International Encyclopedia of Public Policy and Administration - Vol. 2

By Jay M. Shafritz | Go to book overview

between jurisdictions. This variation, in turn, reflects the degree to which governments have been willing to cede their authority to control the information in their possession. In some countries, most notably the United States, a tradition of independent judicial review of administrative action is well established. There, the courts straightforwardly determine disputes between parties in FOI litigation. In other countries, such as France, Canada, and New Zealand, governments have been more hesitant in engaging the courts and have chosen instead to adopt a form of administrative review, conducted, in the first instance, by an administrative tribunal or an information commissioner.

Similarly, the powers given to the independent reviewing authority also vary. Unsurprisingly, the more politically sensitive that information is, the less likely it is that final authority to disclose it will be vested in the authority concerned. In Australia, for example, a minister may issue a certificate with respect to the disclosure of certain classes of documents, for example, Cabinet documents. When a certificate is issued, the authority is limited to determining whether reasonable grounds exist for a claim that a document is one of the type described or for a claim that disclosure is contrary to the public interest. Then, even when no reasonable grounds for the claim are found to exist, the final decision about whether the documents should be disclosed is reposed in the minister, who is responsible to the Parliament for the decision that is taken.

Because FOI laws confer a legally enforceable right of access to governmental information, an onus is usually placed on the governmental agency concerned to demonstrate that disclosure of the information should not occur rather than on an applicant to demonstrate that it should.

In summary, FOI legislation has been introduced in many Western countries in order to reduce secrecy in and enhance the accountability of government, to redress inequalities in the power of government and citizens, to collect and disseminate information, and to recast the operation of government in a more democratic mold. Its success in achieving these ambitious objectives has varied. Its importance should not, however, be doubted.

SPENCER ZIFCAK


BIBLIOGRAPHY

Australia. Senate. Standing Committee on Constitutional and Legal Affairs, 1979. Freedom of Information. Canberra: Australian Government Publishing Service.

Birkinshaw, P., 1988. Freedom of Information: The Law, the Practice, and the Ideal, London: Weidenfeld and Nicolson.

Bok, S., 1982. Secrets: On the Ethics of Concealment and Revelation. Oxford: Oxford University Press.

Chapman, R. A., and M. Hunt, 1987. Open Government. London: Routledge.

Disclosure of Official Information: A Report on Overseas Practice, 1979. London: HMSO.

Kirby, Justice M., 1985. The Right to Know. London: Granada.

Marsh, N., ed., 1987. Public Access to Government Information: A Comparative Symposium. London: Stevens and Son.

Rowat, D. C., ed., 1978. Administrative Secrecy in Developed Countries. New York: Columbia University Press.

Towards Open Government: General Report I, 1980. Wellington: New Zealand Government Publishing Service.

U.S. Congress, House, Committee on Government Operations, 1972. Administration of the Freedom of Information Act. House of Representatives Report No. 92-1419. Washington, DC: GPO.

FREEDOM OF INFORMATION ACT (FOIA).

Legislation enacted in the United States in 1966 that sets forth the right of the public to obtain information from federal agencies, subject to certain exemptions having to do with national security and the invasion of personal privacy. Under the law, any member of the general public may make a written request for copies of federal agency documents. The agencies covered by the law include offices and departments of the executive branch (such as the Department of Energy), independent regulatory agencies (such as the Federal Communications Commission), and federal government-controlled corporations (such as the U.S. Postal Service). Congress, the federal courts, and units of the executive office that advise the President are not covered by the FOIA, and are not required to disclose information under the FOIA.

The FOIA provides access to "agency records," which the courts have generally held to include documents and other materials containing information (e.g., computer files and photographs). These agency records must have been (1) created or obtained by the agency in question, and (2) in that agency's possession at the time of the request. Materials that satisfy the above criteria cover virtually all of the areas that are affected by the federal government (for example, public health and environmental concerns, consumer product safety, government fiscal records, national defense, the economy, etc.). The FOIA stipulates that "any person" may seek to obtain information from federal agencies, which in practice means that U.S. citizens, permanent resident aliens, foreign nationals, and entities such as corporations, universities, and state and local governments may avail themselves of the FOIA.

In 1974, the FOIA was amended to require that agencies expedite the disclosure of personal information to individuals. The amendment also facilitated court access and gave judges the power to decide the propriety of information withheld by agencies under the FOIA. In this regard, the courts have held that a number of areas should remain "confidential," including national defense, and government financial information that may provide an unfair advantage to investors in the stock market.

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International Encyclopedia of Public Policy and Administration - Vol. 2
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