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The Freedom of Information Act—and the Hero Who Pioneered It - Pacific Standard

The Freedom of Information Act—and the Hero Who Pioneered It

Celebrating the curious and deeply unpopular political career of John Moss, godfather of the FOIA.
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Michigan Congressman John D. Dingell (right) campaigns for John Moss (left).

Michigan Congressman John D. Dingell (right) campaigns for John Moss (left).

The Freedom of Information Act (FOIA) turns 50 years old on July 4, 2016. The landmark bill, signed into law by a reluctant Lyndon B. Johnson in 1966, gave the public unprecedented access to government documents. Like many great American contributions to democracy, it was the project of a lone crusader, opposed by the leading politicians of the day until it finally became law, then fully embraced on paper but never more than half-realized in reality.

And the Swedes beat us to the idea by 200 years.

Nevertheless, the FOIA and its state-level progeny have been used by journalists to uncover everything from how many cans of vanilla Ensure the government bought to force-feed detainees at Guantanamo Bay to who’s having the loudest sex in New York City. Read any big news investigation and you’re likely to come across the phrase “according to records obtained through the Freedom of Information Act.”

None of this would have been possible without John E. Moss, a backbench Democratic congressman from California who labored for 12 years, and often against his own party, to get the bill passed.

A Navy veteran and former appliance salesman who grew up dirt poor in the Depression, Moss got elected to the California Assembly, served two terms, and ran for Congress in 1952. He won his seat by four-tenths of one percentage point and never expected to serve more than one term in Congress. Michael Lemov, a former staffer for Moss who wrote a 2011 book on the congressman, says that Moss once told him: “By all that was holy, Mike, I was a one-termer.” But for some reason, Sacramento voters liked his style.

The executive branch found him less charming. He picked a fight with the Eisenhower administration over records on nearly 3,000 federal employees it claimed to have fired for communist ties. The administration refused to fork over the documents. “It was his first brush with government secrecy, and he didn’t forget it,” Lemov says.

The same year that Moss entered Congress, the American Society of Newspaper Editors published Harold Cross’ groundbreaking study on government secrecy. In the midst of the Cold War, the government’s classification system had exploded in size, and there was neither a clear right to access government records nor judicial remedy for anyone denied access. Under Cross’ guidance, those two principles would become the foundation of the FOIA.

“The right to speak and the right to print, without the right to know, are pretty empty,” Cross once said.

Moss and ASNE quickly recognized their mutual interests, and if Cross was the intellect behind the legal principles of the FOIA, Moss was the enforcer. After becoming chair of a special committee on government operations, Moss held hearing after hearing on the Eisenhower administration’s expansive use of executive privilege and its restrictions on the press.

All this soon earned him the baleful interest of J. Edgar Hoover’s Federal Bureau of Investigation. “Our relations have not been favorable with Congressman Moss,” a 1960 memo in Moss’ FBI file states. “It is noted that in 1956 Moss publicly stated he was inquiring of the Attorney General as to why the press had been barred from FBI schools for Southern police officers on civil rights.”

(This and other treats appear in Moss’ two-inch-thick FBI file, which was obtained after his death by the Sacramento Bee — through a FOIA request, naturally.)

Despite a more friendly relationship with the Kennedy administration, Moss continued to object forcefully to any whiff of secrecy, such as the Kennedys’ harsh restrictions on White House pool reporters during the Cuban Missile Crisis. He won important concessions from John F. Kennedy on the use of executive privilege, but, in general, the trend continued toward less transparency, not more. But the Kennedy and Johnson administrations, to use the language of office managers breaking bad news, decided to go in a different direction.

Moss’ skepticism toward the war in Vietnam would do him no good with Lyndon Johnson. With the United States’ involvement in Vietnam heating up, Moss embarked on his own fact-finding mission to Southeast Asia to investigate waste, corruption, and the general state of affairs. When he returned to the U.S., Johnson arranged to have Moss picked up from the airport and driven directly to the White House. Standing in the Oval Office before the president and several Cabinet members, Moss gave his report.

“Mr. President, the Vietnamese people are not behind us,” he said, according to the Sacramento Bee. “Expanding the war would be a mistake.”

Moss was never invited to the Johnson White House again.

By the mid-1960s, Moss had been holding hearings for more than a decade about government opacity. All told, 27 federal agencies testified on his proposed transparency legislation, all of them in opposition. The Department of Justice said the FOIA would be unconstitutional — that it violated the separation of powers. Yet by 1966, Moss had acquired a critical mass of support for the FOIA among liberal Democrats and Republicans eager to needle the Johnson administration, such as a young Republican named Donald Rumsfeld, who co-sponsored the bill.

Johnson knew how much trouble the FOIA could cause, especially after the Gulf of Tonkin incident, which is why he opposed it behind closed doors.

“What is Moss trying to do, screw me?” Johnson complained to Democratic leaders, according to Moss. “I thought he was one of our boys, but the Justice Department tells me his goddamn bill will screw the Johnson Administration.” (Moss was cleaning up Johnson’s language. It’s doubtful Johnson ever used a five-letter word when a four-letter one was available.)

Congress forced Johnson’s hand on June 20, 1966, when the House passed the Freedom of Information Act by a vote of 307–0.

In a June 24, 1966, memo to Johnson, the president’s staff passed along Moss’ suggestion that Johnson hold a public ceremony for the signing of the FOIA bill, saying it would help fight criticisms that his administration was unduly secretive.

Johnson scrawled at the bottom of the memo: “No ceremony.” He signed the FOIA into law at his Texas ranch on Independence Day. No television cameras. Moss wasn’t invited.

Despite his profanity-laced private opinions about the FOIA, Johnson’s signing statement was quite eloquent: “This legislation springs from one of our most essential principles: 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.”

The FOIA was Moss’ biggest, but far from only, victory. He was instrumental in passing, among other bills, the nation’s first automotive lemon law, the Clean Air Act, the Federal Privacy Act, and the Consumer Product Safety Act.

He was also the first member of Congress to propose impeachment proceedings against Richard Nixon. Nixon’s resignation, and the ensuing drop in public confidence in government, gave Moss and other pro-transparency lawmakers the political cover to strengthen the FOIA in a series of amendments. (Rumsfeld, by then an adviser to Gerald Ford, suggested that Ford veto them, which he did. Congress overrode the veto.)

Moss retired in 1978 after 13 terms in Congress. He never chaired a major committee, and the highest he ascended in Democratic leadership was deputy whip, a position he lost after coming out against the Vietnam War. Freedom of information laws now exist, at least in principle, in more than 100 countries.

In 2015, the federal government received an all-time high of 769,133 FOIA requests from journalists, concerned citizens, conspiracy theorists, academic researchers, opposition researchers, corporate interests, inmates, genealogists, and advocacy groups. Despite President Barack Obama’s pledge to run “the most transparent administration in history,” there have been more FOIA lawsuits filed against the federal government during his two terms than any other president.

After several years of dogged lobbying by transparency advocates, Congress passed an update to the FOIA this year, codifying into law the Obama administration’s directive that agencies operate under a presumption of openness and only withhold records when a “foreseeable harm” exists.

The White House said it supports the bill, although, oddly enough, documents obtained through a FOIA lawsuit earlier this year revealed the Obama administration used back channels to kill the same bill in the previous session of Congress.

One wonders if there will be a signing ceremony this time around.

In an interview with Moss before the congressman’s death in 1997, Lemov asked Moss if he was satisfied with his work on the FOIA. “No, I’m not satisfied,” Moss replied. “If you ask me if we’re better off now than in ’66, I’d say yes. If you ask me if we’re where we should be? Absolutely not. The battle will never end.”

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