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FOIA at 50: Fifty Fun Facts About the Freedom of Information Act (PART 1)

By: Andrew Hackett, COGENCY GLOBAL INC. on Thu, Feb 23, 2017
Freedom of Information Act 50th Anniversary.jpg The U.S. Freedom of Information Act (the FOIA), a Federal law encouraging openness and transparency in government, was first signed into law on July 4, 1966, and took effect a year later on July 4, 1967.  Many observances of the 50th anniversary of the signing of the law occurred last summer, but the 50th anniversary of the law going into effect hasn’t actually occurred yet. The FOIA serves an important role in the way citizens understand the working of our government, and the law has had a fascinating and sometimes controversial history.  FOIA has changed significantly over the years, just as it has changed the way Americans see their government. During this interval between FOIA anniversaries, let’s take a look at the law and its impact on American history in fifty facts about the FOIA.

Origin: The Desire to Address Secrecy Surrounding Government Activity

  1. The movement for more openness in government had been pressing for over a decade before a bill finally passed in Congress. Newspapers and lawyers had long felt that too much secrecy surrounded government activity, causing confusion and possibly even shielding corruption.  S. Representative John Moss (D-CA), is credited with pushing the bill forward in Congress, despite resistance from every government agency and department that testified in hearings on the bill. 
  2. President Lyndon Johnson, who signed the Bill into law, was not a supporter of the law and refused to hold a formal signing ceremony. His official statement, however, said “This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation permits.
  3. The original FOIA law, Public Law 89-487, was actually repealed and replaced by Public Law 90-23 on June 5, 1967, which codified it into Section 552 of Title 5 of the U.S. Code, and kept the same effective date.

Major Amendments to the FOIA[1] [2]

  1. The FOIA wasn’t initially considered a success, and many agencies resisted releasing responsive documents. The first amendment to the law occurred in 1974 after Watergate. President Ford vetoed the amendments, thinking they were unconstitutional, but Congress overrode his veto.
  2. Amendments in 1976 and 1986 dealt with exemptions and the fees charges for different types of requestors.
  3. The Electronic Freedom of Information Act Amendments of 1996 allowed for electronic formats and digital delivery of documents in the Internet Age.
  4. After the 9/11 attacks, the Intelligence Authorization Act of 2002 passed, limiting access of government documents from foreign governments.
  5. The OPEN Government Act of 2007 passed both houses of Congress unanimously and became law. It was intended to address what many saw as recurring failings of the law, such as agency delays and lack of responsiveness.
  6. On June 30, 2016, the FOIA Improvement Act of 2016 was signed, which sought to codify the “presumption of openness.” The law amended a range of agency procedures for responding to FOIA requests. This included the creation of a “Chief FOIA Officer Council” and requiring agencies to alert requestors of the services provided by the Office of Government Information Services, the “FOIA Ombudsman”.

Process and Procedures[3]

  1. Who can submit a request under the FOIA? Under most circumstances, anyone, regardless of citizenship, can submit a FOIA request.
  2. What is subject to the FOIA? The FOIA does not apply to Congress, the Judiciary, or the central offices of the White House – only Executive Branch agencies. It also does not apply to state agencies, although all states have laws similar to the FOIA.
  3. What can be requested under the FOIA? Any existing government agency record can be requested. The FOIA does not require agencies to create any new records, answer questions, or perform analysis.
  4. How do you submit a FOIA request? Procedures vary from agency to agency, and requests can be submitted by mail, fax, email or through online forms.  Requests must be in writing, and must reasonably describe the records sought, but there is no single form for submitting requests.

The Nine Exemptions to the FOIA[4]

The FOIA authorizes lawful withholding of information when agencies reasonably determine that release would harm an interest protected by the following exemptions:

  1. Exemption 1: Information that is classified to protect national security.
  2. Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
  3. Exemption 3: Information that is prohibited from disclosure by another federal law.
  4. Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
  5. Exemption 5: Privileged communications within or between agencies, including:
    1. Deliberative Process Privilege
    2. Attorney-Work Product Privilege
    3. Attorney-Client Privilege
  6. Exemption 6: Information that, if disclosed, would invade another individual's personal privacy.
  7. Exemption 7: Information compiled for law enforcement purposes that:
  • 7(A). Could reasonably be expected to interfere with enforcement proceedings
  • 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
  • 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
  • 7(D). Could reasonably be expected to disclose the identity of a confidential source
  • 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions
  • 7(F). Could reasonably be expected to endanger the life or physical safety of any individual
  1. Exemption 8: Information that concerns the supervision of financial institutions.
  2. Exemption 9: Geological information on wells.

The Three Exclusions from the FOIA[5]

There are also three exclusions that protect law enforcement and national security records:

  1. Exclusion 1: Ongoing criminal investigations
  2. Exclusion 2: Criminal investigation informants
  3. Exclusion 3: Classified FBI foreign intelligence

In Part 2we will discuss several more FOIA topics: the various types of FOIA requestors, turnaround times for requests, and the resolution of FOIA requests.  We will also explore FOIA backlog and agency responsiveness; look at some famous FOIA requests in its history; and explore FOI laws in the states and around the world.

 

[1] The Electronic Frontier Foundation’s  History of FOIA:  https://www.eff.org/issues/transparency/history-of-foia

[2] The National Security Archive’s FOIA Legislative History: http://nsarchive.gwu.edu/nsa/foialeghistory/legistfoia.htm

[3] FOIA.GOV Frequently Asked Questions:  https://www.foia.gov/faq.html

[4] FOIA.GOV Frequently Asked Questions:  https://www.foia.gov/faq.html#exemptions

[5] FOIA.GOV Frequently Asked Questions:  https://www.foia.gov/faq.html#exclusions

 

This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice. 

Topics: Freedom of Information Act