Public Information Provision in the Digital Age: Implementation and Effects of the U.S. Freedom of Information Act

By Maarten Botterman; Tora Bikson et al. | Go to book overview

INTRODUCTION

The Dutch government creates messages and owns and distributes a large amount of information. Access to this information is open in principle, but the legal framework implies constraints in allowing access to information at the same time, for instance to protect privacy, and it's re-use, for instance property rights1. The interaction of laws has led to differences in the way government services offer (access to) information, and against which costs. This affects the accessibility of government information directly, and therefor it affects the transparency of the public service.

Due to the rapid development of technologies and services in IT and telecommunications, and in particular the emergence and ubiquity of the Internet the way in which information is stored and has become accessible has changed a lot. The way public services provide information has therefore already been affected. This has led to even more differentiation in accessibility of data and pricing of access to data. As a result, the legal framework as well as the organisation of access to the databases and information will need to be reviewed, in particular to assess the applicability of current law on electronic data.. Many countries in the Western world have become active in revising their frameworks, with a particular focus on the ability to approach data electronically. This revision is likely to lead to reduction of costs per response to an information request, and provides an opportunity to simplify (“harmonise”) access to information and the conditions for information provision.

A leading country is the United States, which has experience with the Freedom of Information Act. The US Freedom of Information Act (FOIA) was first enacted in 1966, giving any person the right to ask for access to federal agency records. It required agencies to release records upon written request, except for those protected from disclosure by FOIA's exemptions and exclusions.

Amendments to the Act in 1996 expanded the statutory definition of “record” to include information made available in electronic format. Additionally, they require certain kinds of records routinely to be made available in electronic media and others to be made available in any form or format on request (if the record can readily be reproduced in that form or format by the agency). Further provisions in the amendments have to do with enabling facilities such as electronic reading rooms and online indices to major information systems as well as guides for preparing FOIA requests.

The electronic FOIA amendments (e-FOIA) were associated with a staged implementation timeline; the last of the provisions should have been phased in to US agency operations by the end of 1999. The aim of the study task reported here is to learn whether and how e-FOIA is affecting (or expected to affect) US federal agency procedures, giving special attention to the implications of e-FOIA for interactions with citizens and private sector organisations. Of particular interest are early implementation experiences as well as benefits from and barriers to the use of digital media for complying with FOIA requirements.

It is the objective of this study to learn from that experience, thus enabling the Dutch government to take these lessons into account in their preparation of legislative measures towards unlocking government records in general, and more specific databases requested by citizens, companies and other government agencies.

This report presents the full results of the study to the implementation and effects of the U. S. Freedom of Information Act and considers it relevance for the Dutch situation. The study reflected in this report is based on articles and other literature related to FOIA along with the 1996 revisions that make it relevant to the widespread contemporary diffusion of electronic media2, a literature study to the comparability with the Dutch legal situation, and a series of interviews with key people in US agencies and other organisations directly experienced with the transition to e-FOIA and its effects3.

The report consists of three main chapters, followed by Conclusions (Chapter 4) and annexes containing other information of interest.

____________________
1
Main laws involved are the Wet Openbaarheid van Bestuur (WOB), the Auteurswet 1912, the Databankenwet and the Wet Persoonsregistraties.
2
listed in the annex 5
3
Approach and list of interviewed agencies is reflected in the annex 4

-7-

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Public Information Provision in the Digital Age: Implementation and Effects of the U.S. Freedom of Information Act
Table of contents

Table of contents

  • Title Page *
  • Contents *
  • Introduction 7
  • 1 - Understanding Foia 9
  • 2 - Comparison Us Vs Dutch Situation 23
  • 3 - Implementation and Impact of Foia 31
  • 4 - Concluding Remarks 47
  • Annexes 52
  • Annex 1: Foia Legal Text 54
  • Annex 2 Wob Legal Text (translated from Dutch) 64
  • Annex 3: Comparative Tables Between Foia and the Wob 69
  • Annex 4 Organisation of Interviews 74
  • Annex 5 – Literature and Web Site References 76
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