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Democratic Congressman John Moss of California crusaded for 11 years for the Freedom of Information Act. Congress finally passed it in 1966. The law establishes that records of federal government agencies are accessible to the public. In urging its passage, Moss told his colleagues, "Our system of government is based on the participation of the governed, and as our population grows in numbers it is essential that it also grow in knowledge and understanding. We must remove every barrier to information about — and understanding of — government activities consistent with our security if the American public is to be adequately equipped to fulfill the ever more demanding role of responsible citizenship." (AP Photo of John Moss in 1965)

The First Amendment protects freedom of speech and press, but how can the citizenry hold a government or its members accountable for its actions if those actions take place behind closed doors? In 1966 Congress adopted the Freedom of Information Act (FOIA), acting on the principle that government should be transparent to the governed. In a democratic system, citizens have the right to hold government accountable for its actions by exercising First Amendment freedoms, by means of the election process, and by use of the court system to review legislative and executive actions.


FOIA helps citizens exercise First Amendment freedoms


FOIA establishes that records of the federal government agencies are accessible to the public. The act had little strength when it was initially passed. President Lyndon B. Johnson opposed the bill and issued a statement focusing on the law’s exemptions. In 1974 Congress strengthened it in the wake of the Watergate scandal, when citizens felt distrustful of government actions behind closed doors. The act was amended again in 1986 and 1996. The 1996 amendments, collectively known as E-FOIA, made provision for electronic publication and review of some materials.


FOIA has three disclosure provisions


FOIA has three disclosure provisions.


  • First, section 552(a)(1) specifies what kinds of information government agencies must publish in the Federal Register. Among them are the organization and function of the agency, the rules of the agency, and statements of agency policy. This information is vital to understanding an agency’s authority and actions.
  • Second, section 552(a)(2) specifies the classes of information held by an agency that must be made available for public inspection and copying. These classes include final opinions in the adjudication of cases; statements of policy and interpretations adopted by the agency not published in the Federal Register; and instructions to administrative staff, including staff manuals. This section also requires that records released pursuant to section 552(a)(3) be made available for public inspection and copying if those records are “likely to become the subject of subsequent requests for substantially the same records.”
  • The third disclosure requirement is arguably the heart of FOIA. Section 552(a)(3) requires that an agency “upon any request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records available to any person.”

FOIA controversially provides for fees for information


FOIA requires in section 552(a)(4)(A) that each federal agency promulgate regulations on the assessment of fees for information released under the act. Critics of the fee provision in FOIA frequently argue that charging a fee inhibits the average citizen from requesting information. Critics also argue that the fees charged by some agencies are unreasonable, an argument partly supported by the different fee schedules used by different agencies.


Proponents argue that agencies need to charge fees to allow them to recoup some of the costs of gathering and duplicating the records requested and to prevent frivolous requests that would only waste time and resources.


FOIA addresses the potential problem of unreasonable copying fees, specifying that the fees be reasonable, fitting the circumstance. In addition, federal agencies are instructed to furnish documents “without any charge or at a charge reduced…if disclosure of the information is in the public interest.”


Agencies are not to collect fees before the release of records, unless the individual requestor previously failed to pay fees or the agency anticipates the fee will exceed $250. The question remains, however, as to whether fees per se have a chilling effect on public participation by means of FOIA records requests, and, if so, whether the taxpayers should absorb such fees.


Information requestors may file appeals and complaints against agencies withholding information


Should an agency deny an individual’s request for records or simply fail to release them, the requestor may file an administrative appeal with the agency explaining why the records should be released. If the records are still withheld, the requestor, pursuant to section 552(a)(4)(B), may file a complaint against the agency in a federal district court. The requestor may choose to file in the district of residence, the district of principal place of business, the district in which the requested records are located, or in the District of Columbia.


Each and any of these courts, upon a properly filed complaint, is given jurisdiction under FOIA to enjoin the agency from withholding the records and to order the records produced if the court finds that the records are being withheld improperly. Section 552(a)(4)(E) instructs federal agencies that the court may also assess the requestor’s legal fees against the federal agency if the withholding of records is found to have been improper.


Some information is exempt from FOIA


Some matters are exempted from the requirements of FOIA for policy reasons. Personnel and medical files are exempted from disclosure to protect the privacy of the individuals who are the subjects of such files. Trade secrets revealed to the agency confidentially are exempted in order to protect the financial interest of the person who has voluntarily disclosed the information to the agency. Records specifically exempted from disclosure by another statute are an exception as well.


Courts have held that these exceptions and six others, set out in Section 552(b), should be narrowly construed in favor of the party requesting records. However, most of the litigation surrounding FOIA has dealt with instances in which an agency used one of the nine exceptions as grounds not to release records.


Court has ruled both for and against information seekers


In 1972 the Supreme Court opined in Branzburg v. Hayes that the First Amendment right to freedom of the press would be “eviscerated” without some form of protection for gathering information from government sources. Nevertheless, the Court has not always ruled on the side of public disclosure.


For example, in United States Department of State v. Ray (1991), the State Department refused to release notes by personnel on the treatment of Haitian refugees who had been involuntarily returned to Haiti. The request was made by an immigration attorney who wanted the notes and the names of the returnees in order to make the case that these individuals were subject to political persecution and so they could be interviewed by human rights activists.


In Ray, the Court held that State could withhold the requested information to protect the privacy interests of the returnees. Release of their identities “would not shed any additional light on the Government’s conduct of its obligations,” the Court stated. Thus the returnees’ own privacy rights were used to prevent an attorney from helping them to make a case for asylum.


By contrast, in United States Department of the Interior v. Klamath Water Users Protective Association (2001) the Court demonstrated that it would not automatically rubber-stamp a claim of exemption. In this case, the Department of the Interior argued that records exchanged between the department and various Indian tribes on disputed water rights should be considered privileged intra-agency memoranda.


The department argued that within its role as trustee to the tribes, the tribes were more like government consultants than private entities. The Court rejected this argument and ordered the requested records produced, citing the fact that the tribes had their own interests distinct from those of the department and at times at odds with those of the department.


FBI does not have a blanket FOIA exemption


Perhaps most notably, in United States Department of Justice v. Landano (1993) the Court held that the Federal Bureau of Investigation (FBI) does not have a blanket FOIA exemption for law enforcement records to prevent disclosing the identity of FBI informants. Instead, the Court ruled, the FBI must present the rationale, on a case-by-case basis, for why an informant’s identity must not be disclosed.


In the majority opinion, 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.” Rather, 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.


Indeed, each of the exemptions listed in FOIA has been questioned by the courts, and most remain, at least to some degree, open to interpretation. Such ambiguity is perhaps inevitable in view of the broad range of federal agencies and the information they may be requested to produce. It must be acknowledged, however, that FOIA, notwithstanding any ambiguity that still exists in its interpretation, has made great strides in opening the actions of federal agencies to the scrutiny of the citizenry.


This article was originally published in 2009. Brandi Snow is an attorney in Clovis, California.


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