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Freedom of Information Act

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The Freedom of Information Act (FOIA) is the implementation of freedom of information legislation in the United States. It was signed into law by President Lyndon Johnson on July 4, 1966 (Amended 2002) and went into effect the following year. This act allows for the full or partial disclosure of previously unreleased information and documents controlled by the federal government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. [1]

Background

With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some thought it was necessary for government information to be available to the public.

However, the sensitivity of some government information and private interests clash with this view. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The 1974 privacy act additionally covered government documents charting individuals.

However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5, section 552): [1]

  1. (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
  2. related solely to the internal personnel rules and practices of an agency;
  3. specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
  4. trade secrets and commercial or financial information obtained from a person and privileged or confidential;
  5. inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
  6. personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
  7. records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
  8. contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
  9. geological and geophysical information and data, including maps, concerning wells.

Scope

The act explicitly applies only to federal government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.”[2] In this way, there is recourse for one seeking information to go to a Federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.”[2] Thus, in all cases, the President has unlimited power in declaring something off-limits or necessarily classified in the concern of national safety.

The Privacy Act Amendments of 1974

Following the Watergate scandal, President Gerald R. Ford wanted to sign Freedom of Information Act-strengthening amendments in the Privacy Act of 1974, but concern about leaks (by his chief of staff Donald Rumsfeld and deputy Richard Cheney) and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia, among others) persuaded Ford to veto the bill, according to declassified documents in 2004.[3] 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.[4]

These amendments to the FOIA regulate government control of documents which concern a citizen. It gives one “(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) 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.”[5] 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.[6]

The 1976 Government in the Sunshine Act amendments to the FOIA

In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended so that several exemptions were specified:

1) information relating to national defense, 2) related solely to internal personnel rules and practices, 3) related to accusing a person of a crime, 4) related to information where disclosure would constitute a breach of privacy, 5) related to investigatory records where the information would harm the proceedings, 6) related to information which would lead to financial speculation or endanger the stability of any financial institution, and 7) related to the agency's participation in legal proceedings.

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.[7]

Reagan's Executive Order limiting the FOIA

Between 1982 and 1995, President Reagan's Executive Order 12,356 of 1982 allowed federal agencies to withhold enormous amounts of information under Exemption 1 (relating to national security information).[8] The outcry from the effect that the Reagan Order had on FOIA requests was a factor in leading President Clinton to dramatically alter the criteria in 1995.[9]

Expansion of the FOIA during the Clinton Administration

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.[10] This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.[9]

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 10 days and the amendment extended it to 20 days.[2]

Bush's Executive Order limiting the FOIA

Executive Order 13233, drafted by Alberto R. Gonzales and issued by George W. Bush on November 1, 2001, shortly after the September 11, 2001 attacks, restricted access to the records of former Presidents.[11]

The Intelligence Authorization Act of 2002 amending the FOIA

In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Public Law 107-306.[12] 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).."[13]

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."[14] 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.[12]

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, 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."[15][12]

Bush signs "OPEN Government Act of 2007" - December 31, 2007

establishing a definition of "a representative of the news media;" (2) directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund; (3) prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and (4) establishing an Office of Government Information Services in the National Archives and Records Administration to review agency compliance with FOIA.

The law 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."

The law 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 12/31/2008).

It calls for each agency to designate a FOIA Public Liaison, "who shall assist in the resolution of any disputes" (Effective 12/31/2008).

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.

Modifies and defines annual reporting requirements for each agency's FOIA program.

Specifically addresses data sources used to generate reports; "shall make the raw statistical data used in its reports available electronically..."

Redefines the definition of an agency "record" to include information held for an agency by a government contractor.

The newly established Office of Government Information Services will offer mediation services to resolve disputes as non-exclusive alternatives to litigation.

Requires agencies to make recommendations personnel matters related to FOIA such as whether FOIA performance should be used as a merit factor.

Requires agencies to specify the specific exemption for each deletion (redaction) in disclosed documents.

The Office of Government Information Services

The Obama Administration established the new Office of Government Information Services (OGIS) under the National Archives and Records Administration when the OPEN Government Act of 2007 amended the Freedom of Information Act.

Though this move was supposed to start a trend of a more open government under the new president, there have been steady complaints about some agencies' willingness to comply. A December 2009 meeting of the OGIS exemplified what the complaints refer, as it was a meeting closed to the public.

Obama approved money for the new Office of Government Information Services taking part in an early December 2009 closed conference. It was created to resolve disputes involving people who ask for records and government agencies.

The director of the Justice Department's Office of Information Policy, Melanie Ann Pustay says the closed conference was going to provide tips for FOIA public liaisons on communicating and negotiating with people who make requests and introduce the new Office of Government Information Services to them. The Justice Department's Office of Information Policy takes the lead on government openness issues.

Pustay said she planned to say the same things at the private workshop that she would say publicly. Yet, she said she wanted government employees to be able to speak candidly. A government ID was required to be admitted.

Pustay said she wants to find ways to improve how the government responds to information requests, which costs roughly $400 million each year.

Miriam Nisbet is the director of the new Office of Government Information Services and said the event was closed to make sure there would be room for all the government employees attending.

"I can understand skepticism anytime a meeting for government people is not necessarily open to the public," Nisbet said. "However, everything that is discussed there is absolutely available for the public to know about."[16]

Notable cases

A major issue in released documentation is government "redaction" of certain passages deemed applicable to the Exemption section of the FOIA. Federal Bureau of Investigation (FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research."[6] This has also brought into question just how one can verify that they have been given complete records in response to a request.[17]

J. Edgar Hoover

This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar Hoover. Of the 164 files and about 18,000 pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis and plaintiff, most notably one entire folder entitled the "White House Security Survey." Despite finding out that the Truman Library had an accessible file which documented all the reports of this folder, the FBI and Office of Information and Privacy put forth "stony resistance" to the FOIA appeal process. (I–pg. 27) Some argue that it was not even this 16-year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of U.S. Department of Justice v. Landano, which spurred on a break in stolid FBI opposition.

Murder trial

A murder trial decided in the year of 1993, U.S. Department of Justice v. Landano, involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor wrote the unanimous opinion. "In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation."[18] In defense, the FBI put forth a claim that the redacted sections of the documents requested were withheld in accordance with FOIA regulations protecting the identity of informants who gave information regarding case details. However, O'Connor ruled that those who supplied information had no need to remain anonymous in the court setting. "To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits." The court thus remanded the case to the Circuit Courts and rejected the FBI's claim of confidentiality as being a valid reason to withhold information.

"While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed."[18] Thus, when Theoharis and company were in the middle of fighting in court to obtain J. Edgar Hoover files, they may well have benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993.

E-mail

In the case of Scott Armstrong et al. v. Executive Office of the President et al., the White House used the PROFS[6] computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran-Contra affair (arms-for-hostages) under the Reagan Administration were insulated. However, they were also backed up and transferred to paper memos. The National Security Council, on the eve of President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Records Administration and the National Security Council's purging of PROFS records. A Temporary Restraining Order was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records.[[6] – pgs. 151-152]

Richey gave a further injunction to prevent a purging of the G.H.W. Bush administration records as well. On counts of leaving the White House clean for the new Clinton Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency but a group of aides to the President and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office… or twelve years if the records [were] classified." [[6] – pg. 156] The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the United States Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $9.3 million on contesting the National Security Archive FOIA requests for PROFS e-mail records. ([6] - pg. 159)

Barbara Schwarz

Records at the United States Department of Justice (DOJ) show Barbara Schwarz, a resident of Salt Lake City, Utah, has made more requests under the FOIA than any other person since it became law in 1966.[17] For more than 10 years Schwarz has made repeated requests with every federal department and agency, thousands in all, for public records the government says don't exist. Schwarz believes, and her requests are aimed to prove, she was actually born around 1956 in a secret government submarine base called Chattanooga on the Great Salt Lake, the daughter of Church of Scientology founder L. Ron Hubbard who himself was the son of Dwight Eisenhower.[17][19] Further saying that she was then kidnapped, taken to Germany, and given a false identity including a German birth certificate which was doctored to conceal her actual birth in Utah.[17] Working from her apartment or a nearby library at least one of Schwarz's lawsuits has been considered by a U.S. District or U.S. Circuit Court of Appeals somewhere in the nation every year since 1993 and has filed unsuccessful appeals to the U.S. Supreme Court.[17] One of her complaints to the U.S. District Court in Washington, D.C. set a record for voluminous litigation at 2,370 pages, naming 3,087 defendants, all of whom were employed as FOIA or "Privacy Act" officers in the federal government claiming their denials to be part of a conspiracy to keep the truth from her. U.S. District Court Judge John Bates said the FOIA's "admirable purpose is abused when misguided individuals are allowed (in this case repeatedly) to submit requests to every agency and subdivision of the government, seeking information about an imaginary conspiracy," in a ruling against her.[17] Unencumbered by a lack of education in law or realistic requests, the foil to her quest is financial. She has mounted pro se litigation in the hopes of forcing these agencies to do more detailed searches and to waive the costs, claiming poverty, so far without success.[17] The Justice Department has advised federal employees charged with responding to FOIA requests that until Schwarz satisfies outstanding search and copying fees incurred by previous filings, future requests may legally be denied.[17]

Executive privilege

In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.[20]

The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.

Historically, the uses of executive privilege underscore the untested nature of the doctrine, since presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an asserted voluntary basis.

See also

External links


This article was taken and modified from Wikipedia, the free encyclopedia under the GNU license]

References

  1. Branscomb, Anne (1994). Who Owns Information?: From Privacy To Public Access. Section 552 – (a)4(F): BasicBooks. 
  2. 2.0 2.1 "Freedom Of Information Act" (HTML). 5 U.S.C. § 552. U.S. Government Law. 2002. http://www.usdoj.gov/oip/foiastat.htm. Retrieved on 2006-12-12. 
  3. "Veto Battle 30 Years Ago Set Freedom of Information Norms: Scalia, Rumsfeld, Cheney Opposed Open Government Bill; Congress Overrode President Ford's Veto of Court Review". Electronic Briefing Book No. 142. National Security Archive (George Washington University, Washington, D.C.). 2004-11-23. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB142/index.htm. 
  4. Memorandum for President Ford from Ken Cole, "H.R. 12471, Amendments to the Freedom of Information Act," September 25, 1974 Source: Gerald R. Ford Library. Document 10.
  5. (1992) Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act. Electronic Privacy Information Center. 
  6. 6.0 6.1 6.2 6.3 6.4 6.5 Theoharis, Athan (1998). A Culture of Secrecy: The Government Versus the People’s Right to Know. Kansas: University Press of Kansas, 27. 
  7. "FOIA Reform Legislation Enacted: FOIA Update Vol. VII, No. 4". U.S. Department of Justice. 1986. http://www.usdoj.gov/oip/foia_updates/Vol_VII_4/page1.htm. 
  8. Exec. Order No. 12,356, 3 C.F.R. 166 (1983)
  9. 9.0 9.1 "Brief Amici Curiae of The Reporters Committee for Freedom of the Press and the Society of Professional Journalists in support of Leslie R. Weatherhead, Respondent" (HTML). United States of America, United States Department of Justice, and United States Department of State, Petitioners, v. Leslie R. Weatherhead, Respondent, in the Supreme Court of the United States. 1999-11-19. http://www.rcfp.org/news/documents/weatherhead.html#III. 
  10. "Freedom of Information Act (FOIA)" (HTML). Illinois Institute of Technology Paul V. Galvin Library. http://www.gl.iit.edu/govdocs/foia.html. Retrieved on 2002-06-04. 
  11. EXECUTIVE ORDER 13233 FURTHER IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT, accessed August 23, 2013
  12. 12.0 12.1 12.2 "FOIA Post: FOIA Amended by Intelligence Authorization Act". United States Department of Justice Office of Information and Privacy. 2002. http://www.usdoj.gov/oip/foiapost/2002foiapost38.htm. 
  13. Pub. L. No. 107-306, 116 Stat. 2383, § 312 (to be codified at 5 U.S.C. § 552(a)(3)(A), (E)).
  14. 5 U.S.C. § 552(a)(3)(E)(ii) (as amended)
  15. 50 U.S.C. § 401a(4) (2000)
  16. PROMISES, PROMISES: A closed meeting on openness, The Associated Press, December 6, 2009
  17. 17.0 17.1 17.2 17.3 17.4 17.5 17.6 17.7 Smith, Christopher (May 13, 2003), S.L. Woman's Quest Strains Public Records System, The Salt Lake Tribune, http://www.cs.cmu.edu/~dst/Secrets/barbara_schwarz.html, retrieved on 24/12/2007 .
  18. 18.0 18.1 Cornell Law School Resources (2006-05-24). "United States Dep't of Justice v. Landano (91-2054), 508 U.S. 165 (1993)" (HTML). http://supct.law.cornell.edu/supct/html/91-2054.ZS.html. Retrieved on 2006-12-12. 
  19. Woman pursues Oregon public records - lots of them, Associated Press, USA Hosted by: www.religionnewsblog.com, May 3, 2004, http://www.religionnewsblog.com/7089/woman-pursues-oregon-public-records-lots-of-them, retrieved on 24/12/2007 .
  20. Chief Justice Burger, writing for the majority in US v. Nixon noted: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.United States v. Nixon, 418 U.S. 683 (1974) (Supreme Court opinion at FindLaw)