The Freedom of Information Act

Article excerpt

The various governmental entities of the United States collectively manage an enormous amount of information, much of it collected from private individuals or organizations. The purposes behind the collection and management of this information are varied: enforcement of regulatory schemes such as tax collection and environmental protection, enforcement of criminal laws, improvement of public services, scientific research, and many others. Some of this information - military espionage, for example - is obviously highly secret, but much, perhaps most, of the information managed by both state and federal governments is available to anyone simply for the asking, and without the need to justify the request. This article will examine the Freedom of Information Act and highlight some of the legal aspects of its implementation.

WHY A FREEDOM OF INFORMATION ACT?

The United States is an open society. The founding fathers of this country harbored a certain degree of mistrust of a central government. Thus, it is deemed to be sound public policy for citizens to be able to monitor government activities. As a result of this, most government activities are subject to public scrutiny: trials and other court proceedings, both criminal and civil, are open to the public; meetings of governing bodies such as legislatures or administrative commissions are open to the public; and many government records are open to public inspection.

While these basic tenets of American society have been around since the formation of the republic, they have, in the past, been subject to some abuses. Governing bodies often held closed-door meetings and cut secret deals in them; government agencies conducted improper activities and concealed them; and government agencies denied public access to records by declaring them classified or using other, similar devices. Such abuses ultimately engendered a high degree of mistrust in the integrity of government, and measures were deemed necessary in order to restore accountability and public trust in government. This led to legal reforms intended to ensure that abuses would not occur in the future. These reforms included such legislation as "sunshine laws," which prohibit public bodies such as legislatures or councils from excluding the public from their meetings; and open records laws, which declare a jurisdiction's records to be open to the public and prohibit governmental entities from denying the public access to them. Most states have open records laws. So, too, does the federal government.

THE FREEDOM OF INFORMATION ACT

In 1966, Congress passed the Freedom of Information Act (FOIA),(1) mandating disclosure of most federal information to the public. FOIA was intended to prevent agencies from insulating themselves and their operations from public scrutiny,(2) and as such, its terms are very sweeping: All records of federal agencies, including electronic records,(3) are subject to disclosure, with only a small list of specific exceptions:(4)

1. Records classified as matters of national defense or foreign policy;

2. Records related solely to internal agency personnel matters;

3. Matters specifically exempted from disclosure by statute;

4. Privileged or confidential trade secrets or financial and commercial information obtained from persons or organizations;

5. Inter- or intra-agency communications not available by law to another party other than an agency in litigation with the agency;

6. Personnel or medical files the disclosure of which would be an unwarranted invasion of privacy;

7. Law enforcement records the disclosure of which would:

* interfere with enforcement proceedings; deprive a person of a fair trial;

* constitute an unwarranted invasion of privacy;

* could be expected to disclose the identity of a confidential source;

* would disclose procedures for law enforcement investigations or prosecutions;

* or endanger the safety of any individual. …

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