Freedom of Information Act


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Freedom of Information Act

The Freedom of Information Act (FOIA) (5U.S.C.A. § 552 et seq.) provides for the disclosure of information held by administrative agencies to the public, unless the documents requested fall into one of the specific exemptions set forth in the statute. FOIA was implemented to prevent federal agencies from abusing their discretionary powers by forcing them to make certain information about their work available to the public. The law was regarded as a great milestone because it guarantees the right of people to learn about the internal workings of their government. Almost all agencies of the Executive Branch of the federal government have issued regulations implementing FOIA. These regulations inform the public where certain types of information are kept, how the information may be obtained on request, and what appeals are available if a member of the public is denied requested information.

A person requesting information under FOIA must generally send a letter to the head of the agency maintaining the documents that are sought, identifying the records as clearly as possible. If the request for information is denied, a letter of appeal may be filed, citing, if possible, court rulings explaining why the agency's decision to withhold the information is inappropriate. If the agency denies the appeal, the individual may seek Judicial Review of the agency's action.

Exemptions to FOIA are designed to allow an agency to withhold records in situations in which disclosure would cause harm to an important government function or private interest. FOIA explicitly exempts from disclosure a variety of different types of information, including materials that have been classified as secret in the interest of national defense or foreign policy; information related solely to the internal personnel rules and practices of an agency; trade secrets and commercial or financial information; and personnel and medical files and similar files for which disclosure would constitute an unwarranted invasion of personal privacy (5 U.S.C.A. § 552(b)). Although the exemptions appear to run counter to the public interest in gaining access to information, they serve certain important national policy interests, including those of national defense, foreign policy, civilian cooperation with law enforcement, and the efficient operation of government agencies. Courts have held that, consistent with the purpose of FOIA, these exemptions must be narrowly construed.

Most litigation under FOIA has occurred when an agency refuses to release government information, citing one or more of the exemptions set forth in the statute. In United States Department of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014, 124 L. Ed. 2d 84 (1993), for example, the U.S. Supreme Court held that the Federal Bureau of Investigation (FBI) does not have a blanket exemption under FOIA from disclosing the identity of FBI informants. Instead, the Court ruled, the bureau must justify, on a case-by-case basis, why informants' identities must not be disclosed. Thus, the Court performed the difficult task of reconciling two important but opposing interests: FOIA policy of favoring the fullest disclosure possible versus the interest of law enforcement agencies in protecting their cooperative sources. Writing for the Court, Justice Sandra Day O'Connor stated, "Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the government's sweeping presumption comports with common sense and probability." Instead, she maintained, the agency must be able to demonstrate that it was reasonable to infer under the circumstances that the information had been provided with an expectation of confidentiality.

Requests for intelligence information has likewise been the subject of litigation under the Freedom of Information Act. In 1996, President bill clinton authorized Congress to make public disclosure of the "bottom line" intelligence budget appropriation for the Central Intelligence Agency, following a recommendation of an intelligence commission. The government divulged the government's intelligence budgets in 1997 and 1998, but former CIA director George Tenet in 1999 determined that this information could be used to assist foreign countries in countering U.S. intelligence efforts. The Federation of American Scientists, an advocacy group, brought suit in the U.S. District Court for the District of Columbia in 1999 to compel disclosure of the budget figures, but the court denied these requests. Congress held hearings about disclosure of this information in 2000, but the group's requests for budget information in 2000 were similarly denied by the CIA.

Since FOIA was enacted in 1966, over a half million requests for information have been filed with government agencies. Although initially envisioned as a means to make the federal government more accessible to citizens, FOIA has been used extensively by reporters and newsgathering agencies, corporations, and even foreign governments.

When the act was first passed, most government data were stored primarily on paper, microfilm, and microfiche. With the advent of the computer age, more information is available to more people than ever before, creating the need for new guidelines in disseminating government information. In particular, computer technology raises questions about what constitutes a reasonable request for information under the act and about how information should be disclosed. The act does not mention computerized records, but the Computer Security Act of 1987 (Act of Jan. 8, 1988, Pub. L. No. 100-235, 101 Stat. 1724 [1988]) prohibits agencies from withholding computerized records from the public if the records would be available under FOIA as paper documents. Nevertheless, some groups seeking government information have been concerned that government agencies may release large volumes of paper records when more manageable and convenient computer records may be available.

The policies of the administration of george w. bush with respect to disclosure of information have come under attack from groups seeking to protect this information. The September 11th Attacks against the United States spawned a great deal of concern in the country regarding security measures, including secrecy with respect to information. In October 2001, Attorney General john ashcroft issued a directive to federal agencies that emphasized withholding of public records if the agency could demonstrate a sound legal basis for doing so. Ashcroft has since supported withholding of information from these agencies. Although the memorandum was issued after the terrorist attacks, it had reportedly been in the works prior to September 11.

The Homeland Security Act of 2002 created additional restrictions on the release of government information. The act allows private parties to refuse to disclose information about "critical infrastructure" by voluntarily submitting this information to the Homeland Security Department. Members of Congress have criticized this measure, and advocacy groups have threatened litigation to demand the release of this information, but release of certain records could take years. Although government officials claim that Bush's policies have not hindered the release of information to a considerable extent, examples of limitations include restrictions of the media's access in the war in Afghanistan in 2001, as well as the refusal to disclose the names of more than 1,000 non-citizens held for immigration violations. Nevertheless, when the United States attacked Iraq in March 2003, the media had considerable access, comparable to the level of access in the Gulf War of 1991.

Further readings

Franklin, Justin D., and Robert F. Bouchard. 1986. Guidebook to the Freedom of Information and Privacy Acts. New York: Clark Boardman Callaghan.

Office of Information and Privacy. 2002. Freedom of Information Act Guide and Privacy Act Overview. Washington, D.C.: Office of Information and Privacy.

O'Reilly, James T. 2000. Federal Information Disclosure. St. Paul, Minn.: West Group.

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