The U.S. Freedom of Information Act (FOIA) is the law that ensures public access to government records. All federal agencies are required under FOIA to disclose records requested in writing by any person. The FOIA applies only to federal agencies. It does not create a right of access to records held by Congress, the courts, or by state or local government agencies. Every state has its own public access laws that should be consulted for access to state and local government records.
When a written request for information is obtained, government agencies are required to produce the requested records. However, if the information requested falls uner one of the nine exceptions provided in FOIA, government agencies are not required to provide the information. In other circumstances, when information cannot be disclosed to the public, the government msut substantiate its reason for non-disclosure.
According to the public information provisions of the FOIA, descriptions of a federal agency’s central and field organization should be published in the federal register. The established places from wherethe public can obtain information and the methods for obtaining such information must be prescribed in the federal register[i]. Matters that are not required for the rule making process under Administrative Procedure Act (APA) are also to be published in the federal register for public inspection[ii]. Changes made in the organization of federal agencies also should be provided in the federal register[iii].
All the procedural rules created by federal agencies should be published in the federal register[iv]. However, rules regarding the internal procedure of an agency need not be published. Public information provisions of the FOIA have been created to shield private parties from being penalized for failing to resort to unpublished methods of procedure[v]. This cannot be used to question the legitimate functions of an administrative agency. A federal administrative agency should separately state and publish substantive rules of general applicability adopted as authorized by law in the federal register[vi]. When a person has timely notice of a new rule, the fact that it was not published in the federal register cannot adversely affect the person. The purpose of the publication requirement of the FOIA is for public guidance[vii]. It is not to provide a technical defenses to litigants. A rule cannot be automatically rendered ineffective because of failure to publish it. Therefore, it can be enforced against a person having actual and timely notice of it.
The FOIA also provides that every federal agency should make available for public inspection and copying documents such as:
- Final opinions that include concurring and dissenting opinions, and other orders made in the adjudication of cases. The final opinion or order that should be published in the federal register should be provided by a federal agency. The final opinion should follow adjudication[viii]. The opinion should be final in the case.
- Statements of policy and interpretations that has been adopted by the agency and are not published in the federal register. This is because policy statements and interpretations can be utilized as touchstones for further administrative action[ix]. If policy decisions are not disclosed it could result in development of secret law. However, policy statements of general applicability should be published in federal register[x]. Policy statements relating to particular situations need only be made available for public review.
- Administrative staff manuals and instructions to staff that affect a member of the public. Administrative instructions that affect general public should be published in federal register. However, instructions setting forth criteria or guidelines for the staff in auditing procedures need not be published in the federal register. To protect public interest it can be made available for inspection.
This is necessary only when these documents are not published and its copies are not for sale[xi]. When there is more than one member in an agency, the FOIA requires that agency to maintain and make available for public inspection a record of the final votes of each member in every agency proceeding[xii].
According to the FOIA, any request for records made by person to a federal agency that reasonably describes such records and is made in accordance with published rules stating the time, places, fees, and procedures to be followed, the agency should make the records promptly available to that person[xiii].
[i] 5 USCS § 552.
[ii] Animal Legal Defense Fund v. Quigg, 710 F. Supp. 728 (N.D. Cal. 1989).
[iii] 5 USCS § 552.
[iv] Aiken v. Miller, 442 F. Supp. 628 (E.D. Cal. 1977).
[v] N.L.R.B v. Wyman, 394 U.S. 759 (U.S. 1969).
[vi] 5 USCS § 552.
[vii] Paulsen v. Daniels, 413 F.3d 999 (9th Cir. Or. 2005).
[viii] Fortson v. Harvey, 407 F. Supp. 2d 13 (D.D.C. 2005).
[ix] Aug v. National Railroad Passenger Corp., 425 F. Supp. 946 (D.D.C. 1976).
[x] Neighborhood Legal Services, Inc. v. Legal Services Corp., 466 F. Supp. 1148 (D. Conn. 1979).
[xi] 5 USCS § 552.