Freedom of Information Act

ENACTED: July 4, 1966

PLACE: United States (national)

SIGNIFICANCE: This federal law reversed long-standing government policies and practices regarding public access to information by establishing the right of access to government information and agency records as essential to a free and open society

The Freedom of Information Act (FOIA) grew out of many years of reform effort. Its original passage in 1966 was the result of a ten-year congressional campaign, in which media representatives played a leading role. It was drafted as a revision of the public information section of the Administrative Procedures Act (1946), which contained such expansive exceptions that most agencies could effectively avoid disclosing to the public almost anything they wished. Until FOIA went into effect in 1967, public access to federal government records and documents was governed by a “need to know” policy. Persons requesting information had to demonstrate why it should be made available.

Before 1966 the old Administrative Procedures Act (APA) permitted individual government agencies not to disclose any functions that the agencies themselves claimed either should be kept secret in the public interest, or were matters relating solely to their internal management. The APA mandated that all agency records be made available to persons who were properly and directly concerned, except information censored for good cause found. Once an agency censored information, citizens had no right of appeal.

Impact of FOIA

FOIA was enacted to give the public increased access to federal government records. On the day that US president Lyndon B. Johnson signed it into law, he declared that the principle upon which the legislation was based was that “a democracy works best when people have all the information that the security of the Nation permits.” FOIA’s purpose was to establish a general philosophy of full agency disclosure—except in clearly delineated cases—and to provide legal procedures by which citizens and the press could obtain information wrongfully withheld. It was believed that full public disclosure would further democracy by enabling better informed citizens to scrutinize government actions and thereby discourage corruption and waste.

FOIA’s original wording granted the public access only to government paper “files.” In 1974 the law was amended to apply to “records”—a term that the courts have interpreted to apply to a much broader range of material, making it more difficult for agencies to censor entire files. “Records” include not only the papers constituting files, but also films—including X rays—and computer media. Other physical objects, however, such as the rifle believed to have been used to kill President John F. Kennedy, are not considered records, principally because they are not reproducible.

Federal Agencies Subject to FOIA

Government entities are considered to be “agencies” when they have authority to perform specific government functions. FOIA itself defines as agencies all government bodies other than those directly connected to the US Congress, federal courts, the governments of US territories and possessions, and the District of Columbia. The law specifically includes all federal executive and military departments, federal government corporations, government-controlled corporations, and other establishments in the executive branch of the federal government, including the Executive Office of the President, and independent regulatory agencies. (State and municipal government bodies are not subject to FOIA.)

Exemptions to FOIA

The law lists nine categories of government records that federal agencies need not disclose to the public. These exemptions recognize the fact that censorship of some types of information may be necessary to safeguard certain legitimate government and private interests. However, agencies claiming any of these exemptions bear the burden of showing that the information should be protected under the law.

The first exemption covers information relating to national defense and foreign policy. An executive order must be issued to classify and protect this information pursuant to established standards and procedures, including submission of affidavits showing how the release of such information might damage national security. However, the language of this exemption does not provide any substantive standard for withholding information. A specific executive order must be reviewed to give the exemption meaning. Executive Order 12356, as amended, lists ten categories of information to be considered for classification. These include information on military plans, weapons, or operations; the capabilities and vulnerabilities of systems, installations, projects, or plans relating to the national security; information on foreign governments; intelligence-gathering activities; foreign relations; scientific, technological, or economic matters relating to national security; federal programs for safeguarding nuclear materials and facilities; cryptology; confidential sources; and any information relating to national security that the president or other officials determine should be protected from unauthorized disclosure.

Some national security information, even when it falls within one or more of these categories, may nevertheless not be classified. The key question is whether disclosure—by itself or in the context of other information—can reasonably be expected to damage national security. Information cannot be classified simply for the purpose of concealing violations of the law, inefficiency, or administrative errors; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to delay release of information not requiring protection in the interest of national security. Further, basic scientific research not clearly related to national security is not classifiable.

Executive Order 12356 provides that information should be declassified or downgraded as soon as national security considerations permit. Further, if the director of the Information Security Oversight Office determines that any information is classified in violation of this executive order, the director may mandate declassification. The director’s decisions are appealable to the National Security Council, with the information remaining classified pending appeal.

Other Exemptions

The second exemption concerns records relating solely to the internal personnel rules and practices of an agency. Its purpose is to relieve government agencies of the burden of assembling and maintaining for public review records in which the public is unlikely to be interested. It also covers internal agency procedures, such as instructions to investigators, inspectors, and auditors, disclosure of which could damage agency operations.

The third exemption incorporates by reference various federal information nondisclosure statutes and precludes disclosure of certain information protected by other statutes. Nondisclosure is authorized when other statutes either prohibit disclosure outright, or confer to an agency discretionary power to withhold material, while providing guidelines for exercising such discretion or specifying the types of material to which discretion applies. Citizens wishing to examine agency documents that are withheld under the terms of this exemption can legally appeal to have them released under the terms of the Federal Rules of Civil Procedure.

The fourth exemption protects confidential business information. Its purpose is to protect the interests of persons, corporations, and other entities who disclose trade secrets and other confidential information to government agencies and to protect the government. Two tests have been defined to determine whether information can be classified as confidential business information. The so-called “competitive advantage test” asks whether release of the information in question is likely to cause substantial competitive injury to the entity that provided it. The “chilling effect test” questions how much the agency needs the information, and whether voluntary cooperation is required for the agency to obtain the information and whether its disclosure will impair the government’s ability to collect similar information in the future. Any information that qualifies under any of these tests is exempted.

The fifth exemption encompasses the executive branch’s interagency or intra-agency memoranda or letters, if they are deliberative, consultative, or within the attorney-client or attorney work product privileges. This exemption from public disclosure allows for full, frank, and uninhibited written exchange of ideas and opinions among government policy makers and advisors. Such writings may be censored if their disclosure would discourage intra-agency discussion and thereby impede the ability of an agency to perform its functions.

The sixth exemption prevents disclosure of information that would constitute a clearly unwarranted invasion of personal privacy. Examples of such information might include personal medical records. However, this exemption does not apply in cases in which it is judged that public need for release of the information outweighs any possible injury to a person’s privacy.

The seventh exemption protects certain investigatory records compiled for law enforcement purposes. To qualify for this exemption it must be shown that release of such records might interfere with enforcement proceedings; deprive someone of his or her right to a fair trial or impartial adjudication; constitute an unwarranted invasion of personal privacy; disclose the identities of confidential sources, including state, local, or foreign agencies or authorities, or private institutions that have furnished information confidentially; disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions, and thereby possibly assist someone to circumvent the law; or endanger someone’s life or physical safety.

The eighth exemption protects from disclosure reports prepared by or for agencies that regulate or supervise financial institutions. Its purpose is to enhance the security and integrity of financial institutions. Government reports on financial institutions often contain frank evaluations of institutions such as banks; indiscriminate disclosure of such information might, for example, lead to a harmful rush on a bank.

The final exemption allows nondisclosure of ecological and geophysical information and data concerning wells, including maps. Geological explorations by private oil companies were not previously protected by the trade secrets provisions of disclosure laws. It was believed that disclosure of seismic reports and other exploratory findings generated by oil companies could provide speculators unfair advantage over those companies which incurred the exploration costs.

FOIA’s enumerated exemptions are not mandatory bars to disclosure. An agency may, at its own discretion, voluntarily disclose exempt information as it deems fit. However, when an agency elects to release exempt materials, it may limit access to such information to certain individuals.

Release of Partially Exempt Information

FOIA also addresses requests for information some parts of which are exempt and other parts are not. In such instances the agencies must release “segregable portions” that remain after the material that is exempt from release has been deleted. An agency must release any remaining material that is at all intelligible after deletions have been made. If there are any doubts about the intelligibility or responsiveness of the remaining nonexempt material, those doubts are to be resolved in favor of release.

How the Public Receives Documents

FOIA requests must typically be in writing; agencies often provide prepared forms for this purpose. Submission of written requests trigger the running of set time limits for agencies to respond. Agencies are only required to act on requests that “reasonably describe” identifiable nonexempt records. Although one test is whether requested records can be located with reasonable efforts, the size of a request alone cannot be the measure of whether it reasonably describes an identifiable record. In contrast, a request for “all” information pertaining to a certain type of record would not be sufficiently descriptive to meet the requirement.

The government cannot consider the interests of parties requesting information before determining whether to release or censor it. Courts have consistently held that a requester’s needs, purposes, or motivation do not affect the requester’s right to inspect agency records.

Recourse for Agency Noncompliance

Any agency denial of a request—for any reason—for information can be appealed under FOIA. The most common reason for appeals has been the failure of agencies to respond to requests within the law’s statutory time limits. Agencies commonly deny requests by citing backlogs of requests, and inadequate staffing to perform record searches. Public requests can be frustrated by long delays and expense incurred while denials are appealed. Furthermore, even if an appeal is granted and a court directs an agency to comply with the request, the agency can assert—for the first time—that the requested records are exempt. This will start the appeal process all over again.

Effect of FOIA

As drafted, FOIA has been generally regarded as a substantial improvement over the APA. In practice, however, FOIA has often proved to be an inadequate means by which to obtain government information. The law’s enumerated exemptions afford government agencies many ways in which to censor documents, in whole or in part. Many cases have been reported wherein citizens have filed FOIA requests and not received their denial letters until five years after the original filing. Many court battles have been fought to determine whether certain government entities are even subject to FOIA. Each time that a court has ruled a government entity to be an agency subject to FOIA, the agency has been ordered to draft guidelines for preserving and releasing its records. Through such court battles, citizens have been granted additional rights to obtain government documents pursuant to FOIA. Furthermore, FOIA has allowed certain plaintiffs in civil court cases against the United States government, or its agencies, to obtain documents implicating the US government or its agencies, which has lead to judgments or settlements against the US government which could not have been obtained before the enactment of FOIA.

The US Department of Justice (DOJ) reported that more than one million FOIA requests were processed in fiscal year 2023, a 30 percent increase over the prior year. Previously, the DOJ began releasing yearly reports pertaining to FOIA requests and other related data in 2011.

Bibliography

"Agencies Processed over One Million FOIA Requests in Fiscal Year 2023." Office of Information Policy, U.S. Department of Justice, 4 Mar. 2024, www.justice.gov/oip/blog/agencies-processed-over-one-million-foia-requests-fiscal-year-2023. Accessed 27 June 2024.

American Jurisprudence: A Modern Comprehensive Text Statement of Law, State and Federal. 2nd ed., Lawyers Co-operative, 1994.

Detroit College of Law Review. Special issue, Spring 1983.

Marwick, Christine M. Your Right to Government Information. Bantam, 1985.