20
MARCH 2006 UNITED
STATES: Open government advocates, media, public celebrate
Sunshine Week The
second annual Sunshine Week was observed in the United States,
March 12-18, 2006 to focus national attention on the need
for more open government and access to information. Events
included a teleforum discussion with supporters of open
government around the country, a congressional oversight
hearing on classification practices and secrecy, a FOIA
Day conference featuring panel discussions and awards for
leading FOI advocates, and a PSB special on government secrecy.More
>>
14 DECEMBER 2005 New Bush Executive Order on FOIA Aims to Improve
Government Responsiveness; Impact on Transparency Unclear
The
U.S.
Freedom of Information Act (FOIA), which can
be found in Title 5 of the United States Code, section 552,
was signed into law in 1966 and provides that any person
has the right of access to federal agency records or information.
The law carries a presumption of disclosure; the burden
is on the government—not the public—to substantiate
why information may not be released. Upon written request,
agencies of the United States government are required to
disclose those records, unless they can be lawfully withheld
from disclosure under one of nine specific exemptions in
the FOIA. This right of access is ultimately enforceable
by filing a complaint in federal court.
The 1996 EFOIA Amendments to the Freedom of Information
Act require each agency to post on their agency website
guides to making requests under the FOIA to that agency.
An agency can only respond to requests for records it has
created.
1966 On
July 4, 1966, President
Lyndon Johnson reluctantly signed into law the Freedom Of
Information Act. This landmark legislation enshrined
in law the public’s right of access to federal government
records. The bill that Johnson signed was the effort of
several legislators, principal among them US Rep. John Moss
(D-CA), a leading consumer advocate, who had begun his crusade
of investigations, reports and hearings on government information
policy in 1955. Officially, the statute superseded Section
3 of the Administrative Procedures Act, the provision for
regulation of government information.
1974
When
President Gerald Ford took office on August 9, 1974 in the
aftermath of the Watergate scandal and President Richard
Nixon’s resignation, there was great public cynicism
toward government, but also great public desire for access
to government information. Despite public sentiment, on
October 17 President Ford vetoed H.R. 12471, the bill that
would significantly strengthen the Freedom Of Information
Act, calling it “unconstitutional and unworkable”.
In a dramatic rebuke, the House, on November 20, and the
Senate, on November 21, overrode the President’s veto.
The amended FOIA now incorporated judicial review of agency
decisions, narrowed some exemptions, restricted fees agencies
could charge, and set a new 10-day time limit for agencies
to comply with a request. The public’s use of the
FOIA increased dramatically.
1986 President
Ronald Reagan made no attempt at a major legislative overhaul
of the FOIA, but the Congress did amend the law concerning
waivers of fees and restrictions concerning law enforcement
records. The fee provisions led to significant litigation,
including the precedent-setting decision in DOD v. National
Security Archive. However, in 1984, the Congress did
pass the Central Intelligence Agency Information Act, which
put records of some branches of the CIA out of public reach
under the FOIA. See links to related documents highlighting
Congressional and Administration views on the 1986 amendments
to the FOIA.
US
Attorney General Edwin Meese III’s Memo Concerning
the 1986 Amendments to the FOIA (“A Memorandum
for the Executive Departments and Agencies Concerning the
Law Enforcement Amendments to the Freedom of Information
Act, 5 USC Sec. 552, Enacted as the Freedom of Information
Reform Act of 1986, Sections 1801-1804 of the Anti-Drug
Abuse Act of 1986, 100 Stat. 3207, 3207-48 (October 27,
1986)”, dated December 1987)
1996 President
William Jefferson Clinton embraced the letter and spirit
of the Freedom of Information Act, evidenced in part by
his directive to cabinet departments in the fall of his
first year. Nevertheless, Congress took the lead in dealing
with endemic problems in the implementation of the FOIA,
such as lengthy delays and extensive request backlogs at
agencies. Sen. Patrick Leahy, long a champion of the FOIA,
introduced amendments to the FOIA for electronic records
in 1994, eventually leading to Clinton’s signature
on the Electronic
Freedom of Information Act (EFOIA) Amendments in October
1996. The 1996 amendments codified court decisions on
electronic records and extention the previous 10-day limit
to 20 working days (4 weeks). In 2000, the General Accounting
Office, at Sen. Leahy and others’ request, began a
review of the implementation of EFOIA at 25 departments
and agencies, which GAO released in March 2001. Below are
these and other key documents from the Clinton era concerning
the FOIA.
The
Freedom of Information Act (FOIA) was enacted in 1966 and
went into effect in 1967. (1)
It has been substantially amended several times, most recently
in 1996 by the Electronic Freedom of Information Act. (2)
The law allows any person or organization, regardless of
citizenship or country of origin, to ask for records held
by federal government agencies. Agencies include executive
and military departments, government corporations and other
entities which perform government functions except for Congress,
the courts or the President's immediate staff at the White
House, including the National Security Council. Government
agencies must respond in 20 working days.
There
are nine categories of discretionary exemptions: national
security, internal agency rules, information protected by
other statutes, business information, inter and intra agency
memos, personal privacy, law enforcement records, financial
institutions and oil wells data. (3)There
are 142 different statutes that allow for withholding. In
2003, the Homeland Security Act added a provision prohibiting
the disclosure of voluntarily-provided business information
relating to "Critical Infrastructure".
Appeals
of denials or complaints about extensive delays can be made
internally to the agency concerned. The federal courts can
review and overturn agency decisions. The courts have heard
thousands of cases in the 35 years of the Act.
Management
for FOIA is decentralized. The US Justice Department provides
some guidance and training for agencies.
The
FOIA also requires that government agencies publish material
relating to their structure and functions, rules, decisions,
procedures, policies, and manuals. The 1996 E-FOIA amendments
required that agencies create "electronic reading rooms"
and make available electronically the information that must
be published along with common documents requested. The
DOJ has issued guidance that documents that have been requested
three times be made available electronically in the Reading
Room.
In
2002, there were over 2.4 million requests made to federal
agencies under the FOIA and the Privacy Act, the highest
number ever. (4) Law
enforcement and personal privacy were the most cited exemptions
for withholding information.
The
FOIA has been undermined by a lack of central oversight
and in many agencies, long delays in processing requests.
In some instances, information is released only after years
or decades. The General Accounting Agency found in 2002
that "backlogs of pending requests government wide
are substantial and growing, indicating that agencies are
falling behind in processing requests." (5)
In its 2003 audit of agencies practices, the National Security
Archive review found a number of problems:
Inaccurate
or incomplete information about agency FOIA contacts.
Failure
to acknowledge requests.
Lost
requests.
Excessive
backlogs.
Complete
decentralization of agency FOI operations leading to delay
and lack of oversight.
Inconsistent
practices regarding the acceptance of administrative appeals.
Appealing
FOIA determinations may delay processing, but also may
get the agency's attention.
Conflation
of fee categorization and fee waiver standards. (6)
The
Bush Administration has engaged in a general policy of restricting
access to information. In October 2001, Attorney General
John Ashcroft issued a memo stating that the Justice Department
would defend in court any federal agency that withheld information
on justifiable grounds.(7) Previously,
the standard was that the presumption was for disclosure.
However, surveys done by the National Security Archive and
General Accounting Office found that for the most part the
memo had not caused substantial changes in releases. (8)
The Bush Administration has also refused to release information
about the secret meetings of the energy policy task force;
ordered federal Websites to remove much of the information
that they had that could be sensitive;(9)
issued a controversial memo limiting access to records under
the Presidential Records Act in November 2001 (10)
which allows former Presidents and Vice-Presidents to prevent
access to records (bill are currently pending in Congress
to reverse that order); and has refused to disclose information
on the Patriot Act and the names of those arrested after
September 11.
There
are a number of other laws that provide for access. The
Government in the Sunshine Act requires the government to
open the deliberations of multi-agency bodies such as the
Federal Communications Commission. (11)
The Federal Advisory Committee Act requires the openness
of committees that advise federal agencies or the President.
(12) The Privacy Act of 1974 works in
conjunction with the FOIA to allow individuals to access
their personal records held by federal agencies. (13)
The
Executive Order on Classified National Security Information
requires that all information 25 years and older that has
permanent historical value be automatically declassified
within five years (since extended until December 2006) unless
it is exempted. (14) Individuals can make
requests for mandatory declassification instead of using
the FOIA. Decisions to retain classification are subject
to the Interagency Security Classification Appeals Panel.
Between 1995-2001, over 950 million pages out of 1.65 billion
pages were declassified, 100 million pages in 2001 alone.
(15) The executive order was amended in
2003 to somewhat restrict release. The Information Security
Oversight Office, a division of the National Archives, has
policy oversight of the Government-wide security classification
system. (16) ISOO's 2002 report says that
classification by government agencies is increasing while
declassification has slowed down.
There
are also laws in all fifty states on providing access to
government records. (17) A number of states
have information commissions which review decisions. State
laws on freedom of information have also been under threat
since September 11 due to terrorism concerns.
14
DECEMBER 2005 New Bush Executive Order on FOIA Aims to Improve
Government Responsiveness; Impact on Transparency Unclear
The
Bush administration's new Executive
Order 13392 on the Freedom of Information Act (FOIA)
acknowledges that federal FOIA systems are currently in
need of great improvement and heightened responsiveness
to members of the public seeking information through the
FOIA. Thomas S. Blanton, executive director of the National
Security Archive responded to the new Executive Order by
stating, "After five years of throwing sand into the
gears of the FOIA, the Bush administration is finally designating
someone at the agencies to be responsible for compliance
and performance. Now the question is: Will they have the
determination and the authority to implement any real changes
in the current ailing FOIA system?"
Archive
General Counsel Meredith Fuchs noted, "Up until now
this administration has strongly resisted transparency and
accountability. We can only hope that this is a sign that
it intends to start being more responsive to the public."
The
National Security Archive has extensively audited
the performance of the FOIA during the Bush administration
and published detailed reports on the depth of FOIA backlogs
pending at major federal agencies and the impact of Attorney
General John Ashcroft's October 2001 memo on the FOIA.
The Archive found a system plagued by delay, inefficiency
and functioning in large part without high level official
support for the work of government FOIA personnel.
"We
are hopeful this Executive Order will lead to greater concern
from senior agency officials for the FOIA. It remains uncertain
how it will be implemented and whether any actual processing
changes will result. One wonders if the administration is
just trying to preempt the growing bipartisan movement to
strengthen the FOIA by issuing a potentially weak Executive
Order," commented Barbara Elias, the Archive's freedom
of information coordinator.
Department
of Justice FOIA Guide (May 2002)
Summary of FOIA exemptions and procedure prepared
and published by the Department of Justice.
Department
of Justice Freedom of Information Case List
(May 2002)
Compilation of judicial decisions, both published and
unpublished, under the Freedom of Information Act, the
Privacy Act of 1974, the Government in the Sunshine
Act, and the Federal Advisory Committee Act. Prepared
and published by the Department of Justice.
Department
of Justice FOIA
Post
Electronic Guidance issued by the Department of Justice
Office of Information and Privacy since 2001.
Department
of Justice FOIA
Update
Newsletter published by the Department of Justice Office
of Information and Privacy between 1979 and 2000 containing
FOIA information and guidance for federal agencies.
Your
Right to Federal Records (2002)
Pamphlet published by the Department of Justice and
the General Services Administration Citizen Information
Center concerning both the FOIA and the Privacy Act.
A
Citizen's Guide to the FOIA (2003)
House Committee on Government Reform guide to the Freedom
of Information Act and the Privacy Act.
American
Society of Access Professionals (ASAP):
a nongovernmental association dedicated to bringing
government FOIA and Privacy Act personnel in touch with
the requester community. ASAP is the leading organization
providing professional educational programs for government
FOIA and Privacy Act officials in an open forum with
non-profit organizations, the media, business, and private
citizen requesters.
Coalition
of Journalists for Open Government has
members from a variety of different media organizations
and provides timely reports on efforts to achieve
greater access to public records and meetings and
a free flow of information, as well as background
reports and lists of resources to assist journalists
in seeking information from the government.
The
Electronic
Privacy Information Center (EPIC) - a
publish interest research center focusing on emerging
civil liberties issues and protecting privacy, the
First Amendment, and constitutional values. EPIC publishes
an online newsletter on civil liberties in the information
age as well as reports and books about privacy, open
government, free speech, and other important topics
related to civil liberties and the authoritative
Litigation Under the Federal Open Government Laws.
Federation
of American Scientists, Project on Government Secrecy
- works to challenge excessive government secrecy and
promote public oversight, and maintains an extensive
collection of FOIA documents, government resources,
and judicial materials. The director of the project,
Steven Aftergood, publishes Secrecy
News, a regular newsletter providing informal
coverage of new developments in secrecy, security and
intelligence policies.
Freedom
of Information Center - a reference and
research library in the University of Missouri School
of Journalism which has a collection of more than
1 million articles and documents about access to information
at the state, federal and local levels, including
a comprehensive listing of state
FOI laws.
Freedom
of Information Clearinghouse - a joint
project of the Public Citizen Litigation Group and
the Center for Study of Responsive Law that provides
technical and legal assistance to individuals, public
interest groups, and the media who seek access to
information held by government agencies.
FOIAdvocates
- a project of FOIA attorneys David Bahr & Daniel
Stotter designed to assist the public in gaining access
to records from federal, state and local governments
using the federal Freedom of Information Act (FOIA)
as well as state and local public records laws.
Memory
Hole, FOIA Case Logs - posts case logs
of requests received by federal agencies, departments,
and offices, as received by The Memory Hole and others.
National
Freedom of Information Coalition - an alliance
of FOI groups in the U.S. that educates media professionals,
attorneys, academics, students and the general public
on freedom of information. The NFOIC nurtures start-up
FOI organizations in U.S. states. Its website contains
links to access to information regulations in various
states as well as to other related publications.
National
Security Archive - an independent research institute
and library located in Washington, D.C. The Archive
collects and publishes declassified documents acquired
through the U.S. Freedom of Information Act. It also
keeps track of the freedom of information movement worldwide.
OMB
Watch is a nonprofit research and advocacy
organization dedicated to promoting government accountability,
citizen participation in public policy decisions, and
the use of fiscal and regulatory policy to serve the
public interest; project areas include the Federal Budget,
Information & Access, Nonprofit Advocacy, and Regulatory
Policy.
Openthegovernment.org
- a coalition of journalists, consumer and good government
groups, environmentalists, labor and others seeking
greater openness in the federal government to make us
safer, strengthen public trust in government, and support
our democratic principles. The website offers an extensive
Resource
Center is for right-to-know advocates.
Project
on Government Oversight- focuses on exposing
wasteful military spending, contracting misconduct,
and excessive government secrecy by conducting comprehensive
research and advocating for pragmatic solutions to Congress,
Government Agencies, and others.
Reporters
Committee for Freedom of the Press - created
in 1970 at a time when the U.S. news media faced a wave
of government subpoenas asking reporters to name confidential
sources; since then, it has been at the forefront of
press freedom battles. The Committee's website has an
FOI Services
section that includes instructions for obtaining information
under the U.S. FOIA and access to the FOI Center that
helps journalists get information from government and
a FOIA
Letter Generator.
Society
of Professional Journalists - conducts audits
of information access practices in the United States.
Its Project Sunshine organizes efforts by local and
state journalists to obtain information from the government.
Sunshine
in Government Initiative-
a coalition of media groups committed to promoting policies
that ensure the government is accessible, accountable
and open, and works in particular to track legislative
developments related to FOIA.
Transactional
Records Access Clearinghouse (TRAC) -
a data gathering, data research and data distribution
organization associated with Syracuse University and
dedicated to providing the public with comprehensive
information about federal staffing, spending, and
the enforcement activities of the federal government.
5.
General Accounting Office, Update on Implementation
of the 1996 Electronic Freedom of Information Act Amendments,
GAO-02-4/93, August 2002. http://www.gao.gov/new.items/d02493.pdf
8.
See National Security Archive, The Ashcroft Memo, ibid.;
General Accounting Office, Freedom of Information Act: Agency
Views on Changes Resulting from New Administration Policy.
GAO-03-981, September 3, 2003. http://www.gao.gov/cgi-bin/getrpt?GAO-03-981
"The
courts usually side with journalists who are seeking
information that government officials are reluctant
to make public. After September 11, 2001, the
legal environment shifted somewhat when the administration
of President George W. Bush increased the volume
of classified information. During the past year,
however, journalists were able to acquire a number
of documents relating to the government's war
on terrorism, including key memos that outlined
policies for the treatment of prisoners detained
in Iraq, Afghanistan, and Guantanamo, Cuba."
Civil
Society, Public Information and Media (rating 1-100):
97 (Very Strong)
Subcategory:
Access to Information Law (rating 1-100):
98 (Very Strong)
"In
general, citizens have good access to public information.
Government offices increasingly make information
readily available on Web sites, and the Freedom
of Information Act allows citizens to request
other records from government. In most cases,
citizens can obtain basic government records within
a reasonable time period and at a reasonable cost."
1) Voice and Accountability: 1.21
2) Political Instability and Violence: 0.47
3) Government Effectiveness: 1.80
4) Regulatory Burden: 1.22
5) Rule of Law: 1.58
6) Control of Corruption: 1.83
