freedom of information: overview
The Freedom of Information Act (FOIA) was enacted in 1966 and went into effect in 1967. (1) It has been substantially amended several times, most recently by the 2007 OPEN Government Act. (2) The law allows any US citizen, to ask for records held by federal government agencies. Agencies include executive and military departments, government corporations and other entities which perform government functions except for Congress, the courts or the President’s immediate staff at the White House, including the National Security Council. According to the law, government agencies must respond in 20 working days.
There are nine categories of discretionary exemptions: national security, internal agency rules, information protected by other statutes, business information, inter and intra agency memos, personal privacy, law enforcement records, financial institutions and oil wells data. There are 142 different statutes that allow for withholding. In 2003, the Homeland Security Act added a provision prohibiting the disclosure of voluntarily-provided business information relating to “Critical Infrastructure”. (3)
Appeals of denials or complaints about extensive delays can be made internally to the agency concerned. The federal courts can review and overturn agency decisions. The courts have heard thousands of cases in the 35 years of the Act.
While the management for FOIA is decentralized, the US Justice Department Office of Information Policy provides guidance and training for agencies. (4)
The FOIA also requires that government agencies publish material relating to their structure and functions, rules, decisions, procedures, policies, and manuals. The 1996 E-FOIA amendments required that agencies create “electronic reading rooms” and make available electronically the information that must be published along with common documents requested. The DOJ has issued guidance that documents that have been requested three times be made available electronically in the Reading Room. The act also requires each agency to have a FOIA liaison, which is responsible for dealing with the public regarding FOIA policy and complaints. (5)
In 2007, there were over 21million requests made to federal agencies under the FOIA. Law enforcement and personal privacy were the most cited exemptions for withholding information. (6)
The FOIA has been undermined by a lack of central oversight and in many agencies, long delays in processing requests. In some instances, information is released only after years or decades. A 2009 report prepared for the Sunshine in Government Initiative reported that between 1998 and 2008 FOIA backlogs and wait times more than doubled. In its 2008 audit of agencies practices, the National Security Archive review found a number of problems:
- Lost requests.
- Excessive backlogs.
- Complete decentralization of agency FOI operations leading to delay and lack of oversight.
- Websites not in compliance with the law.
- Inconsistent practices regarding the acceptance of administrative appeals.
- Appealing FOIA determinations may delay processing, but also may get the agency’s attention.
- Conflation of fee categorization and fee waiver standards. (7)
There are a number of other laws that provide for access. The Government in the Sunshine Act requires the government to open the deliberations of multi-agency bodies such as the Federal Communications Commission. (8) The Federal Advisory Committee Act requires the openness of committees that advise federal agencies or the President. (9) The Privacy Act of 1974 works in conjunction with the FOIA to allow individuals to access their personal records held by federal agencies. (10)
The Executive Order on Classified National Security Information requires that all information 25 years and older that has permanent historical value be automatically declassified within five years unless it is exempted. (11) Individuals can make requests for mandatory declassification instead of using the FOIA. Decisions to retain classification are subject to the Interagency Security Classification Appeals Panel. Between 1980 and 2008, over 1.4 billion pages were declassified, 31.4 million pages in FY 2008 alone. The Information Security Oversight Office, a division of the National Archives, has policy oversight of the Government-wide security classification system. ISOO’s 2008 report shows that classification by government agencies is increasing while declassification has slowed down. (12)
There are also laws in all fifty states on providing access to government records. (13) A number of states have information commissions which review decisions. State laws on freedom of information have also been under threat since September 11 due to terrorism concerns.
(1) Freedom of Information Act, 5 USC 552, 1966. http://www.justice.gov/oip/foia_updates/Vol_XVII_4/page2.htm
(2) Open Government Act http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s2488enr.txt.pdf
(3) For a detailed review of the FOI and other open government laws, see Hammitt, Litigation under the Federal Open Government Laws 2002 (EPIC 2002).
(5) 1996 E-FOIA Amendments http://www.justice.gov/oip/foia_updates/Vol_XVII_4/page2.htm
(6) Summary of Annual FOIA Reports for Fiscal Year 2008 http://www.justice.gov/oip/foiapost/2009foiapost16.htm
(7) Mixed Signals, Mixed Results: How President Bush’s Executive Order on FOIA Failed to Deliver http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/index.htm
(8) Government in the Sunshine Act, 5 U.S.C. 552b. http://www.epic.org/foia/21/appendixc.html
(9) Federal Advisory Committee Act, 1972, 5 U.S.C. App II. http://www.epic.org/foia/21/appendixd.html
(10) Privacy Act of 1974, 5 U.S.C. 552a http://www.justice.gov/opcl/privstat.htm
(11) Executive Order – Classified National Security Information http://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information
(12) 2008 Information Security Oversight Office 2008 Report to the President http://www.fas.org/sgp/isoo/2008rpt.pdf
(13) See Reporters Committee for Freedom of the Press. http://www.reporters.net/nfoic/web/index.htm
freedom of information: chronology
1966 On July 4, 1966, President Lyndon Johnson reluctantly signed into law the Freedom Of Information Act. This landmark legislation enshrined in law the public’s right of access to federal government records. The bill that Johnson signed was the effort of several legislators, principal among them US Rep. John Moss (D-CA), a leading consumer advocate, who had begun his crusade of investigations, reports and hearings on government information policy in 1955. Officially, the statute superseded Section 3 of the Administrative Procedures Act, the provision for regulation of government information.
Excerpt from Congressional Record of June 20, 1966, “Clarifying and Protecting the Public’s Right to Know”, (Debate and Vote of the US House of Representatives on Senate Bill 1160, Featuring a Statement by US Rep. John Moss)
1974 When President Gerald Ford took office on August 9, 1974 in the aftermath of the Watergate scandal and President Richard Nixon’s resignation, there was great public cynicism toward government, but also great public desire for access to government information. Despite public sentiment, on October 17 President Ford vetoed H.R. 12471, the bill that would significantly strengthen the Freedom Of Information Act, calling it “unconstitutional and unworkable”. In a dramatic rebuke, the House, on November 20, and the Senate, on November 21, overrode the President’s veto. The amended FOIA now incorporated judicial review of agency decisions, narrowed some exemptions, restricted fees agencies could charge, and set a new 10-day time limit for agencies to comply with a request. The public’s use of the FOIA increased dramatically.
1986 President Ronald Reagan made no attempt at a major legislative overhaul of the FOIA, but the Congress did amend the law concerning waivers of fees and restrictions concerning law enforcement records. The fee provisions led to significant litigation, including the precedent-setting decision in DOD v. National Security Archive. However, in 1984, the Congress did pass the Central Intelligence Agency Information Act, which put records of some branches of the CIA out of public reach under the FOIA. See links to related documents highlighting Congressional and Administration views on the 1986 amendments to the FOIA.
US Attorney General Edwin Meese III’s Memo Concerning the 1986 Amendments to the FOIA (“A Memorandum for the Executive Departments and Agencies Concerning the Law Enforcement Amendments to the Freedom of Information Act, 5 USC Sec. 552, Enacted as the Freedom of Information Reform Act of 1986, Sections 1801-1804 of the Anti-Drug Abuse Act of 1986, 100 Stat. 3207, 3207-48 (October 27, 1986)”, dated December 1987)
1996 President William Jefferson Clinton embraced the letter and spirit of the Freedom of Information Act, evidenced in part by his directive to cabinet departments in the fall of his first year. Nevertheless, Congress took the lead in dealing with endemic problems in the implementation of the FOIA, such as lengthy delays and extensive request backlogs at agencies. Sen. Patrick Leahy, long a champion of the FOIA, introduced amendments to the FOIA for electronic records in 1994, eventually leading to Clinton’s signature on the Electronic Freedom of Information Act (EFOIA) Amendments in October 1996. The 1996 amendments codified court decisions on electronic records and extention the previous 10-day limit to 20 working days (4 weeks). In 2000, the General Accounting Office, at Sen. Leahy and others’ request, began a review of the implementation of EFOIA at 25 departments and agencies, which GAO released in March 2001. Below are these and other key documents from the Clinton era concerning the FOIA.
Progress in Implementing the 1996 Electronic Freedom of Information Act Amendments, GAO 01-378 (March 2001)
Data.gov: a portal to publicly available U.S. Government datasets
White House Open Government Initiative: Information on Executive Branch Open Governement Initiatives
National Security Archive: Electronic Briefing Books Relying on Released U.S. Government Records and FOI Advocacy News
National Security Archive blog: FOI tips, interesting documents and stories about documents)
National Security Archive audits of the U.S. FOIA system