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Freedom of Information Act Research Guide

Introduction

On July 4, 2016, America celebrated the 50th Anniversary of the United States Freedom of Information Act (FOIA). President Obama celebrated early by signing the Freedom of Information Improvement Act of 2016 (S. 337, which passed Congress on June 13, 2016) into law.

President Lyndon B. Johnson signed the original FOIA, S. 1160, on July 4, 1966. It revised section 3 of the Administrative Procedure Act to provide guidelines for the public availability of the records of Federal departments and agencies. (Freedom of Information Act, Pub. L. No. 89-487, 80 Stat.250 (1966)).

In his signing statement, Johnson noted, "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." Johnson even says, "I signed this with a deep sense of pride that the United States is an open society." You can find the complete statement made by Johnson at the signing in several locations:  The American Presidency Project website, The Weekly Compilation of Presidential Documents, available now on HeinOnline (in the Federal Register Library), LLMC Digital database, and ProQuest Legislative Insight.

But the reality is revealed as time passes. In "Freedom of Information at 40," edited by Thomas S. Blanton, Director of the National Security Archive at George Washington University, we learn that Johnson avoided a formal signing ceremony for the FOIA, that he didn't add it to his daily diary, and that "he personally removed strong openness language from Bill Moyer's press statement. Per Bill Moyers, the President was dragged “kicking and screaming” to sign it in San Antonio.  News articles from 2006 support the notion of Johnson's ambivalence on FOIA. One example is Ted Bridis, “The U.S. President Worried About Giving Up Secrets—40 Years Ago,” Pittsburgh Post-Gazette, July 5, 2006.) "Draft language from Mr. Johnson's statement arguing that "democracy works best when people know what their government is doing," was changed with a handwritten scrawl to read: "Democracy works best when the people have all the info that the security of the nation will permit."

Using ProQuest's Legislative Insight, researchers can trace Congressional Hearings  on topic as early as the 84th Congress (1955-1956), "Availability of Information from Federal Departments and Agencies,"  and "Freedom of Information  and Secrecy in Government," with Editors, Legal Experts, Scientific and Technical Information experts, and the Department of Defense, The Senate also held related hearings and considered freedom of government information in the Subcom. on Constitutional Rights, Committee on the Judiciary.

Democratic Congressman John Moss of California authored and sponsored the legislation starting in 1955 through several versions, but early through each of its early iterations, fellow Democratic Senator Lyndon B. Johnson opposed it. Moss finally shepherded the FOIA through Congress for President Johnson to sign.  The Electronic Frontier Foundation's Transparency Project: History of FOIA website shares the back story. 

Agency Websites:

Most United States Federal Departments and Agencies now include a FOIA section on their official website. Most include a list of the nine exemption categories that authorize agencies to withhold information. They are:

"1. Classified information for national defense or foreign policy;

2. Internal personnel rules and practices;

3. Information that is exempt under other laws;

4. Trade secrets and confidential business information;

5. Inter-agency or intra-agency memoranda or letters that are protected by legal privileges;

6. Personnel and medical files;

7. Law enforcement records or information;

8. Information concerning bank supervision;

9. Geological and geophysical information."

Exclusions: Agency websites also indicate exclusions stating that Congress provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions”. The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within exclusion are not subject to the requirements of the FOIA.

"FOIA only applies to federal agencies and does not create a right of access to records held by Congress, the Courts or by state or local governments."

FOIA Reports: Agencies submit annual reports regarding their FOIA transactions. They indicate basic information on how to make FOIA requests and their program costs and processing statistics.

There are generally FOIA specialists assigned by the agencies and often those who place requests are professional FOI requestors (attorneys or information specialists), submitting requests on behalf of interest groups or others. There are concerns of abuses in the U.S. FOIA system ranging from charging unjustified fees, refusing to act without receiving money first, "intentionally understaffing FOI departments, forcing litigation,[and] indiscriminate censorship,"  (Source: Patrick Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (4th ed., 2010), p. 467). There have been abuses on both sides.  One case,  Gulf Oil Corp. v. Brock, 778 F. 2d 834, took eleven years before resolution through the judicial process.  One report disclosed that 60 percent of FOIA requests received were actually from commercial entities seeking details on their competitors.  FOIA exists to support individuals to gain access to their government's records. But most the majority of requests are from professional data brokers, attempting to make money on government-provided data. The costs to the federal government to administer FOIA are enormous. 

"The total estimated cost of all FOIA-related activities across the government was $514,614,589.00. Nearly 93% ($478,455,050.17) of the total costs was attributed to the processing of requests and appeals by agencies.  Roughly 7% was reported to have been spent on litigation-related activities. By the end of the fiscal year, agencies reported collecting a total of $3,870,921.51 in FOIA fees. The FOIA fees collected in FY 2016 amounts to less than 1% of the total costs related to the government’s FOIA activities."  (Source:  Summary of Annual FOIA Reports for Fiscal Year 2016, 18, Office of Information Policy, U.S. Department of Justice, https://www.justice.gov/oip/blog/summary-fiscal-year-2016-annual-foia-reports-published, (last visited May 22, 2017).