Freedom of Information Act

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The Freedom of Information Act (FOIA) is a federal law that established policies allowing American citizens to access previously unreleased information maintained by federal government agencies. The law defines agency records subject to full or partial disclosure, outlines mandatory disclosure procedures, and grants nine exemptions to the statute. It was signed into law by President Lyndon Johnson on July 4, 1966, and went into effect the following year. [1][2]

Background

The Administrative Procedure Act (APA) of 1946 included provisions that required federal agencies to release information to the public regarding agency activities. The structure of the APA, however, allowed agencies to select the information that they wanted to release. Agenicies rejected information requests from Congress and the general public during the 1950s, which contributed to an increase in public concern during the Cold War era over the secrecy of agency information.[2]

Congressman John Moss (D-Calif.) sponsored the Freedom of Information Act in 1966 in order to allow for public access to federal agency information after holding hearings for more than a decade on what he considered to be a lack of transparency among federal agencies. Over the course of the hearings, 27 government agencies, including the U.S. Department of Justice, argued that FOIA would violate the separation of powers. Presdient Lyndon B. Johnson (D) also privately opposed the legislation. Despite opposition within the executive branch, the U.S. House of Representatives voted 307-0 to approve FOIA and Johnson signed the bill into law on July 4, 1966.[3][4]

Upon signing the legislation, Johnson stated that FOIA would "provide for both the need of the public for access to information and the need for government to protect certain categories of information." The legislation allowed the government to protect certain information that could compromise national security or individual rights through nine FOIA exemptions. These exemptions include information that could threaten national security, compromise a law enforcement investigation, and disclose personnel and medical files, among other categories.[5]

Scope

FOIA explicitly applies to federal government agencies and does not include information maintained by Congress, the judicial branch, or state and local governments. Federal agencies are under several mandates to comply with public information requests. Agencies must make all procedures to apply for agency documents publicly accessible and are subject to penalties for hindering petitions for information.[2][6]

Provisions

The original FOIA legislation of 1966 amended Section 3 of the Administrative Procedure Act to include the following provisions:

Publication and release of information

Under FOIA, agencies are required to publish the following information in the Federal Register:

“

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.[7][8]

”

Agencies must also make administrative orders, opinions, manuals, and records of proceedings available for public inspection. Agencies must also make information available pursuant to requests from the general public, with the exception of certain exemptions and exclusions.[9][10]

Exemptions

FOIA includes the following nine exemptions from public information requests, according to the U.S. Department of State:

“
  • classified information for national defense or foreign policy
  • internal personnel rules and practices
  • information that is exempt under other laws
  • trade secrets and confidential business information
  • inter-agency or intra-agency memoranda or letters that are protected by legal privileges
  • personnel and medical files
  • law enforcement records or information
  • information concerning bank supervision
  • geological and geophysical information[11][8]
 ”

Exclusions

In addition to the exemptions stated above, FOIA includes three exclusions that are not subject to information requests The U.S. Department of State provides the following description of the FOIA exclusions:[11]

“ The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.[11][8] ”

Amending statutes

Privacy Act of 1974

Following the Watergate scandal, President Gerald R. Ford (R) supported amendments in the Privacy Act of 1974 that would strengthen the Freedom of Information Act (FOIA) by allowing for judicial review of denied FOIA requests. However, his chief of staff, Donald Rumsfeld, and deputy chief of staff, Dick Cheney, voiced concern about potential leaks. Former Supreme Court Justice Antonin Scalia and others also expressed concern that the bill was unconstitutional. The arguments of Rumsfeld, Cheney, Scalia, and others persuaded Ford to veto the bill, according to declassified documents in 2004.[12] Congress later voted to override Ford's veto, giving the United States the core Freedom of Information Act still in effect today.[13][14]

The 1974 FOIA amendments granted individuals “(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.”[15] In conjunction with FOIA, the Privacy Act is used to further the rights of an individual seeking 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 information seekers.[16]

Government in the Sunshine Act of 1976

The Government in the Sunshine Act of 1976 amended Exemption 3 of FOIA to specify the following exemptions, according to the U.D. Department of Justice:[17]

“ As amended, Exemption 3 allows the withholding of information prohibited from disclosure by another statute only if one of two disjunctive requirements are met: the statute either "(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." (4) A statute thus falls within the exemption's coverage if it satisfies any one of its disjunctive requirements.[17][8] ”

Anti-Drug Abuse Act of 1986

The bipartisan Anti-Drug Abuse Act of 1986 included FOIA amendments to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records.[18]

Executive Order 12356

President Ronald Reagan (R) issued Executive Order 12356 in 1982, which allowed federal agencies to withhold large amounts of national security information under Exemption 1.[19] President Bill Clinton (D) altered the Exemption 1 criteria in 1995.[20]

Clinton administration directives

Between 1995 and 1999, President Clinton issued executive directives and amendments that allowed for the release of previously classified national security documents of historical interest dating back more than 25 years under FOIA. Many previously classified details about the Cold War and other historical events were released.[21] [20]

Electronic Freedom of Information Act Amendments of 1996

See also: Electronic Freedom of Information Act

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 have access to records. Given the large volume of records and limited resources, the amendments also extended agencies' required response time to FOIA requests from 10 to 20 days.[1]

Executive Order 13233

Executive Order 13233, drafted by Alberto R. Gonzales and issued by Presdient George W. Bush (R) on November 1, 2001, following the terrorist attacks on September 11, 2001, restricted access to the records of former presidents.[22]

Intelligence Authorization Act of 2002

The Intelligence Authorization Act of 2002 included FOIA amendments pertaining mainly to intelligence agencies entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments." The amendments stated:[23]

“

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 (50 U.S.C. 401a(4))) 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)..'[24][8]
 ”

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 and prohibited disclosure in response to requests made by foreign governmental entities either directly or through a representative.[25] Therefore, if a FOIA request appears as if it might have been made by or on behalf of a foreign governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement the FOIA provision.[23]

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), these agencies consist of the Central Intelligence Agency, 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 units of the U.S. military, the Federal Bureau of Investigation, the Department of the Treasury, the Department of Energy, 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."[26][23]

OPEN Government Act of 2007

The OPEN Government Act of 2007 amended FOIA to include the following specifications for news media, according to the U.S. Department of Justice:Cite error: Invalid <ref> tag; invalid names, e.g. too many

“

(1) defines the term "news;"
(2) gives examples of news-media entities such as "television or radio stations broadcasting to the public at large;"
(3) recognizes the evolution of "methods of news delivery" through, for example, "electronic dissemination" and notes that news-media entities might make their products available by "free distribution to the general public;" and
(4) includes provisions for a "freelance journalist."[27][8]

”

The legislation also made changes to agency tracking, reporting procedures, and dispute resolution alternatives under FOIA in addition to establishing the Office of Government Information Services to review agency FOIA activities.[27]

Noteworthy cases

U.S. Department of Justice v. Landano

In 1993, U.S. Department of Justice v. Landano was a murder trial involving an alleged felony murder committed during a group burglary. U.S. Supreme Court 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, 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."[28]

The FBI claimed that the redacted sections of the requested documents were withheld in accordance with FOIA regulations to protect 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 court and rejected the validity of the FBI's confidentiality claim to withhold information.[28]

Scott Armstrong et al. v. Executive Office of the President et al.

The case of Scott Armstrong et al. v. Executive Office of the President et al. involved the White House's use of the PROFS[16] computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran-Contra affair 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 (R) inauguration, planned to destroy these records. The National Security Archive, an association for the preservation of government historical documents, obtained an injunction in federal district court against John Fawcett, the head of the National Archives and Records Administration, and the National Security Council's purge of PROFS records. A temporary restraining order was approved and the injunction of PROFS records was upheld.[16]

Another injunction was issued to prevent the purging of the G.H.W. Bush administration's records. The Bush administration appealed the decision in order to leave the White House clean for the new Clinton administration, but the appeal was denied. The Clinton administration then appealed to the U.S. Court of Appeals, stating that the National Security Council was not subject to FOIA regulations because it was not truly an agency, but rather a group of aides to the president. 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." [[16] – pg. 156] The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the United States Supreme Court.[16]

Barbara Schwarz

Records at the U.S. Department of Justice (DOJ) show that Barbara Schwarz, a resident of Salt Lake City, Utah, has made more requests under the FOIA than any other person since it became law in 1966.[29] Schwarz made repeated requests with every federal department and agency, thousands in all, to request public records that the government claims do not exist. Schwarz's requests are aimed to prove that she was actually born around 1956 in a secret government submarine base called Chattanooga on the Great Salt Lake and that she is the daughter of Church of Scientology founder L. Ron Hubbard, who himself was the son of Dwight Eisenhower.[29][30] Schwarz claims that she was kidnapped, taken to Germany, and given a false identity, including a German birth certificate which was doctored to conceal her actual birth in Utah.[29]

At least one of Schwarz's lawsuits has been considered by a federal court somewhere in the nation every year since 1993. She has also filed unsuccessful appeals to the U.S. Supreme Court.[29] One of her complaints to the U.S. district court in Washington, D.C., set a record for voluminous litigation at 2,370 pages and named 3,087 defendants, all of whom were employed as FOIA or Privacy Act officers in the federal government. Schwarz claimed that the FOIA denials were part of a conspiracy to conceal the truth. U.S. District Court Judge John Bates ruled against a suit from Schwarz, stating the FOIA's "admirable purpose is abused when misguided individuals are allowed (in this case repeatedly) to submit requests to every agency and subdivision of the government, seeking information about an imaginary conspiracy."[29] The U.S. Justice Department has advised federal employees charged with responding to FOIA requests that any future requests from Schwarz can be legally denied until she satisfies outstanding search and copying fees incurred by previous filings.[29]

See also

External links

Footnotes

  1. ↑ Branscomb, Anne (1994). Who Owns Information?: From Privacy To Public Access. Section 552 – (a)4(F): BasicBooks. 
  2. ↑ 2.0 2.1 2.2 Encyclopedia Britannica, "Freedom of Information Act," accessed February 5, 2018
  3. ↑ Pacific Standard, "THE FREEDOM OF INFORMATION ACT—AND THE HERO WHO PIONEERED IT," June 29, 2017
  4. ↑ PBS.org, "History of the Freedom of Information Act," accessed February 5, 2018
  5. ↑ The National Security Archive, "Statement by the President," accessed February 5, 2018
  6. ↑ (dead link) "Freedom Of Information Act" (HTML). 5 U.S.C. § 552. U.S. Government Law. 2002. http://www.usdoj.gov/oip/foiastat.htm (dead link). Retrieved on 2006-12-12. 
  7. ↑ Legal Information Institute, "5 U.S. Code § 552 - Public information; agency rules, opinions, orders, records, and proceedings," accessed February 5, 2018
  8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  9. ↑ Cite error: Invalid <ref> tag; no text was provided for refs named lag
  10. ↑ Congressional Record - Senate, "Considered and passed Senate, October 13, 1965, 111 Cong. Rec. 26820," October 13, 1965
  11. ↑ 11.0 11.1 11.2 U.S. Department of State, "The Freedom of Information Act," accessed February 5, 2018
  12. ↑ "Veto Battle 30 Years Ago Set Freedom of Information Norms: Scalia, Rumsfeld, Cheney Opposed Open Government Bill; Congress Overrode President Ford's Veto of Court Review". Electronic Briefing Book No. 142. National Security Archive (George Washington University, Washington, D.C.). 2004-11-23. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB142/index.htm. 
  13. ↑ Memorandum for President Ford from Ken Cole, "H.R. 12471, Amendments to the Freedom of Information Act," September 25, 1974 Source: Gerald R. Ford Library. Document 10.
  14. ↑ [https://nsarchive2.gwu.edu//NSAEBB/NSAEBB142/index.htm The National Security Archive, " Veto Battle 30 Years Ago Set Freedom of Information Norms," accessed February 6, 2018]
  15. ↑ (1992) Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act. Electronic Privacy Information Center. 
  16. ↑ 16.0 16.1 16.2 16.3 16.4 Theoharis, Athan (1998). A Culture of Secrecy: The Government Versus the People’s Right to Know. Kansas: University Press of Kansas, 27. 
  17. ↑ 17.0 17.1 U.S. Department of Justice, "FOIA GUIDE, 2004 EDITION: EXEMPTION 3," accessed February 6, 2018
  18. ↑ "FOIA Reform Legislation Enacted: FOIA Update Vol. VII, No. 4". U.S. Department of Justice. 1986. http://www.usdoj.gov/oip/foia_updates/Vol_VII_4/page1.htm. 
  19. ↑ Exec. Order No. 12,356, 3 C.F.R. 166 (1983)
  20. ↑ 20.0 20.1 "Brief Amici Curiae of The Reporters Committee for Freedom of the Press and the Society of Professional Journalists in support of Leslie R. Weatherhead, Respondent" (HTML). United States of America, United States Department of Justice, and United States Department of State, Petitioners, v. Leslie R. Weatherhead, Respondent, in the Supreme Court of the United States. 1999-11-19. http://www.rcfp.org/news/documents/weatherhead.html#III. 
  21. ↑ (dead link) "Freedom of Information Act (FOIA)" (HTML). Illinois Institute of Technology Paul V. Galvin Library. http://www.gl.iit.edu/govdocs/foia.html (dead link). Retrieved on 2002-06-04. 
  22. ↑ EXECUTIVE ORDER 13233 FURTHER IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT, accessed August 23, 2013
  23. ↑ 23.0 23.1 23.2 "FOIA Post: FOIA Amended by Intelligence Authorization Act". United States Department of Justice Office of Information and Privacy. 2002. http://www.usdoj.gov/oip/foiapost/2002foiapost38.htm. 
  24. ↑ Pub. L. No. 107-306, 116 Stat. 2383, § 312 (to be codified at 5 U.S.C. § 552(a)(3)(A), (E)).
  25. ↑ 5 U.S.C. § 552(a)(3)(E)(ii) (as amended)
  26. ↑ 50 U.S.C. § 401a(4) (2000)
  27. ↑ 27.0 27.1 Cite error: Invalid <ref> tag; no text was provided for refs named doj
  28. ↑ 28.0 28.1 Cornell Law School Resources (2006-05-24). "United States Dep't of Justice v. Landano (91-2054), 508 U.S. 165 (1993)" (HTML). http://supct.law.cornell.edu/supct/html/91-2054.ZS.html. Retrieved on 2006-12-12. 
  29. ↑ 29.0 29.1 29.2 29.3 29.4 29.5 Smith, Christopher (May 13, 2003), S.L. Woman's Quest Strains Public Records System, The Salt Lake Tribune, http://www.cs.cmu.edu/~dst/Secrets/barbara_schwarz.html, retrieved on 24/12/2007 .
  30. ↑ Woman pursues Oregon public records - lots of them, Associated Press, USA Hosted by: www.religionnewsblog.com, May 3, 2004, http://www.religionnewsblog.com/7089/woman-pursues-oregon-public-records-lots-of-them, retrieved on 24/12/2007 .
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