Freedom of Information

How Americans got their right to know

Getting Congress to guarantee access to federal information through FOIA 30 years ago was a press triumph

By George Kennedy

This article is based on Kennedy's doctoral dissertation, "Advocates of Openness: The Freedom of Information Movement."

The Freedom of information Act was signed into law by President Johnson on July 4, 1966. He accompanied the signing with a typical rhetorical flourish. "This legislation springs from one of our most essential principles," he said. "A democracy works best when the people have all the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest."

He added, "I signed this measure with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded."

In that statement, the president provided an eloquent summary of the philosophy that had driven a campaign of nearly 20 years. He gave no hint, however, of either his own animosity toward the law or of the political struggle that had produced so important and so flawed a piece of legislation.

The story of that struggle is a story of high-minded principle and aggressive lobbying, of selfless and selfish interests in uneasy alliance, and of a handful of heroes - most of them newspaper editors who put aside any pretense of detachment to lead a movement that many of their most influential colleagues regarded with skepticism and apathy.

The editors who led the freedom of information movement were, for the most part, also leaders of ASNE. The pioneers were Basil "Stuffy" Walters of the Chicago Daily News, James Pope of the Louisville (Ky.) Courier-Journal and J. Russell Wiggins of the Washington Post, the first three chairmen of ASNE's Committee on Freedom of information. Other ASNE stalwarts who played important roles through the 1950s and '60s were Virgil M. "Red" Newton of the Tampa (Fla.) Tribune, most vocal chairman of Sigma Delta Chi's FOI committee; William Steven of the Minneapolis Star-Tribune, first chairman of APME's FOI committee; Norman Isaacs of Louisville, who worked on all three committees; and Gene Patterson of the Atlanta Constitution, who made a last-minute call to the LBJ ranch when it appeared that the president might pocket veto the bill instead of signing it.

But perhaps the two most important figures behind the FOI Act were an aging, ailing lawyer and an ambitious young politician who had left the real estate business in Sacramento, Calif., to enter Congress.

Harold Cross, the lawyer, had been counsel to the New York Herald Tribune and lecturer and associate dean of the Columbia University School of Journalism. He had taken early retirement because of ill health when he was recruited by James Pope in 1950 to produce for ASNE "a summary of recent statutes and court decisions which supported official secrecy." The book he wrote, "The People's Right to Know," became the bible of the FOI movement, the scholarly foundation for every major piece of federal legislation in the field, and a scrupulously researched but passionately written sourcebook for advocates of freedom of access at local, state and national levels.

Years later, Pope summed up the impact of Cross' work: "Mankind has contrived some fancy weapons to turn against his fancied enemies. ASNE took a book in hand. It worked."

It worked, in large part, because of the persistence and political acumen of the congressman, John Moss. Moss recalled later that he learned as a freshman member of the minority in 1953 what journalists already knew: "You had a hell of a time getting any information." When the Democrats regained control of the House in 1954, Moss pushed for creation of a subcommittee to investigate obstacles to openness. He became its chairman. The legislative struggle for freedom of information had begun.

In its early days, the struggle - encouraged by what one congressman described as a "very, very strong drive by the news media" - saw the journalists and congressional Democrats allied against a Republican administration. This alignment of forces produced a strategy in which the journalists and later-arriving allies first broadly attacked all aspects of government secrecy. Then they joined supporters in Congress against the executive branch. This meant, among other things, that criticism of congressional secrecy was soft-pedaled. It wasn't until the FOIA was passed in 1966 and then strengthened in 1974 that the advocates of openness focused on the Congress itself.

When John Moss convened his subcommittee's first hearing in November 1955, he began with a panel of journalists, They included Pope and Wiggins, representing ASNE; Newton and Clark Mollenhoff of Sigma Delta Chi; Guy Easterly and Hugh Boyd of the National Editorial Association; Theodore Koop of the Radio-Television News Directors Association; Richard Slocum of the American Newspaper Publishers Association; William Beale of the Associated Press; James Reston of the New York Times; syndicated columnist Joseph Alsop; and Harold Cross.

Cross had already suggested to Moss' staff a model FOI law: "General legislation might state that all records should be open except as otherwise provided by law."

Privately, he and Wiggins predicted what would develop over the next decade. Such a broad proposal, Cross feared, "Would bring down upon us an avalanche of bureaucrats from almost every office shouting objections and demanding exceptions." Wiggins was concerned that Congress might approve an "access" bill with so many exceptions that secrecy would be sanctified. "Such a measure would leave us in worse shape than we are," he wrote.

These were the worries of passionate advocates of legislative action. By no means did all editors share that passion.

For example, Lester Markel, then Sunday editor of the New York Times, wrote in the ASNE Bulletin in 1956 that he suspected the initials ASNE really stood for "American Society for Non-restrictions Enywhere." He argued that "the be-all and end-all" of government was not the providing of "scoops for journalists in general and columnists in particular." Even a president of ASNE thought his colleagues were going too far. Jenkin Lloyd Jones, editor of the Tulsa (Okla.) Tribune, cautioned that effective government required considerable secrecy: "For it is only behind closed doors that most politicians - yea, even statesmen - honestly express their views and try to got at the meat of the question."

Getting at the meat of secrecy began with the hearings led by Moss and his Senate counterpart, Thomas C. Hennings of Missouri. The first legislative product of those hearings, and of the FOI movement, was a bill passed in 1958 to amend the Administrative Procedure Act of 1946, which had become the bureaucrats' favorite justification for withholding information. After three years of hearings, and over the opposition of all 10 Cabinet departments, the House and Senate unanimously approved an amendment that said simply, "This section does not authorize withholding information from the public or limiting the availability of records to the public."

It was a small, and largely ineffective, step.

The bigger step, to the FOI Act, took place in a different political context. The Democratic victory in 1960 elevated Moss, who had been an early supporter of John F. Kennedy, to membership in the House leadership. More important, though, the partisan struggle became a more complicated and less public intra-party fight that, in the end, pitted Moss and his journalistic allies against LBJ and his legendary clout and vindictiveness. The most amazing thing about the FOI Act is less its flaws than the fact that it was passed and signed at all.

Moss himself, opening House debate before final passage of the bill in 1966, told his colleagues that he had "read stories that President Johnson is opposed to this legislation." To the contrary, Moss said, "cooperation from the president and ëhis able assistants' had been ... excellent." The issue was "very sensitive to the institution of the presidency," he said. "Despite this, I can say to you that no chairman could have received greater cooperation."

No chairman could have survived greater opposition, he might more candidly have said.

Much later, he spoke more frankly about the pressure-filled months that preceded passage, "The negotiations were very rough. I recall that the assistant attorney general would walk out and say, 'All right, there'll be no bill, then.' " He added, "Johnson was not enthused about this legislation, and his Department of Justice worked against it."

Moss' position was made even more delicate by another fact never mentioned publicly at the time; "I knew and he knew I didn't have two-thirds to override a veto."

One result of this peculiar situation was that, while the chief sponsor of the legislation was forced into public silence, the role of outspoken advocacy fell to Republicans. Rep. Donald Rumsfeld of Illinois, for example, took up the attack on executive secrecy that his Democratic colleagues had leveled against a Republican administration 10 years before.

Another, more serious, result was that the supporters of the legislation were forced to accept multiple exemptions pushed by the executive branch. And Justice Department lawyers were allowed to help draft the House report that explained the intent of the bill. This resulted in an explanation that sought to undercut the goal of openness and that came to be relied on by those seeking to avoid disclosure. Almost another decade would be required to undo much of that damage, with the amendments of 1974, which were passed over a veto by President Ford.

LBJ's attitude, while shared by presidents before and since, was expressed with special pungency. Moss described for his staff one meeting between Johnson and Democratic leaders. In language he said he was cleaning up, Moss quoted the president: "What is Moss trying to do, screw me? I thought he was one of our boys, but the Justice Department tells me his goddamn bill will screw the Johnson Administration."

It didn't, of course. Nor did it lift the lid on government secrecy, as its advocates had hoped. Its real impact has been limited but important. John Moss' assessment, delivered nearly 20 years ago, a decade after the FOI Act took effect, remains as good as any. In the mid-'50s, "vast amounts of material were routinely withheld," he recalled. "If you compare it with today, we've made vast progress. If you ask me it we've made enough, the answer is no."

Kennedy is a professor of journalism at the University of Missouri and managing editor of the Columbia Missourian.

Copyright © 1996, American Society of Newspaper Editors, used by permission.

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