Reflections on the Sunshine Laws
For about five years of my life, I was a researcher. I'd use the Freedom of Information Act (FOIA) and the Privacy Act (PA) to help people get their records from the IRS to see what is in their file. I learned how to do this by attending a seminar given by a good friend of mine. I was so enthralled with the idea of FOIA when he approached me about it, that I even sold tickets for the seminar that I would eventually attend.
And when the seminar was done, I sent my first request for my own records from the IRS. I got my documents in 30 days. "You set a new record," my friend said. That was fuel for more than 300 requests I sent to federal and state agencies, far and wide, for myself and for hire, over five years.
The FOIA and the PA are both part of a larger body of law called, "Sunshine Laws", for they shine light on how an agency operates and the records maintained by the agencies. To fully explain these laws would take a few books to do it, and there are many great books to read on the subject. A simple search on Amazon will yield dividends.
FOIA is used by people from all walks of life, and it is a necessary component of a civil society. FOIA allows us to know what our government is doing because, at least the theory is, the government is working for us, the people. But government can only work for the people if it knows the will of the people. And lately, it hasn't. At least, not in the circus we call, Congress.
I wanted to write this article to offer some insight to people who might otherwise think that the government is a machine. I learned that this idea that government is evil, government is a machine, that it has no compassion, is dependent on our involvement with it. Government is not evil. The people in government may conduct themselves poorly, but government in and of itself is not bad or evil.
All forms of government require participation in it in order to be responsive to the people government is intended to serve. If you just vote, you get to decide who writes the laws and where the checks go. If you go to court, you help decide which laws stay in effect, and can strike down bad laws or limit their effect. If you work with agencies and follow their rulemaking processes, then you can provide input into how the laws are implemented. It's not really that complicated. It just requires time.
FOIA allows us to gain insight into how an agency operates. For example, we can get a copy of the agency and staffing manual for an agency to determine how it's organized and how power flows from the top to the bottom. We can use an agency manual to determine if an agency is following it's own procedure and if not, use that information to correct an agency determination about us.
When Congress writes a law, they delegate authority to the head of an agency. Then the agency head delegates authority to someone within the agency to write regulations that implement the law. Then the sunshine laws appear again in the Administrative Procedures Act (APA). The APA says that an agency's rulemaking authority requires public input. Where the rule is not internal, and can affect any member of the public, the rule must be published in the Federal Register for input.
I've learned much of the nitty-gritty parts of these laws and taken them to heart. I've met and talked to the disclosure officers within agencies I have worked with and have seen that really, these are just people doing their job. They want to go to bed at night knowing they did the right thing. I give everyone the benefit of the doubt, and assume that they just want to sleep at night knowing they did the right thing.
For me, FOIA has restored humanity to how I interact with the government. One of the things I learned early on, and in that seminar I attended so long ago, is this:
The disclosure officer is your friend. If you piss him off, he might just roundfile your request and say it got lost.
So I was tracking a request at the California Franchise Tax Board, and noticed that the response was late. I called the disclosure officer and talked to him about it. His name was Dave, and he was actually a pretty nice guy on the phone. He liked me and worked with me because I wasn't yelling at him, calling him names and demanding a copy of his photo ID. I think he gets that a lot. So for him, dealing with someone who is calm and peaceful must be a nice change.
Then there was this disclosure officer at the Treasury Department. I learned from her, that she enjoyed the history she was seeing in the documents she found within the agency. She enjoyed the research and how creative people can be when they make a request.
My favorite experience was when I thought it might be nice to get a copy of all the Treasury Delegation Orders. See, when Congress writes a law for the Treasury Department, the Secretary of the Treasury writes a Delegation Order, making a direct delegation from Congress to himself, to another officer within the agency.
So I called the Treasury and asked about them. "The Delegations Orders? Sure. What's your address? I'll send them for free." The first 100 pages are free? Cool! In a couple weeks, I got them. All of them. Nothing was redacted.
If I could do that for hire again, and pay the bills, I'd do it. It's really fun and it was kind of like collecting baseball cards, only this is for government documents. I have a little trove of documents that I'm holding onto just for fun and for sentimental reasons. I made some good friends then within and without government. But I never forgot the lessons learned.
Using the FOIA taught me to be patient and to wait. It taught me how to get organized and keep track of my requests. It taught me how to convert a question into a request for a document. It taught me how to interact with the government in a new, non-confrontation, non-adversarial way.
It is because of this experience, that I'm not afraid of government. I know that government is made of people like you and me. They have another perspective and made a choice to perform public service. It's not all good, and not all bad, but it's what we have right now.
Write on.
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I could not agree more. FOIA has many flaws, from what I've heard (certainly in the UK where I live, some institutions make FOIA requests as difficult, expensive and long-winded as they can) - however I've also heard of many instances where FOIA requests have been very useful and enlightening.
But your wider point, on the importance of getting involved with government and using these instruments to question, challenge and monitor our institutions, is so true! I need to do more of this myself. I used to write to my local MP quite often, but since the current government came in, my new MP (member of parliament) has responded to all my mails with a standard letter/email saying that he is too busy to respond. I think this is a shocking state of affairs, as the whole point of having an MP is to represent the public in Parliament. That is what democracy is meant to be about.
I have lots of ideas and thoughts about this, and I rarely get round to putting any of them into practice. I no longer vote, because I don't want to give my assent to this corrupt system. But I think we should ALL become more politically active in this way – challenging our authorities and representatives.
I too have received meaningless form letters from state and federal representatives. The FOIA kind of adds an edge to this in the sense that if we're asking, we're watching.
Another fun thing to do with FOIA is to prove that a document does not exist. Consider a point of authority and ask for a copy of the document that grants authority for such action. If they can't point to a law, and there is no document to support the action, then there is no authority for it, either.
I've done that a few times and it's a really cool feeling to see an agency admit it lacks the power to do something it had already done.
Interesting... you've got me thinking now!
For tasks that affect day to day lives, or curiosities that don't affect powerful people this seems innocent. But what about if you start snooping in the wrong places? I think I've read or watched one too many political thrillers...
Pretty cool that you've gotten this closer engagement with the government. It's certainly easy to treat it all as a nuisance and red tape if we don't know any better.
There is an old saying, "it is dangerous to be right when the government is wrong". I don't worry about snooping in the wrong places. All of this is public information. If it's not, they will just deny the request.
I've never had a request flatly denied, and I've won every appeal that I pursued.
Here's the thing. It is safer for 1000 people to be right when the government is wrong, than just one man.
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I am so ambivalent on the whole idea of government secrecy. On the one hand, the anarchist in me believes we have every right to know what the government is doing in our name, with our tax money, etc. The whole idea of government secrecy makes me queasy.
On the other hand, I understand that in the real world, for reasons of safety, national security and even with the best intentions some government secrecy is necessary.
The fact is, however, this has gone way, way , way too far and I guess it's going to take another awful government scandal (of which I'm sure a whole smorgasbord awaits discovery) to strengthen things like FOIA, etc. We also need a voting populace that gives a freakin' damn ... and, oh, I'm not sure we have that in this country at all. This truly scares me.
Now consider what I've shared and imagine what would happen if 10 million people decided to stop watching TV and just write and track one request per week.
I often wonder why the geniuses who spend so much time watching sports can't point their eyes, ears and brains at the government for the scrutiny. Oh, yeah. Beer and circuses.
I'm actually not that scared of the current situation. I'm just a patient observer. If I ever need to use it, I can be a very expensive little pill for any agency that wants to bite me. If I would only give them cause, but I'd rather raise a family. :)
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