With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some, particularly representative John Moss, thought it was necessary for government information to be available to the public. This push built on existing principles and protocols of government administration already in place.
Others, though—most notably President Lyndon B. Johnson—believed that certain types of unclassified government information should nonetheless remain secret. Notwithstanding the White House's opposition, Congress expanded Section 3 of the Administrative Procedure Act as a standalone measure in 1966 to further standardize the publication of government records, consistent with the belief that the people have the "right to know" about them. The Privacy Act of 1974 was passed as a countervailing measure to ensure the security of government documents increasingly kept on private citizens.
The act explicitly applies only to executive branch government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If "agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding." In this way, there is recourse for one seeking information to go to a federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "trade secrets" to "clearly unwarranted invasion of personal privacy." The nine current exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code, section 552):
- (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
- related solely to the internal personnel rules and practices of an agency;
- specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; FOIA Exemption 3 Statutes
- trade secrets and commercial or financial information obtained from a person and privileged or confidential;
- inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
- personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
- records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
- contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
- geological and geophysical information and data, including maps, concerning wells.
The Postal Reorganization Act of 1970 (at 39 U.S.C. § 410(c)(2)) exempts the United States Postal Service (USPS) from disclosure of "information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed".
The law came about because of the determination of Congressman John E. Moss of California. Moss was the chairman of the Government Information Subcommittee. It took Moss 12 years to get the Freedom of Information Act through Congress successfully. Much of the desire for government transparency stemmed from the Department of Defense and Congressional committees evaluation of the nation's classification system in the late 1950s. They determined that the misuse of government classification of documents was causing insiders to leak documents that were marked "confidential." The committee also determined that the lowest rung of the confidentiality ladder "confidential" should be removed. They deemed that "secret" and "top secret" covered National security adequately. The Moss Committee took it upon itself to reform confidentiality policy and implement punishments for the overuse of classification by officials and departments.
The FOIA has been changed repeatedly by both the legislative and executive branches.
The Freedom of Information Act was initially introduced as the bill S. 1160 in the 89th Congress. When the two-page bill was signed into law it became Pub.L. 89–487, 80 Stat. 250, enacted July 4, 1966, but had an effective date of one year after the date of enactment, or July 4, 1967. The law set up the structure of FOIA as we know it today.
That law was initially repealed. During the period between the enactment of the act and its effective date, Title 5 of the United States Code was enacted into positive law. For reasons now unclear but which may have had to do with the way the enactment of Title 5 changed how the law being amended was supposed to be cited, the original Freedom of Information Act was replaced. A new act in Pub.L. 90–23, 81 Stat. 54, enacted June 5, 1967 (originally H.R. 5357 in the 90th Congress), repealed the original and put in its place a substantively identical law. This statute was signed on June 5, 1967, and had the same effective date as the original statute: July 4, 1967.
Following the Watergate scandal, President Gerald R. Ford wanted to sign FOIA-strengthening amendments in the Privacy Act of 1974, but White House Chief of Staff Donald Rumsfeld and deputy Dick Cheney were concerned about leaks. Assistant Attorney General for the Office of Legal Counsel Antonin Scalia advised the bill was unconstitutional and even telephoned the CIA asking them to lobby a particular White House staffer. President Ford was persuaded to veto the bill on October 17, 1974, according to documents declassified in 2004. However, on November 21, the lame-duck Congress overrode President Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.
Scalia remained highly critical of the 1974 amendments, writing years later that "It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored." Scalia particularly disliked the availability of judicial review, decrying that if "an agency denies a freedom of information request, shazam!—the full force of the Third Branch of the government is summoned to the wronged party’s assistance."
These amendments that these FOIA regulate government control of documents which concern a citizen. It gives one "(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one’s] records unless specifically permitted by the Act." In conjunction with the FOIA, the PA is used to further the rights of an individual gaining access to information held by the government. The Justice Department's Office of Information and Privacy and federal district courts are the two channels of appeal available to seekers of information.
In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended so that several exemptions were specified:
- Information relating to national defense,
- Related solely to internal personnel rules and practices,
- Related to accusing a person of a crime,
- Related to information where disclosure would constitute a breach of privacy,
- Related to investigatory records where the information would harm the proceedings,
- Related to information which would lead to financial speculation or endanger the stability of any financial institution, and
- Related to the agency's participation in legal proceedings.
Between 1982 and 1995, President Reagan's Executive Order 12356 allowed federal agencies to withhold enormous amounts of information under Exemption 1(relating to national security information), claiming it would better protect the country and strengthen national security.
The outcry from the effect that the Reagan Order had on FOIA requests was a factor in leading President Clinton to dramatically alter the criteria in 1995.
The FOIA amendments were a small part of the bipartisan Anti-Drug Abuse Act of 1986. Congress amended FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records. The amendments are not referenced in the congressional reports on the Act, so the floor statements provide an indication of Congressional intent.
Between 1995 and 1999, President Clinton issued executive directives (and amendments to the directives) that allowed the release of previously classified national security documents more than 25 years old and of historical interest, as part of the FOIA. This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.
The Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) stated that all agencies are required by statute to make certain types of records, created by the agency on or after November 1, 1996, available electronically. Agencies must also provide electronic reading rooms for citizens to use to have access to records. Given the large volume of records and limited resources, the amendment also extended the agencies' required response time to FOIA requests. Formerly, the response time was ten days and the amendment extended it to twenty business days.
Executive Order 13233, drafted by Alberto R. Gonzales and issued by President George W. Bush on November 1, 2001, restricted access to the records of former presidents.
This order was revoked on January 21, 2009, as part of President Barack Obama's Executive Order 13489. Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.
In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Pub.L. 107–306. Within this omnibus legislation were amendments to the FOIA (pertaining mainly to intelligence agencies) entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments":
Section 552(a)(3) of title 5, United States Code, is amended—
(1) in subparagraph (A) by inserting "and except as provided in subparagraph (E)", after "of this subsection"; and
(2) by adding at the end the following:
"(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. § 401a(4)
)) shall not make any record available under this paragraph to—
"(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or
"(ii) a representative of a government entity described in clause (i)."
In effect, this new language precluded any covered U.S. intelligence agency from disclosing records in response to FOIA requests made by foreign governments or international governmental organizations. By its terms, it prohibits disclosure in response to requests made by such non-U.S. governmental entities either directly or through a "representative". This means that for any FOIA request that by its nature appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision.
The agencies affected by this amendment are those that are part of, or contain "an element of", the "intelligence community". As defined in the National Security Act of 1947 (as amended), they consist of the CIA, the National Security Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office (and certain other reconnaissance offices within the Department of Defense), the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps, the FBI, the Department of the Treasury, the Department of Energy, and the Coast Guard, the Department of Homeland Security, the Bureau of Intelligence and Research in the Department of State, and "such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and the head of the department or agency concerned, as an element of the intelligence community".
President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, Pub.L. 110–175, on December 31, 2007. This law, also known as the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways. According to a White House press release, it does so by:
- establishing a definition of "a representative of the news media;"
- directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund;
- prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and
- establishing an Office of Government Information Services (OGIS) in the National Archives and Records Administration to review agency compliance with FOIA.
Changes include the following:it recognizes electronic media specifically and defines "News Media" as "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."
it extends the 20-day deadline by allowing for up to 10 days between the FOIA office of the agency and the component of the agency holding the records and specifically allows for clarification of requests by the FOIA office (Effective 12/31/2007).
it calls for each agency to designate a FOIA Public Liaison, "who shall assist in the resolution of any disputes" (Effective 12/31/2008).
it requires agencies to assign tracking numbers to FOIA requests that take longer than 10 days, and to provide systems determining the status of a request.
it codifies and defines annual reporting requirements for each agency's FOIA program.
it specifically addresses data sources used to generate reports; "shall make the raw statistical data used in its reports available electronically ..."
it redefines the definition of an agency "record" to include information held for an agency by a government contractor.
it establishes an Office of Government Information Services (OGIS) which will offer mediation services to resolve disputes as non-exclusive alternative to litigation.
it requires agencies to make recommendations personnel matters related to FOIA such as whether FOIA performance should be used as a merit factor.
it requires agencies to specify the specific exemption for each deletion or redaction in disclosed documents.
On December 29, 2009, President Barack Obama issued Executive Order 13526, which allows the government to classify certain specific types of information relevant to national security after it has been requested. That is, a request for information that meets the criteria for availability under FOIA can still be denied if the government determines that the information should have been classified, and unavailable. It also sets a timeline for automatic declassification of old information that is not specifically identified as requiring continued secrecy.
The Dodd–Frank Wall Street Reform and Consumer Protection Act, signed into law in July 2010, included provisions in section 929I that shielded the Securities and Exchange Commission (SEC) from requests under the Freedom of Information Act. The provisions were initially motivated out of concern that the FOIA would hinder SEC investigations that involved trade secrets of financial companies, including "watch lists" they gathered about other companies, trading records of investment managers, and "trading algorithms" used by investment firms.
In September 2010, the 111th Congress passed an act repealing those provisions. The act was introduced in the Senate on August 5, 2010 as S.3717 and given the name "A bill to amend the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940 to provide for certain disclosures under section 552 of title 5, United States Code, (commonly referred to as the Freedom of Information Act), and for other purposes."
A major issue in released documentation is government "redaction" of certain passages deemed applicable to the Exemption section of the FOIA. Federal Bureau of Investigation (FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research." This has also brought into question just how one can verify that they have been given complete records in response to a request.
This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar Hoover. Of the 164 files and about eighteen thousand pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis and plaintiff, most notably one entire folder entitled the "White House Security Survey." Despite finding out that the Truman Library had an accessible file which documented all the reports of this folder, the FBI and Office of Information and Privacy put forth "stony resistance" to the FOIA appeal process. (I–pg. 27) Some argue that it was not even this sixteen year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of Department of Justice v. Landano which spurred on a break in stolid FBI opposition.
A murder trial decided in 1993, Department of Justice v. Landano, 508 U.S. 165 (1993), involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor wrote the unanimous opinion. "In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation."
In defense, the FBI put forth a claim that the redacted sections of the documents requested were withheld in accordance with FOIA regulations protecting the identity of informants who gave information regarding case details. However, O'Connor ruled that those who supplied information had no need to remain anonymous in the court setting. "To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits." The court thus remanded the case to the Circuit Courts and rejected the FBI's claim of confidentiality as being a valid reason to withhold information.
"While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed." Thus, when Theoharis and company were in the middle of fighting in court to obtain J. Edgar Hoover files, they may well have benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993.
In the case of Scott Armstrong v. Executive Office of the President, et al., the White House used the PROFS computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran–Contra affair (arms-for-hostages) under the Reagan Administration were insulated. However, they were also backed up and transferred to paper memos. The National Security Council, on the eve of President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Records Administration and the National Security Council's purging of PROFS records. A Temporary Restraining Order was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records.
Richey gave a further injunction to prevent a purging of the George H.W. Bush's administration's records as well. On counts of leaving the White House clean for the new Clinton Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency but a group of aides to the President and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office ... or twelve years if the records [were] classified." The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $9.3 million on contesting the National Security Archive FOIA requests for PROFS e-mail records.
The AP uncovered several federal agencies where staff regularly use fictitious identities and secret or unlisted email accounts to conduct government business. Their use stymied FOIA requests. In some cases, the government demanded enormous (>$1 million) fees for records that appeals show should be available for minimal cost.
The Center for Effective Government analyzed 15 federal agencies which receive the most FOIA requests in-depth. It concluded, that federal agencies are struggling to implement public disclosure rules.
In the latest analysis published in 2015 (using 2012 and 2013 data, the most recent years available) ten of the 15 did not earn satisfactory overall grades, scoring less than 70 out of a possible 100 points. Eight of the ten earned Ds, including the Department of Homeland Security (69 percent), Department of Transportation (68 percent), United States Department of the Treasury (Treasury) (68 percent), the Environmental Protection Agency (EPA) (67 percent), the United States Department of Labor (63 percent), the United States Department of Veterans Affairs (64 percent), the Department of Defense (61 percent), the Securities and Exchange Commission (61 percent). The Department of Health and Human Services and the Department of State earned an F. The State Department's score (37 percent) was dismal due to its extremely low processing score of 23 percent, which was completely out of line with any other agency’s performance. Scores of five agencies, the Equal Employment Opportunity Commission, the Department of Health and Human Services, the SEC, the DOJ, and the EPA, even decreased marginally.