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How the Freedom of Information Act Works


Landmark Court Rulings
The Glomar Explorer ship, seen here in Long Beach harbor, was supposedly used by the CIA and Howard Hughes to search for and salvage a sunken Russian nuclear powered submarine from the Atlantic Ocean. Rolling Stone sued to get confirmation of the project, but was denied by the courts. Bettmann/Getty
The Glomar Explorer ship, seen here in Long Beach harbor, was supposedly used by the CIA and Howard Hughes to search for and salvage a sunken Russian nuclear powered submarine from the Atlantic Ocean. Rolling Stone sued to get confirmation of the project, but was denied by the courts. Bettmann/Getty

Several famous court cases have involved the Freedom of Information Act. Peters cites a 1976 case — Phillippi v. the Central Intelligence Agency — as one of his favorites. In a Columbia Journalism Review article in 2016, Peters wrote how the case is the basis for an agency's right to "neither confirm nor deny the existence or nonexistence" of records [source: Peters]. The origin of the case stems from the 1968 sinking of a Soviet submarine off the coast of Hawaii. The CIA partnered with Howard Hughes to build a ship called the Glomar Explorer to help find and salvage the submarine for national intelligence reasons.

When a Rolling Stone reporter filed a FOIA request to get documents related to this mysterious project, the CIA refused to confirm or deny that any such documents existed because commenting either way could compromise national security. The Rolling Stone journalist sued, but the federal appeals court sided with the CIA. Now when agencies invoke the right to "neither confirm nor deny" if requested records exist, it's known as a "Glomar response" [source: Peters].

Another FOIA case that's frequently cited is the Department of Justice v. Reporters Committee for Freedom of the Press. The 1989 case is important because it's responsible for the current requirement to balance public interest against privacy intrusion. If the records that a reporter is requesting don't reveal information about governmental activities or operations, then their release isn't considered crucial for public interest. This is why criminal records, or "rap sheets" can be withheld under FOIA exemption 7(c): since the information they hold doesn't reveal anything about how the government operates, agencies aren't obligated to release them [source: RCFP].

In 2016, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FOIA can apply to agency records even when they're kept in a personal email account. The case, known as Competitive Enterprise Institute v. Office of Science and Technology Policy, involved a libertarian advocacy group named Competitive Enterprise Institute (CEI) that sued the Office of Science and Technology Policy (OSTP) for denying a public records request. The original request was for work-related emails that were being stored in the agency director's nongovernmental email account [source: RCFP].

"Cases like this tell us that we're heading towards a more open government, thanks to our judges," says Nayeli Maxson, attorney and executive director of a San Francisco Bay Area-based community development organization, in an email. "The case was a big win for government transparency advocates and journalists covering government entities. Before this federal appellate court ruling, government employees could send emails from a non-governmental email account and get around public records requests like FOIA. The judge's opinion in this case made clear that the non-governmental email maneuver is inconsistent with the purpose of FOIA."

It was a FOIA request by the nonprofit Citizens for Responsibility and Ethics in Washington that helped uncover Hillary Clinton's exclusive use of a private email server while Secretary of State. In December 2014, Clinton provided the State Department with the emails she sent and received and they're now available to the public.


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