Texas A&M University-Central Texas professor Luke Nichter said recently he got a letter back from the FBI about a Freedom of Information Act request.
It would take 600 months to process all of the documents Nichter requested associated with the House Committee on Assassinations, a legislative committee formed in the late 1970s that reviewed the United States’ role is several international political assassinations. The agency had to ensure all sensitive information was excluded.
“They wrote me back and said we’ve had to go to storage, and we’ve brought in four full pallets of documents,” he said, it equated to about 300,000 pages. “I wrote back and I said, in 50 years I don’t know if either one of us will be alive ... but please proceed with this request.”
Nichter, a history professor with a specialization in Nixon-era politics, has filed about 1,000 Freedom of Information Act requests in the past 10 years, and that’s “low-balling” it, he said. Some of what he obtained was used in “The Nixon Tapes,” a book he wrote with Douglas Brinkley that was published last year.
Nichter’s extensive research into the Richard M. Nixon administration and its political aftermath has provided a unique view into open records. The many scandals associated with Nixon and his administration, including Watergate, helped shape some of today’s open record laws, Nichter said.
Nixon’s presidency occurred three years after the Freedom of Information Act — a law that gives the public the right to access information from the federal government — was enacted in 1966, but the majority of the Nixon White House tapes themselves are available to the public because public and private record laws were not completely unified at the time, Nichter said.
It was not until the Presidential Records Act in 1978 that presidential records were subject to FOIA laws, he added.
“Before (the PRA) there’s all kinds of patchworks of things,” Nichter said.
The Nixon tapes are audio recordings of the communications between Nixon and White House staff that were recorded starting in 1971. The recording system was voice activated, providing unprecedented access to the inner-workings of government.
The legal gray-area gives the public “fly on the wall”-like access to intimate conversations that would not be available if the Nixon tapes were subject to today’s FOIA law, Nichter said.
“This is perhaps an overly cynical view, but FOIA and other vehicles for review and release like FOIA, exist as much to help us as to deny us. They exist as much to show us how to gain access to things as they do to assist these agencies in giving them all the tools to deny us,” he said. “What fascinates me the most is that the system works at all.”
Every agency different
While the Freedom of Information Act and other sunshine laws govern public access to records, every federal agency, such as the FBI, the CIA and the Justice Department, has unique interpretations of the law, Nichter said.
A single request involving several federal agencies could be processed in multiple ways, he explained. For example, even within a single federal agency — the U.S. Navy, for example — junior JAG officers each process FOIA requests differently.
“They’ll redact even things like (former FBI Director) J. Edgar Hoover’s name. And I think that’s a commonly known fact for the most part, but some really err on the extreme side of privacy,” Nichter said. “Others will give you surprising things, like Social Security numbers of people who are still alive, and phone numbers and addresses that are still valid.”
The process is complex, messy and is not getting any easier as the rapid increase in technology is causing more gray areas, he said.
“It’s a problem. We’ve had a FOIA now for almost 50 years, and we’ve learned a lot of things, but I also think we’ve learned how far we have to go. Because ... today, when (President Barack) Obama sends a text message, we should — maybe in 40 or 50 years — be able to see it.”
Gaining a “mini-legal” education in his own experience, Nichter said the law is ever evolving and trickles down to the state and local levels.
With each presidency comes new tweaks to what’s accessible and what’s not, but it’s really the federal bureaucratic institutions that are the legal powerhouses.
“I think the federal bureaucracy has a much longer record than the state bureaucracy does. And what I mean, is presidents come and go, but in a sense, the real power is not the presidents, but these bureaucracies with civil servants who have been there 20 to 30 years enacting the policies,” he said.
As each governmental entity issues it own FOIA guidelines yearly, and it’s important — despite the difficulties — for citizens to provide checks to the system, Nichter said.
“This is important and something we should all do,” he said. “We have rights, and when we stop taking advantage of these rights, they’re not worth anything.”