Freedom of Information Act (1966) (Major Acts of Congress)
Robert G. Vaughn
The Freedom of Information Act (P.L. 89-554, 80 Stat. 383) asserts the public's right to know about the activities of government. That right to know is the foundation of accountability in a democracy and in fact preserves democratic government. The First Amendment right of free speech draws power from the availability of information, because knowledge enables people to identify government misconduct or incompetence and challenge government actions. Lacking access to information about government weakens the right to speak and the right to associate with others to advocate for change. Criticism without information is less powerful; ignorance dulls outrage and reduces the incentives to organize for democratic change. The supporters of the act often quote James Madison, the fourth president of the United States: "Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both."
Before passage of the act, the existing administrative provisions required people seeking government documents to state why they wanted them and allowed government officials to decide whether the interests in disclosure outweighed the interests in secrecy. Not surprisingly, these officials usually denied access to requested documents. Government officials also withheld rulings and standards used to exercise governmental authority, thereby creating a type of "secret law." The act amended these provisions to require that certain types of records be made available for public inspection. These documents include statements of policy and interpretations of rules and policies not published in the Federal Register, final opinions resulting from agency adjudications, and manuals that are not offered for sale but that affect a member of the public.
Other documents and records are to be available on request to "any person." Requesters do not have to explain why they want the documents. Any-person access and the policy that government documents and records are public strengthens the public's right to know and reduces the discretion of governmental officials.
The law also establishes detailed procedures for requests and provides for administrative appeals of denials of requests. These procedures also address issues such as the time limits for responding to requests, the fees that may be charged (as well as the possibility of waivers or reductions of fees), and other obligations of the agency. One crucial provision requires that the agency segregate documents that can be withheld from ones that should be disclosed. Most important, a requester who has unsuccessfully sought documents from a government agency may ask a federal district court to order an agency to disclose these documents. In this suit, the federal court is bound neither by an agency's determinations of fact nor by its interpretation of the act. The federal courts have often ordered the disclosure of withheld documents, and judicial decisions have interpreted and given effect to many parts of the law.
The act, however, permits government officials to withhold documents that fall under one of nine exemptions contained in the law. These exemptions address documents:
- Properly classified in the interests of national defense or foreign policy
- That are internal guides discussing enforcement strategies, the release of which would risk evasion of the law
- The disclosure of which is specifically prohibited by other laws
- Containing confidential or privileged commercial or financial information
- Protected by litigation privileges, including the attorney-client, work product and deliberative process privileges
- The release of which would constitute a clearly unwarranted invasion of personal privacy
- Compiled for law-enforcement purpose, the release of which would, or in some instances could reasonably be expected to, create the risk of certain harms
- Contained in or related to oversight of financial institutions by an agency charged with regulation or supervision of such institutions
- Containing geophysical and geological information regarding oil wells
Generally, these exemptions allow government officials only to withhold documents but do not require them to do so. However, other laws, such as those protecting personal privacy, controlling the dissemination of classified information, or specifically requiring withholding are exceptions to this general rule.
Much of the litigation under the act has focused on the meaning of the exemptions. The exemptions addressing national security, the deliberative process within and among federal agencies, the protection of business records, personal privacy, and law enforcement records have generated the most litigation. The Supreme Court has emphasized that the exemptions to the act must be "narrowly construed." A narrow interpretation of the scope of the exemptions prevents them from swallowing the general principles of the act requiring access to government documents.
Although the act has been amended on a number of occasions, the most important amendments occurred in 1974 and in 1996. The 1974 amendments responded to agency practices thought to demonstrate an unwillingness to apply the right-to-know principle underlying the law. These amendments strengthened deadlines for agency responses, regulated fees and fee waivers, and provided for personal sanctions against federal officials who acted arbitrarily in withholding requested documents. These amendments also revised the exemption regarding national security information: they reversed an interpretation by the Supreme Court that denied federal judges the authority to determine whether classified documents were in fact properly classified. The amendments also responded to decisions that had expanded the scope of the law enforcement exemption. In these amendments Congress signaled its continuing support of the principle of open government and its willingness to address bureaucratic opposition to the law.
The Electronic Freedom of Information Act of 1996 (EFOIA) also changed procedures under the act to address the problem of agency delay in responding to requests. EFOIA expands the time that agencies have to respond to an initial request in an attempt to create more realistic standards for agencies. It also directs agencies to create categories of requesters whose requests can be considered on other than a first-come, first-served basis. These categories include requesters who can demonstrate that failure to obtain quickly requested records would endanger the life or physical safety of a person, and also requesters primarily involved in the dissemination of information to the public, if their requests are ones urgently requiring that the public be informed about "actual or alleged Federal Government activity." EFOIA allows agencies to create different avenues for processing requests, such as by considering large and small requests in different groups. It also limits the ability of agencies to use "exceptional circumstances" as an excuse for delay resulting from agencies' ordinary backlogs.
EFOIA modifies the act for an electronic age. It broadly defines electronic records, includes library and reference materials within the definition of record, increases the ability of requesters to obtain documents in electronic form, directs agencies to conduct electronic searches, and considers how agencies should treat computerized removal of exempt information from request documents.
Most important, EFOIA imposes greater responsibilities on agencies to disseminate information rather than simply respond to requests. Now, agencies are required to make available any documents that "have become or are likely to become the subject of subsequent requests for substantially the same records." These records must be provided online in virtual reading rooms that a person can access without physically appearing at an agency. Agencies are also required to publish indices and guides that will help in framing a request. These changes shift the standard procedure from a request-and-respond model of access to one that relies more heavily on dissemination of information by the government.
REQUESTS BY PRIVATE PARTIES
Many users of the act are private parties rather than newspapers, television stations, and other media. The government holds not only information that it has created but also information that has been submitted to it. Much of this information does not directly concern the performance of government officials. For example, businesses seek documents from the government about their competitors, and consumers seek documents relating to health and safety information concerning consumer products or information about consumer frauds or other illegal business practices. In this sense, the act has helped to support competition among firms and to provide consumers with information to participate efficiently in the market.
Requests by private parties also support the principle of government accountability. For example, government contractors can acquire information about successful bidders. This not only serves the contractors' own commercial interests but also helps to ensure that the contracting process operates fairly. Government documents about risks to public health and safety also reinforce the responsibility of the government to attend to those risks.
The United States Freedom of Information Act is not the oldest in the world, but it has been one of the most influential. Dozens of countries, including ones with a reputation for bureaucratic secrecy, such as Great Britain and Japan, have adopted freedom of information laws. Countries throughout the world, including many nations in Eastern Europe and countries that were once part of the Soviet Union, have adopted such laws as an important step in their transition to democratic government.
See also: FEDERAL ADVISORY COMMITTEE ACT; GOVERNMENT IN THE SUNSHINE ACT; PRIVACY ACT OF 1974.
Leahy, Patrick, et al. "Recent Developments: Electronic Freedom of Information Act." Administrative Law Review 50 (1998): 33958.
O'Reilly, James T. Federal Information Disclosure. Colorado Springs, CO: Shepard's, 1977.