Freedom of Information Acts
The Freedom of Information Act (FOIA) was enacted in 1966. It provides a statutory right of public access to executive branch information in the possession of the federal government. “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.[i]” The Act revised the public disclosure section of the Administrative Procedure Act which generally had been recognized as falling far short of its disclosure goals. Under the structure of the Act, every record possessed by a federal executive branch agency must be made available to the public in one form or another, unless it is specifically exempted from disclosure or specially excluded from the Act’s coverage. Exemptions include:
Exemption 1 – Classified documents
Exemption 2 – Internal agency rules
Exemption 3 – Information exempted by another federal statute
Exemption 4 – Confidential business information
Exemption 5 – Internal government communications
Exemption 6 – Personal privacy
Exemption 7 – Law enforcement
Exemption 8 – Financial institutional records
Exemption 9 – Geological information
The nine exemptions of the FOIA ordinarily provide the only bases for nondisclosure, and generally they are discretionary, not mandatory, in nature. Agencies may make “discretionary disclosures[ii]” of exempt information, as a matter of their administrative discretion, where they are not otherwise prohibited from doing so. Dissatisfied record requesters are given a relatively speedy remedy in the United States district courts, where judges determine the propriety of agency withholdings de novo and agencies bear the burden of proof in defending their nondisclosure actions.
In order to resolve the weaknesses that prevented the ideal operation of the Act, the courts developed certain procedural devices, such as the requirement of a Vaughn Index. Vaughn Index is a detailed index of withheld documents and the justification of their exemption. Another requirement that developed through precedents is the requirement that agencies release segregable nonexempt portions of a partially exempt record.
The FOIA was amended by the Intelligence Authorization Act of 2003, effective as of November 27, 2002. The FOIA now precludes agencies of the “intelligence community[iii]” from disclosing records in response to any FOIA request that is made by any foreign government or international governmental organization, either directly or through a representative.
The FOIA is an information disclosure statute which, through its exemption structure, strikes a balance between information disclosure and nondisclosure, with an emphasis on the fullest responsible disclosure. The FOIA is an important government disclosure mechanism, which is highly necessary in a democracy.
[i] NLRB v. Robbins Tire Co., 437 U.S. 214, 242 (1978)
[ii] Attorney General’s Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001)
[iii] Intelligence Community