Freedom of Information Act 80 Stat. 378 (1966)

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FREEDOM OF INFORMATION ACT 80 Stat. 378 (1966)

The Freedom of Information Act of 1966 establishes a public disclosure policy for information in the custody of the executive branch of the federal government. It authorizes public access to government records and provides administrative and judicial appeal of decisions to withhold them. The law mandates that unreleased executive branch records be made available on request; however, it permits the withholding of information in nine categories upon government justification. Among them are classified national security information, information protected by other statutes, internal advisory memoranda, invasions of privacy, certain law enforcement records, and certain confidential business information.

The idea of a freedom of information law was first championed by journalists concerned with the effects of government censorship and discretionary bureaucratic secrecy on freedom of the press and the accountability of public officials. After eleven years of congressional hearings, the Freedom of Information Act was passed in 1966, amending the Administrative Procedures Act which had allowed the withholding of almost all government records. Initial compliance with the new law fell short of congressional expectations, and effectuating amendments were passed over a presidential veto in 1974.

As the keystone of "open government" legislation, the act was the first of several statutes that subject certain records and activities of the federal government to public scrutiny. These include the Federal Advisory Committee Act of 1972, the privacy act of 1974, the Government in the Sunshine Act of 1976, and the Presidential Records Act of 1978.

The freedom of information policy established by the law does not flow from an express, constitutional right to know. Some controversy surrounds the question of whether a public right to know is merely political rhetoric or is an unenumerated constitutional right protected by the ninth amendment. a majority of the Justices of the Supreme Court concluded, in richmond newspapers, inc. v. virginia (1980), that the first amendment gave the public a right of access to criminal trials, which rests on the traditional importance of citizen scrutiny of the judicial trial process. In a separate opinion, Justice william j. brennan argued that the theory of citizen participation in self-government also supports the right, and that this logic is not confined to access to courtrooms. In another concurring opinion, Justice john paul stevens pointed out that in this case the Court recognized for the first time a protected right of access to important government information.

executive privilege is embodied in several exemptions to the 1966 Act. Although the scope of the privilege remains in dispute, the Supreme Court in obiter dictum in united states v. nixon (1974) recognized the authority to withhold military and diplomatic national security information, as well as internal memoranda that are advisory and not factual in nature. Later that year, in his veto message returning the 1974 amendments to Congress, President Ford declared that the provision for judicial review of executive branch determinations as to national security classification violates constitutional principles. However, the government has never pressed that argument in litigation.

Individuals have found the act useful for obtaining business information and as an alternative to judicial discovery. Open government policies have affected administrative behavior. Federal law enforcement practices were somewhat restrained after dubious covert investigative activities were disclosed. A government study following the 1974 amendments found that attitudes in the bureaucracy had become more positive toward the release of information and that the quality of some government work had improved because of public scrutiny.

Everett E. Mann, Jr.
(1986)