Information Access—Surveying the Current Legal Landscape of Federal Right-to-Know Laws

"The obligation to endure gives us the right to know."1 I. Introduction This Symposium was convened to assess how, in this new age of environmental law, scholars, advocates, policy makers, journalists, and other interested members of the public can gain access to and harness information about our environment. My modest role is to provide an overview of federal right-to-know laws,2 including the Freedom of Information Act3 (FOIA), and to ask whether these statutes ensure that environmental information is made available to the public in a timely and dependable way. In theory, the answer is yes. Taken together, these statutes appear to provide a comprehensive right of access to information generated by the federal government or acquired by the federal government from private parties and state and local governments. The most far-reaching of these statutes, FOIA, forms the backbone of our nation's right-to-know legal regime. It embodies the ideal that information is the lifeblood of democracy. To animate that ideal, FOIA gives "any person" a right to obtain, simply by asking for it, "any record" in the possession and control of a federal agency, government corporation, or other federal entity,4 subject to certain exemptions set forth in the Act.5 In addition to FOIA, other statutes of general applicability-most notably the Government in the Sunshine Act6 and the Federal Advisory Committee Act7-impose substantial transparency requirements on government agencies that act through multimember commissions, and on nongovernmental entities that provide advice to the government. More specific statutes, including the Emergency Planning and Community Right-to-Know Act;8 the National Environmental Policy Act;9 the Safe Drinking Water Act;10 the Federal Insecticide, Fungicide, and Rodenticide Act;11 the Clean Air Act;12 and the Toxic Substances Control Act,13 place affirmative duties on federal agencies to make information available to the public, either on the agency's own initiative or on demand by members of the public. Taken together, these statutes seem to provide a right of public access to virtually all environmental information in the hands of the federal government. This presumptive right of access is limited only by exemptions for information whose disclosure might compromise legitimate nationalsecurity14 or law-enforcement interests;15 might interfere with internal government deliberations;16 might impair the competitive position of private parties who submitted information to the government;17 or might discourage private parties from voluntarily providing information to the government in the future.18 In practice, however, this net of government-information statutes provides what is at best a piecemeal and not entirely satisfactory pathway to needed environmental information and is at worst the illusion of a right of access where none exists. There are many reasons why the reality does not match the expectations. First, FOIA-by far the most important access tool-is a requester-driven statute. The government's responsibility under FOIA is to respond to requests for information, not to initiate the publication or dissemination of information, regardless of how useful the information would be to the public.19 This is FOIA's Achilles' heel. The process of drafting and submitting FOIA requests and then waiting for the agency's response is a breeding ground for delay and cynicism over the Act's efficacy. Requesters with time-sensitive needs for information find FOIA's cumbersome requestand-wait-for-a-response approach an often-fatal barrier to the statute's usefulness. The process also invites disputes over whether the requester directed the request to the appropriate governmental entity and described the requested records with adequate specificity, which in turn engender more delay and cynicism.20 Congress sought to fine-tune FOIA in 1996 when it enacted the Electronic FOIA Amendments (EFOIA) to place affirmative obligations on agencies to compile information that is of general interest to the public and to make it available on the Internet. …