Freedom of Information Act (United States)

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The Freedom of Information Act (FOIA) is the implementation of freedom of information legislation in the United States. It was signed into law by President Lyndon B. Johnson on July 4, 1966 (Amended 2002), and went into effect the following year. This act allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statue. ^[1]

Contents 1 Background 2 Scope 2.1 The Privacy Act 3 Major cases 3.1 J. Edgar Hoover 3.2 Murder trial 3.3 Executive Order 3.4 E-mail 4 See also 5 References 6 External links

[edit] Background

With the perennial stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some thought it was necessary for government information to be available to the public.

However, the sensitivity of some government information and private interests clash with this view. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974 additionally covered government documents charting individuals.

However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine 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): [1]

(1)(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;

(2) related solely to the internal personnel rules and practices of an agency;

(3) 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;

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) 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;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) 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;

(8) 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

(9) geological and geophysical information and data, including maps, concerning wells.

[edit] Scope

The act explicitly applies only to federal 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.” ^[2] 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.” ^[2] Thus, in all cases, the President has unlimited power in declaring something off-limits or necessarily classified in the concern of national safety.

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 amendenment extended it to twenty days.[2]

[edit] The Privacy Act

The Privacy Act of 1974 is, summarily, a similar act regulating 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.”^[3] 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.^[4]

[edit] Major cases

A major issue in released documentation is government redaction of certain passages deemed applicable to the Exemption section of the FOIA. FBI officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research." ^[4]

[edit] J. Edgar Hoover

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, 2/3 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 U.S. Department of Justice v. Landano which spurred on a break in stolid FBI opposition.

[edit] Murder trial

A murder trial decided in the year of 1993, U.S. Department of Justice v. Landano, 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, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) for information it had compiled in connection with the murder investigation." ^[5] 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."^[5] 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.

[edit] Executive Order

The controversial Executive Order 13233, drafted by Alberto R. Gonzales and issued by George W. Bush on November 1, 2001, shortly after the September 11, 2001 attacks, restricted access to the records of former Presidents.

[edit] E-mail

In the case of Scott Armstrong et al. v. Executive Office of the President et al., the White House used the PROFS ^[4] 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. [^[4] – pgs. 151-152]

Richey gave a further injunction to prevent a purging of the G.H.W. Bush administration 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." [^[4] – pg. 156] 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. (^[4] - pg. 159)

[edit] See also

• Barbara Schwarz, possibly the person who has filed the most FOIA requests pro se.
• Commission on Protecting and Reducing Government Secrecy, ^[6]
• Freedom of information in the United States
• Freedom of information legislation
• NSA warrantless surveillance controversy
• USA PATRIOT Act
• United States
• The U.S. Reclassification Program

[edit] References

[edit] External links

• The Freedom of Information Act
• The Freedom of Information Act Amended 1996
• U.S. Department of Justice FOIA complete reference
• Citizen's Guide on Using the Freedom of Information Act by the United States Congress Committee on Government Reform.
• The National Security Archive - A non-profit organization which collects and publishes declassified documents acquired through the FOIA.
• Open Records Law Handbook
• Executive Order: Improving Agency Disclosure of Information