Don Rumsfeld, A Father of FOIA?

In a recent appearance at the Council on Foreign Relations, Secretary of Defense Donald Rumsfeld remarked that he was a cosponsor of the Freedom of Information Act during his 1960s stint in the House of Representatives. This is a claim made, as it was here, to parry a critical question about the Pentagon’s penchant for unjustifiable secrecy.
It was, however, the first time I had actually heard it leave his mouth. Given the other things to come out of there, I was compelled to verify for my own peace of mind. Indeed, S. 1160 was co-sponsored by then-congressman Rumsfeld, who hailed from west-suburban Chicago. He sat on the House’s Committee on Government Operations, through which the bill was unanimously endorsed on its way to a full vote. He also spoke on the House floor in support of it.
During the floor debate on the FOIA, Harold Gross (R-Iowa), formerly a print and radio journalist, remarked that it would be imperative “to see to it that the agencies of government conform to this mandate of Congress. It will be meaningless unless Congress does do a thorough oversight job, and I have in mind the attempt already being made to destroy the effectiveness of the General Accounting Office as well as the efforts of the Defense Department to hide the facts,” making reference to the Vietnam imbroglio. Rumsfeld replied:
The gentleman’s comments are most pertinent. Certainly it has been the nature of Government to play down mistakes and to promote successes. This has been the case in the past administrations. Very likely this will be true in the future.
There is no question but that S. 1160 will not change this phenomenon. Rather, the bill will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of Government or on how an individual Government official is handling his job.
Mr. Speaker, the problem of excessive restrictions on access to Government information is a nonpartisan problem…No matter what party has held the political power of Government, there have been attempts to cover up mistakes and errors. …
There still remains some opposition on the part of a few Government administrators who resist any change to the routine of government. They are familiar with the inadequacies of the present law, and over the years have learned how to take advantage of its vague phrases. …
But our democratic society is not based upon the vested interests of Government employees. It is based upon the participation of the public who must have full access to the facts of Government to select intelligently their representatives to serve in Congress and in the White House. This legislation provides the machinery for access to government information necessary for an informed, intelligent electorate. …
I consider this bill to be one of the most important measures to be considered by Congress in the past 20 years.
As the debate wound down, Rumsfeld made three more important points, two of which were his own.
This bill is not to be considered, I think it is safe to say on behalf of the members of the committee, a withholding statute in any sense of the term. Rather, it is a disclosure statute. This legislation is intended to mark the end of the use of such phrases as “for good cause found,” “properly and directly concerned,” and “in the public interest,” which are all phrases which have been used in the past by individual officials of the executive branch to justify, or at least to seem to justify, the withholding of information that properly belongs in the hands of the public. It is our intent that the courts interpret this legislation broadly, as a disclosure statute and not as an excuse to withhold information from the public.
I must add, that disclosure of Government information is particularly important today because Government is becoming involved in more and more aspects of every citizen’s personal and business life, and so the access to information about how the Government is exercising its trust becomes increasingly important. …
Thomas Jefferson, in discussing the obligation of the press to criticize and oversee the conduct of Government in the interest of keeping the public informed, said: “Were it left to me to decide whether we should have a government without newspapers or a newspaper without government, I should not hesitate for a moment to prefer the latter. No government ought to be without censors; and where the press is free, none ever will.”
Compared to the Rumsfeld of today, his closing was remarkably cogent.
In this country we have placed all our faith on the intelligence and interest of the people. We have said that ours is a Government guided by citizens. From this it follows that Government will serve us well only if the citizens are well informed.
Our system of government is a testimony to our belief that people will find their way to right solutions given sufficient information. This has been a magnificent gamble, but it has worked.
The passage by the House of S. 1160 is an important step toward insuring an informed citizenry which can support or oppose public policy from a position of understanding and knowledge.
The Freedom of Information Act was approved 308-0 (there were 125 non-voters). President Lyndon Johnson reluctantly signed it into law on July 4, 1966, with several caveats, one of which was that it “in no way impairs the President’s power under our Constitution to provide for confidentiality when the national interest so requires.” Government agencies devised ways to circumvent FOIA, like charging exorbitant search and copying fees and purposely mixing confidential and non-confidential information.
Donald Rumsfeld didn’t take long to start eating his words. In 1974, when Congress sought to strengthen the Freedom of Information Act following Watergate, then-Department of Justice Chief Legal Counsel Antonin Scalia mobilized executive branch opposition to the bill. Gerald Ford ultimately vetoed the amended FOIA, a move which Rumsfeld, Ford’s Chief of Staff, supported. It took just a month for the Congress to override it.
Rumsfeld would become Secretary of Defense for the first time a year later. What a difference 40 years makes, through which a supposedly ardent supporter of transparent governance becomes a purveyor of secrecy and propaganda against people both foreign and domestic.