Freedom of Information Act (1966)

Robert G. Vaughn

The Freedom of Information Act (P.L. 89-554, 80 Stat. 383) asserts the public's right to know about the activities of government. That right to know is the foundation of accountability in a democracy and in fact preserves democratic government. The First Amendment right of free speech draws power from the availability of information, because knowledge enables people to identify government misconduct or incompetence and challenge government actions. Lacking access to information about government weakens the right to speak and the right to associate with others to advocate for change. Criticism without information is less powerful; ignorance dulls outrage and reduces the incentives to organize for democratic change. The supporters of the act often quote James Madison, the fourth president of the United States: "Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both."

"ANY-PERSON" ACCESS

Before passage of the act, the existing administrative provisions required people seeking government documents to state why they wanted them and allowed government officials to decide whether the interests in disclosure outweighed the interests in secrecy. Not surprisingly, these officials usually denied access to requested documents. Government officials also withheld rulings and standards used to exercise governmental authority, thereby creating a type of "secret law." The act amended these provisions to require that certain types of records be made available for public inspection. These documents include statements of policy and interpretations of rules and policies not published in the Federal Register, final opinions resulting from agency adjudications, and manuals that are not offered for sale but that affect a member of the public.

Other documents and records are to be available on request to "any person." Requesters do not have to explain why they want the documents. Any-person access and the policy that government documents and records are public strengthens the public's right to know and reduces the discretion of governmental officials.

The law also establishes detailed procedures for requests and provides for administrative appeals of denials of requests. These procedures also address issues such as the time limits for responding to requests, the fees that may be charged (as well as the possibility of waivers or reductions of fees), and other obligations of the agency. One crucial provision requires that the agency segregate documents that can be withheld from ones that should be disclosed. Most important, a requester who has unsuccessfully sought documents from a government agency may ask a federal district court to order an agency to disclose these documents. In this suit, the federal court is bound neither by an agency's determinations of fact nor by its interpretation of the act. The federal courts have often ordered the disclosure of withheld documents, and judicial decisions have interpreted and given effect to many parts of the law.

EXEMPTIONS

The act, however, permits government officials to withhold documents that fall under one of nine exemptions contained in the law. These exemptions address documents:

1. Properly classified in the interests of national defense or foreign policy
2. That are internal guides discussing enforcement strategies, the release of which would risk evasion of the law
3. The disclosure of which is specifically prohibited by other laws
4. Containing confidential or privileged commercial or financial information
5. Protected by litigation privileges, including the attorney-client, work product and deliberative process privileges
6. The release of which would constitute a clearly unwarranted invasion of personal privacy
7. Compiled for law-enforcement purpose, the release of which would, or in some instances could reasonably be expected to, create the risk of certain harms
8. Contained in or related to oversight of financial institutions by an agency charged with regulation or supervision of such institutions
9. Containing geophysical and geological information regarding oil wells

Generally, these exemptions allow government officials only to withhold documents but do not require them to do so. However, other laws, such as those protecting personal privacy, controlling the dissemination of classified information, or specifically requiring withholding are exceptions to this general rule.

Much of the litigation under the act has focused on the meaning of the exemptions. The exemptions addressing national security, the deliberative process within and among federal agencies, the protection of business records, personal privacy, and law enforcement records have generated the most litigation. The Supreme Court has emphasized that the exemptions to the act must be "narrowly construed." A narrow interpretation of the scope of the exemptions prevents them from swallowing the general principles of the act requiring access to government documents.

AMENDMENTS

Although the act has been amended on a number of occasions, the most important amendments occurred in 1974 and in 1996. The 1974 amendments responded to agency practices thought to demonstrate an unwillingness to apply the right-to-know principle underlying the law. These amendments strengthened deadlines for agency responses, regulated fees and fee waivers, and provided for personal sanctions against federal officials who acted arbitrarily in withholding requested documents. These amendments also revised the exemption regarding national security information: they reversed an interpretation by the Supreme Court that denied federal judges the authority to determine whether classified documents were in fact properly classified. The amendments also responded to decisions that had expanded the scope of the law enforcement exemption. In these amendments Congress signaled its continuing support of the principle of open government and its willingness to address bureaucratic opposition to the law.

The Electronic Freedom of Information Act of 1996 (EFOIA) also changed procedures under the act to address the problem of agency delay in responding to requests. EFOIA expands the time that agencies have to respond to an initial request in an attempt to create more realistic standards for agencies. It also directs agencies to create categories of requesters whose requests can be considered on other than a first-come, first-served basis. These categories include requesters who can demonstrate that failure to obtain quickly requested records would endanger the life or physical safety of a person, and also requesters primarily involved in the dissemination of information to the public, if their requests are ones urgently requiring that the public be informed about "actual or alleged Federal Government activity." EFOIA allows agencies to create different avenues for processing requests, such as by considering large and small requests in different groups. It also limits the ability of agencies to use "exceptional circumstances" as an excuse for delay resulting from agencies' ordinary backlogs.

EFOIA modifies the act for an electronic age. It broadly defines electronic records, includes library and reference materials within the definition of record, increases the ability of requesters to obtain documents in electronic form, directs agencies to conduct electronic searches, and considers how agencies should treat computerized removal of exempt information from request documents.

Most important, EFOIA imposes greater responsibilities on agencies to disseminate information rather than simply respond to requests. Now, agencies are required to make available any documents that "have become or are likely to become the subject of subsequent requests for substantially the same records." These records must be provided online in virtual reading rooms that a person can access without physically appearing at an agency. Agencies are also required to publish indices and guides that will help in framing a request. These changes shift the standard procedure from a request-and-respond model of access to one that relies more heavily on dissemination of information by the government.

REQUESTS BY PRIVATE PARTIES

Many users of the act are private parties rather than newspapers, television stations, and other media. The government holds not only information that it has created but also information that has been submitted to it. Much of this information does not directly concern the performance of government officials. For example, businesses seek documents from the government about their competitors, and consumers seek documents relating to health and safety information concerning consumer products or information about consumer frauds or other illegal business practices. In this sense, the act has helped to support competition among firms and to provide consumers with information to participate efficiently in the market.

Requests by private parties also support the principle of government accountability. For example, government contractors can acquire information about successful bidders. This not only serves the contractors' own commercial interests but also helps to ensure that the contracting process operates fairly. Government documents about risks to public health and safety also reinforce the responsibility of the government to attend to those risks.

The United States Freedom of Information Act is not the oldest in the world, but it has been one of the most influential. Dozens of countries, including ones with a reputation for bureaucratic secrecy, such as Great Britain and Japan, have adopted freedom of information laws. Countries throughout the world, including many nations in Eastern Europe and countries that were once part of the Soviet Union, have adopted such laws as an important step in their transition to democratic government.

See also: Federal Advisory Committee Act; Government in the Sunshine Act; Privacy Act of 1974.

BIBLIOGRAPHY

Leahy, Patrick, et al. "Recent Developments: Electronic Freedom of Information Act." Administrative Law Review 50 (1998): 339–458.

O'Reilly, James T. Federal Information Disclosure. Colorado Springs, CO: Shepard's, 1977.

What Types of Information Have Been Requested?

The following have been requested under the Freedom of Information Act:

• • Documents relating to underground nuclear testing.
• • CIA records on whether the agency played a role in the assassination of John F. Kennedy or obstructed its investigation.
• • Documents on Richard Nixon's use of the FBI to dig up "dirt" on political opponents.
• • CIA files about sightings of unidentified flying objects (UFOs).
• • Payroll reports submitted by nonunion contractors (requested by an electricians' union).
• • CIA documents about the Bay of Pigs invasion of Cuba.
• • Records of the Environmental Protection Agency about the agency's compliance with its federally mandated duties.
• • Reports on Vietnam-era prisoners of war and soldiers listed as missing in action.

Freedom of Information Act

BIBLIOGRAPHY

Signed into law by President Lyndon B. Johnson in 1966, the U.S. Freedom of Information Act (FOIA) gives the public the right—within certain bounds—to be provided federal government records on request. The FOIA requires every department and agency in the executive branch (except for the president and the president’s immediate advisors) to make duly requested government records “promptly available to any person.” The law exempts several categories of government records from release, including records relating to classified defense and foreign policy matters, law enforcement records whose release would interfere with investigations and prosecutions, and records considered internal agency memoranda. The FOIA does not apply to Congress or the federal courts.

The key figure in the development and passage of the FOIA was Congressman John E. Moss, a California Democrat. As chair of the House Special Subcommittee on Government Information, Moss spent eleven years presiding over hearings and publishing reports that exhaustively documented the secrecy practices of the executive branch. Remarkably, his work drew little interest or support from members of the Washington press corps, who at that time were accustomed to a collegial, nonadversarial relationship with government officials. Thus, the bill’s passage can be largely attributed to the diligent legislative maneuvering of Moss—as well as his party’s control of both the presidency and Congress (by large majorities in the House and Senate) in 1966.

Controversy about the FOIA’s implementation arose almost immediately after it became law, and the tenor of this debate has remained consistent over time. On the one hand, requestors of information have complained about delays in receipt of records, fees charged for duplication, and improper invoking of exemptions. On the other hand, agency staff and some elected officials have questioned the expenditure of significant resources required to comply with the law. All these concerns have shaped revisions and amendments to the FOIA, which has been significantly modified three times (in 1974, 1986, and 1996).

Records obtained under the FOIA are central to hundreds of news stories about the government that appear in the media each year. The FOIA thus plays an important role in efforts to keep government activity transparent and accountable. However, only a small proportion of FOIA requests are made by news organizations and legitimate researchers. A great number of requests are filed by commercial interests, who hope to repackage and sell the information obtained from their requests, or otherwise use it for business purposes. Access to government records has been dramatically altered by the diffusion of information technology. The vastly reduced cost of indexing, reproducing, and transmitting government records has made it easier for the public to locate and access government information—but it also makes it more conceivable that information of a sensitive or classified nature will fall into the wrong hands.

The FOIA has inspired the passage of similar legislation by U.S. state and local governments. Throughout the world, democracies both new and old adopted freedom of information (FOI) laws in the late twentieth century— many that consciously emulated the U.S. law. But FOI laws by themselves do not lead to greater government accountability. To have much effect, FOI laws require a media that is unhesitant to investigate government activity and is willing to use these laws as a tool to do so.

SEE ALSO Secrecy; Transparency

BIBLIOGRAPHY

Archibald, Sam. 1993. The Early Years of the Freedom of Information Act: 1955–1974. PS: Political Science and Politics 26 (4): 726–731.

Cain, Bruce E., Patrick Egan, and Sergio Fabbrini. 2003. Toward More Open Democracies: The Expansion of Freedom of Information Laws. In Democracy Transformed? Expanding Political Opportunities in Advanced Industrial Democracies, eds. Bruce E. Cain, Russell J. Dalton, Susan E. Scarrow. New York: Oxford University Press.

Patrick J. Egan

FREEDOM OF INFORMATION ACT

The Freedom of Information Act (FOIA) (5U.S.C.A. § 552 et seq.) provides for the disclosure of information held by administrative agencies to the public, unless the documents requested fall into one of the specific exemptions set forth in the statute. FOIA was implemented to prevent federal agencies from abusing their discretionary powers by forcing them to make certain information about their work available to the public. The law was regarded as a great milestone because it guarantees the right of people to learn about the internal workings of their government. Almost all agencies of the executive branch of the federal government have issued regulations implementing FOIA. These regulations inform the public where certain types of information are kept, how the information may be obtained on request, and what appeals are available if a member of the public is denied requested information.

A person requesting information under FOIA must generally send a letter to the head of the agency maintaining the documents that are sought, identifying the records as clearly as possible. If the request for information is denied, a letter of appeal may be filed, citing, if possible, court rulings explaining why the agency's decision to withhold the information is inappropriate. If the agency denies the appeal, the individual may seek judicial review of the agency's action.

Exemptions to FOIA are designed to allow an agency to withhold records in situations in which disclosure would cause harm to an important government function or private interest. FOIA explicitly exempts from disclosure a variety of different types of information, including materials that have been classified as secret in the interest of national defense or foreign policy; information related solely to the internal personnel rules and practices of an agency; trade secrets and commercial or financial information; and personnel and medical files and similar files for which disclosure would constitute an unwarranted invasion of personal privacy (5 U.S.C.A. § 552(b)). Although the exemptions appear to run counter to the public interest in gaining access to information, they serve certain important national policy interests, including those of national defense, foreign policy, civilian cooperation with law enforcement, and the efficient operation of government agencies. Courts have held that, consistent with the purpose of FOIA, these exemptions must be narrowly construed.

Most litigation under FOIA has occurred when an agency refuses to release government information, citing one or more of the exemptions set forth in the statute. In United States Department of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014, 124 L. Ed. 2d 84 (1993), for example, the U.S. Supreme Court held that the federal bureau of investigation (FBI) does not have a blanket exemption under FOIA from disclosing the identity of FBI informants. Instead, the Court ruled, the bureau must justify, on a case-by-case basis, why informants' identities must not be disclosed. Thus, the Court performed the difficult task of reconciling two important but opposing interests: FOIA policy of favoring the fullest disclosure possible versus the interest of law enforcement agencies in protecting their cooperative sources. Writing for the Court, Justice sandra day o'connor stated, "Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the government's sweeping presumption comports with common sense and probability." Instead, she maintained, the agency must be able to demonstrate that it was reasonable to infer under the circumstances that the information had been provided with an expectation of confidentiality.

Requests for intelligence information has likewise been the subject of litigation under the Freedom of Information Act. In 1996, President bill clinton authorized Congress to make public disclosure of the "bottom line" intelligence budget appropriation for the central intelligence agency, following a recommendation of an intelligence commission. The government divulged the government's intelligence budgets in 1997 and 1998, but former CIA director George Tenet in 1999 determined that this information could be used to assist foreign countries in countering U.S. intelligence efforts. The Federation of American Scientists, an advocacy group, brought suit in the U.S. District Court for the District of Columbia in 1999 to compel disclosure of the budget figures, but the court denied these requests. Congress held hearings about disclosure of this information in 2000, but the group's requests for budget information in 2000 were similarly denied by the CIA.

Since FOIA was enacted in 1966, over a half million requests for information have been filed with government agencies. Although initially envisioned as a means to make the federal government more accessible to citizens, FOIA has been used extensively by reporters and newsgathering agencies, corporations, and even foreign governments.

When the act was first passed, most government data were stored primarily on paper, microfilm, and microfiche. With the advent of

the computer age, more information is available to more people than ever before, creating the need for new guidelines in disseminating government information. In particular, computer technology raises questions about what constitutes a reasonable request for information under the act and about how information should be disclosed. The act does not mention computerized records, but the Computer Security Act of 1987 (Act of Jan. 8, 1988, Pub. L. No. 100-235, 101 Stat. 1724 [1988]) prohibits agencies from withholding computerized records from the public if the records would be available under FOIA as paper documents. Nevertheless, some groups seeking government information have been concerned that government agencies may release large volumes of paper records when more manageable and convenient computer records may be available.

The policies of the administration of george w. bush with respect to disclosure of information have come under attack from groups seeking to protect this information. The september 11th attacks against the United States spawned a great deal of concern in the country regarding security measures, including secrecy with respect to information. In October 2001, Attorney General john ashcroft issued a directive to federal agencies that emphasized withholding of public records if the agency could demonstrate a sound legal basis for doing so. Ashcroft has since supported withholding of information from these agencies. Although the memorandum was issued after the terrorist attacks, it had reportedly been in the works prior to September 11.

The Homeland Security Act of 2002 created additional restrictions on the release of government information. The act allows private parties to refuse to disclose information about "critical infrastructure" by voluntarily submitting this information to the homeland security department. Members of Congress have criticized this measure, and advocacy groups have threatened litigation to demand the release of this information, but release of certain records could take years. Although government officials claim that Bush's policies have not hindered the release of information to a considerable extent, examples of limitations include restrictions of the media's access in the war in Afghanistan in 2001, as well as the refusal to disclose the names of more than 1,000 non-citizens held for immigration violations. Nevertheless, when the United States attacked Iraq in March 2003, the media had considerable access, comparable to the level of access in the Gulf War of 1991.

further readings

Franklin, Justin D., and Robert F. Bouchard. 1986. Guidebook to the Freedom of Information and Privacy Acts. New York: Clark Boardman Callaghan.

Office of Information and Privacy. 2002. Freedom of Information Act Guide and Privacy Act Overview. Washington, D.C.: Office of Information and Privacy.

O'Reilly, James T. 2000. Federal Information Disclosure. St. Paul, Minn.: West Group.

Freedom of Information Act

A federal law (5 U.S.C.A. §552 et seq.) providing for the disclosure of information held by administrative agencies to the public, unless the documents requested fall into one of the specific exemptions set forth in the statute.

Davis v. Department of Justice

Although the Freedom of Information Act (FOIA)gives citizens a way to obtain federal government information and documents, the government may deny access for various statutory reasons. However, efforts to use the FOIA may also be frustrated by internal agency policies that make finding the information virtually impossible. An information seeker may sue the agency for release of the data but litigation can be lengthy and costly. Such was the case in Davis v. Department of Justice, 460 F.3d 92 (D.C. Cir.2006), where an author sought the release of undercover audiotapes made by the Federal Bureau of Investigation (FBI) for 20 years. The case went between the federal district court and the Circuit Court of Appeals for the District of Columbia four times. The appeals court ruled that the FBI must abandon several search methods that virtually guaranteed the information would never be found, even though it was apparent the FBI could locate the identities of two individuals very easily.

John Davis, an author, submitted an FOIA request in 1986, asking for all audiotapes recorded during an FBI criminal investigation called "BRILAB." The investigation was conducted during 1979 and 1980 in Louisiana, with the FBI examining bribery and racketeering activities among organized crime figures, labor unions, and politicians. Five individuals were indicted and two men were convicted, including reputed Mafia boss Carlos Marcello. Prosecutors played portions of 130 BRILAB tape recordings during the defendants' 1981 trial. Davis filed his FOIA request for a book he was writing on Marcello. The book, Mafia Kingfish: Carlos Marcello and the Assassination of John F. Kennedy, was published in 1989 but Davis did not give up his fight to obtain the audiotapes. After the FBI refused to release the tapes, Davis filed a lawsuit under the FOIA demanding their release. The government contended that the recordings were confidential under several FOIA exemptions but the federal district court rejected this argument, concluding that the tapes, once played in court, were in the public domain and could not be withheld. The FBI asserted that it could not determine which parts of the tapes were played at trial but the court ruled that the government bore the burden of showing the tapes had not entered the public domain. The Circuit Court of Appeals for the District of Columbia reversed this decision in 1992, finding that Davis carried the burden of showing which tapes were in the public domain. The case was remanded to the district court to give Davis the opportunity to show the tapes were played at trial.

Davis produced trial records that led the FBI to release 157 of the 163 tapes. The FBI stated that it had lost several of the remaining tapes and that the five remaining tapes were not disclosable under an FOIA exemption that prevented release where it could be reasonably expected to constitute an unwarranted invasion of personal privacy. The district court agreed with the FBI on this issue but the appeals court returned the case to the district court to determine if portions of the tapes could be released without impinging upon anyone's privacy. The FBI conducted further review and released one of the five tapes because the bureau determined the principal speaker on the tape had died and therefore that person's privacy interest was extinguished. The bureau stated that the other four tapes could not be released because it could not determine whether the speakers were alive or dead. The FBI stated in an affidavit it had made "adequate efforts" to determine if the speakers on the tapes were not dead. Davis appealed again and the appeals court again sent the case back to the district court, asking that the FBI specify what methods it used to determine whether a person was alive or dead.

The FBI filed two affidavits that revealed the bureau's research methods into determining whether a "prominent individual" and the "undercover informant" were living or dead. These methods included examining a book on famous individuals called Who Was Who, and reviewing the audiotapes in question to learn if the individuals disclosed their birth dates or social security numbers. If a birth record was present the FBI would only conclude a person was deceased if the individual would be over 100 years of age. The district court concluded that these methods were adequate and dismissed the FOIA request.

Davis appealed a fourth time and the appeals court found these research methods unsatisfactory. The circuit court concluded that these procedures could not reasonably be expected to answer whether an individual was dead. The court noted that the FBI had access to databases that could easily answer the question yet the bureau held fast to limiting its review to the contents of the audiotapes. The court believed there were BRILAB investigative reports that would have disclosed the names of persons under investigation and identifying information about them. The use of Who Was Who made no sense in the Internet age. The court pointedly asked "Why, in short, doesn't the FBI just Google the two names?" Internet search engines provided links to hundreds of websites that collect obituaries. Though the court did not order the FBI to use these search methods, it questioned whether the bureau's methods were reasonable. Therefore, the appeals court returned the case yet again to the district court. The FBI was directed to "evaluate alternative methods" for determining whether the speakers on the tapes were dead. The district court then was ordered to determine if FBI's "chosen course is reasonable."

FREEDOM OF INFORMATION ACT

FREEDOM OF INFORMATION ACT (FOIA) was passed by Congress in 1966 and became effective on 4 July 1967. Amended in 1974 in light of the Watergate scandal and again by the Freedom of Information Reform Act of 1986, FOIA provides citizen access to documents held by agencies in the federal government's executive branch, including government and government-controlled corporations. The law does not apply to elected officials or the federal judiciary. FOIA requests may be denied only if they pertain to any of the following types of information: classified national security materials; matters relating to internal personnel rules and practices; information exempt under other laws; confidential business information obtained from private sector sources; internal communications regarding the formation of policy; personnel and medical files of individuals; law enforcement investigatory records; information about government-regulated financial institutions; or geological and geophysical data on oil and natural-gas wells. A requester may file an administrative appeal for access to withheld documents and if denied, may file a judicial appeal in U.S. District Court, where the burden of justifying withholding of information lies with the government.

With the rise in the 1930s of the modern administrative state and its proliferating agencies and bureaucracies, executive responsibility expanded in an often bewildering manner. The security interests of the Cold War compounded matters. A minor freedom of information movement in Congress culminated in the 1966 legislation, but the law lacked force until the events of Vietnam and Watergate discredited claims of executive privilege based on national security or separation of powers. During the 1980s, the administration of President Ronald Reagan sought to reduce the use of FOIA. The result was a reduction of personnel responsible for reviewing documents. In 1982, Executive Order 12356 required reviewers to consider security needs more important than the public's right to know. Congressional amendments in 1986 further narrowed the scope of releasable information. In 1994, President Bill Clinton reversed the policy of nine previous presidents and declared that because the National Security Council, which advises the president on security matters, is not an agency of the federal government, its records must be considered strictly as presidential papers not subject to the FOIA and other record laws. Although FOIA has its flaws, such as its use by felons to obtain appeals, it has led to greater public access to government information. When used by journalists covering current events and scholars probing the origins and workings of laws and administrations, it has brought the nation closer to its founders' ideals. "A popular government without popular information or the means of acquiring it," wrote James Madison in 1822, "is but a Prologue to a farce or a Tragedy or perhaps both."

BIBLIOGRAPHY

Franklin, Justin D., and Robert F. Bouchard, eds. Guidebook to the Freedom of Information and Privacy Acts. New York: C. Boardman, 1986.

Hernon, Peter, and Charles R. McClure. Federal Information Policies in the 1980s: Conflicts and Issues. Norwood, N.J.: Ablex Publishing, 1987.

ShiraDiner

KennethO'Reilly