Freedom of Information Act

Lotte E Feinberg. Encyclopedia of Law Enforcement. Editor: Larry E Sullivan, et al., Volume 2: Federal, Sage Reference, 2005.

The Freedom of Information Act (FOIA) was enacted to make accessible to members of the general public, as their right, the records held by federal executive branch departments and agencies. It is based on the belief that government belongs to the people and they have a right to know what their government is doing and why.

The FOIA (5 U.S.C. 552) provides for routine release of most requested executive branch government records within specified, relatively narrow, time limits unless the records fall within nine specific categories of exemptions. It requires uniform fees, which can be waived, for all aspects of the process, from searching for the records to duplicating them and in some instances reviewing them to determine if they can be released. Requesters are entitled to written explanations if their requests are denied.

A requester can appeal a denial, first to the agency and then, more important, to federal district court, which can review all the records, override agency decisions, and require the government to pay reasonable court costs if it finds that the records were improperly withheld. Each agency is required to submit an annual report detailing all aspects of FOIA administration to the attorney general who, in turn, is required to make the reports available, electronically, at a central location and to submit an annual report assessing overall operations to the Congress.

The statute, signed into law July 4, 1966, by President Lyndon B. Johnson at his Texas ranch, covers not only Cabinet agencies and other executive departments, but also the military, government corporations, government-controlled corporations, the executive office of the president, and independent regulatory commissions. It does not cover elected officials (president, vice president, members of Congress), the federal courts, government contractors, or nonprofit organizations. A record is a document in any format, including print, tape recordings, photographs, maps, records in all digital and electronic formats, and technologies not yet invented.

The two fundamental principles on which the FOIA rested were that agency records were to be made available to any person, on request. Any person applies to an individual, corporation, citizen, or foreigner. Under the original law, every requester had equal access to a record but had to ask for and (reasonably) describe the records. This meant that in deciding to release or withhold a government record, the agency had to examine the record, not the person making the request, the reason for the request, or the purpose for which the record would be used. The burden was on the agency to show why a record should not be released, not on the requester to prove that he or she has a right to see the record.

The principle of any person remained in place until November 15, 2002, when Congress passed the Intelligence Authorization Act of Fiscal Year 2003 (Pub. L. No.107-306), which for the first time included restrictions on who could make FOIA requests. Intelligence agencies (and segments of agencies that deal with intelligence) now cannot disclose records requested under FOIA either directly to “any foreign government or international government organization” or indirectly through a representative. This is a major reversal of the statute’s original intent because it moves the standard for releasing records away from the record itself and looks instead at the requester.

Amending the FOIA

Since 1966, the statute has been amended seven times: three times with major revisions and four times with less sweeping changes. In 1974, a bipartisan Congress amended and significantly strengthened the FOIA, with procedural and substantive changes, quickly overriding President Gerald R. Ford’s veto. Congress was responding to widespread criticism of such problems as long delays in getting documents, improper denials, and unreasonably high copying charges. Legislative resolve, however, was also a reaction to an executive branch accused of illegal activities, as revealed by the Watergate investigation and President Richard M. Nixon’s subsequent resignation. These amendments, although since modified, form the framework of the act, setting such requirements as time limits for agency response to requests, uniform reasonable search and copying fees, and waiver or reduction of fees “in the public interest.” Nonexempt portions of records had to be released and indexes had to be provided to help the public identify agency matters. In addition, Congress rewrote the exemption on security classification (b) (1) to reverse a 1973 Supreme Court decision (EPA v. Mink) that held the court lacked authority to review classification decisions. Perhaps most important, a person was given the right to appeal to the federal district courts if a request was denied and administrative remedies had been exhausted. The courts could, independently, review the documents de novo and in camera.

The 1986 amendments, attached to the Omnibus Anti Drug Abuse Act of 1986, reflected a shift toward increased restrictions. Three categories of requesters were created, each subject to different fees depending on status and purpose: commercial (profit-making) requesters, news media representatives or educational or noncommercial scientific institutions engaged in scholarly or scientific research, and everyone else. Uniform fee and fee waiver guidelines were to be promulgated by the Office of Management and Budget. At the same time, the court’s review of fee waivers was reduced to considering only the record before the agency, and more conditions had to be met to qualify. Until 1986, judges were required to give FOIA cases precedence over other cases but this special status was repealed with these amendments. Further, the law enforcement exemption (b) (7) was modified, giving agencies more discretion to withhold more kinds of records.

The 1996 amendments (Electronic-FOIA, Pub. L. No. 104-231) were written to encourage agencies to use electronic technology to enhance public access to agency records and information and, to the extent possible, make available records in any format requested. Agencies may set up multitracking systems and expedite the process for compelling need. Increased reporting requirements provide Congress with a more detailed picture of how agencies handle FOIA requests.

Exemptions

Whereas the FOIA was designed to ensure that agencies would make their requested records available, nine categories of information were identified in which agencies could exercise discretion and withhold records. These exemptions are commonly referred to by their numbers, (b) (1) through (b) (9). The first, (b) (1), concerns documents specifically designated by presidential executive order to be kept secret, “in the interest of national defense or foreign policy,” and “properly classified.” However, an agency can review a requested document to determine whether the classification is still appropriate and must release the document if its status has changed; there is also a procedure in the executive order to request declassification.

The eight remaining exemptions cover an array of categories. Exemption (b) (2) applies to internal personnel rules and regulations. Exemption (b) (3) deals with information exempt under other laws. In many cases, as with the 2003 Intelligence Authorization Act, congressional committees or individual members have attached FOIA exemptions to other legislation not handled by the House and Senate committees responsible for FOIA so that certain agencies have been exempted from having to respond to FOIA requests or additional categories of information can be withheld. These exemptions now number in the hundreds.

The exemption for confidential business information, (b) (4), protects trade secrets and commercial or financial information that has been obtained from a person and is privileged or confidential. It covers narrowly defined trade secrets (e.g., the formula for Coca-Cola) and other business information that is competitively sensitive. Exemption (b) (5) protects some interagency and intraagency communications in memorandums, letters, and e-mails. Exemption (b) (6) protects some aspects of privacy, focusing on protections against “a clearly unwarranted invasion of personal privacy.” These records include personnel and medical files and similar files.

Exemption (b) (7) applies to records or information that has been compiled for law enforcement purposes. In 1974, categories of what could be withheld were narrowed, making it easier to obtain documents; in 1986 categories were broadened, permitting more documents to be withheld and making it more difficult to get documents. The exemption now covers records and information, not just records. The withholding threshold has been lowered from “would” cause harm to “could reasonably be expected” to cause harm. This exemption protects law enforcement activities, both the work of the agencies (enforcement, proceedings, ongoing investigations, confidential sources, and agency procedures for investigation and prosecution) and the rights of individuals (to a fair, impartial trial, personal privacy, and life and physical safety). These are further identified by six subexemptions.

Exemption (b) (8) applies to information concerning financial institutions. Exemption (b) (9), which has become more important since the September 11, 2001, terrorist attacks, pertains to information concerning geological and geophysical information and data, including maps concerning wells. Additionally, agencies are permitted, under limited circumstances related to law enforcement or foreign intelligence, to respond to a request by neither confirming nor denying that a record exists (exclusions).

History, Implementation, and Administration

The campaign that led to the FOIA began in 1953. Representative John Emerson Moss (D-CA) was concerned about widespread government secrecy and about Senator Joseph R. McCarthy’s attacks on unnamed Communists in government. A year later, Senator Thomas C. Hennings, Jr. (D-MO) made openness a high-priority issue as well. When Hennings died in 1960, his successor, Senator John V. Long, although initially most concerned with protecting citizen privacy from government intrusion, took on the fight for access. It was his version of the FOIA that passed the Senate and House.

Enactment of the FOIA marked the end of a 13-year effort by members of Congress, with support from the American Society of Newspaper Editors. The FOIA amended Section 3 (Public Information) of the 1946 Administrative Procedure Act (5 U.S.C. 1002). The amendments expanded the kinds of information that must be published in the Federal Register, and after 1996, also electronically; required certain records be available for inspection and copying; and forced agencies to change the way requests from the public would be handled. It was also the beginning of an ongoing, often hotly contested, debate on how to balance the needs for access with the needs of government to restrict information for such reasons as privacy, law enforcement, and national security.

FOIA administration has varied considerably over the decades, shaped by competing and sometimes contradictory interpretations from all three branches of government. Congress has written the key legislation and conducts oversight through hearings and General Accounting Office studies. At times, however, House and Senate members have differed, often along party lines, on content and implementation of the statute.

In the executive branch, some presidents have encouraged disclosure, whereas others have discouraged it. Presidents have issued executive orders on security classification, expanding or narrowing what could be classified and for how long. The attorney general has had a central role in interpreting the statute, issuing guidance to agencies, although at times, members of Congress have disagreed sharply with these interpretations.

The courts have played a central and critical role in interpreting the statute, including several landmark Supreme Court cases. Virtually every aspect of the statute has been litigated. The Justice Department’s May 2002 Freedom of Information Case List identifies 4,917 published and unpublished judicial decisions that address FOIA and privacy access issues. More than 2 million federal FOIA requests are now filed every year, according to the National Security Archive at George Washington University, at a total cost, for fiscal year 2001, of $287,792, 041.08, or approximately $1 per citizen, based on 2003 census data.

Requests have led to thousands of stories reported in books, journals, newspapers, and on television on topics as varied as civil rights, flight safety, and telemarketing practices. Requests have led to books documenting Federal Bureau of Investigation and other government agencies’ surveillance of civil rights leaders, such as Martin Luther King, Jr., and of many writers and artists. Central Intelligence Agency experiments into LSD and mind control in the 1950s and 1960s and government radiation experiments (1945-1947), which involved injecting plutonium into a small number of men, women, and some children, without their knowledge or consent, have also been documented. FOIA records from the Environmental Protection Agency for 2000 to 2001 showed that almost one third of major industrial facilities and government-operated sewage treatment plants routinely violated pollution discharge regulations, but were never penalized. All of these stories confirm the vital historic and current importance of the act.

In the aftermath of the September 11, 2001, terror attacks on New York City and the Pentagon, access issues have become more divisive and intense. The executive branch has moved to curtail access to large categories of records. The Homeland Security Act of 2001 (Pub. L. No. 107-296) added broad new FOIA exemptions and criminalized release of this information, for example by whistleblowers.

Critics have claimed increasing evidence of a system “in extreme disarray.” In 2002, the General Accounting Office reported governmentwide “substantial and growing” FOIA processing backlogs. The number of classification decisions increased 14% for fiscal year 2002, to more than 23 million individual classification actions, according to the government’s Information Security Oversight Office. A major House and Senate intelligence committee report in June 2003, assessing CIA and FBI actions before and after the terrorist attacks, cited growing concerns that overclassification is impairing the government’s ability to adequately protect the country from terrorism by limiting congressional oversight over and guidance to the intelligence community.

That democracy depends on an informed citizenry was a fundamental belief of the Founding Fathers, beginning even before the Constitution was written, but there has always been disagreement on how best to balance the people’s right of access with the government’s privilege to conceal. The debate has often revolved around the meaning of informed, the controls over concealment, and determination of where this balance should be set. Issues surrounding the FOIA today form a major portion of that debate.