THE UNITED STATES FREEDOM OF INFORMATION ACT:
LESSONS LEARNED FROM THIRTY YEARS OF EXPERIENCE WITH THE LAW
By Amanda Frost, Former Director of Public Citizen's Freedom of Information Clearinghouse
Since the adoption of the United States Freedom of Information Act ("FOIA") 33 years ago, millions of Americans -- including scholars, journalists, and private citizens -- have made use of FOIA to monitor the government's activities and to hold the government accountable for its actions. By giving the public an enforceable right of access to government information, FOIA has enabled American citizens to participate more effectively in the public debate that is vital to a strong and vibrant democracy. No nation that shields the workings of its government from the governed can rightly call itself a democracy.
In 1993, President Clinton issued a statement recognizing the value of FOIA in enhancing democracy in the United States:
For more than a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form of government. The statute was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American People know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process. In the thirty-three years since its adoption, FOIA has become interwoven into the fabric of American life. Citizen advocacy groups use FOIA almost daily to gain information about the issues they care about. FOIA enables these groups to learn about the serious adverse effects of drugs, of chemicals present at hazardous waste sites, and of nuclear power plant accidents and mishaps, to name a few. Efforts to organize and lobby on health and safety issues and to serve as a government watchdog fundamentally depend upon the ability to obtain access to government information. FOIA is also frequently used by individuals who wish to learn about issues affecting their families, schools, and neighborhoods. Finally, FOIA enables citizens to access information the government has gathered about themselves.
FOIA's phenomenal successes can be traced to four fundamental aspects of the law.
First, FOIA creates a presumption in favor of public access to all government information and against government secrecy. The law presumes that all government agency records -- even electronic records, films or tapes -- are available to the public and puts the burden on the government to demonstrate that any particular piece of information falls outside the presumption.
Second, the law clearly defines the categories of information that can be withheld from the public. Thus, it places strict limits on the government's discretion to keep information secret. The presumption of public access can only be overcome if the information falls within nine narrowly drawn exemptions, which protect information concerning national security, law enforcement proceedings, and trade secrets, and similar sensitive matters. And if part of a document falls within an exemption, the agency may withhold only that portion; it must release the remainder of the document.
Third, judicial review is available to ensure that government agencies comply with the law. As might be expected, agencies sometimes try to withhold information to hide embarrassing actions or to limit public debate on controversial issues. When this occurs, the requester may go to court. This right to judicial review gives the law its teeth. The court will make an independent determination of whether the requested information falls within the withholding criteria of FOIA. In making this determination, the courts do not give deference to the government's judgment and do not even need to rely on the government's description of the material. Instead, the court may review the information, or a sample of it, in private to determine for itself whether the information should be disclosed or withheld under the terms of FOIA.
Fourth, what ultimately makes FOIA successful is its simplicity and accessibility to the public. Under FOIA, anyone can make a request for information. A person making a request does not have to show any particular need for the information, nor does the requester even have to be a U.S. citizen or resident. The only requirement for the request is that it must "reasonably describe" the records sought. Specific documents need not be identified; the requester may instead ask for any information pertaining to a particular subject.
I. How FOIA Works
FOIA establishes that certain categories of information must be automatically disclosed by federal agencies. Subsection (a)(1) of FOIA requires disclosure through publication in the Federal Register of information such as descriptions of agency organizations, functions, and procedures; substantive rules; and statements of general policy. Subsection (a)(2) of FOIA requires that certain types of records -- such as final opinions and orders rendered in agency adjudication, specific policy statements, and certain administrative manuals and records previously processed for disclosure under the Act -- be routinely made "available for public inspection and copying." This provision, commonly referred to as the "reading-room" requirement, requires that such records be made available in a publicly-accessible library. Recent amendments have also provided that some of this information must be made available on the Internet, in an "electronic reading room." Failure to comply with either (a)(1) or (a)(2) can result in invalidation of agency action, because if agencies rules, policies and decisions are not made publicly available the public cannot be expected to obey them.
Subsection (a)(3), which is the most frequently utilized provision of the Act, requires that all records that do not qualify for an exemption to the Act must be disclosed upon receipt of a FOIA request from any person. If the information sought is not available in a publicly-accessible reading room, the requester can write a letter to the agency requesting that the information be disclosed. The agency must respond to such requests in 20 business days. If the agency denies the request for information, or provides only some of the information sought, the requester then must file an appeal of the original request. Only after another 20 business days have passed may the requester file a lawsuit in court against the agency for failing to disclose the records. This process ensures that agencies have a chance to review requests and determine whether the information requested exists and, if so, whether the information qualifies for one of FOIA's exemptions.
As stated above, FOIA has nine exemptions. If information falls within an exemption it may be withheld by the agency, although in most cases the agency may exercise its discretion to release information even if an exemption applies. The exemptions are to be interpreted narrowly, and if information does not qualify for an exemption, it must be disclosed. Below is a brief summary of the nine exemptions and an explanation of how they are defined by FOIA and interpreted by courts.
Exemption 1: Exemption 1 of FOIA protects from disclosure national security information concerning the national defense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order. Although courts are usually willing to disagree with agencies about the scope of other FOIA exemptions, they usually defer to agency determinations that information qualifies for withholding as national security information. As a result, it is very difficult to gain access to material that an agency claims falls within exemption 1. However, unlike other exemptions, an agency cannot claim exemption 1 status for material unless it is "classified" by an appropriate official -- usually someone in an appointed position with a significant degree of authority. Because only a small amount of material is classified, agencies cannot assert this exemption with great frequency.
Exemption 2: Exemption 2 of FOIA exempts from disclosure records related solely to the internal personnel rules and practices of an agency. This exemption covers internal matters of relatively little significance, such as personnel rules regarding parking facilities or regulation of lunch hours, which are considered so trivial as to not be worthy of public interest. The exemption also covers information about significant internal operations that might, if disclosed, enable members of the public to evade agency regulations or statutes or impede the effectiveness of agency law enforcement activities.
Exemption 3: Exemption 3 incorporates the disclosure prohibitions that are contained in other federal statues. This exemption permits Congress to enact additional statutes expressly prohibiting disclosure of information that would not qualify for a FOIA exemption. Congress has only rarely exercised this authority, however, so relatively few statutes qualify as exemption 3 withholding statutes.
Exemption 4: Exemption 4 protects trade secrets and commercial or financial information obtained from a person outside the government. This exemption is intended to protect the interests of both the government and submitters of information. Its existence encourages submitters to furnish voluntarily useful commercial or financial information to the government and it correspondingly provides the government with the assurance that such information will be reliable. The exemption also affords protection to those submitters who are required to furnish commercial or financial information to the government by safeguarding them from the competitive disadvantage that could result from disclosure.
Usually, agencies do not assert exemption 4 as a basis for withholding information until after consulting with the submitter of information and determining that the submitter does not want the information released. In most cases, the submitter will then intervene in any litigation and defend nondisclosure, while the agency will take a relatively minor role in the litigation. The agency's role is diminished in such cases because it is the submitter, not the agency, that is concerned about disclosure. If, however, an agency chooses to disclose information over the submitter's exemption, the submitter can file a "reverse-FOIA" lawsuit, in which it seeks to prove that the information qualifies for exemption 4. Thus, even if an agency wishes to disclose information, the requester may have to wait months or years until the legal challenge brought by the submitter has reached its conclusion.
Exemption 5: Exemption 5 covers inter-agency or intra-agency memoranda or letters that would not be available by law to a party in litigation with the agency. Exemption 5 has been read to incorporate the privileges available to private parties in civil litigation, such as the attorney-client privilege, the deliberative process privilege, and the attorney work-product privilege.
The most significant of these privileges is the deliberative-process privilege, which prohibits disclosure of non-final opinions of agency personnel. The privilege is designed to protect the decisionmaking process by ensuring that agency staff can deliberate openly and frankly about a problem without fear that their preliminary opinions will be subject to public disclosure. The deliberative process privilege is limited by the fact that 1) it covers only those agency opinions that are kept within the executive branch; once an opinion is shared with outsiders, it is no longer privileged; 2) it covers only agency opinions, and not the facts that underlie those opinions; and 3) it covers only non-final agency deliberations.
Exemption 6: Exemption 6 permits the government to withhold all information about individuals that would constitute a clearly unwarranted invasion of personal privacy. For example, information in an individual's personnel or medical files would usually qualify. In every case, the court is to weigh the individual's interest in retaining their privacy against the agency's interest in disclosure.
Exemption 7: Exemption 7 protects from disclosure records compiled for law enforcement purposes, but only to the extent that the production of such information 1) could reasonably be expected to interfere with enforcement proceedings, 2) would deprive a person of a right to a fair trial or an impartial adjudication, 3) would reasonably be expected to constitute an unwarranted invasion of personal privacy, 4) could reasonably be expected to disclose the identity of a confidential source, 5) would disclose techniques and procedures for law enforcement investigations or prosecutions, or 6) could reasonably be expected to endanger the life or physical safety of any individual.
Exemption 8: Exemption 8 protects matters that are 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.
Exemption 9: Exemption 9 covers "geological and geophysical information and data, including maps, concerning wells." 5 U.S.C. § 552(b)(9). This exemption is rarely asserted.
As explained above, FOIA creates a presumption in favor of disclosure. Thus, the burden is on the agency to justify withholding information under an exemption to FOIA. The agency cannot rely on generalized or conclusory allegations of harm from disclosure; it must be specific when explaining to a court why it thinks the information qualifies for one of the nine exemptions to FOIA. Agencies are almost always required to submit to the requester and, if litigation ensues, to the court a description of each record withheld and an explanation of why the information within the document qualifies for an exemption to FOIA. These indexes are called Vaughn indexes, named after the case Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975), in which a court first required agencies to submit such indexes to defend its decision to withhold information. These indices enable courts and requesters to determine whether the agency acted reasonably in refusing to disclose requested records.
One of the major benefits of FOIA is that it requires agencies to release all information that does not qualify for an exemption. Therefore, even if some information in a document qualifies for an exemption to FOIA, the rest must be disclosed. In every FOIA lawsuit, the judge must determine whether the agency is justified in asserting an exemption, and, if so, whether any of the records contain non-exempt information that can be segregated from the exempt materials and disclosed. Frequently, courts will find that agencies were justified in asserting an exemption for only a small portion of the requested material, resulting in an order requiring the agency to release the bulk of the withheld material.
Another vital aspect of FOIA is its provision for judicial review. As numerous courts have recognized, agencies are often not fair judges of whether information in their possession should be disclosed under FOIA. Agencies have an interest in keeping their records secret because oftentimes the information withheld reflects badly on the agency's performance, or the information will demonstrate illegal or unethical behavior by an industry with which the agency has a relationship. Judicial review is essential because it forces agencies to apply FOIA exemptions narrowly, as they were intended, or face the likelihood of reversal by a court and then forced payment of attorney fees and expenses to the FOIA requester. Without court review, FOIA would have produced far less information to the public over the last thirty-three years.
Below are a few examples of information obtained under FOIA after courts reversed agency decisions to withhold the information:
* Documents about the MK-ULTRA program, in which the Central Intelligence Agency (CIA) illegally conducted mind-control experiments on unwitting human subjects;
* Agriculture Department inspection reports of meat packing facilities;
* Reports showing that, contrary to Forest Service claims, the agency was spraying herbicides in the national forests;
* EPA report showing that acid rain causes serious environmental harm; * Budget figures revealing that federal spending on intelligence matters at all agencies totaled $26.6 billion in 1996.
As these examples illustrate, FOIA has been a vital source of information about the performance of the executive branch.
II. FOIA's Evolution Over The Last 33 Years.
FOIA did not always work as well as it does now. In the early days of FOIA, agencies routinely violated its provisions and subjected requesters to exorbitant fees and interminable delays. As a result, FOIA went largely unused.
As a result of the 1974 amendments and a subsequent amendment in 1986, FOIA now has a tiered fee structure designed to enable ordinary citizens to use FOIA without incurring a heavy financial burden. Fees are divided into three types: copying costs, search costs (locating the responsive information), and review costs (reviewing information to determine whether it is exempt from disclosure). Commercial requesters -- the majority of FOIA users -- are charged all three types of fees. Non-commercial requesters, like individual citizens and public interest organizations, are entitled to the first two hours of search time and the first 100 pages of copying for free, and are not charged at all for review time. Journalists, scholars, and scientists are charged only copying costs and get the first 100 pages free. Finally, the law includes a public-interest fee waiver, requiring agencies to waive all fees for requests that seek information that will increase public understanding of government operations or activities. The fee and fee waiver provisions are intended to promote the democracy-enhancing uses of FOIA as well as to prevent agencies from charging fees as a means of keeping information out of the public's hands.
The 1974 amendments also sought to address the most common complaint about FOIA -- the government's long delays in responding to requests. Thus, in 1974, Congress established time limits within which the government is obligated to respond to requests: 10 business days to respond to initial requests and 20 business days to respond to administrative appeals. The deadline for responding to initial requests has now been lengthened to 20 days. Unfortunately, these limits are more often honored in the breach so that, for example, the worst offender -- the Federal Bureau of Investigation -- routinely takes two to ten years to process a FOIA request, most of which come from prison inmates. The delays are, in large part, due to the widespread use of FOIA by the public. About 600,000 people file FOIA requests every year, and agencies like the FBI have a large backlog of requests.
To address the significant delay problem and to take advantage of the unique opportunities offered by the Internet and emerging electronic technologies, Congress amended FOIA in 1996 to provide for greater access to government information via the Internet. The amendments, which are known as the Electronic FOIA amendments, or referred to as E-FOIA for short, require that agencies post on their web sites, and store in electronic reading rooms, all records that have been requested under FOIA in the past, and that have been, or are likely to be, subject to additional FOIA requests. As a result, the most popular and frequently requested records will be available to the public without the need to submit a FOIA request. For example, the FBI has already placed on the Web records of public interest, such as the FBI's files related to Elvis Presley, Amelia Earhart, Jackie Robinson, Project Blue Book (a UFO study), and Klaus Barbie. Now that these files are publicly available on the Internet, any person who wants information on one of these popular subjects no longer has to file a FOIA request. The change in the law speeds up access for requesters saves government resources by diverting potential requests for previously-released records from FOIA- processing altogether. Another important mechanism to reduce delays and increase public access is E-FOIA's requirement that each agency index all of its records and make these indexes available on-line. These indexes enable the public to describe with greater accuracy the records sought and decrease agency response time by making it easier to search for and identify the requested records.
Although the E-FOIA amendments do not solve all the problems, they have worked to speed up the process and to ensure that, especially for the most frequently requested documents, the public gets more immediate access without increasing the burdens on agencies.
III. Sources of Information Other Than FOIA
FOIA does not operate in isolation. Several other laws play a role in ensuring public access to government information. For example, a prerequisite to public access to agency records is preservation of those records. Federal law requires that all records of significance be saved and transferred to the National Archive, where they eventually become available to the public. Accordingly, agencies cannot simply destroy records that they would rather not make publicly available. This same principle applies to records held by the executive branch. Recently, a court held that Presidents Reagan and Bush violated records-preservation laws by attempting to destroy electronic records created during their administration. This ruling ensures that important e-mails between high-level executive officials will be preserved, and thus available under FOIA for citizens interested in the operation of their government and for historians who want to study the important events of prior administrations.
In addition, access to government records would be far less significant a right if government agencies did not exercise their authority under other statutes to require the persons and industries they regulate to submit information. For instance, the Food and Drug Administration requires that manufacturers of new drugs submit information about the safety and efficacy of those drugs and the State Department mandates that buyers and sellers of weapons report their transactions to the government. If agencies did not require submission of this information, the public would obviously be unable to obtain the information through FOIA.
Other open government laws also mandate public access to government decisionmaking. The Federal Advisory Committee Act provides that, when agencies gather together panels of experts to assist them in their decisionmaking, the public must have access to, and the ability to participate in, these meetings. And the Government in the Sunshine Act allows the public access to -- although no ability to participate in -- the meetings of all multi-member federal agencies. Laws aimed at preventing corruption and bribery require public officials to file tax returns indicating all their sources of income. Finally, the United States Constitution demands openness in judicial decisionmaking: the Sixth Amendment to the United States Constitution requires that all criminal trials be kept open to the public, and the First Amendment has been construed to require that civil trials be open to the public absent unusual circumstances and that court records be available for public inspection.
IV. The Democracy-Enhancing Effects Of Transparency In Government
FOIA is valuable not just as a tool for gaining access to information, but also as a means of ensuring that the government is working to benefit the public. With the information available under FOIA, the public can oversee the performance of these agencies, and can apply political pressure when it perceives the agency is failing to live up to its delegated task of protecting citizens health and safety. Even when the public is not watching, FOIA motivates agencies to improve their performance because they know that their actions could become subject to public scrutiny in the future.
Just as important, citizens have all the information they need to make their own determinations. If, for instance, the public is upset by the number of adverse reactions that occurred during drug trials, or the number or accidents at nuclear power plants, the public can martial their own resources to call for the banning of certain drugs or to demand that a nuclear power plant be shut down. The information, in effect, provides the public with a direct means of ensuring their own health and safety, without relying on government to do it for them.
Greater openness enhances public understanding of the government's actions and also makes it possible for the government to respond to criticism and justify its actions. By allowing for a fuller understanding of the past, FOIA provides opportunities to learn lessons from what has gone before -- making it easier to resolve issues concerning the government's previous actions and helping to prepare for the future.
Finally, open government laws ensure that the government remains accountable to the public that it serves. In the United States, the power of administrative agencies has grown significantly over the past fifty years. Administrative agencies oversee an ever-increasing number of laws and promulgate regulations that affect every area of public life. However, unlike Congress and the President, agency officials are not elected by the public. As a result, agencies can sometimes lose sight of the public interest, particularly when the entities they regulate have gained influence over agency policy makers. FOIA keeps agency activities in the public eye, thereby ensuring that agencies continue to serve the general public, not special interest groups. In short, FOIA and other open government laws enhance our democracy by keeping unelected agency officials accountable to the public.