Freedom of Information Act (FOIA)
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The Freedom of Information Act (FOIA) is a federal law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. It was signed into law by President Lyndon B. Johnson on July 4, 1966 (Public Law 89-554, 80 Stat. 383; Amended 1996, 2002, 2007), and went into effect the following year.
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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 thought it was necessary for government information to be available to the public.
However, due to the sensitivity of some government information and private interests, others believed that certain types of government information should remain secret. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974 additionally covered government documents charting individuals. However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine 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):
1. (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;
2. related solely to the internal personnel rules and practices of an agency;
3. 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;
4. trade secrets and commercial or financial information obtained from a person and privileged or confidential;
5. 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;
6. personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
7. 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;
8. 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
9. geological and geophysical information and data, including maps, concerning wells.
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.”
Amendments and Related Executive Orders
The FOIA has been changed repeatedly by both the legislative and executive branches.
The Privacy Act Amendments of 1974: Following the Watergate scandal, President Gerald R. Ford wanted to sign Freedom of Information Act-strengthening amendments in the Privacy Act of 1974, but concern (by his chief of staff Donald Rumsfeld and deputy Richard Cheney) about leaks and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia, among others) persuaded Ford to veto the bill, according to documents declassified in 2004. However, Congress voted to override Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.
These amendments to the 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, the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and 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.
The 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.
The 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.
The 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 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, shortly after the September 11, 2001 attacks, 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.
The Intelligence Authorization Act of 2002 amending the FOIA: In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Public Law 107-306.[19] 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 (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)."
In effect, this new language precluded any covered US 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 other-than-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 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 elements of the Army, the Navy, the Air Force, and the Marine Corps, the Federal Bureau of Investigation, 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 on December 31, 2007. This law, also known as public law 110–175 and the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways.[23] 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 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 agencies 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 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."
Congress is likely to readdress the issue after the 2010 elections. Barney Frank, ranking Democrat of the House Committee on Financial Services, wants "legislation to block companies from using the SEC to get proprietary information about their rivals."
