Open Government in the Digital Age: The Legislative History of How Congress Established a Right of Public Access to Electronic Information Held by Federal Agencies
Halstuk, Martin E., Chamberlin, Bill F., Journalism and Mass Communication Quarterly
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. …