Freedom of Information Act: History
The Freedom of Information Act (FOIA) 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. It was originally signed into law by President Lyndon B. Johnson, despite his misgivings, on July 4, 1966 as 5 U.S.C. § 552 and went into effect the following year.
The FOIA has been changed repeatedly by both the legislative and executive branches.
Enactment of Title 5
5 U.S.C. § 552 was enacted as part of Pub.L. 89–554, 80 Stat. 378, enacted September 6, 1966, which created Title 5 of the United States Code (Government Organization and Employees). 5 U.S.C. § 552(d), at 80 Stat. 383, stated:
|“||Except as otherwise required by statute, matters of official record shall be made available, in accordance with published rule, to persons properly and directly concerned, except information held confidential for good cause found.||”|
The 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 concern (by his chief of staff Donald Rumsfeld and deputy Richard Cheney) about leaks and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia, among others) persuaded Ford to veto the bill, according to documents declassified in 2004. However, Congress voted to override Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.
These amendments to the FOIA regulate government control of documents which concern a citizen. It gives one “ the right to see records about [one]self, subject to the Privacy Act's exemptions, the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and 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.” 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.
The 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:
- Information relating to national defense,
- Related solely to internal personnel rules and practices,
- Related to accusing a person of a crime,
- Related to information where disclosure would constitute a breach of privacy,
- Related to investigatory records where the information would harm the proceedings,
- Related to information which would lead to financial speculation or endanger the stability of any financial institution, and
- 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.
The 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.
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. This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.
The 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 days.
2001 Executive Order limiting the FOIA
This order was revoked on January 21, 2009, as part of President Barack Obama's Executive Order 13489. Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.
The Intelligence Authorization Act of 2002 amending the FOIA
In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Pub.L. 107–306. 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":
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 US 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 other-than-U.S. governmental entities either directly or through a "representative." 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.
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 Central Intelligence Agency, 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 Federal Bureau of Investigation, 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."
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. According to a White House press release, it does so by:
- establishing a definition of "a representative of the news media;"
- directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund;
- prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and
- establishing an Office of Government Information Services (OGIS) in the National Archives and Records Administration to review agency compliance with FOIA.
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) 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. 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 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.
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 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."