Mark Schlefer and the
Federal Freedom of Information Act

by Nancy A. Olson, CJE

Mark Schlefer helped to make history.

Schlefer was one of the three lawyers who drafted the legislation that became the federal Freedom of Information Act, and he helped to guide it through Congress to President Lyndon B. Johnson’s desk. Johnson signed the bill into law on July 4, 1966, to take effect one year later.

“In the drafting, we were adamant that you didn’t have to have an interest to have access,” Schlefer said in an interview. “You could just be a citizen. This was critical.”

The federal FOIA website, www.foia.gov, describes the law as the “law that gives (the public) the right to access information from the federal government[…] Since 1967, it has provided the public the right to request access to records from any federal agency[…] It is often described as the law that keeps citizens in the know about their government[…] Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.”

[pullquote]“In the drafting, we were adamant that you didn’t have to have an interest to have access,” Schlefer said in an interview. “You could just be a citizen. This was critical.”[/pullquote]

“According to my internet research,” Schlefer said, “this law has since been copied in all 50 states and by at least 93 foreign countries.”

Now 94 and a resident of Putney, Schlefer was then a lawyer in private practice in Washington, D. C.

Schlefer’s involvement in the FOIA came about indirectly. One of his clients, the Pacific Far East Line, had ships that loaded raw materials, such as coconuts, raw sugar, and rubber, in Indonesia, Malaysia, and Singapore. The Pacific Far East Line wanted to add a new stop in the Mariana Islands and asked Schlefer to file the tariff documentation with the Federal Maritime Commission. A tariff is a tax or duty to be paid on a particular class of imports or exports.

“Any common carrier has to have on file publicly documents listing all its charges: port charges, loading and discharging charges, and freight charges,” he explained.

In an opinion piece for The Washington Post, Schlefer described what happened next.

“A few days after filing the tariff documentation,” he wrote, “I got a call from the commission’s staff advising me that the tariff was illegal. I asked who had made the determination, and was told it was the commission’s general counsel, James Pimper.

‘May I see a copy of his opinion?’ I asked.

A day or two later, the response came back: ‘Mr. Pimper regards his opinion as confidential.’

“Do you really mean his opinion of the law governing the tariff is confidential?” I said.

‘Yes,’ came the reply.

‘How can you keep the opinion confidential?” I asked. “I believe the tariff complies with the commission’s rules, and I am advising my client to proceed with the Marianas service. Mr. Pimper can file suit to stop the service, but he will have to disclose his reasons to the court.’”

Schlefer wrote he then contacted the Practice and Procedure Committee of the American Bar Association to suggest drafting a bill to permit access to government documents and learned that two of the lawyers on the committee were already working on such a bill. Schlefer was invited to join them. He learned that other lawyers “had had problems as outrageous as mine” in dealing with government agencies.

The ABA committee chair took the draft the three produced to the ABA convention in Chicago, and it met with overwhelming approval, Schlefer said.

Schlefer heard that Rep. John E. Moss (D-Calif.) had been trying for some years to obtain documents from the administration.

According to a commentary by Michael R. Lemov at www.niemanwatchdog.org, Moss, first elected to Congress in 1952, “as a first-term member of the obscure House Post Office and Civil Service Committee, was almost immediately frustrated by his inability to obtain information from federal agencies regarding seemingly public information.

He first ran into problems with government secrecy when he requested documents from the U.S. Civil Service Commission on the firing of 2,800 federal employees, allegedly for ‘security reasons.’  Moss thought the reasons given were too vague and sought more details, since ‘security’ could cover a broad variety of conduct and reflect badly on the workers who were fired.  The Civil Service Commission flatly refused to furnish the information.”

As a result of this experience, Moss continued to work toward greater government transparency although his efforts were continually frustrated.

In his Post commentary, Schlefer wrote that when he brought the draft of the bill to Moss’s office, he “had planned just to leave it with him, but (Moss) asked me to sit. After reading it slowly and carefully, he looked up and said, ‘Mr. Schlefer, I’ll deliver the House. You deliver the Senate.’ I had no idea on how to ‘deliver’ the Senate.”

However, Schlefer continued, he asked Bernard (Bud) Fensterwald Jr., “chief counsel to the Senate Judiciary Committee and a former roommate of a college friend, if the committee might hold a hearing on the bill. (Fensterwald) approached the committee chairman, Sen. James Eastland, a conservative Democrat from Mississippi. Eastland agreed to hold a hearing.”

At the Senate hearings, “the New York Times and the Washington Post did not openly support the bill because they were afraid of compromising sources,” Schlefer said. “The Wall Street Journal, however, openly supported the bill, meaning they testified in favor, because they were having trouble getting documents from the Richmond, Virginia, office of the Small Business Administration.

The three major television networks—ABC, CBS, and NBC—agreed to support the bill openly if we put in an exemption for financial information submitted to the government in confidence, which we did.

“All government agencies were opposed to the bill,” Schlefer continued. “They were concerned about internal agency documents which they considered confidential. The committee was concerned by this objection. But those were the very documents we wanted. So—and this was my suggestion—we agreed to exempt documents unless those documents would be produced by a court order in litigation with the agency.”

[pullquote]“The bill didn’t have to do with race, so Eastland could support it,” Schlefer said. “It had nothing to do with liberal or conservative. It required the government to produce the documents. Both sides might want documents from the government for their own political reasons. In the end, the committee voted for it unanimously.”[/pullquote]

(This was the very argument Schlefer had made to Mr. Pimper in seeking documents for the Pacific Far East Line.)

“The bill didn’t have to do with race, so Eastland could support it,” Schlefer said. “It had nothing to do with liberal or conservative. It required the government to produce the documents. Both sides might want documents from the government for their own political reasons. In the end, the committee voted for it unanimously.” The bill passed the Senate.

Even though every member of the President’s cabinet recommended a veto, Schlefer said, and in writing, which indicated their strong opposition, President Johnson signed the bill on July 4, 1966.

Johnson signed the bill in Texas. While Schlefer did not attend the signing, Fensterwald told him later that before signing the bill, Johnson said, “I may be making a mistake,” but he signed it anyway.

A few years later, Schlefer learned that the Maritime Commission was holding chief counsel’s opinions as confidential communications between lawyer and client. (Mr. Pimper was still general counsel.) Because FOIA was law, Schlefer brought suit against the Maritime Administration, requesting the release of all general counsel opinions and an index to them (Mark P. Schlefer, Appellant, v. United States of America, et al. 226 U. S. App. D. C. 254).

Although Schlefer lost the case in the district court, he appealed the decision. Judge Ruth Bader Ginsburg of the Court of Appeals in the District of Columbia (later to become Justice Ginsburg of the Supreme Court) wrote the decision, reversing the lower court and ordering the agency to disclose the requested documents and an index.

[pullquote]Nancy A. Olson, CJE, joined JEA 20 years ago and is a life-time member. She recently retired after 35 years teaching English and journalism at Brattleboro Union High School in Brattleboro, Vermont, and now free-lances for the Brattleboro Reformer, the local daily newspaper. She is JEA state director for Vermont and also serves as a mentor in the JEA mentorship program. Nancy A. Olson can be reached at olsonnan47@gmail.com.[/pullquote]

“I won,” Schlefer said. “This principle could be used in any other agency. For example, the Internal Revenue Service holds all general counsel’s opinions as public. My suit was in the public interest, not because of any particular case I had.”

The FOIA website states, “As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.”