FOIA History

The Freedom of Information Act (FOIA) is a disclosure tool. It was passed by Congress in 1966, after years of deliberation, with the intent being to illuminate the inner workings of Federal agencies that had become increasingly secretive. Indeed, FOIA was a fix to a twenty-year-old law that was failing: the Administrative Procedures Act of 1946.

A little background: early FAA history

U.S. federal aviation policy began with the rise of air power during World War I. The way that humans waged ‘war’ was being rapidly redefined with the use of aircraft. In fact, European nations were so enthusiastic about aviation that the U.S. really had no choice; if we were to keep up with the Europeans, we had to develop a federal role in aviation.

The first step was in March 1915, when the National Advisory Committee for Aeronautics (NACA) was formed. In the words crafted by Congress: “…It shall be the duty of the advisory committee for aeronautics to supervise and direct the scientific study of the problems of flight with a view to their practical solution….” The legislation was slipped through (some claim unnoticed) within a Naval Appropriations bill. The first committee included 12 unpaid volunteers and functioned with a $5,000 annual budget. NACA served its purpose for more than forty years. When FAA was legislated in 1958, NACA was reformulated into NASA, to direct its science toward solving space problems.

After World War I, returning veterans provided a core group of experienced pilots. Congress began to subsidize the development of ‘Air Mail’. This came to fruition with passage of the Kelly Air Mail Act of 1925, which set tariff rates. The Air Commerce Act of 1928 then put the development of U.S. commercial aviation within the purview of the Department of Commerce. [link to a Smithsonian Museum article]

Along the way, there were scandals, many of which stirred a growing public concern about cronyism; a fear that ‘bureaucrats’ were expanding waste, taking care of their friends while dodging accountability.

The Growth of Agencies during the Great Depression, and the Evolution of the 1946 Administrative Procedures Act (APA)

Then, in 1929, the stock market crashed, and when FDR took office in early 1933, we were in the depths of the Great Depression. As a part of dealing with that economic situation, between 1932 and 1940, Congress created seventeen new ‘agencies’ (a few examples include FDIC, SEC, Social Security, and the NLRB). Government was doing more and more, growing ever larger, and people were concerned that civil servants were not working transparently. So, in 1939, President Roosevelt directed his Attorney General to form a committee to review administrative procedures within the federal agencies. Their report was issued in January 1941, and framed the need for and intent of the Administrative Procedures Act (APA).

The attack on Pearl Harbor happened in December, and the U.S. became involved in World War II. The Administrative Procedures Act was thus delayed; it finally became law in 1946. APA established an avenue for agencies such as FAA to become ‘enlightened’ with citizen concerns, via the ‘Notice of Proposed Rulemaking’ (NPRM) process. APA also set the first federal guidelines for agency disclosure of records.

How TV, Hoover, DDT and Vietnam helped to pass the Freedom of Information Act

Fast forward twenty years, to the mid-1960’s. Government had grown even larger. Racial inequality had become the central social issue, and our involvement in Vietnam was escalating. Some citizens were upset about federal preemption of their perceived right to separate people by the color of their skin. And there were other – far more legitimate – citizen concerns about agency excesses. Looking back, it seems that although the prosperity and progress for the two decades following WWII was astounding, there was also a dark side we were all tending to look past.

And, TV may have helped with that. The power of TV was being explored, both in front of and behind the camera. Network executives as well as government officials and candidates, needed to learn how to use TV to their own advantage. TV could tip election results, propagandize for or against proposed/existing government programs, even deliver outright lies. TV also had the power to distract citizens with entertainment, and numb citizens with saturation. It was a new weapon for selectively destroying brain function.

So, yes, it was an amazing era. But, it was also just a matter of time before our collective focus would return. We had survived McCarthyism (…or did we?). There was the slowly growing controversy behind FBI Director J. Edgar Hoover; the emerging hazards of DDT and other chemicals that previously had been promoted by government agencies; the horrific death tallies from regular aviation accidents, like the 1960 midair over New York that killed 134; the 1963 assassination of JFK (compounded by rampant distrust about a possible conspiracy); and, the 1964 Tonkin Gulf incident that launched us into the Vietnam War, with a small opposition voice (such as Oregon Senator Wayne Morse) that was later proven correct in their doubts. The times were great, but the fabric was beginning to unravel.

President Johnson was not Enthused

And so, when Congress deliberated FOIA in 1966, it was relevant legislation, and it passed. President Johnson had deep reservations about FOIA; he signed it quietly. There was no ceremony.

The law was tested during the Watergate period, strengthened by Congress in 1974, and further amended in later years. A good overview of subsequent amendments is found at the DoJ’s online 2009 FOIA Guide, at pages 5-7 of the Introduction.