Richard J Peltz. Encyclopedia of Journalism. Editor: Christopher H Sterling. Sage Publications, 2009.
The Freedom of Information Act (FOIA) is an information disclosure statute that provides the principal means of access to records of the executive branch of the United States federal government. The FOIA, codified at 5 U.S.C. section 552, was enacted in 1966 and has been amended several times since, significantly by the Electronic FOIA Amendments of 1996.
The FOIA was necessitated in large measure by the dramatic growth of the federal government in the mid-twentieth century, though a confluence of circumstances brought open-government legislative efforts to fruition in 1966. The U.S. Constitution does not provide a right of public access to inspect or copy government records. The first statute to provide a comprehensive right of access was the Administrative Procedure Act of 1946 (APA), of which the FOIA today is a part. The APA was initially limited, vesting broad discretion in agencies and permitting access only to “persons properly and directly concerned” with records. Abuses of government secrecy were well publicized in subsequent years and frustrated Congress, journalists, and the general public. Attorney Harold Cross documented government secrecy in a report to the American Society of Newspaper Editors, published in an influential 1953 book, The People’s Right to Know.
Responding to this frustration, Congressman John Moss, a Democrat from California, began in 1955 to press for access reform and to hold hearings on government secrecy. Legislation to expand access under the APA access was introduced in Congress as early as 1957, though no bill gained traction until the APA came under review in 1963. Moss found long-sought bipartisan support for a bill in 1965. Federal agencies unanimously testified against the proposed legislation, and the Department of Justice doubted its constitutionality. Nevertheless, owing in significant part to press editorial pressure, the FOIA passed the Senate, and passed the House unanimously, in 1966. President Lyndon Johnson (1963-69) signed the bill into law without ceremony at his Texas ranch on Independence Day, July 4, 1966. The holiday was likely a coincidence, as the President was unenthusiastic about the law. He issued a signing statement asserting that the FOIA “in no way impairs the President’s power under our Constitution to provide for confidentiality when the national interest so requires.”
The FOIA applies to the executive branch of the federal government, including independent agencies, the military, and the Executive Office of the President, but excluding the President and Vice President, and their immediate staffs. The FOIA does not apply to Congress, to the courts, to nongovernmental recipients of public funding, the District of Columbia, or to state governments. As a general matter, the FOIA provides that when any person requests access to the records of a public agency, the agency must provide them unless they come within one of the nine FOIA exemptions. The FOIA also requires that agencies provide information and indexes for public guidance.
Pursuant to the FOIA, “any person” (not just journalists) may request records from a public agency. The agency must fulfill a request that “reasonably describes” the records sought. Records are defined broadly to include not only documents, but video and audio recordings, and data stored in electronic media. An agency must undertake “reasonable efforts to search for” requested records, including automated searching, but need not create new records. Records must be produced in the form requested as long as the records are “readily reproducible” in that form. An agency may charge a “reasonable” fee for searching, reviewing, and duplicating records, but noncommercial and newsmedia requesters may not be charged for searching and reviewing. A waiver of search and copying fees is available for requests “in the public interest.” Agencies are compelled to respond to requests within 20 working days (four weeks), absent “unusual circumstances” warranting extension. However, as a matter of practice, some federal agencies (such as the FBI) are renowned for backlogs running from weeks to years. An agency must offer expedited processing for the requester who “demonstrates a compelling need,” and when news-gathering has been held to constitute such a need.
Exempt from mandatory disclosure under the FOIA are
- Classified national security records;
- Records of “internal personnel rules and practices”;
- Material specifically made exempt from disclosure according to a statute other than the FOIA;
- Confidential “trade secrets and commercial or financial information”;
- Agency memoranda and letters that would be privileged in litigation (sometimes termed “working papers” or “pre-decisional” records);
- Personnel, medical, and other records “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”;
- Certain law enforcement records, including those which “could reasonably be expected to interfere with enforcement proceedings” and those which “could reasonably be expected to constitute an unwarranted invasion of personal privacy”;
- Reports generated in the supervision of financial institutions; and
- Geological information about oil and gas wells.
The scope of some exemptions is controversial and subject to perpetual litigation. Records must be redacted of exempt information before their release. When an agency claims an exemption to support denial of access to records, the agency may produce (indeed, may be compelled by a court to produce) an itemized inventory of undisclosed records and claimed exemptions, termed a “Vaughn Index” after a 1973 federal court case.
The FOIA requires that agencies publish in the Federal Register rules, procedures, and FOIA forms as well as a description of its organization. Agencies also must publish online their final orders and opinions; policies and interpretations; staff manuals and instructions, such as they affect the public; annual FOIA compliance reports; and records previously produced under the FOIA that are likely to be requested again. The FOIA authorizes agencies to promulgate and enforce their own internal FOIA policies and procedures, as long as they do not contravene the law. The online publication requirements added by 1996 amendment have led agencies to create “electronic reading rooms,” websites where agencies post information as required by the FOIA and provide additional guidance to FOIA requesters about the agency’s own policies and procedures.
Every federal agency must designate an official to receive FOIA requests. If a requester does not receive a response to a request or believes the agency has improperly claimed exemption, the FOIA requires that the agency provide a process of administrative appeal. For the requester who is dissatisfied with the outcome of an administrative appeal, the FOIA authorizes suit against the agency in federal district court. If a court determines that FOIA non-compliance was “arbitrary and capricious,” disciplinary action may be taken against responsible federal employees.
Interpreting the Law
Influential in interpretation of the FOIA are executive orders of the President, memoranda and policies of the attorney general and Department of Justice, and the body of federal case law that has arisen from more than four decades of FOIA litigation.
Executive discretion has vacillated between greater and lesser disclosure, as illustrated by executive orders concerning the national security exemption. In a 1982 executive order, President Ronald Reagan (1981-88) created a detailed classification system that weighted agency analysis in favor of classification. In a 1995 order, President Bill Clinton (1993-2001) revamped the system, instituting a presumption in favor of disclosure absent a demonstrable threat to national security. In a 2003 executive order, President George W. Bush (2001-09) eliminated the access-friendly presumption.
Attorneys general too have struggled over FOIA interpretation. In a 1993 memorandum, Attorney General Janet Reno directed agencies to favor disclosure when FOIA exemptions, such as those concerning agency memoranda, are discretionary, rather than mandatory, unless the agency could foresee harm resulting from disclosure. In October 2001, after the terrorist attacks of September 11, Attorney General John Ashcroft revoked the Reno memorandum and told agencies instead that the Justice Department would defend any non-disclosure decision rested upon “a sound legal basis.”
The federal courts have developed a voluminous body of case law interpreting the FOIA. A key U.S. Supreme Court decision involved journalists’ FOIA requests for access to “rap sheets,” or criminal information histories, maintained by the Federal Bureau of Investigation. In Department of Justice v. Reporters Committee for Freedom of the Press (1989), the Court stated that the “central purpose,” or “core purpose,” of the FOIA is to inform people about “what their government is up to.” The rap sheets revealed information about private individuals, not about the government, the Court reasoned, so access was properly denied. Though the case ostensibly involved only a question under the law enforcement-personal privacy exemption, the “central purpose test” has been more broadly influential in lower court interpretation of the FOIA, affecting a limit on disclosure.
The Reporters Committee decision was also an important interpretation of the FOIA privacy exemptions because the Supreme Court accepted an argument predicated on “practical obscurity.” The federal rap sheets contained information aggregated from the records of state and local law enforcement agencies, and the information generally was available to the public from those underlying sources. That availability did not preclude application of the federal privacy exemptions, the Court decided, because the geographic dispersion of the source data rendered it practically obscure.
Journalists and the FOIA
Because journalists historically have advocated vigorously for open government, the FOIA is commonly regarded as a law for journalists. But studies of FOIA usage show otherwise. Though precise numbers are difficult to ascertain, journalists’ access requests account for only about five percent of the millions of FOIA requests made annually. Most FOIA requests come from commercial entities, such as private businesses seeking information about government contracts, and information brokers mining information to repackage and sell. Journalist requests are also far outpaced by requests from individual citizens, including researchers, historians, and the simply curious.
The FOIA is arguably ineffective for many journalists. They complain that the FOIA process is too slow for timely newsgathering because of agency resistance to disclosure, the 20-day time frame, agency processing backlogs, the sluggishness of the federal courts, and a weak enforcement process. Important stories such as the Pentagon Papers in 1971 and the Iran Contra Affair in 1986 were based upon government leaks or investigative reporting, not upon voluntary government disclosures. Critics therefore charge that the FOIA is only as useful as the government is cooperative.
Nevertheless, the FOIA has made countless news stories possible and remains an important tool, especially in historical research and long-term investigative projects. For example, records disclosed under the FOIA brought to public attention the health consequences of dioxin exposure resulting from use of the “Agent Orange” defoliant in the Vietnam War. Public record disclosures were also instrumental in exposing programs of domestic government spying on civil rights activists in the 1960s and 1970s. Access advocate and journalism professor Jane Kirtley has asserted that the FOIA is important to journalists even if they do not invoke it formally, because the threat of its use is sufficient to ensure public officials’ compliance with journalists’ informal requests for information.
Most states had open records laws before the FOIA was enacted in 1966. Nevertheless, the federal FOIA was influential in bringing about open records laws in the remaining states, and federal court interpretation of the FOIA has been influential in state court interpretation of open records laws. Though the FOIA was not the first such law in the world—it had antecedents in Sweden and Finland—it has been influential in the creation of statutory access regimes in more than 60 countries.
Though access to government records remains a subject of law around the world, access is becoming an international norm of democratic governance. International nongovernmental organizations advocating public access have proliferated, and in a 2006 case about the environmental impact of development in Chile, the Inter-American Court of Human Rights construed the American Convention on Human Rights—not binding in this respect on the United States—to provide a “right of access to State-held information.”
Several federal disclosure laws complement the FOIA. The Privacy Act of 1974 permits individuals access to public records about the requesters themselves. The Presidential Records Act of 1978 governs access to, and the retention of, records of the President and Vice President and their immediate staffs. Public access to meetings in the federal government is provided in limited fashion by the Government in the Sunshine Act of 1976 and by the Federal Advisory Committee Act of 1972.
Despite its shortcomings, the FOIA plays a critical role as an instrument for both the public in general and journalists in particular to ensure government accountability in the United States. As a corollary to the freedom of speech and press embodied in the United States in the First Amendment, the right of access is coming to be recognized as an essential component of democracy in the modern era of expansive government. The FOIA is therefore unusual among U.S. statutes in that it plays a role in American law and journalism that is akin to the fundamental constitutional freedom of expression.