Freedom of Information Act

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Freedom of Information Act

Introduction to Freedom of Information Act

Freedom of Information Act (FOIA), United States law that provides public access to federal government files. The foundation of the act is the belief that the government is accountable for its actions and that the public possesses a right to obtain information about those actions. FOIA went into effect on July 4, 1967. In 1974, in the wake of the Watergate conspiracy, the Congress of the United States added amendments to strengthen the statute.

FOIA provides that each government agency publish descriptions of its operations and procedures. Each agency must also make available opinions, orders, and statements of policy that affect the public. Any person or organization can also obtain data from a government agency through a FOIA request. Agencies have ten working days to comply with a request but may extend this deadline if the search requires them to collect records from field facilities, examine voluminous files, or consult with other agencies having a substantial interest in the matter under investigation.

Under FOIA, agencies may withhold nine categories of records, ranging from national defense information and matters under litigation to medical files. Agencies may also leave out identifying details to avoid unwarranted invasions of personal privacy. Federal courts, however, have jurisdiction to block efforts to withhold records. The Office of Personnel Management also has the power to take disciplinary action against officials who withhold information contrary to the law.

Although the original purpose of FOIA was to provide ordinary citizens with better access to information about the activities of their government, private companies seeking government records now account for as much as 75 percent of FOIA searches. Federal agencies annually spend more than $100 million to process these requests. FOIA’s critics charge that the act diverts government personnel from their principal work and that those requesting files all too often use the information they receive at taxpayer expense for commercial purposes.” (1)

Freedom of Information Act 80 Stat. 378 (1966)

According to the Encyclopedia of the American Constitution, 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.

This 1966 law requires that U.S. government agencies release their records to the public on request, unless the information sought falls into a category specifically exempted, such as national security, an individual”s right to privacy, or internal agency management. The act provides for court review of agency refusals to furnish identifiable records. The states also have similar laws. The federal government and some states have also adopted so-called sunshine laws that require governmental bodies, as a matter of general policy, to hold open meetings, announced in advance.

Presidential papers remained under the control of individual American presidents until 1981, when the Presidential Records Act–enacted by Congress in 1978–took effect. Under it, presidential papers were to be released to the public 12 years after an administration ended. In 2001, however, President George W. Bush signed an executive order that gave a former president or a sitting president the right to prevent the release of a former president”s papers to the public. The G. W. Bush administration has also has generally been more reluctant to release documents under the Freedom of Information Act.

Freedom of Information Act (FOIA) in Environmental Law

This statute, enacted in 1967, makes governmental information available to the public. It is now part of the Administrative Procedure Act. It specifies two types of material that must be disclosed upon request: agency information and any other record, with limited exceptions.

To obtain information under the Freedom of Information Act, a person must request it in writing. He or she does not have to explain why the information is needed. There are only two requirements: the information must be reasonably described so the agency knows what is wanted, and the request must comply with the agency’s published rules about time, place, fees, and procedures. Generally, the agency will have a strict timetable in producing the information. It can charge copying fees if it wishes. Agencies often provide copies free if only a few pages are involved, but charge for larger numbers of pages.

The two categories of accessible information are very broad. Agency information includes the following: opinions following a hearing, unpublished policy and statements of interpretation, and staff manuals and instructions. Almost any other information the agency collects or creates may be obtained as well. For example, the Environmental Protection Agency (EPA) issues permits for water pollution discharges, and it requires all permittees to submit regular reports about the discharges and special reports when an unusual event occurs. If a local public interest group wanted any or all of that information, it can obtain it by making a request under the Freedom of Information Act.

Exceptions to Disclosure

Nine classes of information are exempt from the disclosure requirements of the Freedom of Information Act: (1) national defense and foreign affairs, (2) internal personnel rules and practices, (3) trade secrets, (4) inter and intraagency memos, (4) personnel and medical files, (5) investigatory records, (6) results relating to examination of financial institutions, (7) geological and geophysical data, (8) information required by statute to be withheld, and (9) commercial and financial information.

Exemptions are not normally mandatory. Thus, the agency can release information it is not required to disclose. Often, the administrator or secretary of the agency sets the policy for disclosure, and the employees of the agency follow it. Some administrations are more open than others and will provide virtually any records it has. Others scrutinize requests carefully and claim exemptions for anything arguably falling within an exemption classification.

If an agency denies a request under the Freedom of Information Act or fails to reply, the person seeking the information can go to district court and ask for an order. The agency has the burden of proving the records are exempt or do not exist. (2)

Legal Materials

The Federal Freedom of Information Act (FOIA) gives U.S. citizens the right to receive most non-confidential information from the government upon request. The act is codified at 5 USC §552.

You can get answers to basic FOIA questions (like how and where to make a FOIA request) from FOIA.gov. The answers to more questions can be found in A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records (Second Report, 2005). Electronic versions of the Guide are posted on the Internet by Federation of American Scientists, the GPO and others. Also check out the DOJ Guide to the Freedom of Information Act.

For a thorough discussion of the topic, Federal Information Disclosure (Thomson Reuters) by James T. O’Reilly is referred to as “the Bible of FOIA.” More FOIA information is posted by the National Freedom of Information Coalition.

You are supposed to be able to file and retrieve FOIA requests through FOIAonline for participating agencies, including the EPA, Customs, the Commerce Department, the Federal Labor Authority and the PGBC. I found the search capabilities limited when I tested the site in March 2014.

The Federal agency responsible for FOIA is the Office of Information Policy (OIP). Lots of FOIA information on their web site, particularly the Guidance and Resourcessections. Statistical information about FOIA is available on FOIA.gov.

Appeals and Litigation: If a Federal agency denies a FOIA request, the requester can generally appeal to a higher board within the agency. If that doesn’t work, the requester can generally file a case in Federal District Court. Information on appeals and litigation is included in the Citizen’s Guide and DOJ Guide referenced above.

E-FOIA: The Electronic Freedom of Information Act Amendments of 1996 (P.L. No. 104-231) essentially requires government agencies to post their decisions, policy statements, rules, manuals, etc. on the Internet. The Amendments were incorporated into 5 U.S.C. Sec. 552. See also E-FOIA Law Increases Access for the Public and Brings Changes to Agencies.

State Laws: States have their own FOIA laws (also called “Sunshine Laws”). Cites and links to these laws are posted on the National Freedom of Information Coalition’s State Freedom Of Information Laws page. See also FNOIC’s State FOIA Resources.

Resources

Notes and References

See Also

Further Reading (Books)

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.

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

Further Reading (Books 2)

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.

Further Reading (Articles)

The Global Online Freedom Act: can U.S. Internet companies scale the great Chinese firewall at the gates of the Chinese century?, Iowa Law Review; November 1, 2007; Viner, Nellie L.

Rep. Conyers Introduces Internet Tax Freedom Act Amendments Act, US Fed News Service, Including US State News; October 1, 2007

Global Internet Freedom Act, Human and Civil Rights: Essential Primary Sources; January 1, 2006

Congressman Bachus Backs Permanent Internet Tax Freedom Act, States News Service; September 13, 2013

Global Online Freedom Act Introduced in House by Rep. Smith, US Fed News Service, Including US State News; January 22, 2007

HOUSE PASSES REAUTHORIZATION OF INTERNATIONAL RELIGIOUS FREEDOM ACT; SMITH CALLS ON ADMINISTRATION TO SANCTION VIOLATORS. States News Service; September 15, 2011

HOUSE PASSES REAUTHORIZATION OF INTERNATIONAL RELIGIOUS FREEDOM ACT SMITH CALLS ON ADMINISTRATION TO SANCTION VIOLATORS. States News Service; September 16, 2011

Rep. Franks Introduces Resolution Concerning International Religious Freedom Act, US Fed News Service, Including US State News; May 1, 2008

TV Consumer Freedom Act Introduced in House by Rep. Paul, US Fed News Service, Including US State News; September 24, 2007

FACT SHEET: COUNTRIES OF PARTICULAR CONCERN 2006 UNDER INTERNATIONAL RELIGIOUS FREEDOM ACT, US Fed News Service, Including US State News; May 9, 2007

REPUBLICAN SENATORS INTRODUCE THE RETIREMENT FREEDOM ACT. States News Service; June 30, 2011

Global Internet Freedom Act Introduced by Rep. Lehtinen, US Fed News Service, Including US State News; February 23, 2006

REP. PENCE FILES DISCHARGE PETITION TO FORCE VOTE ON BROADCASTER FREEDOM ACT, US Fed News Service, Including US State News; October 18, 2007

Sen. Kerry Introduces Workplace Religious Freedom Act, US Fed News Service, Including US State News; October 9, 2008

Labrador Leads Bipartisan Coalition in Introducing Marriage and Religious Freedom Act, States News Service; September 19, 2013

WOLF INTRODUCES LEGISLATION TO AMEND THE INTERNATIONAL RELIGIOUS FREEDOM ACT REAUTHORIZE U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM. States News Service; May 12, 2011

Global Online Freedom Act Introduced by Rep. Smith, US Fed News Service, Including US State News; February 26, 2006

The Flawed Implementation of the International Religious Freedom Act of 1998: A European Perspective, Brigham Young University Law Review; January 1, 2005; Pastor, Eugenia Relaño

Sen. Leahy, Congressman Sensenbrenner Join to Introduce USA Freedom Act, US Fed News Service, Including US State News; October 30, 2013

USA Freedom Act Draws Bipartisan Praise, US Fed News Service, Including US State News; November 2, 2013

Guide to Freedom of Information Act

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