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

4.
CONCLUDING REMARKS
This study of the FOIA was undertaken with the intent to benefit from the lessons learned during the implementation process, with a focus on the “e” effect of the E-FOIA amendments of 1996. It should enable the Dutch government to take those lessons into account as it prepares legislative measures relative to unlocking government records requested by citizens, companies and other government agencies. For that reason, we will specifically examine the “e” in the FOIA in our concluding remarks.Functioning of the FOIA has been explained against a background of its historical development since 1966. However, it is important to put the conclusions relative to implementation of the EFOIA (following the FOIA amendments of 1996) in context. Today, it is still too early to draw conclusions about the long term consequences of the E-FOIA.It is also evident that it will not be possible to separate the effects of the electronic-access amendments to the FOIA from the effects of concurrent events in a broader societal context. Well before 1996, the push to “reinvent government” in the executive branch, together with the Information Revolution that also led to widespread Internet/Web proliferation in the United States, had already stimulated efforts on the part of many federal agencies to become “e-literate” and digitally accessible. At several of the agencies we visited, for instance, electronic FOIA reading rooms constitute natural extensions of websites already developed by those agencies well before 1996. Nonetheless, among those we interviewed, the consensual conclusion was that these influences jointly stimulate a more open and accessible federal government.A comparison of the legal content and context of both the FOIA and the “WOB” has been made in order to understand how the lessons learned in the US may serve as examples for the Dutch situation. Although there are some major differences in the principles underlying the law, many of those theoretical differences seem to make much less difference in practice than they do in theory. Therefore, many of the lessons learned from the FOIA may be useful for preparing a similar “e” amendment to the WOB.
4.1. RELEVANCE FOR THE DUTCH CONTEXT
In order to learn from past experience with the FOIA, it is important to understand the differences between the US and Dutch legal situation. The basic differences between the two are:
‐ Principal “source of law”. In a civil law country (like the Netherlands) this is legislation; in a common law country (like the US) law starts with case law (jurisprudence). Compared with the United States legal precedents are less “binding” judges in the Netherlands; the judge will always make her or his first referral to the law itself, whereas in the US especially a Supreme Court decision would be considered guiding for the application of law.
‐ in the Netherlands, one also has one hierarchy of legislation; laws of lower order cannot be incompatible with laws of higher order. By contrast, the US Federal law may “co-exists” with State law (as is the case with “FOIA”).
‐ The FOIA applies only to federal agencies, while the WOB relates to all governmental administrative bodies in the Netherlands (Rijk, provincie, gemeente), as well as other administrative bodies. In the US, states have their “own” FOIA, different from state to state and, as mentioned above, not bound by the FOIA at a federal level. (NB: lessons could be learned from exploring “best practice” in several of those states.)
‐ Under Dutch law, an agency is expected to inform a requester where to obtain the information sought, whenever possible. American federal agencies have no direct incentive to maintain and provide comprehensive information about information holdings, since FOIA requests must be addressed to the proper agency.

Although these differences are quite basic in their origin, we found that there is less difference in practice. However, there are some striking issues in the FOIA that are of interest for further “e”WOB development:

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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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