.svg) | |
| Long title | An Act to amend section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), to clarify and protect the right of the public to information, and for other purposes. |
|---|---|
| Acronyms (colloquial) | FOIA |
| Nicknames |
|
| Enacted by | the 89th United States Congress |
| Effective | July 5, 1967 |
| Citations | |
| Public law | 89-487 |
| Statutes at Large | 80 Stat. 250 |
| Codification | |
| Acts amended | Administrative Procedure Act |
| Titles amended | 5 U.S.C.: Government Organization and Employees |
| U.S.C. sections created | 5 U.S.C. ch. 5, subch. II § 552 |
| Legislative history | |
| |
| Major amendments | |
| |
| United States Supreme Court cases | |
| Department of Justice v. Reporters Committee for Freedom of the Press Department of Justice v. Landano Scott Armstrong v. Executive Office of the President | |
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal freedom of information law that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and defines nine exemptions to the statute. President Lyndon B. Johnson, despite his misgivings, signed the Freedom of Information Act into law on July 4, 1966, and it went into effect the following year.
As indicated by its long title, FOIA was actually extracted from its original home in Section 3 of the Administrative Procedure Act (APA). Section 3 of the APA, as enacted in 1946, gave agencies broad discretion concerning the publication of governmental records. Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement "a general philosophy of full agency disclosure." The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U.S.C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not already published in the Federal Register, § 552(a)(2). In addition, § 522(a)(3) requires every agency, "upon any request for records which ... reasonably describes such records" to make such records "promptly available to any person." If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden "on the agency to sustain its action," and directs the district courts to "determine the matter de novo."
The federal government's Freedom of Information Act should not be confused with the different and varying freedom of information law enacted by the individual states.
Background
With
the ongoing stress on both constitutional and inherent rights of
American citizens and the added assertion of government subservience to
the individual, some, particularly representative John Moss,
thought that it was necessary for government information to be
available to the public. This push built on existing principles and
protocols of government administration already in place.
Others, though—most notably President Lyndon B. Johnson—believed
that certain types of unclassified government information should
nonetheless remain secret. Notwithstanding the White House's opposition,
Congress expanded Section 3 of the Administrative Procedure Act as a
standalone measure in 1966 to further standardize the publication of
government records, consistent with the belief that the people have the
"right to know" about them. The Privacy Act of 1974 was passed as a countervailing measure to ensure the security of government documents increasingly kept on private citizens.
The FOIA was put in place shortly after the illegal unconstitutional act of Project MKUltra performed by the CIA, which most of the evidence was burned and some of the surviving documents became declassified in 2001.
Scope
The act
explicitly applies only to executive branch government agencies. These
agencies are under several mandates to comply with public solicitation
of information. Along with making public and accessible all bureaucratic
and technical procedures for applying for documents from that agency,
agencies are also subject to penalties for hindering the process of a
petition for information. If "agency personnel acted arbitrarily or
capriciously with respect to the withholding, [a] Special Counsel shall
promptly initiate a proceeding to determine whether disciplinary action
is warranted against the officer or employee who was primarily
responsible for the withholding."
In this way, there is recourse for one seeking information to go to a
federal court if suspicion of illegal tampering or delayed sending of
records exists. However, there are nine exemptions, ranging from a
withholding "specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy" and "trade secrets" to "clearly unwarranted invasion of
personal privacy." The nine current exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code, section 552):
- (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
- related solely to the internal personnel rules and practices of an agency;
- specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
- trade secrets and commercial or financial information obtained from a person and privileged or confidential;
- inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
- personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
- records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information (A) could reasonably be expected to interfere with
enforcement proceedings, (B) would deprive a person of a right to a fair
trial or an impartial adjudication, (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, (D) could
reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by a criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source, (E) would
disclose techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could reasonably be
expected to endanger the life or physical safety of any individual;
- Virginia's FOIA council refers to this as the criminal investigative files exemption
- contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
- geological and geophysical information and data, including maps, concerning wells.
The Postal Reorganization Act of 1970 (at 39 U.S.C. § 410(c)(2)) exempts the United States Postal Service
(USPS) from disclosure of "information of a commercial nature,
including trade secrets, whether or not obtained from a person outside
the Postal Service, which under good business practice would not be
publicly disclosed".
History
The law came about because of the determination of United States House of Representatives member John E. Moss
of California. Moss was chairman of the House Government Information
Subcommittee. It took Moss 12 years to get the Freedom of Information
Act through Congress.
Much of the desire for government transparency stemmed from the
Department of Defense and Congressional committees evaluation of the
nation's classification system in the late 1950s. They determined that
the misuse of government classification of documents was causing
insiders to leak documents that were marked "confidential." The
committee also determined that the lowest rung of the confidentiality
ladder "confidential" should be removed. They deemed that "secret" and
"top secret" covered National security adequately.
The Moss Committee took it upon itself to reform confidentiality policy
and implement punishments for the overuse of classification by
officials and departments.
The FOIA has been changed repeatedly by both the legislative and executive branches.
Initial enactment
The
Freedom of Information Act was initially introduced as the bill S. 1160
in the 89th Congress. When the two-page bill was signed into law it
became Pub.L. 89–487, 80 Stat. 250,
enacted July 4, 1966, but had an effective date of one year after the
date of enactment, or July 4, 1967. The law set up the structure of FOIA
as we know it today.
That law was initially repealed. During the period between the enactment of the act and its effective date, Title 5 of the United States Code was enacted into positive law.
For reasons now unclear but which may have had to do with the way the
enactment of Title 5 changed how the law being amended was supposed to
be cited, the original Freedom of Information Act was replaced. A new
act in Pub.L. 90–23, 81 Stat. 54,
enacted June 5, 1967 (originally H.R. 5357 in the 90th Congress),
repealed the original and put in its place a substantively identical
law. This statute was signed on June 5, 1967, and had the same effective
date as the original statute: July 4, 1967.
Privacy Act Amendments of 1974
Following the Watergate scandal, President Gerald R. Ford wanted to sign FOIA-strengthening amendments in the Privacy Act of 1974, but White House Chief of Staff Donald Rumsfeld and deputy Dick Cheney were concerned about leaks. Assistant Attorney General for the Office of Legal Counsel Antonin Scalia advised the bill was unconstitutional and even telephoned the CIA asking them to lobby a particular White House staffer. President Ford was persuaded to veto the bill on October 17, 1974, according to documents declassified in 2004.
However, on November 21, the lame-duck Congress overrode President
Ford's veto, giving the United States the core Freedom of Information
Act still in effect today, with judicial review of executive secrecy
claims.
Scalia remained highly critical of the 1974 amendments, writing
years later that "It is the Taj Mahal of the Doctrine of Unanticipated
Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored."
Scalia particularly disliked the availability of judicial review,
decrying that if "an agency denies a freedom of information request,
shazam!—the full force of the Third Branch of the government is summoned
to the wronged party's assistance."
These amendments that these FOIA regulate government control of
documents which concern a citizen. It gives one "(1) the right to see
records about [one]self, subject to the Privacy Act's exemptions, (2)
the right to amend that record if it is inaccurate, irrelevant,
untimely, or incomplete, and (3) the right to sue the government for
violations of the statute including permitting others to see [one's]
records unless specifically permitted by the Act."
In conjunction with the FOIA, the PA is used to further the rights of
an individual gaining access to information held by the government. The
Justice Department's Office of Information and Privacy and federal
district courts are the two channels of appeal available to seekers of
information.
1976 Government in the Sunshine Act amendments
In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended so that several exemptions were specified:
- Information relating to national defense,
- Related solely to internal personnel rules and practices,
- Related to accusing a person of a crime,
- Related to information where disclosure would constitute a breach of privacy,
- Related to investigatory records where the information would harm the proceedings,
- Related to information which would lead to financial speculation or endanger the stability of any financial institution, and
- Related to the agency's participation in legal proceedings.
1982 Executive Order limiting the FOIA
Between 1982 and 1995, President Reagan's Executive Order 12356
allowed federal agencies to withhold enormous amounts of information
under Exemption 1 (relating to national security information), claiming
it would better protect the country and strengthen national security.
The outcry from the effect that the Reagan Order had on FOIA
requests was a factor in leading President Clinton to dramatically alter
the criteria in 1995.
1986 Omnibus Anti-Drug Abuse Act amendments to the FOIA
The FOIA amendments were a small part of the bipartisan Anti-Drug Abuse Act of 1986.
Congress amended FOIA to address the fees charged by different
categories of requesters and the scope of access to law enforcement and
national security records. The amendments are not referenced in the
congressional reports on the Act, so the floor statements provide an
indication of Congressional intent.
1995–99 expansion
Between 1995 and 1999, President Clinton
issued executive directives (and amendments to the directives) that
allowed the release of previously classified national security documents
more than 25 years old and of historical interest, as part of the FOIA. This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.
Electronic Freedom of Information Act Amendments of 1996
The
Electronic Freedom of Information Act Amendments of 1996 (E-FOIA)
stated that all agencies are required by statute to make certain types
of records, created by the agency on or after November 1, 1996,
available electronically. Agencies must also provide electronic reading
rooms for citizens to use to have access to records. Given the large
volume of records and limited resources, the amendment also extended the
agencies' required response time to FOIA requests. Formerly, the
response time was ten days and the amendment extended it to twenty
business days.
2001 Executive Order limiting the FOIA
Executive Order 13233, drafted by Alberto R. Gonzales and issued by President George W. Bush on November 1, 2001, restricted access to the records of former presidents.
This order was revoked on January 21, 2009, as part of President Barack Obama's Executive Order 13489. Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.
Intelligence Authorization Act of 2002 amending the FOIA
In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Pub.L. 107–306. Within this omnibus
legislation were amendments to the FOIA (pertaining mainly to
intelligence agencies) entitled "Prohibition on Compliance with Requests
for Information Submitted by Foreign Governments":
Section 552(a)(3) of title 5, United States Code, is amended—
(1) in subparagraph (A) by inserting "and except as provided in subparagraph (E)", after "of this subsection"; and
(2) by adding at the end the following:
- (E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 ()) shall not make any record available under this paragraph to—
- (i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or
- (ii) a representative of a government entity described in clause (i).
In effect, this new language precluded any covered U.S. intelligence
agency from disclosing records in response to FOIA requests made by
foreign governments or international governmental organizations. By its
terms, it prohibits disclosure in response to requests made by such
non-U.S. governmental entities either directly or through a
"representative".
This means that for any FOIA request that by its nature appears as if
it might have been made by or on behalf of a non-U.S. governmental
entity, a covered agency may inquire into the particular circumstances
of the requester in order to properly implement this new FOIA provision.
The agencies affected by this amendment are those that are part
of, or contain "an element of", the "intelligence community". As defined
in the National Security Act of 1947 (as amended), they consist of the
CIA, the National Security Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office
(and certain other reconnaissance offices within the Department of
Defense), the intelligence elements of the Army, the Navy, the Air
Force, and the Marine Corps, the FBI, the Department of the Treasury,
the Department of Energy, and the Coast Guard, the Department of
Homeland Security, the Bureau of Intelligence and Research in the
Department of State, and "such other elements of any other department or
agency as may be designated by the President, or designated jointly by
the Director of Central Intelligence and the head of the department or
agency concerned, as an element of the intelligence community".
OPEN Government Act of 2007
President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, Pub.L. 110–175,
on December 31, 2007. This law, also known as the "OPEN Government Act
of 2007", amended the federal FOIA statute in several ways. According to a White House press release, it does so by:
- establishing a definition of "a representative of the news media;"
- directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund;
- prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and
- establishing an Office of Government Information Services (OGIS) in the National Archives and Records Administration to review agency compliance with FOIA.
Changes include the following:
- it recognizes electronic media specifically and defines "News Media" as "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."
- it extends the 20-day deadline by allowing for up to 10 days between the FOIA office of the agency and the component of the agency holding the records and specifically allows for clarification of requests by the FOIA office (Effective 12/31/2007).
- it calls for each agency to designate a FOIA Public Liaison, "who shall assist in the resolution of any disputes" (Effective 12/31/2008).
- it requires agencies to assign tracking numbers to FOIA requests that take longer than 10 days, and to provide systems determining the status of a request.
- it codifies and defines annual reporting requirements for each agency's FOIA program.
- it specifically addresses data sources used to generate reports; "shall make the raw statistical data used in its reports available electronically ..."
- it redefines the definition of an agency "record" to include information held for an agency by a government contractor.
- it establishes an Office of Government Information Services (OGIS) which will offer mediation services to resolve disputes as non-exclusive alternative to litigation.
- it requires agencies to make recommendations personnel matters related to FOIA such as whether FOIA performance should be used as a merit factor.
- it requires agencies to specify the specific exemption for each deletion or redaction in disclosed documents.
2009 Executive Order permitting retroactive classification
On December 29, 2009, President Barack Obama issued Executive Order 13526, which allows the government to classify certain specific types of information relevant to national security after it has been requested.
That is, a request for information that meets the criteria for
availability under FOIA can still be denied if the government determines
that the information should have been classified, and unavailable. It
also sets a timeline for automatic declassification of old information
that is not specifically identified as requiring continued secrecy.
2010 repeal of FOIA amendments in Wall Street reform act
The Dodd–Frank Wall Street Reform and Consumer Protection Act, signed into law in July 2010, included provisions in section 929I that shielded the Securities and Exchange Commission
(SEC) from requests under the Freedom of Information Act. The
provisions were initially motivated out of concern that the FOIA would
hinder SEC investigations that involved trade secrets
of financial companies, including "watch lists" they gathered about
other companies, trading records of investment managers, and "trading
algorithms" used by investment firms.
In September 2010, the 111th Congress passed an act repealing those provisions. The act was introduced in the Senate on August 5, 2010 as S.3717 and given the name "A bill to amend the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940
to provide for certain disclosures under section 552 of title 5, United
States Code, (commonly referred to as the Freedom of Information Act),
and for other purposes."
Notable cases
A
major issue in released documentation is government "redaction" of
certain passages deemed applicable to the Exemption section of the FOIA.
Federal Bureau of Investigation
(FBI) officers in charge of responding to FOIA requests "so heavily
redacted the released records as to preclude needed research."
This has also brought into question just how one can verify that they
have been given complete records in response to a request.
J. Edgar Hoover
Freedom
of Information Act requests have led to the release of information such
as this letter by J. Edgar Hoover about surveillance of ex-Beatle John Lennon. A 25-year battle by historian Jon Wiener based on FOIA, with the assistance of lawyers from the ACLU, eventually resulted in the release of documents like this one.
This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar Hoover. Of the 164 files and about eighteen thousand pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis
and plaintiff, most notably one entire folder entitled the "White House
Security Survey." Despite finding out that the Truman Library had an
accessible file which documented all the reports of this folder, the FBI
and Office of Information and Privacy put forth "stony resistance" to
the FOIA appeal process. (I–pg. 27) Some
argue that it was not even this sixteen year series of three appeals to
the Justice Department which gained a further opening of the files, but
rather the case of Department of Justice v. Landano which spurred on a break in stolid FBI opposition.
Murder trial
A murder trial decided in 1993, Department of Justice v. Landano, 508 U.S. 165 (1993), involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor
wrote the unanimous opinion. "In an effort to support his claim in
subsequent state court proceedings that the prosecution violated Brady v. Maryland, 373 U.S.
83 (1963), by withholding material exculpatory evidence, he filed
Freedom of Information Act (FOIA) requests with the FBI for information
it had compiled in connection with the murder investigation."
In defense, the FBI put forth a claim that the redacted sections
of the documents requested were withheld in accordance with FOIA
regulations protecting the identity of informants who gave information
regarding case details. However, O'Connor ruled that those who supplied
information had no need to remain anonymous in the court setting. "To
the extent that the Government's proof may compromise legitimate
interests, the Government still can attempt to meet its burden with in
camera affidavits." The court thus remanded the case to the Circuit
Courts and rejected the FBI's claim of confidentiality as being a valid
reason to withhold information.
"While most individual sources may expect confidentiality, the
Government offers no explanation, other than administrative ease, why
that expectation always should be presumed."
Thus, when Theoharis and company were in the middle of fighting in
court to obtain J. Edgar Hoover files, they may well have benefited from
Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993.
In the case of Scott Armstrong v. Executive Office of the President, et al., the White House used the PROFS computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran–Contra affair (arms-for-hostages) under the Reagan
Administration were insulated. However, they were also backed up and
transferred to paper memos. The National Security Council, on the eve of
President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive,
Armstrong's association for the preservation of government historical
documents, obtained an injunction in Federal District Court against the
head, John Fawcett, of the National Archives and Records Administration
and the National Security Council's purging of PROFS records. A
Temporary Restraining Order was approved by Senior U.S. District Court
Judge Barrington D. Parker. Suit was filed at District Court under Judge
Richey, who upheld the injunction of PROFS records.
Richey gave a further injunction to prevent a purging of the
George H.W. Bush's administration's records as well. On counts of
leaving the White House clean for the new Clinton Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals,
stating that the National Security Council was not truly an agency but a
group of aides to the President and thus not subject to FOIA
regulations. Under the Presidential Records Act, "FOIA requests for NSC
[could] not be filed until five years after the president ha[d] left
office ... or twelve years if the records [were] classified." The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the Supreme Court
on these grounds. According to Scott Armstrong, taking into account
labor and material costs, the three presidential administrations spent
almost $9.3 million on contesting the National Security Archive FOIA
requests for PROFS e-mail records.
Secret e-mail accounts and abusive fees
The
AP uncovered several federal agencies where staff regularly use
fictitious identities and secret or unlisted email accounts to conduct
government business. Their use stymied FOIA requests.
In some cases, the government demanded enormous (more than $1 million) fees
for records that appeals show should be available for minimal cost.
Processing performance by different government agencies
The Center for Effective Government
analyzed 15 federal agencies which receive the most FOIA requests
in-depth. It concluded, that federal agencies are struggling to
implement public disclosure rules.
In the latest analysis published in 2015 (using 2012 and 2013
data, the most recent years available) ten of the 15 did not earn
satisfactory overall grades, scoring less than 70 out of a possible 100
points. Eight of the ten earned Ds, including the Department of Homeland Security (69 percent), Department of Transportation (68 percent), United States Department of the Treasury (Treasury) (68 percent), the Environmental Protection Agency (EPA) (67 percent), the United States Department of Labor (63 percent), the United States Department of Veterans Affairs (64 percent), the United States Department of Defense (61 percent), the Securities and Exchange Commission (61 percent). The Department of Health and Human Services and the Department of State
earned an F. The State Department's score (37 percent) was dismal due
to its extremely low processing score of 23 percent, which was
completely out of line with any other agency's performance. Scores of
five agencies, the Equal Employment Opportunity Commission, the Department of Health and Human Services, the SEC, the DOJ, and the EPA, even decreased marginally.
