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Freedom of Information

President Lyndon B. Johnson signed into law the Freedom of Information Act on July 4, 1966, after a 10-year concerted effort by Congress. The law was commonly referred to as FOIA, and it required that government-held information be available to the public unless it is considered to be designated among nine categories of exclusions. These exemptions include information that is restricted for national security, law enforcement investigation records, government employee personnel records, medical records, banking records, trade secrets required by government registration, internal government agency memoranda, geological and geophysical data on oil and gas wells, and any material explicitly exempt by an act of Congress.

The two-page bill not only included the nine exemptions to available information, but also said that agencies must provide notice of what was available in the Federal Register. It also required agency opinions and orders be published, as well as agency records, proceedings, and the limitations on exemptions. The codification of the amendment to the Administrative Procedure Act, known as the Freedom of Information Act, or FOIA, went into effect July 4, 1967.

The Senate report that accompanied the bill said that the Act was intended to “establish a general philosophy of full agency disclosure.” In a signing statement President Johnson wrote, “This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation permits.”

About 20 states already had laws directing that government-held information be available to the public before the U.S. Congress was successful in its effort. Soon after the federal law was enacted, all 50 states had similarly intentioned laws.

Historical Context of Freedom of Information

The first session of the first Congress of the United States worried about the public's need to know what government was doing. During that session there was some debate about how to best provide the necessary reports, but there was little delay in congressional action. On September 15, 1789, Congress required the secretary of state to publish in at least three of the public newspapers printed within the United States every bill, order, resolution, vote of the houses of Congress, as well as presidential objection to these actions.

Though this early resolve in American history might suggest a continuing and empowering atmosphere of government disclosure, it was not the case. In times of open conflict there was little discussion about the need for secrecy, and the courts denied any attempts to force an easing of secrecy. Often, however, during times of relative calm the president and his cabinet were forthcoming about their activities, with Congress pressing the case and the courts responding with some support. Because peace was rare, Congress often found it necessary to push hard where the path was not already welltrod for any disclosure about executive branch decision making and follow-through.

Twentieth-Century Activities before the Enactment of FOIA

Congress passed the Administrative Procedure Act of 1946 to force federal agencies to provide information about their activities on a regular basis. Unfortunately the language of the law allowed the agencies to decide which information would be made available if the agency thought it in the best interest of the public to withhold some of it. Frustration with the shortcomings of the Administrative Procedure Act led to more congressional hearings and further efforts to force the executive branch to open up. President Harry Truman's expansion of the military's information classification system to include documents from all executive branch agencies did not make things easier with the legislature. Nor did his expansion of executive privilege endear him to Congress. The struggle for more public review of executive agencies during the 1950s and the cold war was a continuing priority among some legislative members. Continued evidence that the executive branch was not only refusing requests from the public, but increasingly rejecting requests from Congress forced members to launch an investigation and publish an unflattering report titled “Withholding Information From the Public and the Press, A Survey of Federal Departments and Agencies” published by the Senate Committee on the Judiciary, Subcommittee on Constitutional Rights in 1959.

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