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Freedom of Information Act (FOIA)

Freedom of Information Act (FOIA)

Originally enacted on July 4, 1966, the Freedom of Information Act established a legal right of public access to information from the executive branches held by the federal government. The FOIA provides that everyone has the right in court to have access to federal agency records as required by law unless a portion of those records is protected from public disclosure by law.

Sometimes referred to as "people's right to know" about government activities and operations, the FOIA established a presumption of public access to information held by government departments and executive agencies. In introducing the previously enacted FOIA predecessor, Senator Long then quoted Madison, who was the chairman of the committee that drafted the First Amendment to the Constitution:

Knowledge will forever reign over ignorance, and people who claim to be their rulers must arm themselves with the power of knowledge. A popular government without popular information or the means to obtain it is nothing more than the prolog to a farce or a tragedy, or perhaps both.

The U.S. Supreme Court explained that "the fundamental purpose of [FOIA] is to ensure informed citizenship, vital to the functioning of a democratic society, necessary to control corruption and hold governors accountable to the governed." "FOIA is often explained as a way for citizens to know 'what their government is doing.' The Supreme Court emphasized that this is a true democracy."

Specifically, while the FOIA is the primary legal mechanism through which the public can access federal government records and information, other statutes, particularly the Federal Advisory Committee Act, Government in the Sunshine Act, and Privacy Act, also establish rights and restrictions on public access to government information or activities.

In FOIA, Congress established a statutory framework based on a "broad philosophy of 'freedom of information and intended to ensure 'the availability of necessary government information to an informed electorate.

Subject to various exceptions and exclusions, the FOIA generally provides that everyone has the right to request and obtain access to documents or information held by federal agencies. The FOIA establishes a three-part disclosure system by which agencies disclose documents and information.

First, the FOIA directs agencies to post "substantive rules of general application," rules of procedure, and other important government documents specified in the Federal Register.

Second, agencies must proactively disclose a separate set of agency information electronically, including, but not limited to, final opinions and certain "frequently requested" records.

And third, "except for records made available according to" provisions of the Proactive Disclosure Act, agencies must release Covered Records to individuals, businesses, and others who request it.

The FOIA also allows applicants to seek judicial review of an agency's decision to withhold documents. Federal district courts can "order [an] agency to keep agency records" and "order production of any improperly held agency records."

Although the primary purpose of the FOIA is to inform the public about the operations of the federal government, the framers of the law also sought to protect certain private and governmental interests from the disclosure obligations of the law.

Freedom of Information Act Exemptions

The FOIA offers nine exemptions: specific categories of information protected from disclosure. In general, they are optional and not mandatory.

The nine categories of exemptions that allow government agencies to withhold information are:

  • Classified information for national defense or foreign policy

  • Geological and geophysical information

  • Information on banking supervision

  • Information that is exempt from other laws

  • Inter-institutional or intra-institutional notes or letters protected by professional secrecy

  • Internal staff standards and practices

  • Law Enforcement Documents or Information

  • Medical and personal records

  • Trade Secrets and Confidential Business Information

FOIA Exclusions

The FOIA protects three categories of sensitive law enforcement data. For these three specifically defined document categories, Congress has determined that federal law enforcement may treat the documents as not subject to [FOIA] requirements. These provisions, called "exclusions," protect three limited sets of circumstances in which public acknowledgment and even the existence of records could harm law enforcement interests.

The first exclusion protects the existence of an ongoing criminal investigation where the subject of the investigation is unaware that it is ongoing and the disclosure could reasonably interfere with the enforcement proceedings.

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

The third exclusion is limited to the F.B.I. and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is confidential. Excluded entries are not subject to FOIA requirements.



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