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Freedom of Information Act (United States)

From Wikipedia, the free encyclopedia

Freedom of Information Act
Great Seal of the United States
Long title An Act to amend section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), to clarify and protect the right of the public to information, and for other purposes.
Acronyms (colloquial) FOIA
Nicknames
  • Public Information Act of 1966
  • Public Information Availability
Enacted by the 89th United States Congress
Effective July 5, 1967
Citations
Public law 89-487
Statutes at Large 80 Stat. 250
Codification
Acts amended Administrative Procedure Act
Titles amended 5 U.S.C.: Government Organization and Employees
U.S.C. sections created 5 U.S.C. ch. 5, subch. II § 552
Legislative history
Major amendments
United States Supreme Court cases
Department of Justice v. Reporters Committee for Freedom of the Press
Department of Justice v. Landano
Scott Armstrong v. Executive Office of the President

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal freedom of information 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.[1][2] This amendment was signed into law by President Lyndon B. Johnson, despite his misgivings,[3][4] on July 4, 1966, and went into effect the following year.[5]

As indicated by its long title, FOIA was actually extracted from its original home in Section 3 of the Administrative Procedure Act (APA). Section 3 of the APA, as enacted in 1946, gave agencies broad discretion concerning the publication of governmental records. Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement "a general philosophy of full agency disclosure." The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U.S.C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not published in the Federal Register, § 552(a)(2). In addition, § 522(a)(3) requires every agency, "upon any request for records which ... reasonably describes such records" to make such records "promptly available to any person." If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden "on the agency to sustain its action," and directs the district courts to "determine the matter de novo."

The Federal Government's Freedom of Information Act should not be confused with the different and varying Freedom of Information Acts passed by the individual states. Many of those state acts may be similar but not identical to the federal act.

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Transcription

Robert: Hi, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick and with me today is-- Maura: Maura Clancy. Robert: And, we're going to be talking today about FOIA. So Maura, what is FOIA? Maura: FOIA stands for the Freedom of Information Act. It is a statute and it is a way that we can actually request documents that are considered public records from government agencies, in particular from VA. Robert: And because we work with VA, we make a lot of requests under the Freedom of Information Act, FOIA. Maura: Yes we do. Robert: Okay. And so, can you tell me in general terms how one goes about and makes a request? Maura: Sure. So, to submit a FOIA request is very simple. You just need to submit a written request for the information that you're seeking to the FOIA service for the agency that you'd like the information from. There's a webpage on the VA website about how to use the FOIA service. You just need to be able to describe with enough detail the documents that you're seeking. Robert: And, can anyone seek records? It doesn't just have to a law firm for example? Maura: No, it can be an individual. It can be somebody acting on behalf of an individual or in our case, it can be a law firm. Robert: Okay. So if you make a request, if one makes a request under FOIA, does the government have to turn over everything? Maura: Well, if the documents that you're seeking are disclosable under FOIA, and they're public records, they should eventually turn them over. But, there are many exemptions under the statute that they might claim apply and forbid disclosure of the documents so you might run into some hurdles that way. Robert: Are there any costs associated under FOIA that you have to pay for example? Maura: Yes. There can be costs associated if you request voluminous documents or you know several thousand pages of documents that get turned up in response to your request. But usually, the FOIA service officer will send you an estimate and ask if you would like to accept the charges and receive the documents. So you do have a way out before you're charged the cost. Robert: So you will get some kind of written notice either yes, we're going to turn over the documents or yes, if you pay a hundred dollars, we're going to turn the documents or no? Maura: Yes. Robert: We're not going to turn over the documents at all. Maura: Right. Robert: Okay. If the VA says, "No, we don't want to turn over those documents." What are the options then? Maura: Well, if they give you a letter that says, you know essentially denying your request and then they give you the reasons why they don't believe they have to produce the documents, you do have a way to appeal those determinations. Usually, those letters will give you instructions for how to submit an appeal. So if you are not satisfied with the denial or you believe that it was incorrectly made, you can file of an administrative appeal within the agency as to that determination. Robert: And eventually, if the VA continues to deny it or whatever agency, I think you have the right to go to U.S. district court. Maura: Yes. As long as you follow the procedures for the appeal, you can end up in court. Robert: So, in practical terms, why would we as a law firm want to use FOIA? Maura: We find that FOIA is most useful when we identify certain problematic trends in the agency or we notice that the agency is making decisions on a regular basis that are based upon a misstatement of the law or a misinterpretation of the law. So when we notice a problem like this that's more systemic, more global, it's affecting a lot of our clients, we try to submit a FOIA request for information that might help us uncover why this problem is ongoing at the agency level and maybe what information we can obtain to help us make the best arguments that we can on our clients' behalf. Robert: So it's really an opportunity for us to see what the agency is doing sort of on a global level in some cases, and then to prepare our best arguments for those clients to help them win their claims. Maura: Exactly. Robert: Can you give a concrete example of one of these FOIA request that we've done recently? Maura: Sure. So recently we received a determination in one of our client's cases and VA was citing a policy letter that's issued by the AMO or the Appeals Management Office, and we had never seen any reference to this policy letter before. We had never been able to read the policy letter. So, in order to make successful arguments on our client's behalf in that particular case, we FOIA-ed a copy of the policy letter because we don't believe we can effectively do our job without knowing what kind of administrative decisions and policies are being handed down in VA. Robert: It sounds kind of secret if they have a secret policy that we don't know about. So as soon as we learn about the secret, we have to ask about it. Maura: Essentially yes, I mean we don't want to be going in blind in the way we make arguments and if they're giving us a reason to believe that they are denying claims based on information that we don't have access to, that's certainly something that we want to submit a FOIA for because we can probably obtain it that way. Robert: So one of the other things I think that we've done as a law firm is, we've been having trouble getting decisions from the VA for our clients. So the VA has an obligation under the law to send us written notice of a decision so that if we disagree with it or the client disagrees with it, they can appeal. What have we done about that? Maura: We noticed as you said that an ongoing problem is the lack of receipt of decisions. And so, as a result, we weren't always having enough time to prepare appeals because the decision being mailed to us is what triggers the deadline and so it would eat into our deadline time. So, we submitted a FOIA request to VA for all of the decisional documents that were issued in our clients' cases in about a two and a half year span. And we were hoping to get this data from VA and cross-reference with our records and determine in which case are we missing a decision and in which case do we potentially have a problem with respect to an appeal deadline. Robert: So that sounds really serious to me and if I were a veteran, I'd be concerned that my representative wasn't given a copy of the decision. But, if the VA fails to mail us the decision and we don't appeal it within the timeframe, that's on VA. It's not on us and we can make arguments as I understand it, to correct that. Maura: And having a FOIA request and having our objection to their bad mailing procedure sort of preserved in the way of a FOIA request, gives us a nice way to make an argument that they should accept the appeal out of time because we had good reason for not submitting it before because they simply didn't mail us the decision. Robert: So, can you give some other examples of FOIA requests that we've done over the years? Maura: Sure. So, we have submitted a FOIA request for the number of grants for SMC, Special Monthly Compensation. We wanted to see how many of these types of claims VA was granting so we submitted a request for the data. We were able to get it broken down by the type of grant and by the particular year in which it was issued so it gave us a better sense of how they were handling those types of claims. Robert: So, Special Monthly Comp are benefits in addition to sort of the schedular and they usually involved more serious injuries. Maura: Exactly. Robert: We also I think made requests for extraschedular information, so grants for TDIU under 4.16(b) and under 3.321 so-called extraschedular grants and that was again an opportunity for us to sort of examine globally over the last few years how many of these grants the agency is making. But that's not all we do, we also try and get some other things. So, give me one last example if you would. Maura: Sure. Robert: I'm thinking about the Board of Veterans' Appeal here. Maura: Of course. So, every month, we actually submit a FOIA on the first of every month to the Board of Veterans' Appeals. It's a way for us to keep tabs on their production. So we specifically ask for the number of decisions they render, the number of grants, denials, and remands within that number and this gives us a better sense of how many decisions will be coming down the pipeline for our clients, how many of those will be grants, how many denials we need to be mindful of. And it's also a good way to observe trends over time in how many decisions that the Board is issuing overall. Robert: So, as we've looked at the data over the years, it isn't -- the Board isn't making the same amount of decisions every month. In fact, it can fluctuate month to month and year to year. Maura: Yes. Robert: Okay. Maura: Definitely. Robert: So it's important for us to have sort of an understanding of what those numbers look like. Maura: Right. Robert: I don't have any other thoughts about FOIA. Did you have any last thoughts about it? Maura: Nothing in particular, just that it's a really good vehicle for getting information. It's a good way to identify information on a more global level, not -- that's not particular to one client or to five clients but it can be very helpful as to many claims that we handle. So, it's a good tool that we use on a daily basis here. Robert: It is pretty easy too. At the end of the day, you just send in a letter to the right officer and you get the request response one way or the other. Maura: You just need patience and persistence with the FOIA officers and you can hopefully get what you need. Robert: Patience and persistence with the VA pays off as well. This is Robert Chisholm and Maura Clancy from Chisholm Chisholm & Kilpatrick. Thank you.

Contents

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, particularly representative John Moss, thought that it was necessary for government information to be available to the public. This push built on existing principles and protocols of government administration already in place.

Others, though—most notably President Lyndon B. Johnson—believed that certain types of unclassified government information should nonetheless remain secret. Notwithstanding the White House's opposition, Congress expanded Section 3 of the Administrative Procedure Act as a standalone measure in 1966 to further standardize the publication of government records, consistent with the belief that the people have the "right to know" about them. The Privacy Act of 1974 was passed as a countervailing measure to ensure the security of government documents increasingly kept on private citizens.

The FOIA was put in place shortly after the illegal unconstitutional act of Project MKUltra performed by the CIA, which most of the evidence was burned and some of the surviving documents became classified in 2001.

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."[6] 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."[6] The nine current 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):[7]

  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;[8]
  2. related solely to the internal personnel rules and practices of an agency;[8]
  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;[8] FOIA Exemption 3 Statutes
  4. trade secrets and commercial or financial information obtained from a person and privileged or confidential;[8]
  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;[8]
  6. personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;[8]
  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]
    • Virginia's FOIA council refers to this as the criminal investigative files exemption[9][10][11]
  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;[8] or
  9. geological and geophysical information and data, including maps, concerning wells.[8]

The Postal Reorganization Act of 1970 (at 39 U.S.C. § 410(c)(2)) exempts the United States Postal Service (USPS) from disclosure of "information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed".[12]

History

The law came about because of the determination of Congressman John E. Moss of California. Moss was the chairman of the Government Information Subcommittee. It took Moss 12 years to get the Freedom of Information Act through Congress successfully.[13] Much of the desire for government transparency stemmed from the Department of Defense and Congressional committees evaluation of the nation's classification system in the late 1950s. They determined that the misuse of government classification of documents was causing insiders to leak documents that were marked "confidential." The committee also determined that the lowest rung of the confidentiality ladder "confidential" should be removed. They deemed that "secret" and "top secret" covered National security adequately.[13] The Moss Committee took it upon itself to reform confidentiality policy and implement punishments for the overuse of classification by officials and departments.

The FOIA has been changed repeatedly by both the legislative and executive branches.

Initial enactment

The Freedom of Information Act 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. 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.

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.[14] 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. 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.

Privacy Act Amendments of 1974

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.[15] 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.[15] President Ford was persuaded to veto the bill on October 17, 1974, according to documents declassified in 2004.[15] 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.[15][16]

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."[17] 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."[17]

These amendments that these 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, (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."[18] 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.[19]

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:

  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.

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.[20]

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.[21]

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.[22]

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.[23] This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.[21]

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 business days.[7]

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, 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.[24] Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.[25]

Intelligence Authorization Act of 2002 amending the FOIA

In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Pub.L. 107–306.[26] 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":[27]

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".[28] 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.[26]

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".[26][29]

OPEN Government Act of 2007

President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, Pub.L. 110–175, on December 31, 2007. This law, also known as the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways.[30] 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)[31] in the National Archives and Records Administration to review agency compliance with FOIA.[32]

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)[31] 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.[33] 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[34][35] 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.[36]

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[37] 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."

Notable cases

A major issue in released documentation is government "redaction" of certain passages deemed applicable to the Exemption section of the FOIA. Federal Bureau of Investigation (FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research."[19] This has also brought into question just how one can verify that they have been given complete records in response to a request.

J. Edgar Hoover

Document with some text blacked out.
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 and plaintiff, 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. (I–pg. 27) Some[who?] argue that it was not even this sixteen year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of Department of Justice v. Landano which spurred on a break in stolid FBI opposition.

Murder trial

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."[38]

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."[38] 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.

E-mail

In the case of Scott Armstrong v. Executive Office of the President, et al., the White House used the PROFS[19] 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.[39]

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."[40] 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.[41]

Secret e-mail accounts and abusive fees

The AP uncovered several federal agencies where staff regularly use fictitious identities and secret or unlisted email accounts to conduct government business. Their use stymied FOIA requests.[42][43][44][45] In some cases, the government demanded enormous (>$1 million) fees for records that appeals show should be available for minimal cost.[42][44][46][47]

Processing performance by different government agencies

The Center for Effective Government analyzed 15 federal agencies which receive the most FOIA requests in-depth. It concluded, that federal agencies are struggling to implement public disclosure rules.

In the latest analysis published in 2015 (using 2012 and 2013 data, the most recent years available) ten of the 15 did not earn satisfactory overall grades, scoring less than 70 out of a possible 100 points. Eight of the ten earned Ds, including the Department of Homeland Security (69 percent), Department of Transportation (68 percent), United States Department of the Treasury (Treasury) (68 percent), the Environmental Protection Agency (EPA) (67 percent), the United States Department of Labor (63 percent), the United States Department of Veterans Affairs (64 percent), the United States Department of Defense (61 percent), the Securities and Exchange Commission (61 percent). The Department of Health and Human Services and the Department of State earned an F. The State Department's score (37 percent) was dismal due to its extremely low processing score of 23 percent, which was completely out of line with any other agency's performance. Scores of five agencies, the Equal Employment Opportunity Commission, the Department of Health and Human Services, the SEC, the DOJ, and the EPA, even decreased marginally.[48]

See also

References

  1. ^ Branscomb, Anne (1994). Who Owns Information?: From Privacy To Public Access. BasicBooks.
  2. ^ 5 U.S.C. § 552(a)(4)(F)
  3. ^ "FOIA Legislative History". The National Security Archive. The National Security Archive. Retrieved 24 September 2013.
  4. ^ Gerhard Peters and John T. Woolley. "Lyndon B. Johnson: "Statement by the President Upon Signing the "Freedom of Information Act.", July 4, 1966". The American Presidency Project. The American Presidency Project. Retrieved 24 September 2013.
  5. ^ Metcalfe, Daniel J. (23 May 2006). The Presidential Executive Order on the Freedom of Information Act (PDF). 4th International Conference of Information Commissioners. pp. 54–74. Archived from the original (PDF) on 2011-10-18. Retrieved 20 June 2013.
  6. ^ a b Office of Information and Privacy (OIP) (2005-10-10). "U.S. Department of Justice Freedom of Information Act (FOIA) General Information". Retrieved 2010-01-03.
  7. ^ a b "FOIA Update: The Freedom of Information Act, 5 U.S.C. sect. 552, As Amended By Public Law No. 104-231, 110 Stat. 3048". Office of Information and Privacy, U.S. Department of Justice.
  8. ^ a b c d e f g h i ACLU Step-by-Step Guide to using the Freedom of Information Act; American Civil Liberties Union Foundation pamphlet written by Allan Robert Adler, pp. 3–5, ISBN 0-86566-062-X
  9. ^ "AO-04-14". Virginia.gov. 22 May 2014. further records were denied pursuant to the criminal investigative files exemption, subdivision A 2 a of § 2.2-3706.
  10. ^ Provence, Lisa (31 August 2015). "Exempt or not exempt? Judge considers FOIA lawsuit". c-ville.com. when he requested the records again in February 2015, it was denied, citing the "criminal investigative files" exemption to the Freedom of Information Act
  11. ^ "February 14: For the love of ..." issuu.com. 13 February 2018. Alan Gernhardt at the Virginia Freedom of Information Advisory Council says the videos could fall under FOIA's criminal investigative files exemption, especially if they were shown at a preliminary hearing.
  12. ^ "USPS: ZIP Codes are "Commercially Sensitive" Trade Secrets". The WebLaws.org Blog. November 6, 2013. Retrieved 7 November 2013.
  13. ^ a b Gold, Susan Dudley. 2012. Freedom of Information Act. New York, NY: Marshall Cavendish Benchmark.
  14. ^ The enactment of Title 5 into positive law was done by Pub.L. 89–554, 80 Stat. 378, enacted September 6, 1966. This means that while Title 5 existed before, it was merely a compilation of laws but not the law itself. Only about half of the U.S. Code is positive law, meaning the law itself. See uscode.house.gov for background on positive law codifiation of the U.S. Code.
  15. ^ a b c d "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.
  16. ^ 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.
  17. ^ a b Scalia, Antonin (March 1982). "The Freedom of Information Act Has No Clothes" (PDF). Regulation. 6 (2): 14. Retrieved 10 June 2016.
  18. ^ Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act. Electronic Privacy Information Center. 1992.
  19. ^ a b c Theoharis, Athan (1998). A Culture of Secrecy: The Government Versus the People's Right to Know. Kansas: University Press of Kansas. p. 27.
  20. ^ Exec. Order No. 12356, 3 C.F.R. 166 (1983)
  21. ^ a b "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". 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.
  22. ^ "FOIA Reform Legislation Enacted: FOIA Update Vol. VII, No. 4". U.S. Department of Justice. 1986.
  23. ^ "Freedom of Information Act (FOIA)". Illinois Institute of Technology Paul V. Galvin Library. Retrieved 2002-06-04.
  24. ^ Executive Order no. 13489, Presidential Records, 74 FR 4669 (January 21, 2009)
  25. ^ "Executive Order 13489 on Presidential Records". fas.org.
  26. ^ a b c "FOIA Post: FOIA Amended by Intelligence Authorization Act". United States Department of Justice Office of Information and Privacy. 2002.
  27. ^ Pub.L. 107–306, 116 Stat. 2383, § 312 (to be codified at 5 U.S.C. § 552(a)(3)(A), 5 U.S.C. § 552(a)(3)(E)).
  28. ^ 5 U.S.C. § 552(a)(3)(E)(ii) (as amended)
  29. ^ 50 U.S.C. § 401a(4) (2000)
  30. ^ "Public Law 110-175 OPENNESS PROMOTES EFFECTIVENESS IN OUR NATIONAL GOVERNMENT ACT OF 2007". Government Printing Office. 2007-12-31. Retrieved 2010-06-13.
  31. ^ a b "OGIS Home Page". National Archives and Records Administration.
  32. ^ President Bush Signs S. 2488 into Law  FAS Project on Government Secrecy
  33. ^ "Executive Order 13526". Federation of American Scientists.
  34. ^ "House holds hearing on controversial SEC FOIA exemption". rcfp.org.
  35. ^ Guidance to Staff on Application of Section 929I of the Dodd-Frank Act (modified: September 15, 2010) from the U.S. Securities and Exchange Commission
  36. ^ "Schapiro explains why some info should be secret". CNN. September 16, 2010.
  37. ^ Bill Summary & Status- 111th Congress (2009–2010) S.3717 from THOMAS at the Library of Congress
  38. ^ a b United States Dep't of Justice v. Landano, 373 U.S. 83 (1963).
  39. ^ Theoharis (1998), pp. 151–152.
  40. ^ Theoharis (1998), p. 156.
  41. ^ Theoharis (1998), p. 159.
  42. ^ a b Gillum, Jack (4 June 2013). "TOP OBAMA APPOINTEES USING SECRET EMAIL ACCOUNTS". The Associated Press. Archived from the original on 2013-10-07. Retrieved 24 September 2013.
  43. ^ "US officials found to be using secret government email accounts". The Guardian. The Associated Press. 4 June 2013. Retrieved 24 September 2013.
  44. ^ a b Woolery, Liz (14 June 2013). "'Secret' Email Accounts Raise More Questions, Concerns About Government Transparency". Chilling Effects Clearinghouse. Archived from the original on 2013-07-20. Retrieved 24 September 2013.
  45. ^ "While US Attorney General, Eric Holder Used Kareem Abdul-Jabbar's Birth Name as His Official Email Address". VICE News. Retrieved 2016-02-27.
  46. ^ "DEA wants $1.4 million before it will begin processing request". MuckRock. Retrieved 2016-02-13.
  47. ^ "The Pentagon's $660 million FOIA fee". MuckRock. Retrieved 2016-02-27.
  48. ^ Making the Grade: Access to Information Scorecard 2015 March 2015, 80 pages, Center for Effective Government, retrieved 21 March 2016

Further reading

External links

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