Freedom of Information Act

The Freedom of Information Act (FOIA) was enacted to make accessible to members of the general public, as their right, the records held by federal executive branch departments and agencies. It is based on the belief that government belongs to the people and they have a right to know what their government is doing and why.

The FOIA (5 U.S.C. 552) provides for routine release of most requested executive branch government records within specified, relatively narrow, time limits unless the records fall within nine specific categories of exemptions. It requires uniform fees, which can be waived, for all aspects of the process, from searching for the records to duplicating them and in some instances reviewing them to determine if they can be released. Requesters are entitled to written explanations if their requests are denied.

A requester can appeal a denial, first to the agency and then, more important, to federal district court, which can review all the records, override agency decisions, and require the government to pay reasonable court costs if it finds that the records were improperly withheld. Each agency is required to submit an annual report detailing all aspects of FOIA administration to the attorney general who, in turn, is required to make the reports available, electronically, at a central location and to submit an annual report assessing overall operations to the Congress.

The statute, signed into law July 4, 1966, by President Lyndon B. Johnson at his Texas ranch, covers not only Cabinet agencies and other executive departments, but also the military, government corporations, government-controlled corporations, the executive office of the president, and independent regulatory commissions. It does not cover elected officials (president, vice president, members of Congress), the federal courts, government contractors, or nonprofit organizations. A record is a document in any format, including print, tape recordings, photographs, maps, records in all digital and electronic formats, and technologies not yet invented.

The two fundamental principles on which the FOIA rested were that agency records were to be made available to any person, on request. Any person applies to an individual, corporation, citizen, or foreigner. Under the original law, every requester had equal access to a record but had to ask for and (reasonably) describe the records. This meant that in deciding to release or withhold a government record, the agency had to examine the record, not the person making the request, the reason for the request, or the purpose for which the record would be used. The burden was on the agency to show why a record should not be released, not on the requester to prove that he or she has a right to see the record.

The principle of any person remained in place until November 15, 2002, when Congress passed[Page 688] the Intelligence Authorization Act of Fiscal Year 2003 (Pub. L. No.107–306), which for the first time included restrictions on who could make FOIA requests. Intelligence agencies (and segments of agencies that deal with intelligence) now cannot disclose records requested under FOIA either directly to “any foreign government or international government organization” or indirectly through a representative. This is a major reversal of the statute's original intent because it moves the standard for releasing records away from the record itself and looks instead at the requester.

...