U.S. Rep. John Moss, was serving California's 3rd Congressional District when he knew something needed to change regarding public access to government information. By the mid-1960s, post-World War II America was engulfed in both the Cold War and Vietnam, and Moss was taking note of the government's seemingly heightened secrecy around certain matters. And just a few years earlier in 1953, the American Society of Newspaper Editors published a study regarding the government's increasing secrecy. Its findings made it clear that not only did American citizens lack any clear right to access government records, but they also didn't have any official procedure to appeal a denial to those records [source: Ciaramella].
But Moss' mission to put provisions in place was more than political; it was personal. According to Jonathan Peters, J.D., Ph.D., assistant professor at the William Allen White School of Journalism & Mass Communications at the University of Kansas, Moss requested information from a public commission about government employees fired over suspicions of disloyalty during his first term in Congress. "His request was denied," Peters, who's also the Press Freedom Correspondent for the Columbia Journalism Review, says in an email. "A few years later, he chaired a house subcommittee on public information, and in that role, he held hearings on government openness. Moss also spoke often about the topic at conferences and to journalists."
But while journalists supported Moss' efforts to push for more government transparency, politicians weren't so keen on the idea. The congressman faced opposition from fellow democrat President Lyndon B. Johnson, along with 27 federal departments and agencies. But in 1966, the House voted 307-0 to pass Moss' Freedom of Information Act (FOIA) bill, and Johnson signed the bill on Independence Day of that year. In his statement that day, Johnson wrote, "No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest," and he closed with the words, "I sign this measure with a deep sense of pride that the United States is an open society" [source: The American Presidency Project].
But despite the victory for Moss and FOIA supporters, there would still be a long road ahead for those advocating for absolute government transparency, and in many ways, the battle is still playing out today.
What Is the Freedom of Information Act?
When the Freedom of Information Act originally was enacted in 1966, it stipulated that every federal executive branch agency would be required to make its records available to the public. Built into the bill were nine exemptions that could protect an agency from releasing documents in specific circumstances. The act also created an official process for requesters to appeal for access if denied, and put the burden on agencies to prove their right to conceal information [source: Department of Justice].
"The FOIA was signed into law in 1966, and it 'established a policy of openness toward information within the control of the executive branch, and a presumption that such records should be accessible to the American public,' according to the statute itself," Peters says. "Since then, the FOIA has been used by journalists, historians, attorneys, citizens — all kinds of people — to monitor government activities. It's been a useful tool to enable and empower people to play accountability roles in our republic."
The original version of the act had the potential to change the public's relationship to previously protected documents, but it wasn't until the Watergate scandal of 1974 that significant changes were introduced that made it much more difficult for agencies to keep secrets.
New rules meant stricter time frames and sanctions around what kind of information could and couldn't be withheld, and journalists and public interest groups were given financial breaks for accessing information thanks to additional language added in by the House and Senate. While President Gerald Ford vetoed the amendments, the House and Senate overrode his decision, and the changes went into effect [source: Electronic Frontier Foundation].
Those aren't the only changes that the FOIA has faced since being enacted. The law has been amended several times throughout the decades since Ford's presidency.
Notable Changes to the FOIA Through the Decades
The next major changes to the Freedom of Information Act came at the hand of President Ronald Reagan. In 1982, Reagan created rules that made it easier for agencies to withhold information from requesters. If agencies could prove the requested documents contained potentially sensitive government information, they could keep it protected. During Bill Clinton's presidency, however, many of these stricter regulations around classified information were reversed [source: Electronic Frontier Foundation].
While Clinton was responsible for many landmark events in the history of the FOIA, including the release and archiving of previously classified Cold War-era documents, one of his most notable changes to the law came in 1996. That's when the president signed the Electronic Freedom of Information Act Amendments into law, putting pressure on government agencies to keep up with the changing times and create electronic copies of important documents for digital distribution [source: Electronic Frontier Foundation].
However, President George W. Bush tightened restrictions again after the Sept. 11, 2001, attacks, specifically, the administration ordered thousands of documents and data removed from agency websites, including pipeline maps, airport safety data and environmental data. Bush also limited access to the records of former presidents, and then later through the Intelligence Authorization Act of 2002, which limited access to records requests made by any foreign government or international governmental organizations. It also limited access to agencies within the intelligence community, including the Central Intelligence Agency, the National Security Agency, and parts of the Departments of Defense and State.
But while Bush made some documents tougher to access, he also gave credibility and authority to a larger pool of potential FOIA requesters. The OPEN Government Act of 2007 added alternative journalists, freelancers and bloggers as legitimate members of the press, providing them more affordable access to government records. The 2007 amendments also introduced the Office of Government Information Services, which began operating in the National Archives and Records Administration in 2009. "It reviews agency policies and FOIA compliance, recommends policy changes to congress and the president, and offers free mediation services to resolve disputes between requesters and agencies, as an alternative to litigation — which can be costly," Peters says.
Throughout the Obama administration, the act continued to evolve. In 2009, President Obama issued a memorandum on his first day in office, promising to reform crucial parts of the law to allow for unprecedented governmental transparency [source: Obama White House]. "Another key change is that [in 2016] President Obama signed the FOIA Improvement Act, which has made it easier to access records," Peters says.
Some of the main 2016 changes reinstate previous measures. "The law requires agencies to make any disclosable records available to the public via electronic format," Peters says. "This speeds up production [and] reduces costs." The law also forces agencies to permanently release documents to the public once they're requested at least three times, and it makes it harder for agencies to deny requests by simply saying "no."
"The law contains exemptions, of course, but now, instead of records being withheld simply because they meet an exemption, agencies are allowed to invoke exemptions only if they reasonably believe disclosure will harm an interest protected by the exemption," Peters says.
How Do You File a FOIA Request?
Any U.S. citizen or foreign national can make a Freedom of Information Act request. Corporations or organizations like news outlets and public interest groups can make requests, too. Journalists and other members of the media don't have different rights to information than anyone else, but they can get reduced rates on fees and faster processing in some situations.
The cost of obtaining records varies, but agencies can charge fees that are deemed "reasonable" and directly related to finding and copying the records being requested. Fees are generally charged between $11 and $28 per hour, but extra fees can apply for computer use; these can be pricey, even as high as $270 per hour [source: RCFP].
Anyone requesting FOIA documents must make an appeal for those documents directly to the agency holding the documents, and to its FOIA office. Every public office must have someone dedicated to handling requests, and it also must list on its website where requests should be sent. For instance, if you need to file a FOIA request with the Centers for Disease Control, which has multiple agencies within it, you'd visit its main FOIA page and follow the instructions there. Requests must be submitted in writing, describing the documents required. Each agency may have its own specific protocol, but most accept submissions via email, web forms or fax [source: FOIA.gov].
How long the process takes, of course, depends. Agencies will usually address requests on a first-come-first-served basis, so the response time will vary depending on how many requests are in the queue, and how complicated they are. If someone is looking for a few pages of a specific document, that request may be addressed more quickly than someone trying to track down hundreds of pages coming from a variety of sources [source: FOIA.gov].
But even after Obama's changes in 2016, which were intended to make the request process take less time and go more smoothly, many journalists say they still have problems with long delays and denied requests. Several writers and reporters at ProPublica outlined examples of their frustrations in a piece about the failures of the act, including senior reporter Charles Orstein. His appeal to the Department of Defense for a story about drug company paying doctors took three-and-a-half years, only to be denied.
Limitations of the FOIA
There is a lot of governmental information available to the public thanks to the FOIA, including autopsy reports, campus crime information, divorce records and county jail rosters, but even after all the recent changes, the law still has limitations. First, the FOIA gives the public the right to ask for federal agency records; it doesn't guarantee the public the absolute right to have them. People are entitled to make a request and receive a response, but there's nothing in the law that says the agency owes them those records.
There also are a few specific things not accessible through the act:
- Actual, tangible objects
- Private information about an individual. The FOIA gives the public the right to ask for it, but whether the information is actually released will depend on if it's in the public interest to have information outweighs the privacy of the person in question.
- Information that's covered under one of the nine FOIA exemptions:
- Any information that's classified for national security purposes.
- Records that are only about an agency's personnel rules and practices.
- Information that's prohibited from being released because of another statute.
- Documents that protect trade secrets or contain information that could damage a company's business.
- Memoranda or letters that contain personal opinions, recommendations or conclusions.
- Information that would qualify as an invasion of personal privacy (e.g., home addresses, phone numbers, Social Security numbers, etc.).
- Law enforcement documents that could interfere with enforcement, deprive a person of a fair trial, qualify as an invasion of privacy, reveal identities of confidential sources, reveal law enforcement techniques or procedures for investigations or prosecutions, and/or endanger a person's life or safety.
- Information related to agencies that are responsible for regulating financial institutions.
- Documents that protect information related to geological and geophysical data, including maps [source: Department of Justice].
Landmark Court Rulings
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.
The Future of the FOIA
If history is any indicator, the FOIA will continue to evolve. Maxson notes the CEI v. OSTP case in particular could be indicative of FOIA's ongoing evolution. "Simple self-report of important information will not suffice," she says. "As with other realms of government activity in the Trump era, the future of FOIA will likely require that we look to the courts to uphold a higher standard of American ethics."
As the U.S. moves forward under a new administration, many are wondering how else the FOIA will change over the next four years and beyond.
Peters addressed the question of whether President Donald Trump could change the FOIA in a piece he wrote in October 2016 for Columbia Journalism Review, writing "He alone couldn't amend the law, but he could affect its implementation." Peters explains that Trump has the power to influence how statutes and amendments are applied, and his pick for attorney general (which we now know is Jeff Sessions) may allow him to influence the government's legal arguments regarding the FOIA [source: Peters].
But in his email Peters' says his biggest worries about the future of FOIA are regarding the media's role in uncovering important information. "I wrote a piece about the biggest modern threat to U.S. press freedom," he says, referencing his article about government secrecy and a free press published in early 2016. "I said it was 'government attempts to shield information and events from public view' — that's my broad concern for the FOIA."
Author's Note: How the Freedom of Information Act Works
Following the FOIA over time provides important insight into America's political and judicial history. It also underscores the critical need for governmental transparency on a variety of issues, as well as a specific protocol for all citizens seeking access to documents that could and do affect policies and freedoms. Fully understanding the FOIA also means recognizing its limitations and potential loopholes, and the implications these could have as the country moves forward under a new administration.
More Great Links
- American Presidency Project. "Statement by the President Upon Signing the "Freedom of Information Act." July 4, 1966. (Feb. 7, 2017) http://www.presidency.ucsb.edu/ws/?pid=27700
- Ciaramella, C.J. "The Freedom of Information Act—and the Hero Who Pioneered It." Pacific Standard Magazine. June 29, 2016. (Feb. 7, 2017) https://psmag.com/the-freedom-of-information-act-and-the-hero-who-pioneered-it-868e5b55e7b6#.kpy46uoe4
- Department of Justice. "Department of Justice Guide to the Freedom of Information Act." (Feb. 7, 2017) https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/intro-july-19-2013.pdf#p5
- Electronic Frontier Foundation. "History of FOIA." (Feb. 8, 2017) https://www.eff.org/issues/transparency/history-of-foia
- FOIA.gov. "How to Make a FOIA Request." (Feb. 7, 2017) https://www.foia.gov/how-to.html
- Obama White House. "Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies." Jan. 21, 2009. (Feb. 7, 2017) https://obamawhitehouse.archives.gov/the-press-office/transparency-and-open-government
- Peters, Jonathan. "State court rules that local agencies can use a classic CIA tactic to evade FOI requests." Columbia Journalism Review. June 6, 2016. (Feb. 7, 2017) http://www.cjr.org/united_states_project/new_york_freedom_of_information_glomar.php
- Peters, Jonathan. "What Trump could (and couldn't) do to restrict press freedom if elected." Columbia Journalism Review. Oct. 27, 2016. (Feb. 7, 2017) http://www.cjr.org/united_states_project/donald_trump_lawsuits_press_freedom.php
- Maxson, Nayeli. Email interview. (Feb. 14, 2017)
- Peters, Jonathan. Email interview. (Feb. 10, 2017)
- RCFP. Reporters Committee for Freedom of the Press. "Federal Open Government Guide." https://www.rcfp.org/federal-open-government-guide/federal-freedom-information-act/who-may-use-foia