The Fallacy of FOIA: An Analysis

In a letter Monday to attorney and concerned citizen Ty Clevenger, who had recently filed a Freedom of Information Act (FOIA) request to release all of former Presidential candidate Hillary Clinton's now infamous e-mails as a part of his campaign to disbar Clinton and her personal legal team for their mishandling of these emails, FBI records management chief David Hardy notified Mr. Clevenger that he had not "sufficiently demonstrated" that the public at large was interested enough in Mrs. Clinton's emails to outweigh the privacy concerns of the subject. As a result, the FOIA request to release the emails was denied.

A casual observer would likely conclude that the "Freedom" in Freedom of Information Act would trump any need to demonstrate a public interest before being able to access what is legally supposed to be free, open information (Trump pun partially intended). A citizen being able, at any time, to request the records of business done by public officials is essential to the existence of an honest, transparent government. Which begs the question, why the "public interest" clause?

The answer is found in exemptions 6 and 7c of the Freedom of Information Act. These exemptions exist as part of a 'delicate balancing process' according to the US Justice Department, in which, according to the Supreme Court, privacy concerns of the individual's information being requested must be balanced against the "preservation of the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny.'" (see: Department of Air Force vs. Rose, 1976)

Call that our first hurdle. But the legal maze does not end at sufficient public interest.

Numerous Federal court rulings, some reaching the Supreme Court, have determined that even if such public interest is demonstrated, that it may not be always be given legal consideration if the information being requested is not actionable in a way that 'serves a legitimate public purpose' (see: Church of Scientology vs. Department of the Army, 9th Cir. 1980).

With these provisions in mind, even if Mr. Clevenger had succeeded in the eyes of the Bureau in demonstrating a public interest to obtain the Clinton emails, a judge, or a series of judges, would then have to determine if a 'legitimate public purpose' would be served by the release of these emails.

Thus, acquiring information from public officials has become a very subjective legal process in the midst of a law that was intended to be very straightforward in its purpose. These legal precedents, given the demonstrably intertwined nature of Federal officials and the corruption that in and of itself brings, are creating an environment that is subject to the total and absolute corruption of FOIA whenever the business of a high-level public figure is the subject of public interest.

The question I would ask anyone is, do you believe that there is no one at the FBI or within the Federal court system, given in this case that they are the agencies making these decisions to release or not release requested information, who may also be tripped up by any potential release of Mrs. Clinton's relevant emails? That is to say, how many individuals currently serving in Congress, law enforcement, or the legal system would be shown to be wholly corrupt if the information contained in these emails was ever able to be publicly scrutinized and searched? While that answer may very well be, "None", it may very well also be, "More than a few."

In a free, open society, that question could be settled by simply applying the law intended to give citizens the right to settle it. Instead, we are making exemptions and legal precedents to that same law which curiously appear to benefit those in high office who are most suspected of impropriety.

Our leadership is over-complicating a society which was not meant to be overly-complicated. While this point could be broken down further in a broader discussion, consider that the Founders determined that an approximate 19-page document containing only 7 Articles and 10 Amendments was sufficient to define the proper operation of the Federal government (US Constitution). In the almost 230 years since those Amendments were ratified as part of the Constitution, just 17 more Amendments have been added.

With all of this in mind as a backdrop to today's ever-complicated legal system, it is critical to ask yourself the ageless question, "Cui bono"? Who benefits?

Everyone must decide this for themselves, but I would add: Are you benefiting from not knowing what your Secretary of State was doing on behalf of every American for 4 years? And is knowing the details of those activities not of sufficient public interest, and does it not serve legitimate public purpose to know the details?

The answer to any fair-minded citizen who places the rule of law above all else in their society is clear.

And with that in mind, one could readily conclude that if FOIA has been reduced to a series of exemptions and rulings which seemingly outweigh the purpose of the law itself, that it truly no longer exists at all.

Cui bono?

• @gringoloco

References:

"FBI says lack of public interest in Hillary Clinton emails justifies withholding documents":

http://www.washingtontimes.com/news/2017/aug/29/fbi-lack-public-interest-emails-justifies-withhold/

"FOIA Update: FOIA Counselor: Factoring in the 'Public Interest'":

https://www.justice.gov/oip/blog/foia-update-foia-counselor-factoring-public-interest

"Fascinating Facts About the US Constitution":

https://www.constitutionfacts.com/us-constitution-amendments/fascinating-facts/