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

1.
UNDERSTANDING FOIA

In this section we describe the origin and development of the US Freedom Of Information Act and explain its working in itself as well as its interaction with the main related law at Federal level.


1.1. ORIGIN AND DEVELOPMENT

The Freedom Of Information Act (FOIA), first signed into law by Lyndon Johnson in 1966 and codified at USC 552(5), generally gives any person an enforceable right of access to federal agency records, except where protected by one of nine exemptions or three special law enforcement record exclusions.

The 1966 FOIA established for the first time an effective statutory right of access to government information. “The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. ” A subsequent revision in 1974 mandated further disclosures and created a presumption of disclosure unless one of 9 exemptions applies. Further revisions in 1994 and 1996 (The ‘Electronic FOIA’) extended the provisions of FOIA to electronic information, creating a requirement for electronically held information to be made available in electronic form.

The Supreme Court has emphasised that “[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. ” In introducing the Electronic FOIA in 1993, President Clinton said:

“For more than a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form of government. The statute was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process. ”4

The social goal of open government does not always coincide with other important public interests such as economical, effective and efficient government operation and respect for the confidentiality of sensitive (personal, commercial, and governmental) information. The FOIA is intended to balance these concerns. It evolved after a decade of debate among agency officials, legislators, and public interest groups, revising the public disclosure section of the Administrative Procedure Act, which was generally regarded as falling far short of its disclosure goals and more a withholding statute than a disclosure statute.

By contrast, under FOIA virtually every federal agency record must be made available to the public in one form or another, unless specifically exempted from disclosure or excluded from the Act's coverage in the first place. The nine exemptions of the FOIA ordinarily provide the only grounds for nondisclosure — they are discretionary rather than mandatory. Dissatisfied requesters are given access to district courts, where judges review agency withholdings de novo and agencies bear the burden of proof in defending their nondisclosure actions5.

The 1966 FOIA contained certain weaknesses. In response, the courts fashioned procedural devices such as the “Vaughn Index6“ and the “EPA v. Mink “ requirement that agencies release non-exempt portions of a partially exempt record.

To extend the FOIA's disclosure requirements and in reaction to the abuses of the “Watergate era, ” the FOIA was substantially amended in 1974 – this narrowed the enforcement and national security exemptions and broadened its procedural provisions relating to fees, time limits,

____________________
4
President's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993) reprinted in FOIA Update, Summer/Fall 1993.
5
In 1993, Attorney General Reno rescinded the 1981 litigation guidelines, stating that Agency withholding decisions would not be defended against lawsuits merely because there was a “substantial legal basis” for doing so – the Justice Department would endorse a presumption of disclosure.
6
A detailed index of withheld documents and the justification for their exemption, established in Vaughn v. Rosen.

-9-

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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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