How business interests shaped US public records law: Q&A with Jeannine Relly

 
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June 28, 2019

The Freedom of Information Act — FOIA — lets anyone request records from federal agencies. Federal agencies have to provide requested records, with exemptions.

Putting those exemptions aside for a moment, one guiding principle of the federal FOIA law is to shine light on the inner workings of government institutions that American tax dollars pay for. The concept is straightforward: the public has a right to know what the government is doing with its money.

Journalists use FOIA to tell stories about government dealings that otherwise might be shut away forever. But obtaining information through FOIA can get tricky in practice, especially when government business and private industry interests overlap, which they often do.

We talked recently with Jeannine Relly, an associate professor at the University of Arizona School of Journalism, about how business interests have shaped FOIA amendments since the act was passed in 1966. Relly has extensively studied international right-to-know trends in journalism. In 2016 Government Information Quarterly published her paper, “How Business Lobby Networks Shaped the U.S. Freedom of Information Act: An Examination of 60 Years of Congressional Testimony,” written with Carol Schwalbe, director of the UA School of Journalism.

Relly and Schwalbe found that businesses — not journalists — have filed the majority of FOIA requests over the decades. They examined thousands of pages of congressional testimony and found particularly since the 1980s that business interests have “played a key role in shaping the FOIA.”

About those FOIA exemptions

There are nine exemptions to the federal FOIA law. One key exemption is Exemption Four, which allows a federal agency to withhold information related to trade secrets.

The Argus Leader newspaper out of Sioux Falls, South Dakota ran into Exemption Four when it tried in 2011 to use FOIA to get data from the U.S. Department of Agriculture on the amount of federal funding grocery stores get for food stamps. Argus Leader reporters were trying to identify fraud. In 1974, the U.S. Court of Appeals for the District of Columbia Circuit ruled that federal agencies could only use Exemption Four if revealing information would result in “substantial competitive harm.”

USDA denied the reporters’ FOIA request, arguing the food stamp funding data were confidential and citing Exemption Four. The Argus Leader sued for release of the information. Judges had largely fallen in line with the 1974 interpretation until earlier this week when the Supreme Court ruled the D.C. Circuit had gone too far and effectively denied the Argus Leader’s FOIA request.

In short, business interests and the public’s need to know is a balancing act that is still very much playing out. Here’s our conversation with Relly, edited for length and clarity, on the tightly wound history of how business lobbies have shaped federal FOIA legislation.

Jeannine Relly

Journalist’s Resource: Let’s talk a little bit about the pre-history of FOIA in the U.S. This is the 1950s and early 1960s — what were the arguments for and against a federal FOIA law and what groups and interests were involved?

Relly: Some of this is not in the record. We were actually surprised at how little there was in the ‘50s in the record regarding this. But some news organizations — the larger ones — felt like there was a lock on information. We’re also going through the McCarthy era here in the United States. So some of the big players went to legislators to talk about more open government and releasing information. On the business side, it seemed in the ‘50s that businesses didn’t see any issues with releasing information. The only testimony we could find negative on business was concern about an advantage for foreign companies, companies outside of the U.S. accessing information. There was some sort of concern that they had more access than businesses in the United States. So a lot of the testimony in the early ‘60s and some in the ‘50s — if you look at the testimony as a body before the law was developed — it is like a who’s who in journalism. You have all of these people you recognize and names you know going up and advocating for more open government and government releasing information through the law. That’s the majority of what you heard. There was testimony from a representative from a major coalition of news organizations arguing surprisingly for Exemption Four, which is the business commercial information exemption. That was kind of surprising, but I think it was related to the proprietary side of journalism, the business side, trade secrets, commercial and financial information that’s confidential and privileged. That was the kind of testimony that we saw.

JR: Then in the early 1980s, the (now defunct) Business Coalition on Freedom of Information Act Reform crops up and things sort of start to shift.

Relly: The context is the 1974, ’76 amendments [to the law] that really activated FOIA because we don’t talk much about the ’66 to ’74 period. In that period there was a lot of noncompliance with the legislation among government agencies. Those amendments were written to make sure those agencies released information. Then it became what business eventually started calling the “pro-disclosure tilt” and, basically, lots and lots of information was being released. Still, at that point, there weren’t a lot of journalists using the legislation. In the record, I saw that it was like 15% of requests were from journalists. So it was largely businesses [using FOIA] even in the ‘70s. Basically, agencies were releasing lots and lots of information and businesses started becoming nervous because they were saying their colleagues were conducting industrial espionage. At that time, just as now, there were organizations that were in a cottage industry of gathering data about companies and selling it to other companies, so that was already happening in the ‘70s. By the late ‘70s you see there is this sort of change in the temperature among businesses. And then in the ‘80s, there were a lot of other associations that testified that literally represented tens of thousands of companies’ interests in making the FOIA more limited in scope in terms of releasing information. So it was a heyday for businesses to get information in the ‘70s. You can tell from the record that the Reagan administration supported the business community’s initiative through the Justice Department to allow some of these amendments and there were many of them to come forward to restrict the FOIA more. The revelation was also made that companies were making lots of money on selling this information. You could argue both ways on whether it’s a public good or not. They decided to bump up one of those amendments to increase a commercial rate for getting information from the government. Basically, there were a number of amendments circulating, about a half a dozen bills. The memorandum of understanding that each administration puts out at the beginning of their term regarding interpretation of the FOIA, it was more constrained during the Reagan administration than his predecessor, the Carter administration. It’s this political climate for releasing information, the government-business nexus was strengthened in the ‘80s, and there were more lobbyists. The other interesting change in the ‘80s regarding all organizations advocating for their cause was that there were more lobby groups in general. For example, instead of an individual journalist in the ‘80s testifying, you would see the Reporters Committee for Freedom of the Press, or an organization representing women journalists and so forth. You could tell for this particular topic there were a lot more business organizations. They were there in full force.

JR: We can get to what happened after the ‘80s in a bit, but I want to talk about the research. What was the big question that you wanted to answer?

Relly: I personally started this not looking at businesses. I was looking at critical infrastructure limitations after 9/11. And then I stumbled across some of the business stuff and then I thought, “Oh gosh, that’s a really interesting thread throughout this.” Our bigger, overarching question was looking at how business influenced the Freedom of Information Act over time. How did industry and their representatives influence the way the act changed in time? And, to an extent, in what ways did they do it? We were really limited to the record.

JR: Still, the methodology was pretty extensive.

Relly: We started gathering this data in the early 2000s. We went to a repository in Arizona in the capitol building and we went to the warehouse and brought documents out, and then we did electronic [files] as well. We used the Freedom of Information Act guide, and there were actually some interesting footnotes that we were able to use for the financial information exemption. Some of this wasn’t in the record, so we were looking everywhere. We used Lexis-Nexis Academic Universe, Lexis-Nexis Congressional and we put together a timeline of the history of the FOIA. One of the databases goes back to the 1700s so we were up for whatever we could find. We used keywords including “FOIA,” “FOIA business,” “FOIA trade,” “freedom of information,” “Exemption Three,” which became more and more important over the years. That really grew over the years. We looked at FOIA Exemption Eight, which [applies to] financial, banking-type information, specifically supervision of financial institutions. And then Exemption Nine — geological information. There was something for everybody in those exemptions. So we used those keywords and then we also used all of the amendment names over time, the titles for amendments in ’74 and ’76, ’86, ’96, 2007 and then 2009. We looked at everything we could find and, occasionally, something would pop out. We would find something outside the realms of those keywords. And we obviously included anything that we found. We had the congressional record and also used supplemental material from government agencies, Congressional Research Service reports and so forth.

JR: Going back to the timeline you developed — in the ‘90s, digitization is happening, things become a little more open maybe, and then 9/11 happens and this critical infrastructure concept emerges, which you mentioned before. Can you talk a little bit about that?

Relly: That’s really fascinating. That conversation started in the ‘90s with concerns about the Y2K issue. The tech industry and other interests, there were everything from nuclear power plants to electrical companies and water system companies that were concerned with what might happen between the last day of 1999 and the first day of the new millennium. The Clinton administration agreed to this critical infrastructure limitation of sharing information until after Jan. 1, 2000. So that was the beginning of that lobby and, as you know from a lot of policy and legislation, industries and others look for windows in time, fear factors and other [political] climate-type things to push legislation through. After 9/11, you have lots of concern about critical infrastructure. And leading up to that time, there was a lot of information out on the web related to critical infrastructure. The Environmental Protection Agency had a lot of that out on their site. The Homeland Security Act was passed at the end of 2002 and there was also the Critical Infrastructure [Information] Act passed at the same time. There were arguments against it, saying Exemption One — the national security information exemption — should cover these issues, Exemption Three covering other legislation. Critical infrastructure would be anything like chemical plants, oil refineries, water systems. I mentioned nuclear power plants, anything that would affect public health and safety. I think something like 90% of information in that realm was in private hands and I just looked recently and it’s now at like 85%. They wanted industry to report issues that occur in the environment and the argument for the exemption is that companies would come forward with their issues if they knew the information would not be released. I just looked at the Critical Infrastructure Information Act of 2002, passed at the same time as the Homeland Security Act, and there is a penalty for releasing that information — imprisonment of not more than one year and a fine. There was a huge outcry in the journalism community and public interest community and there was a lot of testimony and concern about this.

JR: About the chilling effect in terms of access?

Relly: About the lack of access. Critical infrastructure information issues would not be discussed or be available. And I’ve thought a number of times about information about nuclear power plants. You really don’t see many news reports anymore about these issues. I have no idea whether it’s connected. But in any case, yeah, a chilling effect regarding the industry. There’s a chilling effect in providing this information. Then we, as the public, if this information isn’t available, how are we going to know if there are issues down the street? It’s an interesting exemption and I wonder what the workarounds are for covering these critical entities when 85% of them are in private hands.

JR: Looking at the congressional transcripts and records over the decades as politics changed and major events happened, what’s the story that you saw emerging from who was talking to Congress about FOIA legislation?

Relly: It looks like overtly industries came out in the ‘80s using the FOIA in a way that is really an interesting take on legislation that was set up for a public interest reason. Initially, the idea was for journalists to use it even though it’s not exclusive to journalists. The story that emerges is this law was adopted to benefit the public and the public interest while all of these public interest issues were coming up with clean water, clean air and all of these environmental and other issues. Within ’66 and ’74, a lot of journalists became discouraged in the time it took, the sandbagging and obfuscation that was occurring in not getting information. So they continued [using FOIA] at a low-ish rate, up to 15% in the ‘80s and less than 10% in current times. A lot of journalists are doing great work but industry discovered in the ‘70s what a jackpot it was for obtaining information about competitors and other things. And at the same time, you’ve got government as a source of information but it is also a regulator, so you have that paradox going on. In the ‘70s, you have the steady use of the law, the beginning of the phenomena of the cottage industry, which continues to this day, of buying and selling information. You see the industries of the day, starting at manufacturing and then the tech industry into the ‘90s and 2000s, along with banking and other industries. So you sort of see the industry changes in the interest related to the legislation. You see public interest groups coming out as well — Ralph Nader in the beginning and journalism organizations later. So those interest groups are changing. There’s all these competing interests. But in the end, you’re seeing less industry testimony. That’s the limitation of doing this kind of record research — it doesn’t capture things that happen behind closed doors. I research FOIA and rights-to-information [laws] in other countries and so I sometimes look at the U.S. through the lens of, say India, and during the second decade of their law, in 2005, it’s really public-interest oriented. Other countries look at our law and know that you get into appeals often. You end up having to go through lawyers and the courts. It’s expensive compared to other countries. The complexity of these exemptions. The court cases and precedents. The way that the federal law has impacted states. We have 50 different state [FOIA] laws. It works in many ways, but some people feel like it’s broken for all the reasons I mentioned. It’s so involved and complex you wonder how you would take it all apart.

JR: You brought up some of your international work and you’ve studied trends in journalism in Mexico, India, Palestine, Afghanistan. Can you put FOIA legislation in the U.S. into that international context?

Relly: After the fall of the Berlin Wall, the breakup of the Soviet Union, and then 9/11, these were critical junctures in the world. There were government and institutional structures that ended up getting created. After the breakup of the Soviet Union and the fall of the Berlin Wall, there were a lot of new institutions that the global community considered democratic and many of them were right-to-information or FOIA laws. So a number of former Soviet states or satellite countries got this legislation over the years — this began in the ‘90s — and you can just watch the diffusion of these laws, and they’re written better and better and better. There are a lot of groups that have been involved in advocating for these laws to be adopted in countries as part of agreements of getting into the World Trade Organization or the European Union. If you think of the business side, if businesses don’t like risk, they like to have information. So there was this encouragement by all different intergovernmental and transnational NGOs [non-governmental organizations] to adopt this kind of legislation. You had countries in Europe wanting to know about the fallout from Chernobyl. There were many different competing interests and some of them were for financial and economic reasons. In the new millennium after 9/11, there were open government partnerships and efforts to get other information from other governments. There’s a place called www.rti-rating.org and it’s a really excellent site where a coalition of world-renowned legal scholars and attorneys rate these laws. The U.S. is ranked 69th in the world for the quality of its [FOIA] law.

JR: How do you think your research can inform journalists who are familiar with FOIA and also those who are just getting their feet wet?

Relly: I think being aware of these exemptions from the process side of journalism. And any public interest group interested in obtaining information, which is the purpose of the law, I would [familiarize myself with] these exemptions but I would always try to get information. I think being aware of these industries, their place at the table. Most of what happens related to the legislation is it’s basically always at the individual discretion of the FOIA officer, whether they are going to decide to release information. It’s a discretionary system. You’ve got the rules and policies, but it’s ultimately up to that individual officer. And they have to report to their superiors so maybe it’s more than one decision maker. The Reporters Committee for Freedom of the Press and a lot of other groups have these templates out there for making appeals, so there are other ways to try to appeal and have strategies for that. And, follow the people who pursue the type of information you’re looking at because there are some really fantastic journalists who share their strategies with others publicly as well as one-on-one and that’s done at places like IRE — Investigative Reporters and Editors — conferences and [with] tip sheets. But, also, on Twitter, I follow people who talk about, “This is how we got this and it wasn’t that hard.” It’s important to use what you can to get the information that you need and not think of it as a barrier. Think of it as something that just makes it a little more complicated in coming up with a strategy. But there are many strategies and many ways to go about getting information. If you look at the local level in the U.S., personal interactions [with FOIA officers] can be an advantage — or a disadvantage.

 

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