Computerization of government records has become routine in the digital age. In light of rapid advances in information technology, it is, therefore, increasingly important that public access to government-held information is ensured. Congress passed the Electronic Freedom of Information Act of 1996 (EFOIA) to solve problems of access by making clear that the Freedom of Information Act applies equally to records in computerized formats as well as to records in paper and other conventional forms. The law also requires federal agencies to use the Internet to publicize a wide variety of government documents. This article traces how the EFOIA developed-from a brief and obscure passage in a 1974 Senate committee report, which recognized that computerized recordkeeping may change the contours of public access to government information, up to the EFOIA's enactment twenty-two years later.
Federal agencies have used computers to store government records and conduct the business of government more efficiently since the 1970s.1 But it was not until Congress approved the Electronic Freedom of Information Act Amendments of 1996 (EFOIA) that the federal government attempted to harness the power of new technology not only to streamline government but also to enhance the public's right to know.2
President Clinton signed the EFOIA into law on 2 October 1996 after five years of congressional hearings, floor debates, and compromises. In enacting the EFOIA, Congress clarified that the Freedom of Information Act of 1966 (FOIA)3 applied to electronically stored agency records.4 These electronic provisions were necessary to enforce FOIA compliance because for years federal agencies had withheld computerized information on the grounds that such materials did not fall under the FOIA's disclosure requirements.' Furthermore, in instances when agencies did comply with requests for electronically recorded information, they often released paper printouts of computerized information and databases, sometimes numbering thousands of pages, rather than provide databases or digital copies of the information.6
Along with improving agency responsiveness to FOIA requests for computerized data, the EFOIA requires agencies to publish on the Internet certain information about governmental operations such as agency annual reports, statements of agency rules and policy, agency adjudicative opinions, and FOIA handbooks.7 The rationale behind this affirmative disclosure provision is to provide automatic public access to basic information about how federal agencies operate and to guard against the development of agency "secret law" known only to agency officials, not the members of the public who deal with the agencies.8
The Electronic Freedom of Information Act may not hold all the answers to safeguarding access to government information as the digital age unfolds. The rapid development of information technology, particularly the dramatic and mushrooming growth of the Internet, will continue to prompt novel questions about public access to government-held information. Nonetheless, the EFOIA remains the controlling federal statute on this topic. And access issues hold important implications for the news media, public interest groups, scientists, scholars, and others engaged in research activities.
In fact, public access to the vast stores of government-held information is crucial in a democratic system and open society. Philosopher and educator Alexander Meiklejohn stressed that the foundation for self-rule is the informed consent of the governed. "The welfare of the community requires that those who decide issues shall understand them. They must know what they are voting about."9 In addition to Meiklejohn's self-- governance theory as a rationale for public access to government information, there is another important reason to support access unabridged by politicians, bureaucrats, and officials. As First Amendment scholar Vincent Blasi noted, access to government information, particularly by the news media, is necessary to protect the nation from abuses of power and to uncover corruption by officials.10
For all of these reasons, it is important, therefore, to understand how the Electronic Freedom of Information Act of 1996 developed. This article will trace the Act's legislative history from its earliest stirrings, documented in a 1974 Senate report in which legislators first observed that computerization may have an impact on the FOIA. This history will chronicle a road slowly traveled, to the detriment of the public and the press whose FOIA requests for computerized information were rejected by federal agencies and the courts.
Pre-EFOIA Federal Information Policy
The structure of the Freedom of Information Act reflects two functions designed to ensure government accountability:ll The statute grants the public a right of access to records held by federal agencies-- the function of agency responsiveness.12 It also requires agencies to automatically disseminate certain types of information to the public without the need for a request-the function of affirmative agency disclosure.13 The Electronic Freedom of Information Act of 1996 recognized that the digital age carried important implications for both of these functions.
The 1966 version of the Freedom of Information Act made no mention of electronically stored information because three decades ago government information was recorded mainly on paper and stored in filing cabinets. The first congressional mention of computerized recordkeeping within the context of the Freedom of Information Act came in a 1974 Senate committee report on proposed amendments to the FOIA. The report contained only a brief four-sentence paragraph in which the committee merely acknowledged that computerization of records was taking place and that the practice "may sometimes" (authors' emphasis) hinder public access. The committee simply said it would be "desirable to encourage agencies to process requests for computerized information."14 But when Congress adopted the 1974 amendments to the FOIA, legislators neither required agencies to disclose computerized information nor presented any guidelines on how to handle a FOIA request for electronic information.
Congress failed to include criteria to guide agencies in applying the FOIA to computerized information despite strongly worded warnings that potentially serious problems lay ahead. During hearings on the 1974 amendments, Congress heard testimony that government computer experts would possess an "intimidating power to dismiss requests for computerized data" on the argument that no software programs exist to retrieve such information or that the FOIA requests simply are too time-- consuming and costly.15
The effects of computerization on the right to know also were articulated by Columbia University Professor of Public Law Alan F. Westin, who sounded an alarm in a 1974 article, "Technology of Secrecy."16 Westin said computerization held the potential to undermine the public's right to know and to lead to new forms of government secrecy. Without computerization policy, it would become harder to keep track of what information is being stored, where it is stored, and how it is used. He wrote:
[C]omputerization has unfolded as a process in which organizational managers decide what they want to do with this new technology to carry out their missions more efficiently. It is in pursuit of this organizational efficiency goal that decisions have been made whether computers should be installed, which files to automate, what "better services" to pursue through software programming, what program evaluation data or policy-planning data to seek from the computerized databases, and what reports should be generated to management.17
Congress took its first step toward developing electronic-information policy when it passed the Paperwork Reduction Act of 1980. Part of the Act's mandate was to use computer technology to cut government operating costs and make information management more efficient. The Act explicitly stated that its purpose was to ensure that the federal government use computer and telecommunications technologies to improve service delivery and program management, increase productivity, reduce waste and fraud, and "wherever practicable and appropriate, reduce the information processing burden for the Federal Government."18 But nowhere in the statute was there any mention of using emerging information technologies to improve government accountability and advance democratic principles by ensuring access to computerized government information.
The next development in federal electronic-information policy came in 1985, when the Office of Management and Budget under President Reagan issued an important report, Management of Federal Information Resources, commonly called Circular A-130.19 Circular A-130 was an effort by the OMB to centralize decision making concerning electronic dissemination. The purpose of Circular A-130 was to provide a unified, general policy framework for the information activities of all executive branch agencies and to implement the Paperwork Reduction Act on matters of information policy, information technology, privacy, and maintenance of federal records.20 Still, there was no mention of using technology for the purpose of making it faster and easier for the general public to examine and evaluate what the government was doing.
Also in 1985, Congress held its first hearings on electronic information collection and dissemination by federal agencies.21 The main reason for these hearings was that Congress wanted to hear the views of experts concerning a then-innovative telecommunications program commonly known by its acronym, EDGAR (Electronic Data Gathering and Retrieval system). Congress also wanted to hear comments on OMB Circular A-- 130. The EDGAR project was developed by the Securities and Exchange Commission. Work on the $50 million pilot EDGAR project began in February 1983 as a means of developing an SEC electronic filing system and increasing that agency's efficiency and productivity. Essentially, EDGAR was a system to electronically collect and disseminate SEC information, thus avoiding mountains of paperwork and speeding processing time. For example, in 1985 alone, the SEC received six million pages of filings.22
Congress was concerned not only because of the huge investment in EDGAR but also because other federal agencies were developing electronic information gathering and dissemination systems: The Census Bureau released compilations of statistical data; the Food and Drug Administration made available news releases and reports of its recalls; and the Agriculture Department released agribusiness, crop, and trade reports. Other agencies soon followed with their own electronic dissemination systems.23
No Clear Right of Public Access
However, in the pre-EFOIA era, there was no clear right of public access to any of these computerized documents under the Freedom of Information Act. In fact, the term "record" was not even defined in the statute. Pre-EFOIA public policy concerning access to such information, in effect, was being made by judges on an ad hoc basis. And case law often was inconsistent, with court rulings frequently upholding government arguments to withhold electronic information. For example, although the courts held that computer data may be subject to the FOIA,24 the courts also ruled that the government was not obligated to provide citizens with the electronic version of a database25 or to program computers to compile information in order to fulfill a FOIA request.26 Further, the courts held that paper print-outs of computerized information were sufficient to comply with the FOIA.27
As a consequence, federal agencies rejected disclosure requests on such matters as medical research data compiled by the National Library of Medicine,28 health records held by the Centers for Disease Control on infant nutrition in low-income families,29 records on the potential health hazards of the over-the-counter supplement L-tryptophan,- statistics on convicted murderers receiving early parole,31 and computerized CIA records32 and U.S. Treasury bond records33 that would otherwise be disclosable in paper formats.
OMB Circular A-130 did not provide a right of public access to electronic information, either. Its stated mission echoed the efficiency mandate of the Paperwork Reduction Act and encouraged electronic record-keeping and privatization of some government services in order to streamline agency operations and improve productivity.34 While Circular A-130 recognized the value of public access to government information and stated that the right of access must be protected, the OMB report's underlying assumption was that public access rights are satisfied if citizens have access to information in paper.35 Circular A-130 treated electronic information as a secondary form of discretionary government information to be used by agencies only for the purposes of saving time and money.36 The Office of Management and Budget apparently failed to grasp the fundamental and significant differences between paper and electronic records: Computerized information is far more valuable and useful because digitally recorded data can be manipulated and updated easier, faster, and cheaper than the equivalent information on paper.37 A very basic illustration of the power of computerized information is the keyword-search function of any computer-- even those used today by school children. By giving the computer a "find" or "search" command, the computer can instantly locate a requested keyword or phrase. Compare this method of locating information with trying to find certain keywords or phrases or names in a database paper-printout of thousands of pages.
By the time Circular A-130 was issued, a decade had passed from the time a Senate committee first noted that computerization held the potential to hinder public access to government-held information. Yet in 1985, the government was no closer to bridging the gap between law and technology concerning public access to computerized government information.
The first breakthrough in bridging this gap came during Congress' 1985 EDGAR hearings. The 1985 hearings proved useful to shaping modern information policy because some witnesses raised specific questions concerning public access to electronic information. This issue previously had not been formally aired before Congress and the public. Testimony showed that it was becoming clear to public interest groups, civil libertarians, and some governmental officials that obstacles to access had emerged as a result of increased government computerization.38
The 1985 hearings broke ground in two important areas that ultimately were resolved in the Electronic Freedom of Information Act Amendment of 1996. First, witnesses testified that government control over computerized information could enable federal agencies to maintain information monopolies. A House report on the hearings observed that new information technology "can undermine the practical limitations and structures that have prevented Federal agencies from exploiting the ability to control access to and distribution of the information that the government collects, creates, and disseminates."39
The case in point was the Ninth Circuit's decision in SDC Development Corp. v Mathews,4" the leading case addressing a FOIA request for an electronic copy of a federal agency database as opposed to a hard-copy paper printout of the data. In this 1976 case, the Ninth Circuit held that MEDLARS, a widely used medical database that was compiled by the National Library of Medicine, did not qualify as an "agency record" for the purposes of the FOIA. The House report on the 1985 hearings was harshly critical of the Ninth Circuit's decision: "Federal agencies are now asserting the right to deny requests for electronic copies of records. Agencies argue that their disclosure obligations are fully met by releasing printed copies of electronic databases. By refusing to provide an electronic copy of a computerized database, an agency may also be strengthening its monopoly over the most useful version of that database."41
House legislators reasoned that the tapes contained information compiledby a government agency under specific statutory authority and with the use of congressionally appropriated funds. Therefore, they concluded that the Ninth Circuit's holding was "incorrect both as matter of law and a matter of policy."42 This discussion in the House report marks an important step in the development of the EFOIA because it represents the first time Congress took the Ninth Circuit to task on its decision in SDC Development Corp. Congress finally overrode SDC Development Corp. in the EFOIA of 1996.43 But even as late as 1995, a federal court used SDC Development Corp. as precedent to uphold government arguments that the FOIA did not require the disclosure of databases.44
The House report was significant in a second respect because it also included the first congressional criticism of another court decision that sharply restricted electronic access and that the EFOIA later nullified: Dismukes v Dept. of the Interior. In Dismukes, the U.S. District Court for the District of Columbia held in 1984 that an agency had no obligation to comply with a FOIA requester's preference for the disclosure of information in an electronic format.45 In response to the Dismukes ruling, the House report characterized public access as "a dynamic process" and concluded that if an agency has developed the ability to manipulate data electronically, it is unfair to restrict the public to paper documents and deny the public the benefits of new technology.46
Echoing Professor Westin's concerns ten years earlier about new forms of government secrecy, the House report on the 1985 hearings found there is "a risk that agencies may be able to exert greater control over information in electronic information systems than is possible with data maintained in traditional, hard-copy formats."47 The House report thus concluded it was necessary for Congress to formulate policy to ensure that government data remain in the public domain. In other words, a policy was needed to make sure that information compiled using tax funds, and not classified or otherwise exempt from public disclosure, "will remain freely accessible and easily reproducible, whether the data is maintained in paper form or in electronic form."48
Congress began another round of hearings on federal information dissemination policies and practices in 1989.49 But unlike the 1985 hearings, which focused on EDGAR and OMB Circular A-130 and dealt only peripherally with the FOIA, FOIA issues were central in the 1989 discussions. In his opening remarks, hearings chairman Robert E. Wise Jr. declared that the oversight committee wanted specifically to hear about FOIA problems because "changes in technology are making our information dissemination laws obsolete."50
Pat Murphy, publisher of the Arizona Republic and Phoenix Gazette, who testified on behalf of the American Newspapers Publishers Association and the American Society of Newspaper Editors, articulated some of the main concerns expressed by numerous hearings witnesses. He said congressional remedies were needed to ease excessive delays by agencies in responding to FOIA requests and to bring the law into the computer age. "[A]ny interpretation of [the] FOIA which limits its application to conventional written documents contradicts the basic FOIA principle of full disclosure," he said.51
Critics Call for Electronic Access
Murphy's comments were reiterated by a raft of other witnesses, including Paul K. McMasters, deputy editorial director of USA Today and national chairman of the Society of Professional Journalists' Freedom of Information Committee; Jane E. Kirtley, executive director of the Reporters Committee for Freedom of the Press; Jerry J. Berman, director of the American Civil Liberties Union's Information and Technology Project; Villanova Law Professor Henry H. Perritt, Jr.; and Columbia University Professor Westin. Testimony by the media witnesses was significant because their comments underscored the FOIA's value for the press as a powerful tool of inquiry to serve to public interest.52
Among the points raised by all of these witnesses included:
Agencies should be required to provide records in the format in which they were requested.53
The technology involving relational databases requires the creation of a new record virtually every time information is retrieved. Therefore, programming to retrieve electronic information should not be considered the creation of a new record, and programming should qualify as routine search procedure under the FOIA.54
Electronic information was becoming the primary medium of information and not the secondary medium. For this reason, the ultimate goal of information policy initiatives should be an "electronic" Freedom of Information Act.55
The underlying principle of informationpolicy should be that information widely available inpublished form should be available in computerized form.56 Further, the translation of data from one form to another should not alter the data's inherently public nature.57
The nation was in danger of becoming an information autocracy with business, science, government, and media as the "lords of the information age," holding exclusive access to government information. Meanwhile, the general citizenry would be reduced to "information peasants."58
As a result of the 1989 information-policy hearings, which for the first time focused directly on the gap between emerging information technology and public access to government-held computerized records, momentum began to build among some congressional legislators to modernize the FOIA with electronic provisions. Still, federal agencies continued to resist calls for change.
Such resistance was not new to the FOIA's history. FOIA expert James T. O'Reilly noted that opposition to the disclosure of government information historically came from agencies, which vigorously resisted opening up their processes, and from political interests, which "guarded secrecy the way mythical gods guarded the secret of fire."59
In a 1990 survey by the Justice Department, which oversees agency compliance with the EFOIA, 58 percent of agencies said they did not believe they needed to provide an FOIA requester with records in electronic formats. Thirty-eight percent offered no opinion. And 75 percent of agencies said they had no duty to create or modify computer programs for the purpose of searching and locating specified records.60 In a 1992 Senate hearing on early EFOIA legislation, the Justice Department sided with agencies that resisted the release of computerized information, contending it would be too costly to allow disclosure of information in any format that a requester may desire.61
The opinion that electronic access should be restricted also won support from some scholars. Extending FOIA access to the growing number of computerized records would increase agency costs exponentially, contended Professor Fred H. Cate and colleagues. They argued that the FOIA already had been extended "far beyond its original purpose" by requesters, agencies, litigants, and courts.62 The vast majority of FOIA requesters do not seek information about government activities, the scholars wrote, but rather they want information about business competitors, opposing parties in litigation, and the activities of other nongovernmental entities.
Political differences in disclosure philosophies differ sharply when comparing recent presidential administrations. The Carter Administration followed a strong policy of restricting agency use of the FOIA's nine exemptions and favoring declassification.63 Upon taking office, the Reagan Administration departed from these practices. Reagan reversed the Carter policy of opening government to the public and instead initiated restrictive FOIA reforms, including expanding the Act's law enforcement exemption and supporting the confidentiality of business information.64 Reagan created new classification categories and also overrode a Carter Executive Order that called for declassification of information in cases when there was reasonable doubt that the information should be classified. Under Reagan, the presumption was that in cases of reasonable doubt, information should be classified and safeguarded.65
Disclosure decisions were thus generally discouraged during the Reagan years, and classification and protection of documents were customary. Agencies that could not rely on the Justice Department to defend withholding decisions under Carter found that the Reagan Justice Department would enthusiastically support agency decisions to reject FOIA requests.66
Throughout the 1980s, progress toward electronic access stalled in the face of an Executive Branch uninterested in strengthening disclosure policies and federal agencies resistant to opening their operations to public scrutiny. Nonetheless, rapid government computerization continued. By 1986, the year the House issued its report on Congress' first hearings on electronic information collection, the number of large mainframe computer systems had mushroomed to 22,000.67 And the number of desktop, or microcomputers, was roughly 200,000.68 By comparison, in 1970 the computer inventory for the federal government was 5,277.69
Agency FOIA policy instituted by the Reagan Administration, and continued by the Bush Administration, was reversed after President Clinton took office. Clinton called upon federal agencies to renew their commitment to the FOIA and openness in government. He declared that the FOIA was based on 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."70 Attorney General Reno supported Clinton's position and said FOIA's primary objective was to achieve "maximum possible disclosure of government information."71 To advance the disclosure objective, Reno rescinded the Department of Justice's previous standard of vigorously defending agencies in FOIA litigation, and she strongly encouraged agencies instead to make discretionary disclosures of exempt information whenever possible.
Although the EFOIA was enacted under the Clinton Administration, the first legislative effort to amend the FOIA so that it would explicitly apply to electronic records came at the close of the Reagan years. On 7 November 1991, Democratic Vermont Sen. Patrick Leahy introduced the Electronic Freedom of Information Improvement Act of 1991.12 It defined the term "record" for the first time and specifically included electronically stored information as agency records.73 The bill also suggested a number of procedural changes to ease agency delays in responding to FOIA requests, a persistent problem that frustrated FOIA users for years.74 A hearing was held on Leahy's bill on 30 April 1992, before the Subcommittee on Technology and the Law. But the subcommittee took no action to recommend the proposed legislation for a floor vote during the 102nd Congress and instead delayed any decision until the next session.
After Congress reconvened, Leahy introduced a revised version of his 1991 bill on 23 November 1993. The Senate Committee on the Judiciary unanimously approved the bill,75 called The Electronic Freedom of Information Improvement Act of 1993, and the Senate passed it by unanimous consent on 25 August 1994. But no more action was taken after the Senate vote during the 103rd Congress because the Department of Justice opposed the bill.16 The Justice Department believed that legislation to make agency records available in all formats, including electronic formats, would not survive a legal challenge because of the 1984 Dismukes precedent, which held that disclosures in paper formats satisfied FOIA requirements.77
By 1994, three years had passed since Leahy first introduced legislation to modernize the FOIA and eight years had passed since the House issued its report on electronic information collection. The federal government by then was operating 34,640 mainframe computers,78 and still there were no guidelines or uniform standards for agencies and courts to consider when FOIA users requested access to computerized records.
The third and final version of Senate-proposed EFOIA legislation was introduced by Senators Leahy, Hank Brown, and John Kerry on 28 July 1995.79 The Electronic Freedom of Information Improvement Act of 1995 varied slightly from the version passed by the Senate in the 103rd Congress, and it was unanimously approved by the Committee on the Judiciary on 25 April 1996. On 13 and 14 June 1996, the House Subcommittee on Government Management, Information, and Technology of the Committee on Government Reform and Oversight held hearings on Leahy's bill.80 As in previous hearings on proposed electronic FOIA amendments, witnesses supporting this legislation included representatives of the news media, media trade associations, scholars, and public interest groups.
News Media Access to Digital Records Denied
Jane Kirtley of the Reporters Committee, who also testified at the 1989 hearings, said FOIA electronic provisions were crucial to strengthen the public's entitlement to government information and to speed the delivery of the information.81 Kirtley told the committee of a reporter who had routinely viewed a log of FOIA requests at the Department of Health and Human Services but was told she could not see the log after it had been converted to electronic format. In other instances, agencies refused FOIA requests by journalists to search databases for easily retrievable records, arguing that to do so would create a new record and that the FOIA does not require agencies to create new records in order to satisfy a FOIA request. Additionally, agencies assessed charges for databases based on a cost-per-paper-item fee rather than on the actual and often significantly cheaper cost of copying a disk or tape.
"It is unfortunate that these questions arise," Kirtley said. "They can create unnecessary roadblocks to the release of valuable information of great significance to the public."82 For example, she recounted how the Dayton Daily News had to spend several months negotiating with the Occupational Safety and Health Administration in order to gain access to the agency's databases of workplace accidents. The reporter who examined the databases found discrepancies in the way the agency responded to accidents and in the monetary values the agency assigned to human lives. After interviewing victims identified in the databases, the reporter wrote a series of stories that were cited in congressional hearings and that helped the public evaluate the performance of OSHA.83
Another witness, Alan R. Adler, a FOIA expert and former legislative counsel to the American Civil Liberties Union, testified that the government would release thousands of pages of hard-copy printouts instead of releasing requested information in its original computerized form, which would be faster and less expensive.84 He recounted how the Cox news service, in preparation of an investigative report, requested from the General Service Administration an inventory of nonmilitary government aircraft. The GSA refused to release the database but offered instead to release a copy in paper. The GSA then sent the news service a "paper-dump" of thousands of pages of documents, many of which included indecipherable computer language. After being sued by the newspaper chain, a costly course of action that most individuals could not afford on their own, the GSA eventually released the electronic records. Adler argued there are particular issues that should not be left the federal courts to decide. These issues included questions on how to handle requests for records in electronic formats, how to treat computer software as a "record," and how agencies should deal with questions of programming for searching and processing FOIA requests.
On 12 July 1996, a month after the House hearings on the Senate EFOIA bill, Republican Rep. Randy Tate reintroduced the Leahy-sponsored legislation as a House bill.85 The bill was co-sponsored by Representatives Steven Horn, chairman of the Subcommittee on Government Management, Information and Technology, and subcommittee members Carolyn Maloney and Collin Peterson. After members of the Republican-controlled House added certain agency requirements and made other revisions to the Senate version of the bill, the House Committee on Government Reform and Oversight favorably reported it to the House of Representatives by a unanimous vote on 25 July 1996.86
The House's revisions included:
Eliminating a proposed incentive that would allow an agency to retain half of all FOIA fees if the agency fulfilled FOIA-policy expectations for full disclosure within required time limits.87
Including a new requirement that agencies must prepare annual reports disclosing data on FOIA use, such as the number of FOIA requests and backlogs."
Including language stating that an agency make reasonable efforts to search for records in electronic form or format, "except when such efforts would significantly interfere with the operation of the agency's automated information system."89
The legislative history of the EFOIA does not explain why the Leahy-sponsored Senate bill was taken up by the House in 1996 and, ultimately, passed as a House bill. But according to Beryl Howell, general counsel to the U.S. Senate Committee on the Judiciary and the principal drafter of the statute, some Republican House members had objections to the Senate version shepherded by Democrat Leahy, and also the political climate had changed since Leahy first introduced the legislation.90 Leahy now was in the minority party of the 104th Congress, and he no longer chaired the Subcommittee on Technology and the Law, which had jurisdiction over FOIA legislation. Without the support of the Republican-controlled House, Howell said, Leahy and other EFOIA supporters believed that efforts to enact EFOIA legislation could be stalled for a fourth time. So with Leahy's cooperation, Representatives Horn, Maloney, and Peterson took control of the bill to expedite the House-requested changes and ensure passage of the legislation in 1996.
As mentioned earlier, legislators and FOIA users also were concerned about nonelectronic issues such as easing the serious backlogs and delays that frustrated FOIA users for years. These issues are beyond the scope of this discussion. But for example, agency reports on FOIA operations showed that in 1992, 600,000 requests were filed-100,000 with the Department of Justice alone.91 In 1996, the FBI said it had a four-- year-backlog in responding to FOIA requests.92 Further, few agencies actually responded to FOIA requests within the ten-day limit required by law. For these reasons, the Electronic Freedom of Information Act Amendments of 1996 also included procedural and administrative adjustments designed to help streamline the FOIA request system and ease the persistent problem of backlogs.93
Summary and Conclusion
As the legislative history of the EFOIA shows, Congress moved slowly in creating a clear right of public access to computerized government information. By the early 1970s, scientific advances already had begun to revolutionize word processing and record-keeping. Yet the only official congressional recognition of how this trend might affect public access to government-held information was but a brief and obscure passage in a 1974 Senate committee report. It was not until 1989 that Congress heard testimony for the purpose of understanding how emerging information technology might affect the FOIA's disclosure rules. A congressional move to bring the statute into the computer era did not take place until 1991, and that effort took five years to reach fruition.
As a result of slow congressional response to the computerization of government information, federal agencies were able for two decades94 to reject FOIA requests for electronic records on a wide variety of subjects of public interest, including public health matters, nonexempt CIA files, prisoner parole procedures, and treasury bond policies. Frustrated FOIA requesters turned to the courts to overrule the agencies. However, the courts divided on many of these issues, creating not only a patchwork of pre-EFOIA case law but also creating uncertainty as to how judges would rule on future FOIA disputes.
Whereas Congress moved slowly to modernize the FOIA's function of agency responsiveness, legislators responded in a timely way to recognize that electronic publishing would update the FOIA's function of affirmative agency disclosure. Although the term "Internet" cannot be found anywhere in the statute's language, Congress understood that electronic publishing was a crucial component of emerging communication technology, and it could enhance the right to know.
Passage of the EFOIA represents an important first step by Congress to adapt both functions of the Freedom of Information Act to the digital age. As observed by Sen. Leahy, the EFOIA's prime mover, the 1996 electronic amendments make government more accountable to the public by making government information more accessible. Leahy said the EFOIA also could help "revitalize the public's interest in, and understanding of, what government is doing."95
A big lesson that can be learned from the EFOIA's long legislative history is that a slow response to bridging the gap between law and technology can restrict the right to know. As Professor Westin cautioned a quarter-century ago, computerization may lead to new forms of government secrecy. For these reasons, the next big challenge that Congress faces regarding freedom of information is to keep abreast of new developments in communication technology. For example, Internet use has grown exponentially and at an unexpected rate since the EFOIA was enacted. In 1996, even Bill Gates acknowledged that he had not foreseen the full impact of the Internet.96 According to estimates by experts, Internet use is growing at a rate of between 20 percent and 30 percent per quarter.7 In addition, Internet capability has expanded since 1996. Bandwidths are ever increasing, and developments such as "real time" audio and video transmissions are now commonplace.
Legislators, therefore, must get up to speed on where Internet technology is headed next so they can harness new innovations to fortify the FOIA and enhance the right to know. Congressional hearings at which legislators and the public can hear from university computer scientists and computer-industry leaders could prove especially illuminating. The way Congress adapts the FOIA to new and future developments in communication science will mark the next important chapter in the history of open government in the Internet age.
1. Alan F. Westin and Mfichael A. Baker, Datnb in a Free Society,
Computers, Record-Keeping and Privacy (New York: Quadrangle Books, 1972),12-14, 29-30.
2. U.S. Congress, Public Law 104-231, 110 Stat. 3048-3054, 1-12 (1996)(amending sections of 5 U.S.C. 552).
3. 5 U.S.C. 552 (1994).
4. U.S. Congress, House Report No. 795, 104th Cong. 2d Sess. 11 (1996). Congress also made a number of administrative and procedural changes intended to ease serious delays and backlogs in government responses to FOIA requests. These provisions are beyond the scope of this article.
5. Until Congress enacted the EFOIA, there was a series of court decisions dating back to 1976 that agencies relied on as precedents to block disclosure of electronically stored information to the public. See, for example, Baizer v U.S. Dept. of the Air Force, 887 F.Supp. 225 (N.D.Cal. 1995)(holding that a database of Supreme Court cases maintained by the Department of the Air Force is not an agency record under the FOIA); Coalition for Alternatives in Nutrition & Health Care, Inc. v FDA, Civil Action No. 90-1025 (D.D.C. 4 Jan. 1991)(holding that the FDA could determine the form in which to provide records subject to the FOIA); National Security Archives v CIA, Civil Action No. 88-119 (D.D.C. 26 July 1988)(holding that the CIA was not required to make records available in a database format after the agency provided the FOIA requester with the information in a computer printout); Kele v U.S. Parole Commission, Civil Action No. 85-4058 (D.D.C. 31 Oct. 1986)(holding that agencies are not required to create a computer program to respond to requests pursuant to the FOIA); Clarke v U.S. Dept. of the Treasury, Civil Action No. 84-1873 (E.D. Penn. 24 Jan. 1986)(holding that there is no requirement that records be created or data processed in a format other than that required for governmental purposes under the FOIA); Dismukes v Dept, of the Interior, 603 F.Supp. 760 (D.D.C. 1984)(holding that an agency may determine the format in which to release disclosable records); and SDC Development Corp. v Mathews, 542 F.2d 1116 (9th Cir. 1976)(holding that a medical database created by a government agency is not an agency record for the purposes of the FOIA).
6. U.S. Congress, House, Hearing Before the Subcommittee on Government Management, Information, and Technology of the Committee on Government Reform and Oversight, House of Representatives, 104th Cong., 2d Sess. 82 (14 June 1996) [hereinafter 13 June 1996 House Hearings and 14 June 1996 House Hearings].
7. U.S. Congress, Public Law No. 104-231, 110 Stat. 3048, 3053-3054, 4, 10 & 11 (1996) (amending 5 U.S.C. 552(a)(2), 552(e) & adding 552(g). See also U.S. Congress, House Report No. 795, 104th Cong., 2d Sess. 19-20 (1996).
8. U.S. Department of Justice, Office of Information and Privacy, Freedom of Information Act Guide & Policy Overview (Washington, DC: Government Printing Office, 1997), 14 [hereinafter FOI Guide].
9. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper, 1948), 235.
10. Vincent Blasi, "The Checking Value in First Amendment Theory," American Bar Foundation Research Journal 3 (1977): 558-59.
11. 5 U.S.C. 552(a)(3); and 5 U.S.C. 552(a)(1) and (2). See also FOI Guide, 4-4,13-14.
12. 5 U.S.C. 552(a)(3).
13. 5 U.S.C. 552(a)(1) and (2).
14. U.S. Congress, Senate Report No. 854, 93d Cong., 2d Sess. 12 (1974).
15. U.S. Congress, Senate, Freedom of Information Hearings Before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations and the Subcommittees on Separation of Powers and Administrative Practice and Procedure of the Senate Committee on the Judiciary, 93d Cong.,lst Sess. 99,106-07 (1973)(statement of Harrison Wellford, Center for the Study of Responsive Law).
16. Alan F. Westin, "The Technology of Secrecy," in None of Your Business, ed. Norman Dorsen and Stephen Gillers (New York: Viking Press, 1974), 289.
17. Westin, "Technology of Secrecy," 316.
18. 44 U.S.C. 3501-3520 (1980).
19. Office of Management and the Budget, "OMB Management of Federal Information Resources" (OMB Circular A-130), Federal Register, Vol. 50,52,730 (1985). Under the Paperwork Reduction Act, the authority for developing information policy was vested in the OMB's Office of Information and Regulatory Affairs, which drafted Circular A-130. According to Circular A-130's "privatization" policy, agencies were encouraged to use the private sector for electronic information dissemination.
20. Toby J. McIntosh, U.S. Bureau of National Affairs, Federal Information in the Electronic Age: Policy Issues for the 1990s (Washington, DC: Government Printing Office, 1990), 19.
21. U.S. Congress, House, Electronic Collection and Information Dissemination by Federal Agencies, Hearings Before a Subcommittee of the Committee on Government Operations, House of Representatives, 99th Cong., lst Sess. (29 April, 26 June, and 18 Oct. 1985)[hereinafter 1985 House Hearings]. See also U.S. Congress, House, Committee on Government Operations, Electronic Collection and Dissemination of Information by Federal Agencies: A Policy Overview, U.S. Congress, House Report No. 560, 99th Cong. 2d Sess. (1986) [hereinafter A Policy Overview].
22. U.S. Congress, House, 1985 House Hearings, 16, 23.
23. U.S. Congress, House, 1985 House Hearings, 259-66,240-47,250-55. By 1989, the Environmental Protection Agency made available its National Toxic Release Inventory Database, and the Commerce Department's National Technical Information Service released numerous government-prepared technical publications and data compilations. U.S. Congress, House, Federal Information Dissemination Policies and Practices: Hearings before the Government Information, justice and Agriculture Subcommittee of the Committee on Government Operations, 101st Cong., lst Sess. 75-80, 402-08 (1989)[hereinafter 1989 House Hearings].
24. Yeager v Drug Enforcement Administration, 678 F.2d 315 (D.C. Cir. 1982); Forsham v Harris, 445 U.S. 169 (1980); and Long v Internal Revenue Service, 596 F.2d 362 (9th Cir. 1979).
25. 542 F.2d 1116 (1976); and 887 F.Supp. 225 (N.D.Cal. 1995).
26. 678 F.2d 315 (D.C. Cir. 1982); Civil Action No. 84-1873, 1986 U.S.
Dist. LEXIS 29989 (E.D. Penn. 24 Jan. 1986); and Civil Action No. 85-4058 (D.D.C. 31 Oct. 1986).
27. 603 F.Supp. 760 (D.D.C. 1984).
28. 542 F.2d 1116 (1976)(agency's withholding decision upheld).
29. St. Paul's Benevolent Educational and Missionary Institute v U.S., 506 F.Supp. 822 (N.D. Ga. 1980)(agency's withholding decision denied).
30. Cleary, Gottlieb, Steen & Hamilton v U.S. Dept. of Health and Human Services, 844 F. Supp. 770 (D.D.C. 1993)(agency's withholding decision denied).
31. Civil Action No. 85-4058 (D.D.C. 31 Oct. 1986)(agency's withholding decision upheld).
32. Civil Action No. 88-119 (D.D.C. 26 July 1988)(agency's withholding decision upheld).
33. Civil Action No. 84-1873,1986 U.S. Dist. LEXIS 29989 (E.D. Penn. 1986)(agency's withholding decision upheld).
34. Office of Management and the Budget, "OMB Management of Federal Information Resources" (OMB Circular A-130), Federal Register, Vol. 50, 52,730 (1985).
35. U.S. Congress, House, 1989 House Hearings, 105 (testimony of Jerry German, Director of the American Civil Liberties Union's Information and Technology Project).
36. U.S. Congress, House, 1989 House Hearings, 105.
37. Robert M. Gellman, "Twin Evils: Government Copyright and Copyright-like Controls Over Government Information," Syracuse Law Review 45 (1995):1003,1036; and Henry H. Perritt, Jr., "Unbundling Value in Electronic Information Products: Intellectual Property Protection for Machine Readable Interfaces," Rutgers Computer and Technology Law Journal 20 (1994): 415, 418-22.
38. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 9.
39. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 9.
40. 542 F.2d 1116 (9th Cir. 1976).
41. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 5.
42. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 11.
43. U.S. Congress, Public Law 104-231, 110 Stat. 3049, 3 (1996).
44. 887 F.Supp. at 228, citing 542 F.2d 1116 (9th Cir. 1976)).
45. 603 F.Supp. 760, 763 (D.D.C. 1984).
46. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 10.
47. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 1-2.
48. U.S. Department of Justice, Office of Information and Privacy, A Policy Overview, 9.
49. See, in general, U.S. Congress, House, 1989 House Hearings.
50. U.S. Congress, House, 1989 House Hearings, 1.
51. U.S. Congress, House, 1989 House Hearings, 22-23.
52. In the months preceding the EFOIA's enactment, for example,
records released under the statute revealed: FAA actions against Valujet airlines before the 11 May 1996 crash into the Florida Everglades that killed all aboard; unsafe levels of lead content of tap water in Washington, DC; the U.S. government's ill treatment of South Vietnamese commandos who fought in a CIA-sponsored army in the early 1960s; and the types of tax cases that the IRS recommends for criminal prosecution. Congressional Record 142, S10715 (daily ed. 17 Sept. 1996).
53. U.S. Congress, House, 1989 House Hearings, 23 (testimony of P. Murphy).
54. U.S. Congress, House, 1989 House Hearings, 603 (testimony of H. Perritt).
55. U.S. Congress, House, 1989 House Hearings, 106,114 (testimony of J. Berman).
56. U.S. Congress, House, 1989 House Hearings, 103 (testimony of J. Berman).
57. U.S. Congress, House, 1989 House Hearings, 35 (testimony of J. Kirtley).
58. U.S. Congress, House, 1989 House Hearings, 179-183 (testimony of A. Westin).
59. James T. O'Reilly, Federal Information Disclosure: Procedures, Forms and the Law (Colorado Springs, CO: West Group/McGraw-Hill, Inc. 1999), 2-14.
60. "OIP Releases Results of Electronic Records Survey," Access Reports 16, No. 22 (14 Nov. 1990), 1-6.
61. U.S. Department of Justice, testimony on Senate Bill 1940 before the Senate Judiciary Committee (30 April 1992), reprinted in U.S. Department of Justice, FOIA Update 13, no. 2 (spring 1992), 8-9.
62. Fred H. Cate, D. Annette Fields, James K. McBain, "The Right to Privacy and the Public's Right to Know: The `Central Purpose' of the Freedom of Information Act," Administrative Law Review 46 (winter 1994): 41.
63. Department of Justice, Attorney General Bell's Memorandum to Heads of Federal Agencies (5 May 1977). There are nine exemptions to the Freedom of Information Act. 5 U.S.C. 552(b)(1-9). Briefly stated, the FOIA does not apply to matters that fall under the categories of (1) classified information and national security, (2) internal agency personnel information, (3) information exempted by other Congressional statutes, (4) trade secrets and other confidential business information, (5) agency memoranda, (6) disclosures that invade personal privacy, (7) law enforcement investigation records, (8) reports from regulated financial institutions and (9) geological and geophysical information.
64. Executive Order No.12,065, Federal Register, Vol. 43,28,949 (1978) superceded by Executive Order No. 12,356, Federal Register, Vol. 47, 14,874 (1982). See also Freedom of Information Act Hearings Before the Subcommittee on Constitution, Senate Judiciary Committee, 97th Cong., Ist Sess. 159 (testimony of Assistant Attorney General J. Rose)(1981).
65. Executive Order No.12,065, Federal Register, Vol. 43, 28,949 (1978) superceded by Executive Order No. 12,356, Federal Register, Vol. 47, 14,874 (1982).
66. O'Reilly, Federal Information Disclosure, 5-3.
67. Matthew D. Bunker, Sigman L. Splichal, Bill F. Chamberlin, and Linda M. Perry, "Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology," Florida State University Law Review 20 (winter 1993): 559.
68. U.S. Congress, Office of Technology Assessment, Informing the Nation: Federal Information Dissemination in an Electronic Age (Washington, DC: Government Printing Office,1988), 49.
69. U.S. Congress, Senate Report No. 272, 104th Cong., 2d Sess. 8 (1996).
70. President's Memorandum for Heads of Departments and Agencies Regarding the Freedom of Information Act, Weekly Compilation of Presidential Documents, Vol. 29, 1999 (4 Oct. 1993), reprinted in FOIA Update 14, No. 3 (summer/fall 1993), 3. Clinton also issued Executive Orders that relaxed the Reagan Administration's policy on classifying information. Executive Order 12,958, Federal Register, Vol. 60,19,825 (20 April 1995) and Executive Order 13,142, Federal Register, Vol. 64, 66,089 (23 Nov. 1999).
71. Attorney General's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act (4 Oct. 1993), reprinted in FOIA Update 14, No. 3 (summer/fall 1993), 4-5.
72. U.S. Congress, Congressional Record 137, S16244-45 (7 Nov. 1991). See also U.S. Congress, Senate Report No. 272, 104th Cong., 2d Sess. 5 (1996).
73. U.S. Congress, Senate, Hearing Before the Subcommittee on Technology and the Law of the Committee on the Judiciary of the United States Senate, The Electronic Freedom of Information Improvement Act, 102d Cong., 2d Sess. (30 April 1992). Under Leahy's proposal to update the FOIA, the term "record" would have applied to "all books, papers, maps, photographs, data, computer programs, machine readable materials, and computerized, digitized and electronic information regardless of the medium by which it is stored, or other documentary materials, regardless of physical form or characteristics." U.S. Congress, Senate, Hearing Before the Subcommittee on Technology and the Law of the Committee on the Judiciary of the United States Senate 162, quoting Senate Bill 1940, 7(1).
74. U.S. Congress, House Report No. 795, 104th Cong., 2d Sess. 23 (1996); and U.S. Congress, House Report No. 1419, 92d Cong., 2d Sess. 12 (1972). See also Sen. Patrick J. Leahy, "The Electronic FOIA Amendments of 1996: Reformatting the FOIA for On-Line Access," Administrative Law Review 50 (spring 1998): 342.
75. U.S. Congress, Congressional Record 139, S17056-58 (23 Nov.1993). See also U.S. Congress, Senate Report No. 272, 104th Cong., 2d Sess. 6 (1996).
76. Harold C. Relyea, "Freedom of Information Revisited," in Federal Information Policies in the 1990s: Views and Perspectives, ed. Peter Hernon, Charles R. McClure, and Harold C. Relyea (Norwood, NJ: Ablex Publishing Corp., 1996),189.
77. Congress eventually overrode Dismukes v Dept. of the Interior, 603 F.Supp. 760 (D.D.C. 1984) in the Electronic Freedom of Information Act of 1996. U.S. Congress, House Report No. 795,104th Cong., 2d Sess. 20-- 21 (1996).
78. U.S. Congress, Senate Report No. 272, 104th Cong., 2d Sess. 8 (1996). According to the report, the government used 25,250 small mainframe computers; 8,500 medium mainframes; and 890 large computers.
79. U.S. Congress, Congressional Record, 141, S10888-91 (28 July 1995). See also U.S. Congress, Senate Report No. 272, 104th Cong., 2d Sess. 6 (1996).
80. U.S. Congress, House, 13 June 1996 House Hearings and 14 June 1996 House Hearings.
81. U.S. Congress, House, 13 June 1996 House Hearings, 116. The Reporters Committee is an association of reporters and editors that provides representation, legal guidance and research in cases involving press freedoms.
82. U.S. Congress, House, 13 June 1996 House Hearings, 117.
83. U.S. Congress, House, 13 June 1996 House Hearings, 117.
84. U.S. Congress, House, 14 June 1996 House Hearings, 82.
85. U.S. Congress, House Report No. 795, 104th Cong., 2d Sess. 14 (1996).
86. U.S. Congress, House Report No. 795, 104th Cong., 2d Sess. 14. Legislators required agencies to provide certain data in order to give the public and Congress clear measures of backlogs and a means of monitoring agency progress in responding to FOIA requests over time. U.S. Congress, House Report No. 795,104th Cong., 2d Sess. 28-29. Beginning in 1998, agencies were required to report on such information as: How many requests have not been resolved to the FOIA requesters' satisfaction? What is the number of requests received during the year, and the number of requests processed during the year? What is the volume of requests coming into the agency annually, and the number of requests processed by the agency annually. U.S. Congress, House Report No. 795, 104th Cong., 2d Sess. 28-29.
87. Author's interview with Beryl Howell in Washington, DC, 10 August 1998. Howell is General Counsel to the U.S. Senate Committee on the Judiciary. She was the principal drafter of the Electronic Freedom of Information Act of 1996.
88. U.S. Congress, Public Law 104-231, 110 Stat. 3053, 10 (1996).
89. U.S. Congress, Public Law 104-231, 110 Stat. 3050, 5(C)(1996).
90. Author's interview with Beryl Howell in Washington, DC, 10 August 1998. Howell's account of these events comports with an account provided in a 12 May 1999, interview with Robert Gellman, an FOIA expert and former chief counsel to the House Government Operations Subcommittee on Information, Justice, Transportation and Agriculture.
91 . U.S. Congress, House Report No. 795, 104th Cong., 2d Sess. 12 (1996).
92. U.S. Congress, House, June 13, 1996 House Hearings, 1 (opening statement by U.S. Rep. Stephen Horn).
93. U.S. Congress, Public Law 104-231, 110 Stat. 3048-3054, 1-12 (1996)(amending sections of 5 U.S.C. 552). Ensuring a timely response to FOIA requests is the focus of several procedural changes established in the EFOIA, including multi-track processing of requests to speed searches and expedited processing for requests by the news media and
others engaged in timely dissemination of information to the public.
94. Agencies successfully withheld disclosure of electronic databases as early as 1976 when the Department of Health, Education and Welfare rejected an FOIA request for a medical database compiled by the National Library of Medicine. 542 F.2d 1116 (1976).
95. Patrick J. Leahy, "The Electronic FOIA Amendments of 1996: Reformatting the FOIA for On-Line Access," Administrative Law Review 50 (spring 1998): 339.
96. Bill Gates, The Road Ahead (New York: Penguin Books, 1996), ix-x. The first edition of Gates' book was published in 1995, but it was immediately followed by a substantially revised second edition in 1996 for the explicitly stated purpose of presenting an up-to-date discussion of the Internet.
97. Michio Kaku, Visions (New York: Doubleday, 1997), 49. See also Nicholas Negroponte, Being Digital (New York: Alfred A. Knopf, 1995), 5.
Martin E. Halstuk is an assistant professor in the College of Communications at Pennsylvania State University. Bill F. Chamberlin is the Joseph L. Brechner Eminent Scholar of Journalism and Mass Communication at the University of Florida and director of the Marion Brechner Citizen Access Project.