Freedom of Information Act (FOIA)

History

The FOIA was necessitated in large measure by the dramatic growth of the federal government in the mid-twentieth century, though a confluence of circumstances brought open-government legislative efforts to fruition in 1966. The U.S. Constitution does not provide a right of public access to inspect or copy government records. The first statute to provide a comprehensive right of access was the Administrative Procedure Act of 1946 (APA), of which the FOIA today is a part. The APA was initially limited, vesting broad discretion in agencies and permitting access only to “persons properly and directly concerned” with records. Abuses of government secrecy were well publicized in subsequent years and frustrated Congress, journalists, and the general public. Attorney Harold Cross documented government secrecy in a report to the American Society of Newspaper Editors, published in an influential 1953 book, The People's Right to Know.

Responding to this frustration, Congressman John Moss, a Democrat from California, began in 1955 to press for access reform and to hold [Page 630]hearings on government secrecy. Legislation to expand access under the APA access was introduced in Congress as early as 1957, though no bill gained traction until the APA came under review in 1963. Moss found long-sought bipartisan support for a bill in 1965. Federal agencies unanimously testified against the proposed legislation, and the Department of Justice doubted its constitutionality. Nevertheless, owing in significant part to press editorial pressure, the FOIA passed the Senate, and passed the House unanimously, in 1966. President Lyndon Johnson (1963–69) signed the bill into law without ceremony at his Texas ranch on Independence Day, July 4, 1966. The holiday was likely a coincidence, as the President was unenthusiastic about the law. He issued a signing statement asserting that the FOIA “in no way impairs the President's power under our Constitution to provide for confidentiality when the national interest so requires.”

FOIA Today

The FOIA applies to the executive branch of the federal government, including independent agencies, the military, and the Executive Office of the President, but excluding the President and Vice President, and their immediate staffs. The FOIA does not apply to Congress, to the courts, to nongovernmental recipients of public funding, the District of Columbia, or to state governments. As a general matter, the FOIA provides that when any person requests access to the records of a public agency, the agency must provide them unless they come within one of the nine FOIA exemptions. The FOIA also requires that agencies provide information and indexes for public guidance.

Pursuant to the FOIA, “any person” (not just journalists) may request records from a public agency. The agency must fulfill a request that “reasonably describes” the records sought. Records are defined broadly to include not only documents, but video and audio recordings, and data stored in electronic media. An agency must undertake “reasonable efforts to search for” requested records, including automated searching, but need not create new records. Records must be produced in the form requested as long as the records are “readily reproducible” in that form. An agency may charge a “reasonable” fee for searching, reviewing, and duplicating records, but noncommercial and newsmedia requesters may not be charged for searching and reviewing. A waiver of search and copying fees is available for requests “in the public interest.” Agencies are compelled to respond to requests within 20 working days (four weeks), absent “unusual circumstances” warranting extension. However, as a matter of practice, some federal agencies (such as the FBI) are renowned for backlogs running from weeks to years. An agency must offer expedited processing for the requester who “demonstrates a compelling need,” and when news-gathering has been held to constitute such a need.

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