The Freedom of Information Act

Originally enacted on July 4, 1966, the Freedom of Information Act established a statutory right of public access to Executive Branch information held by the federal government.  The FOIA provides that any person has a right, enforceable in court, to obtain access to federal agency records under the Act, except to the extent that any portions of those records are protected from public disclosure by an exemption under the statute.

Sometimes referred to as the embodiment of “the people’s right to know” about the activities and operations of government, the FOIA established a presumption of public access to information held by executive branch departments and agencies. In introducing the predecessor to the originally enacted FOIA, then-Senator Long quoted Madison, who was the chair of the committee that drafted the first amendment to the Constitution:

Knowledge will forever govern ignorance, and people who mean to be their own governors must arm themselves with the power knowledge gives.  A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.

The United States Supreme Court has explained that “[t]he basic purpose of [the] 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.” The “FOIA is often explained as a means for citizens to know ‘what their Government is up to.’” The Supreme Court has stressed that “[t]his phrase should not be dismissed as a convenient formalism.” Rather, “[i]t defines a structural necessity in a real democracy.”

Notably, although FOIA is the primary statutory mechanism by which the public may gain access to federal government records and information, other laws—specifically the Federal Advisory Committee Act, Government in the Sunshine Act, and Privacy Act—also set forth rights and limitations on the public’s access to government information or activities.

The Freedom of Information Act

In FOIA, Congress established a statutory scheme based on “a broad philosophy of ‘freedom of information” and is intended to ensure “the availability of Government information necessary to an informed electorate.” As one court has remarked, “FOIA is the legislative embodiment of Justice Brandeis’s famous adage” that “[s]unlight is . . . the best of disinfectants.”

Subject to several exceptions and exclusions, the FOIA generally provides that any person has the right to request and obtain access to federal agency records or information.  FOIA establishes a three-part system of disclosure by which agencies must disclose records and information.

First, FOIA directs agencies to publish “substantive rules of general applicability,” procedural rules and specified other important government materials in the Federal Register.

Second, on a proactive basis, agencies must electronically disclose a separate set of agency information including, among other things, final adjudicative opinions and certain “frequently requested” records.

And third, “[e]xcept with respect to the records made available under” the statute’s proactive disclosure provisions, agencies must disclose covered records to individuals, corporations, and others upon request.

FOIA also authorizes requesters to seek judicial review of an agency’s decision to withhold records. Federal district courts may “enjoin [an] agency from withholding agency records” and “order the production of any agency records improperly withheld.”

While FOIA’s main purpose is to inform the public of the operations of the federal government, the act’s drafters also sought to protect certain private and governmental interests from the law’s disclosure obligations.

FOIA Exemptions

FOIA provides for nine exemptions—specific categories of information that are protected from disclosure.  They are generally discretionary, not mandatory, in nature.

The nine exemption categories that authorize government agencies to withhold information are:

1. classified information for national defense or foreign policy
2. internal personnel rules and practices
3. information that is exempt under other laws
4. trade secrets and confidential business information
5. inter-agency or intra-agency memoranda or letters that are protected by legal privileges
6. personnel and medical files
7. law enforcement records or information
8. information concerning bank supervision
9. geological and geophysical information

FOIA Exclusions

FOIA provides protection for three categories of sensitive law enforcement records. For these three specifically defined categories of records, Congress provided that federal law enforcement agencies “may treat the records as not subject to the requirements of [the FOIA].” 5 U.S.C. § 552(c). These provisions, which are referred to as “exclusions,” provide protection in three limited sets of circumstances where publicly acknowledging even the existence of the records could cause harm to law enforcement or national security interests.

The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings.

The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.

The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within an exclusion are not subject to the requirements of the FOIA.