Freedom of Information Act (United States)

The FOIA 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.Tooltip Public Law (United States) 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. President Lyndon B. Johnson, despite his misgivings,[13][14] signed the FOIA into law.[15]

That law was initially repealed.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.[16] 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.Tooltip Public Law (United States) 90–23, 81 Stat. 54, enacted June 5, 1967 (originally H.R. 5357 in the 90th Congress), repealed the original and put in its place a substantively identical law.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.

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.[17] 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.[17] President Ford was persuaded to veto the bill on October 17, 1974, according to documents declassified in 2004.[17] 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.[17][18]

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."[19] 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."[19]

Those amendments to the FOIA regulate government control of documents that concern a citizen. They give 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."[20] In conjunction with the FOIA, the Privacy Act 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.[21]

In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended so that several exemptions were specified:

1. Information relating to national defense,
2. Related solely to internal personnel rules and practices,
3. Related to accusing a person of a crime,
4. Related to information where disclosure would constitute a breach of privacy,
5. Related to investigatory records where the information would harm the proceedings,
6. Related to information which would lead to financial speculation or endanger the stability of any financial institution, and
7. Related to the agency's participation in legal proceedings.

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.[22]

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.[23]

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.[24]

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.[25] This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.[23]

An example of an E-FOIA request. This particular request concerns possible records the FBI might have on the Polybius urban legend.

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.[7]

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.[26] Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.[27]

In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Pub. L.Tooltip Public Law (United States) 107–306 (text) (PDF).[28] 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":[29]

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 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".[30] 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.[28]

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".[28][31]

President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, Pub. L.Tooltip Public Law (United States) 110–175 (text) (PDF), on December 31, 2007. This law, also known as the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways.[32] According to a White House press release, it does so by:

1. establishing a definition of "a representative of the news media;"
2. directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund;
3. prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and
4. establishing an Office of Government Information Services (OGIS)[33] in the National Archives and Records Administration to review agency compliance with FOIA.[34]

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)[33] 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.

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.[35] 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.

The Dodd–Frank Wall Street Reform and Consumer Protection Act, signed into law in July 2010, included provisions in section 929I[36][37] 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.[38]

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[39] 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."

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, 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.[21]

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."[40]

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."[40] 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[21] 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.[41]

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."[42] 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.[43]

In 2013, the Associated Press uncovered several federal agencies where staff regularly used fictitious identities and secret or unlisted email accounts to conduct government business. The use of these email accounts stymied FOIA requests.[44][45][46][47] In some cases, the government demanded exorbitant (greater than $1 million) fees for records that appeals showed should be available for minimal cost.[44][46][48][49]