United States became militarily involved in Vietnam from 1945 to 1967. The study was completed in early 1969 and promptly classified as “Top Secret—Sensitive.”
FOIA requests would never have pried the Pentagon Papers from the iron grip of the Pentagon, but angry and disaffected figures such as Daniel Ellsberg didn’t bother with that route. “Phooey on FOIA” has been standard practice ever since. Mark Felt (“Deep Throat”), John Roberts (who ratted out the FBI, retaliation for which prompted the passage in 1989 of the Whistleblower Protection Act), and Edward Snowden are among the better known of the hundreds of individuals who went to the press rather than through the iron gates of FOIA.
Ellsberg, Felt, and Snowden aren’t heroes. The liberators of state secrets often seem to have excessive self-regard and bent personalities, but they do at times perform a public service. In Ellsberg’s case, we needed to know what a mess the American military had made of the effort to stymie the communist advance in Southeast Asia. Left to the Pentagon, that public reckoning would never have happened. Today we wait for a similar reckoning for Iraq, Afghanistan, and our woke military’s crazy descent into transgenderism. Will a FOIA request lay bare the nipple rings on General Mark Milley’s chest?
Some Americans, however, continue to uphold the principles of FOIA, which were strengthened in 2007 by the Open, Public, Electronic, and Necessary (OPEN) Government Data Act. This measure aimed at punishing officials for their “arbitrary and capricious rejections” of requests, and imposed a 20-day time limit for filling most requests. Since then Congress has taken further steps such as the 2018 Open Government Data Act, which “requires federal agencies to publish their information online as open data, using standardized, machine-readable data formats, with their metadata included in the Data.gov catalog.”
So much for the federal government. The states also generate vast numbers of documents in which the public has an interest. Every state has some version of FOIA, though they are on the books under a bewildering variety of names: public records request laws; public information acts; sunshine laws; open public records laws; open records acts; inspection of public records acts; right to know acts, etc. Not just the names, but the terms of these differ dramatically. What the governments in Vermont and Arkansas are required to give you in three days will come to you in New Mexico in fifteen, and in Maryland within thirty. But if you are a frequent filer, you quickly discover that most state entities have a large variety of tricks and obfuscations that can multiply the days into months, and often into “never.”
States differ as well in how much they allow their agencies to charge the person who files a request for information. “Freedom of information” is seldom actually as free as sunshine. Most states permit their agencies to charge “reasonable” fees to cover the coast of retrieving and copying the requested information.
My staff at the National Association of Scholars file many such requests, usually at public colleges and universities. For the same items of information, Georgia Institute of Technology asked us to pay $46.12, the University of Kansas asked us to pay $66.50, the University of Wyoming asked us to pay $220; Mississippi State University asked us to pay $513.26, and the University of Maryland college Park initially quoted $5,000–7,000 but came down to $1,800; and the University of Nebraska-Lincoln asked for $8,000.
How much time and effort is it to look up a few documents and copy them? It is hard to believe that any institution acting in good faith need charge more than $100. At the high end, the quoted fees are either evidence that the institutions are desperate to hide something, or just determined not to comply with their state law. We don’t have the equivalent of a Daniel Ellsberg at any of these places, but it is clear why some people take the law into their own hands. What do you do when a college or university acts this way? My standard procedure is to get in touch with the office of the state’s attorney general, and to make inquiries with the state’s congressmen and senators. Sometimes it works.
The sorts of documents in which the National Association of Scholars is typically interested have to do with topics that America’s colleges and universities tend not to want to divulge. How actively is your medical school imposing diversity tests on applicants for admission? What criteria did your biology department use to assess candidates for that tenure-track faculty position? How much money did your institution receive last year in the form of “gifts” from governments hostile to the U.S.?
Get weekly emails in your inbox
To succeed FOIA requests need to be targeted and specific. You don’t ask for all the documents on a broad subject. The request should be as easy to answer as possible. “We request the emails among the members of the X committee from March 1 to April 30, 2022.” “We would like copies of the thank you communications to all foreign entities that contributed $50,000 or more during 2021.” Even then, universities can feign confusion if the requester fails to provide them with their exact desired language – language that often differs from university to university.
It is understandable why a university in the Age of Woke would prefer not to provide such information to an organization such as the National Association of Scholars that is known as a critic of wokeness. But there is a public interest at stake. Public colleges and universities serve public needs; they are funded by taxpayers; and they thrive on the largesse of the federal government through federal student loans and research grants. They have no right to bury this information and hide it behind sandbagged walls of unjustified fees.
The 1966 Freedom of Information Act and its supplements over the decades and the fifty state daughters of FOIA with their own distinctions ought to be enough to bring American higher education within the compass of the rule of law. Some colleges and universities definitely take that responsibility seriously, but many don’t. It never ceases to surprise me how determined many colleges and universities are to act as though they be nations unto themselves. Granted, we are seeking small and very particular pieces of information, but they are the equivalent of those rusty nails. If we want to restore American higher education to intellectual and moral health, someone will have to pry them out and assess how to repair the holes they have left.