Freedom of Information Act (United States)

As indicated by its long title, the Freedom of Information Act (FOIA) was moved from its original home in Section 3 of the Administrative Procedure Act (APA). Section 3 of the APA, as enacted in 1946, gave agencies broad discretion concerning the publication of governmental records. Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement "a general philosophy of full agency disclosure". The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U.S.C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not already published in the Federal Register, § 552(a)(2). In addition, § 552(a)(3) requires every agency, "upon any request for records which reasonably describes such records" to make such records "promptly available to any person". By § 552(a)(4)(B) if an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden "on the agency to sustain its action", and directs the district courts to "determine the matter de novo". With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some, particularly representative John E. Moss, thought that it was necessary for government information to be available to the public. This push built on existing principles and protocols of government administration already in place. Although some officials, including President Lyndon B. Johnson, believed certain unclassified government information should remain confidential, Congress moved to increase transparency. In 1966, despite opposition from the White House, Congress expanded Section 3 of the Administrative Procedure Act to promote the public's right to access government records. The Privacy Act of 1974 was later enacted to protect personal information held by the government. == Scope ==

The act explicitly applies only to government agencies under the executive branch. These agencies are required by several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. According to the act, if "agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding." In this way, there is recourse for one seeking information to go to a federal court if suspicion of illegal tampering or delayed sending of records exists. However, nine exemptions address issues of sensitivity and personal rights. They are (as listed in ): • (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; • related solely to the internal personnel rules and practices of an agency; The Postal Reorganization Act of 1970 (at ) exempts the U.S. Postal Service from disclosure of "information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed". A federal court has concisely described the vital role of the FOIA in democracy: == Legislative history ==

The law came about because of the determination of U.S. House of Representatives member John E. Moss of California, who was chairman of the House Government Information Subcommittee. It took Moss 12 years to get the FOIA through Congress. Much of the desire for government transparency stemmed from the Department of Defense and Congressional committees evaluation of the nation's classification system in the late 1950s. They determined that the misuse of government classification of documents was causing insiders to leak documents that were marked "confidential". The committee also determined that the lowest rung of the confidentiality ladder "confidential" should be removed. They deemed that "secret" and "top secret" covered national security adequately. signed the FOIA into law. That law was initially repealed. During the period between the enactment of the act and its effective date, Title 5 of the United States Code was enacted into positive law. For reasons now unclear but which may have had to do with the way the enactment of Title 5 changed how the law being amended was supposed to be cited, the original Freedom of Information Act was replaced. A new act in (originally in the 90th Congress), repealed the original and put in its place a substantively identical law. This statute was signed on June 5, 1967, and had the same effective date as the original statute: July 4, 1967. == Amendments and executive actions ==

Privacy Act Amendments of 1974 Following the Watergate scandal, President Gerald R. Ford wanted to sign FOIA-strengthening amendments in the Privacy Act of 1974, but White House Chief of Staff Donald Rumsfeld and deputy Dick Cheney were concerned about leaks. Assistant Attorney General for the Office of Legal Counsel Antonin Scalia advised the bill was unconstitutional and even telephoned the CIA asking them to lobby a particular White House staffer. Scalia remained highly critical of the 1974 amendments, writing years later that "It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored." Scalia particularly disliked the availability of judicial review, decrying that if "an agency denies a freedom of information request, shazam!—the full force of the Third Branch of the government is summoned to the wronged party's assistance." In conjunction with the FOIA, the Privacy Act is used to further the rights of an individual gaining access to information held by the government. The Justice Department's Office of Information and Privacy and federal district courts are the two channels of appeal available to seekers of information. 1976 Government in the Sunshine Act amendments In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended so that several exemptions were specified: • Information relating to national defense, • Related solely to internal personnel rules and practices, • Related to accusing a person of a crime, • Related to information where disclosure would constitute a breach of privacy, • Related to investigatory records where the information would harm the proceedings, • Related to information which would lead to financial speculation or endanger the stability of any financial institution, and • Related to the agency's participation in legal proceedings. 1982 executive order limiting the FOIA Between 1982 and 1995, President Ronald Reagan's allowed federal agencies to withhold enormous amounts of information under Exemption 1 (relating to national security information), claiming it would better protect the country and strengthen national security. The outcry from the effect that the Reagan Order had on FOIA requests was a factor in leading President Clinton to dramatically alter the criteria in 1995. 1986 Omnibus Anti-Drug Abuse Act amendments to the FOIA The FOIA amendments were a small part of the bipartisan Anti-Drug Abuse Act of 1986. Congress amended FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records. The amendments are not referenced in the congressional reports on the Act, so the floor statements provide an indication of Congressional intent. 1995–99 expansion Between 1995 and 1999, President Bill Clinton issued executive directives (and amendments to the directives) that allowed the release of previously classified national security documents more than 25 years old and of historical interest, as part of the FOIA. This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly. Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act. Intelligence Authorization Act of 2002 amending the FOIA In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, . Within this omnibus legislation were amendments to the FOIA (pertaining mainly to intelligence agencies) entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments": In effect, this new language precluded any covered U.S. intelligence agency from disclosing records in response to FOIA requests made by foreign governments or international governmental organizations. By its terms, it prohibits disclosure in response to requests made by such non-U.S. governmental entities either directly or through a "representative". This means that for any FOIA request that by its nature appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision. OPEN Government Act of 2007 President George W. Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, , on December 31, 2007. This law, also known as the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways. According to a White House press release, it does so by: • establishing a definition of "a representative of the news media;" • directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund; • prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and • establishing an Office of Government Information Services (OGIS) in the National Archives and Records Administration to review agency compliance with FOIA. Changes include the following: • it recognizes electronic media specifically and defines "News Media" as "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." • it extends the 20-day deadline by allowing for up to 10 days between the FOIA office of the agency and the component of the agency holding the records and specifically allows for clarification of requests by the FOIA office (Effective 12/31/2007). • it calls for each agency to designate a FOIA Public Liaison, "who shall assist in the resolution of any disputes" (Effective 12/31/2008). • it requires agencies to assign tracking numbers to FOIA requests that take longer than 10 days, and to provide systems determining the status of a request. • it codifies and defines annual reporting requirements for each agency's FOIA program. • it specifically addresses data sources used to generate reports; "shall make the raw statistical data used in its reports available electronically ..." • it redefines the definition of an agency "record" to include information held for an agency by a government contractor. • it establishes an Office of Government Information Services (OGIS) That is, a request for information that meets the criteria for availability under FOIA can still be denied if the government determines that the information should have been classified, and unavailable. It also sets a timeline for automatic declassification of old information that is not specifically identified as requiring continued secrecy. 2010 repeal of FOIA amendments in Wall Street reform act The Dodd–Frank Wall Street Reform and Consumer Protection Act, signed into law in July 2010, included provisions in section 929I that shielded the Securities and Exchange Commission (SEC) from requests under the Freedom of Information Act. The provisions were initially motivated out of concern that the FOIA would hinder SEC investigations that involved trade secrets of financial companies, including "watch lists" they gathered about other companies, trading records of investment managers, and "trading algorithms" used by investment firms. In September 2010, the 111th Congress passed an act repealing those provisions. The act was introduced in the Senate on August 5, 2010 as S.3717 and given the name "A bill to amend the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940 to provide for certain disclosures under section 552 of title 5, United States Code, (commonly referred to as the Freedom of Information Act), and for other purposes." == Notable cases ==

A major issue in released documentation is government "redaction" of certain passages deemed applicable to the Exemption section of the FOIA. Federal Bureau of Investigation (FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research." In defense, the FBI put forth a claim that the redacted sections of the documents requested were withheld in accordance with FOIA regulations protecting the identity of informants who gave information regarding case details. However, O'Connor ruled that those who supplied information had no need to remain anonymous in the court setting. "To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits." The court thus remanded the case to the Circuit Courts and rejected the FBI's claim of confidentiality as being a valid reason to withhold information. "While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed." In some cases, the government demanded exorbitant (greater than $1 million) fees for records that appeals showed should be available for minimal cost. ==Processing time==

The act contains a provision legally requiring agencies to respond to FOIA requests within 20 days, but for two main reasons, many agencies rarely meet this requirement. First, the task of screening requests for sensitive or classified information is often arduous and lengthy at agencies like the FBI and the CIA. Second, congressional funding for agency staff to handle FOIA requests is usually far less than the necessary amount to hire sufficient employees. As a result, parties who request information under FOIA often end up filing lawsuits in federal court seeking judicial orders forcing the agencies to comply with their FOIA requests. The first major case of this type was the 1976 case Open America v. Watergate Special Prosecution Force, in which Open America had filed a FOIA request with the U.S. Attorney General and the FBI requesting copies of all their documents relating to the role of former FBI Director L. Patrick Gray in the Watergate scandal. The FBI had over 5,000 pending FOIA requests at the time and did not respond within the statutory 20-day limit. Open America sued in the U.S. District Court for the District of Columbia, and the court issued an order commanding the FBI to either immediately comply with or deny Open America's request. The government appealed to the U.S. Court of Appeals for the D.C. Circuit, which found that FOIA requests could be categorized into "simple" and "difficult" requests, and that although Open America's request was "difficult", the FBI had been using "due diligence" in responding to it. The court held that because there was no pressing urgency to Open America's request, its lawsuit did not move it to the head of the queue, and it would have to wait its turn. This legal reasoning and holding has been adopted by all other American circuits, though courts continue to complain that FOIA request delays are too long. In the 1983 case McGehee v. CIA the District of Columbia Circuit Court of Appeals stated: In 2015, the Center for Effective Government analyzed 15 federal agencies which receive the most FOIA requests in-depth. The organization used a scale considering three factors: the clarity of agency rules regarding FOIA requests, quality or 'friendliness' of an agency's FOIA webpage, and the timely, complete manner of processing requests. With this metric, it concluded that federal agencies are struggling to implement public disclosure rules. Using 2012 and 2013 data, the most recent years available, ten of the 15 did not earn satisfactory overall grades, scoring less than 70 out of a possible 100 points. Eight of the ten earned Ds, including the Department of Homeland Security (69 percent), Department of Transportation (68 percent), United States Department of the Treasury (Treasury) (68 percent), the Environmental Protection Agency (EPA) (67 percent), the United States Department of Labor (63 percent), the United States Department of Veterans Affairs (64 percent), the United States Department of Defense (61 percent), the Securities and Exchange Commission (61 percent). The Department of Health and Human Services and the Department of State earned an F. The State Department's score (37 percent) was dismal due to its extremely low processing score of 23 percent, which was completely out of line with any other agency's performance. Scores of five agencies, the Equal Employment Opportunity Commission, the Department of Health and Human Services, the SEC, the DOJ, and the EPA, even decreased marginally. == High-volume FOIA requests ==

Since 2020, election officials across the U.S. have reported an overwhelming increase in records requests from apparent election deniers attempting to disrupt the functioning of local and county election offices. Often unreasonably broad, repetitive, or based on misinformation, the high volume of requests has led to what a Colorado official said amounts to "a denial-of-service attack on local government." Local election officials in Florida and Michigan have reported spending 25–70% of staff time in recent years on processing public records requests. In 2022, officials in Maricopa County, Arizona reported one request that required nearly half the election office's staff to spend four days sorting and scanning 20,000 documents. A review of recent state laws by the Center for Election Innovation & Research found at least 13 states that have sought to protect election staff from the abuse of FOIA requests in several ways, such as creating publicly accessible databases that do not require staff assistance and giving election staff the authority to deny unreasonable or clearly frivolous requests. On May 12, 2025, the U.S. Department of Justice demanded "all records" related to the 2024 federal elections in Colorado, a request that National Public Radio called "unprecedented" in its scope. David Becker, executive director of the Center for Election Innovation & Research, said fulfilling such a request "would fill Mile High Stadium," adding that "it's very unlikely the DOJ would even know what to do with all of that," characterizing the request as "more like a fishing expedition than...some kind of targeted investigation." == Implementation by government agencies ==

Starting in 2012, the Federal government job title Government Information Specialist was established for professionals focused on FOIA or privacy matters. Agencies sometimes track or process FOIA requests on websites or systems shared across organizations, such as FOIA.gov and eFOIA. == See also ==