By Sandra F. Chance, Esq.
Associate Professor in Journalism
Executive Director, Brechner Center for Freedom of Information
University of Florida

Updated June 2005

Introduction to Federal Access Laws

I. The Freedom of Information Act
A. History
B. Overview of the FOIA
C. FOIA Caveat
D. FOIA Exemptions
E. The Electronic FOIA
F. Access in an Age of Terrorism
G. Privacy Concerns
H. New Legislative Initiatives

Tips on Getting Access to Records
Appendix A: Sample FOIA request letter
Appendix B: Sample Administrative Appeal Letter
Appendix C: Selective List of Federal Agencies Frequently Receiving FOIA Requests

Introduction to Federal Access Laws

Freedom of information is one of the one of the bedrock principles of democratic self governance and is a cornerstone of our democracy. James Madison, one of the United States’ founding fathers and strong proponent of the Bill of Rights, said: “A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.”

Freedom of information laws codify the concept that the business of government is the “public’s business” and that the people have a “right to know” what their government is doing. These laws, often referred to as the “public’s right to know” laws, give citizens access to information about their government, helping inform the citizenry and protects against government corruption, inefficiency and waste.

The policy of public access to the government’s business can be traced back to the writings of those instrumental in the American Revolution and the founding of the new democracy. The principle that the government served the people and that it existed only with the knowledge and consent of the governed was encapsulated in the formation of the government and the Bill of Rights. The laws are based on the underlying principle that government business is the public’s business. Therefore, people have a fundamental right of access to that process and the information and records related to it.

I. The Freedom of Information Act

A. History

The FOIA is the outgrowth of the Administrative Proce­dure Act of 1946. That Act was, in turn, a response to the explosive growth of government that began during the 1930s. The emergence of highly specialized, independent regulatory agencies, like the Fed­eral Trade Commission, and the agencies of the executive branch, like the Depart­ment of Education, triggered fears not just about secrecy but about incomprehensibility. Each of the new agencies had its own rules and procedures, causing many to feel out of touch with government.

The Administrative Procedure Act attempted to restore a sense of order to government by standardizing the proce­dures used to adopt and enforce rules and by making sure those procedures were accessible to the public. Though this was a considerable im­provement, particularly for those regu­larly doing business with an agency, in another sense it failed because of its focus on how things were done, rather than on what was being done and why. And agencies re­mained largely their own judges of how well they complied with the act.

In response to these problems and the swelling interest in the public’s right to know, the Administrative Procedure Act was amended in 1966 by the Freedom of Information Act. For the first time, the public had a clear right of access to records of the execu­tive and administrative agencies of government. In contrast to the common law, the legal bur­den was on the government to justify withholding, not on the requester to justify release.

Some agencies adopted tactics to undermine the law: The ex­emptions were given sweeping interpretations; fees for finding, copying and segregating exempt from non-ex­empt material were exorbitant; long delays became routine; and agencies claimed they couldn’t find the requested in­formation. As a result, the act was extensively amended in 1974. The changes sought to ensure com­pliance, for ex­ample, by limiting the fees agencies could charge to actual costs, expediting the scheduling of FOIA cases and allowing a wrongly denied requester to recover attorney’s fees from the agency. The act was again amended in 1976,1986 and again in 1996.

The FOIA is critical to the work that journalists do, providing a wealth of information regarding the policies and actions of government. Journalists and scholars have used the act to reveal vital information affecting the public’s health and safety, government waste, inefficiency and, occasionally, misconduct. Reporters have successfully used FOIA to learn about crimes committed in the United States by those with diplomatic immunity, cost overruns of defense contractors, and terrorist activities.

The Internet has dramatically altered the way the public and reporters access information. The federal government maintains hundreds of web sites and FOIA requires that agencies post records likely to be requested frequently in “electronic reading rooms” so that anyone can easily access them.

B. Overview of the FOIA

Anyone, anywhere, for any reason can request information from the government under FOIA. That includes individuals, including foreign citizens, partnerships, corporations, associations, and domestic or foreign governments. The Act has different categories of requesters, which determines fees and fee waivers. FOIA outlines the procedures for requesting records and appealing decisions, if the information is denied. It also establishes the right to judicial remedies if an agency does not comply with the law.

FOIA applies to all 15 departments and 73 other federal agencies, like the Environmental Protection Agency, in the executive branch of the government. The Act also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President or his immediate staff, Congress or the federal courts. In general, it requires these agencies make their records available for inspection and copying unless the records fall into one of nine categories.

Some information must be published by an agency — state­ments of its organization, functions, procedures and rules, for ex­ample, and steps one must take to obtain in­formation, including copies of decisions. Many agencies, in­cluding all those of special interest to communications law, have public reading rooms where this and other information is available.

Other agency records must be specifically requested. The FOIA does not define “agency record,” but judicial interpre­tations are so broad as to include almost anything contain­ing information, so long as it was created by and is under control of the agency. Audio tapes and computer disks, as well as written materials, are agency records. Some records — appointment books, calendars and tele­phone logs, for example — may exist only for the convenience of individual employees. These aren’t agency records. And the FOIA does not require an agency to create a document that does not ex­ist.

The FOIA requires that a record be “reasonably de­scribed” by a requester so it can be located. An agency can charge reasonable search and copying fees. There are standard fee schedules, but in­dividual requirements vary, so a requester should ask for an esti­mate of costs. The law authorizes waivers for educational and non-commercial sci­entific institutions and for the news media when the re­quested information will “contribute significantly to public understanding of the operation or activities of Government.” To qualify for consideration, a requester will have to explain the pur­pose of the request, something not otherwise re­quired.

Though the FOIA requires a quick response to a request, sub­stantive compliance — the production of the record or specific grounds for denial — can take months or even years. Some federal agencies insist they are overwhelmed by requests.

In 2003, the federal government reported it received more than 3.2 million requests for information under FOIA, a 36 percent increase over the previous year. Stephen Gidiere, Freedom of Information Act Keeps Door Open, The Commercial Appeal, Mar. 15, 2005, at B5. Contrary to a popular belief, journalists use the FOIA relatively infre­quently. In reality, the FOIA is a tool for com­panies to snoop on each other, with an estimated 75 percent of all FOIA requests coming from corporations. The FBI reported that requests from the news media made up less than three percent of the total requests. Tony Mauro, FOIA: A Good Idea Changing With the Times, First Amendment News, Sept. 1996, at 6.

If a request is ultimately refused, the FOIA provides for an ad­ministrative appeal to the head of the agency and then to U.S. Dis­trict Court. There are hundreds of judicial decisions resolving FOIA disputes. The legal burden of justi­fying secrecy is on the agency. A court can — but is not re­quired to — order the govern­ment to pay attorneys’ fees if a requester “substantially prevails.”

C. FOIA Caveat

How well it works, of course, isn’t measured strictly by what it says or how courts interpret it. The attitude of gov­ernment leader­ship can be a powerful influence on the practical, day-to-day func­tioning of the FOIA. In contrast to its predecessors, the Clinton Administration did a lot, at least on paper, to encourage agencies to comply with the spirit, as well as the letter, of the FOIA.

In 1993, for example, the attorney general reversed the previous administration’s policy and ordered agencies to presume that a requested document should be disclosed, rather than search for an exemption under which to hide it. The Office of Management and Budget now assists agen­cies in making their information available, particularly with electronic access. And in 1995, President Clinton issued a long-awaited executive order that sharply re­duced the number of documents that may be classified for na­tional security. Clin­ton said his order would “lift the veil” on mil­lions of docu­ments and keep others from ever becoming classi­fied. The New York Times characterized it as the least secretive pol­icy on government records since the beginning of the Cold War. Douglas Jehl, Clinton Revamps Policy on Secrecy of U.S. Documents, N.Y. Times, April 18, 1995, at A1.

Despite this “presumption of openness” promised by Clinton’s order on classification in 1995, the gov­ernment, four years later, succeeded in its efforts to keep a docu­ment secret, taking the case all the way to the Su­preme Court. See United States v. Weatherhead, 528 U.S. 1042 (1999). By granting certiorari and rul­ing on the sub­stantive issues, the Supreme Court was poised to inter­pret the na­tional security exemption to FOIA for the first time. In an unusual decision, it vacated the appel­late court’s ruling before the oral arguments were even heard. As a re­sult, the Court deferred to the government’s unsub­stanti­ated claim that national security would be dam­aged and set the tone for increased gov­ernmental discre­tion over release of information.

United States v. Wea­therhead was the second case in three years in which the Supreme Court set aside an appellate court ruling fa­vorable to a requester without a hearing, The first was Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355 (1997). and it continued a line of cases narrowing what the act is meant to do and, thus, the kinds of records it makes available. In a key FOIA case, for example, Justice John Paul Stevens wrote for the majority:

[T]he basic purpose of the Freedom of Information Act [is] to open agency action to the light of public scrutiny.... Official in­for­mation that sheds light on an agency’s per­formance of its statu­tory duties fall squarely within that statutory purpose. That pur­pose, however, is not fostered by disclosure of infor­mation about private citizens that is accumulated in various government files but that reveals little or nothing about an agency’s own conduct. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989).

For many, this view is unsupported by the language of the statute. Justice Ruth Bader Ginsburg observed in another leading case that the “‘core purpose’ limitation is not found in FOIA’s lan­guage. A FOIA requester need not show that ... disclosure would serve any public purpose, let alone a ‘core purpose’ of ‘opening agency action to the light of public scrutiny’ or advancing ‘public understanding of the opera­tions of activities of the govern­ment.’” Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 507 (1994).

Advocates of an expansive interpretation of the FOIA ar­gue that the law’s purpose is the discovery of truth. The more restrictive view is often based on the argument that the purpose of the FOIA is only to disclose the final actions of government. The law itself con­­tains no statement of pur­pose, leaving plenty of room for in­terpre­tation.

D. FOIA Exemptions

An agency may withhold a record under the FOIA only if it is cov­ered by at least one of the act’s nine exemptions. Even in those cases, it is never required to withhold the record. The exemptions are discretionary; although other laws may require secrecy, the FOIA never does. Moreover, if part of a document is legitimately exempt from required disclosure and the remainder is not, the custodian must re­lease the non-exempt portion if, in the words of the law, it is “reasonably segregable.”

Exemption 1: National Security. This exemption autho­rizes the president to make and enforce rules to keep in­formation se­cret in the interest of national defense or for­eign policy. These rules are established by an executive or­der without congressional involvement. While the president has leeway to decide what doc­uments should be protected, the order must make plain both the procedures for classify­ing and declassifying and the underlying cri­teria for deter­mining whether any specific document should be classified.

This exemption has become one of the most important weapons in the war on terrorism, as President Bush institutes new rules and issues new executive orders classifying massive amounts of information in the name of national security. Under Executive Order No. 13292, §§ 1.4 (a) to (h), information may not be considered for classification unless it concerns one of the following categories:

● military plans, weapons systems, or operations;
● foreign government information;
● intelligence activities (including special activities), intelligence sources or methods, or cryptology;
● foreign relations or foreign activities of the United States, including confidential sources;
● scientific, technological, or economic matters relating to the national security;
● United States Government programs for safeguarding nuclear materials or facilities; or
● vulnerabilities or capabilities of systems, installations, projects, or plans relating to national security, or
● weapons of mass destruction.

However, some ar­gue that the new orders cover more than national security mat­ters. For instance, many people do not associate national security with trade agreements. However, under a new presidential execu­tive order, any document received from a foreign government “is presumed to cause damage to the national security” and will not be subject to release. Exec. Order No. 13,292, 68 C.F.R. 15,315 (2003), available at http:// www.whitehouse.gov/news/releases/2003/03/20030325-11.html. This is not un­expected; administra­tions since that of George Washington have withheld information claim­ing national security con­cerns. Even the most outspoken advo­cates of public access concede that the release of certain in­forma­tion would be devastating for the country. But national se­curity has also been used to shield misconduct or incompetence from pub­lic view.

As originally enacted, the exemption gave the executive branch virtually blanket authority to classify information in the interest of national security or foreign policy. In 1973, for example, the Supreme Court held that the mere fact that the administration had classified a document was enough to justify withholding the doc­ument. Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). The FOIA, it ruled, just did not allow a national security classifi­cation to be challenged. Partly in response to that decision, Exemption 1 was amended in 1974 to permit a court to examine a document in private to determine whether it should be released. The amendment also allowed courts to order the release of non-classified portions of otherwise properly classified docu­ments, that is, segregating portions of a document.

Courts today scrutinize agency actions closely to see whether the government follows its own procedures to clas­sify documents. But they remain reluctant to overrule gov­ernment experts as to whether the release of a particular document would threaten na­tional security. Given the po­tential consequences of a mistake, the line between infor­mation that is safe and that which is harmful may be too fine for courts to draw with confidence. The Clinton Admin­istration, for example, refused to disclose details of a $25 million telephone system at the White House. Would disclo­sure expose national secrets? Or extravagance? Or both.

Exemption 2: Administrative Documents. This exempts from required disclosure routine and insignificant matters that are “related solely to the internal personnel rules and practices of an agency.” And, though the decisions of lower courts are not uni­form, the exemption also protects agency manuals and rules — such as law enforcement manuals — if their release would help people evade the law. (Materials like these are often also exempt under Exemption 7, law enforcement records.)

The exemption protects routine administrative docu­ments, such as rules about lunch hours or sick leave, be­cause it would be burdensome for an agency to assemble and maintain the material for public inspection, and the public wouldn’t reasonably be ex­pected to have an interest. On the other hand, the mere fact that an FOIA request has been made is evidence that information is not of interest solely to an agency.

Some agencies attempt to use Exemption 2 to conceal signifi­cant information. The leading case is Air Force v. Rose, 425 U.S. 352 (1976). in which the Supreme Court rejected the contention that summaries of hearings concerning violations of the Air Force Academy Honor and Ethics Code were merely inter­nal personnel matters. The Court found there was enough legitimate public interest in the in­tegrity of its military academies to remove the records from the shield of this exemption.

Exemption 3: Information Exempted by Other Statutes. This exempts from required disclo­sure records that are “specifically exempted from dis­closure by statute ... provided that such statute (a) requires that matter be withheld from the public in such a manner as to leave no discre­tion on the issue, or (b) establishes particular criteria for withhold­ing or refers to particular types of matters to be withheld.” An ex­ample is 50 U.S.C. sec. 403(g), under which the Central Intelligence Agency is not required to disclose its organization, functions, names, offi­cial titles, salaries or number of personnel employed. There are probably hundreds of statutes that authorize withhold­ing. A complete list isn’t available.

This exemption applies only to statutes and not to agency rules and regulations. Thus, an agency can’t exempt itself; only Con­gress can do that. Similarly, an agency can­not invoke the ex­emp­tion because a state law may protect certain records. A U.S. Court of Appeals has held that state juvenile records in posses­sion of federal authorities could not be withheld under this ex­emption because the federal law protected only federal juvenile delinquency proceedings from disclosure. McDonnell v. United States, 4 F.3d 1227 (3rd Cir. 1994). A record exempt from disclosure under state law may be available under the FOIA. The opposite may also be true.

As with all FOIA exemptions, the government bears the burden of proving that the requested records fall within the exemption. Accordingly, the government must prepare a detailed Vaughn index. The Vaughn procedures were established to challenge the government’s claims of exemption without compromising the confidential nature of the requested records, in Vaughn v. Rosen. 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The Vaughn procedures require the government to provide the FOIA plaintiff and the court with an itemized “index” of the withheld records, including descriptions and justifications for withholding the records, correlating each exemption the government asserts protects the information from being released.

Exemption 4: Trade Secrets. This exemption protects “trade secrets and commercial or financial information” that individuals and businesses supply to government. For Ex­emption 4 to apply, the information must be commercially valuable, actually used in a trade or business and main­tained in secret.

The idea is to protect the competitive positions of those who submit confidential information to the government. If companies that voluntarily submit information cannot de­pend upon it being held in confidence, they may refuse to cooperate, and govern­ment’s ability to get information will be impaired. When the gov­ern­ment compels production of the information, the rationale be­comes strained, and this exemption would seem not to apply.

This distinction was muddied, however, by a 1992 case in which the Court of Appeals for the District of Columbia held that when a company submits information voluntarily, even if the government could have compelled disclosure, the in­formation enjoys exempt status. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc). This decision has been criticized, for it seems to invite collusion between an agency and a business when neither wants the information to be made public. An agency and a business sim­ply agree to vol­untary submission, undermining a line of cases that refused to recognize an agency’s pledge of confidentiality as a sub­stitute for meeting the standards of Exemption 4. Whether the other circuits will follow this court’s lead is unknown. But because of the number of FOIA cases it decides due to its location in the District of Columbia, and the expertise it has developed in this area, the FOIA decisions of the D.C. Cir­cuit merit special atten­tion. They are highly influential.

Businesses themselves sometimes try to protect their in­terests in secrecy through “reverse FOIA” suits. In these, a business that has provided information to the government sues the government to stop it from making the informa­tion public. Reverse FOIA suits only involve information that falls into an exempt category, usually Exemption 4, and that the government has the discretion to re­lease. These suits challenge the release as an abuse of discretion.

Exemption 5: Inter- and Intra-Agency Memoranda. The exemption protects agency memoranda or letters and reflects sev­eral common law privileges. Under the common law, some com­munications are privileged, that is, protected from forced disclo­sure by a court. These privileges seek to protect some larger pur­pose. The attorney-client privilege, for example, is said to make the criminal justice system function better, even though it may create injustices in a particular case by denying access to some evidence.

Because of the privileges, Exemption 5 is probably the most complex and, some would argue, the most important exemption: More than 95 percent of all documents are inter- or intra-agency memoranda.

The exemption protects the deliberative process of gov­ernment that leads to a decision — candid advice and rec­ommendations or the open exchange of ideas — in what is called “executive privi­lege.” The exemption doesn’t apply to the final decisions and opin­ions themselves, and it doesn’t apply to statements of policy and instructions to staff that affect the public.

In deciding whether the privilege is applicable, courts ex­amine whether a particular “pre-decisional” document is “so candid and personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency,” whether it is in the form of a recom­mendation or a draft and whether it considers the “pros and cons ... of one view-point or another.” Coastal States Gas Corp. v. Dep’t of Energy, 644 F.2d 854, 866 (D.C. Cir. 1980).

The privilege protects only opinions, not factual informa­tion. The distinction between fact and opinion, however, isn’t always self-evident and can’t be made mechanically. Some­times the factual component of a document is so merged with the deliberative component that it cannot be segre­gated. The D.C. Court of Ap­peals, for example, held that factual material about former United Nations Secretary General Kurt Waldheim was not required to be disclosed under Exemption 5. Mapother v. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1993). The department was considering whether to exclude Waldheim as an undesirable alien in light of his alleged activities in World War II. The discre­tionary selection of material from a large number of primary documents, the court said, revealed significant insights into the Department of Justice’s deliberations. In contrast, a complete chronological account of Walheim’s military ser­vice was not exempt since it did not suggest the thinking of the decision-makers.

The Supreme Court decided an important FOIA case in­volving Exemption 5 in March 2001. In Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). it unani­mously ruled in favor of public disclosure of correspondence be­tween American Indian tribes and the Department of the Interior. The case involved a dispute over water rights in the Klamath River Basin in Oregon and California.

Water users, competing with a handful of Native Ameri­can tribes for water use rights, filed FOIA requests for doc­uments the tribes had turned over to the Bureau of Indian Affairs in the Interior De­partment. The government denied the request, saying the papers were inter-agency memo­randa and should be withheld from the public under Ex­emption 5. The Court reiterated several of its ear­lier FOIA rulings, stating that the “limited exemptions do not ob­scure the basic policy that disclosure, not secrecy, is the domi­nant objective of the Act.” Id. at 8 (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). It also pointed out that FOIA man­dates a “general philosophy of full agency disclo­sure,” which would “help ensure an informed citizenry, vital to the func­tioning of a democratic society.” Id. at 16 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1987)).

In addition to executive privilege, Exemption 5 incorpo­rates several other common law privileges, including attor­ney-client con­fidences and a lawyer’s work product — docu­ments prepared in anticipation of actual or foreseeable liti­gation. But courts also have cited lesser-known privileges, including, for example, one that pro­tects commercial infor­mation created by government itself if its disclosure would put the government at a competitive disadvan­tage in, say, contract negotiations.

Exemption 6: Personal Privacy. This exemption protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Congress enacted the exemption to pro­tect intimate and personal details in government files. No specific kinds of files are categorically exempt, though some are more likely to contain the sort of highly intimate, per­sonal information the exemption is de­signed to protect.

The substantive test for Exemption 6 requires a “balancing of the individual’s right of privacy against the preservation of the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’” Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1975); accord Dep’t of State v. Ray, 502 U.S. 164 (1991). In a series of cases, the courts have held that the statute “instructs the court to tilt the balance in favor of disclosure.” Getman v. NLRB, 450 F.2d 670, 674 (D.C. Cir. 1971); stay denied, 404 U.S. 1204 (1971); Rose, 425 U.S. at 378 n. 16; 841 F.2d 1459, 1453 (9th Dir. 1988).

The term “similar files” has been interpreted broadly. One appel­late court, for example, held that the voice recordings of the crew in the Challenger rocket was a “similar file” since the tape revealed personal information about particular indi­vid­uals. New York Times Co. v. NASA, 920 F.2d 1002 (D.C. Cir. 1990) (en banc). The tapes contained the final radio transmissions be­fore the rocket exploded, killing everyone on board.

Some decisions, however, have hardly concerned the sort of records usually associated with medical and per­sonnel records. In Department of Defense v. FLRA, 510 U.S. 487 (1994). for example, two unions sought the home addresses of cer­tain federal employees. The privacy interest at stake was that of individuals not wanting to be bothered at home with work-related matters.

The Supreme Court reversed a lower court that had or­dered re­lease of those addresses. It balanced the compet­ing interests and found that if the privacy interest of the employees was slight, the weight on the public interest side of the judicial balance beam was even slighter. Disclosure of home addresses would not shed ap­preciable light on gov­ernment operations or activities. With this case, the Court has instructed lower courts to consider only the broad pur­pose of the FOIA in striking a balance — to what extent does disclosure enlighten the public about the operations of gov­ernment? The particular purpose of the requester is ir­relevant. Compare this categorical kind of balancing with that of the com­mon law, which may consider the particular use to which the in­formation will be put.

Exemption 7: Law Enforcement Records. The purpose of this exemption is to protect law enforcement records and other in­formation whose disclosure would jeopardize present and future investigations. This could happen because the details of a specific investigation were released, or because of the release of general in­vestigative techniques or policies. The exemption also protects the physical safety of officials, informants and others in the crimi­nal justice system.

As originally enacted, the exemption applied to “investi­ga­tory files compiled for law enforcement purposes.” Courts in­terpreted that to give a blanket exemption to any file that met the threshold test of being “investigatory.” In one case, a court ruled that, even though there was no on-going or contemplated law enforcement proceeding, an analysis of the bullet that killed President John F. Kennedy was ex­empt because it remained part of an “investi­ga­tory” file. Wiesberg v. Dep’t of Justice, 489 F.2d 1195 (D.C. Cir. 1973).

Congress narrowed the exemption in 1976 to avoid re­sults like that. First, it limited withholding only to situations where release would cause any of several specific kinds of harm, disclosure of the identity of a confidential source, for example. Second, it al­lowed only the withholding of records, not entire files. Authorities had often withheld an entire file even if only one record in the file contained exempt mate­rial. One result of this amendment was to give historians and others access to a wealth of important material — such as that related to executed spies Julius and Ethel Rosen­berg — that had remained sealed for decades as an “investigatory file.” Agencies complained that the amend­ment went too far in the other direction and no longer gave adequate protection to some sensitive law enforcement in­formation, particularly training manu­als and other non-in­vestigatory materials. So the exemption was again amended in 1986.

For a record to be exempt from required disclosure, a two-part test must be met. First, it must be determined that the records or information were compiled for “law enforce­ment purposes.” This includes more than investigatory rec­ords; training manuals, for ex­ample, are exempt.

The Supreme Court answered one crucial question in 1989: Could an agency invoke Exemption 7 to deny access to informa­tion that was originally compiled for a purpose other than law en­forcement but was later assembled for a criminal investigation? A majority of the Court said it could; the language of the statute did not require the original pur­pose of the information to be con­sid­ered. John Doe Agency v. John Doe Corp., 492 U.S. 146 (1989). Justice Antonin Scalia dissented, arguing that the major­ity focused too tightly on the words of the law. He complained that the de­cision allows the policy behind the exemption to be “readily evaded (or [made] illusory) if it requires nothing more than gather­ing up documents the government does not wish to disclose, with a plausible law-enforcement purpose in mind. This is a hole one can drive a truck through.” Id. at 163 (Scalia, J., dissenting).

Whether the information is compiled for law enforcement pur­poses is only the first part of the test. For the exemption to apply, it must also be shown that release of the informa­tion “could rea­sonably be expected to cause” one of six specific kinds of harm. Four are not controversial and have received little judicial atten­tion. They are the following:

· the withholding of records when disclosure would deny a per­son a right to a fair trial or impartial adjudication;
● withholding of information that would “endanger the life or physical safety” of an individual;
· withholding of records that would disclose law en­force­ment techniques, guidelines and procedures “if such dis­closure could reasonably be expected to risk circumven­tion” of the law; and
· withholding records that protect the identities of con­fi­dential sources so long as there is a mutual expectation of a confiden­tial relationship.

The remaining categories produce much litigation and confu­sion. One allows withholding if disclosure could “inter­fere with en­forcement proceedings.” If enforcement pro­ceed­ings are over, how­ever, or if none are on the hori­zon, this exemption shouldn’t apply. Nonetheless, some agencies claim the exemption on the ba­sis that a case may arise or be reopened.

Records or information may also be withheld if their re­lease could “reasonably be expected to constitute an unwar­ranted inva­sion of personal privacy.” This exemption is simi­lar to Exemption 6 in that a balancing of the privacy inter­est and the public interest is required. A comparison of the wording of the two exemptions suggests that privacy inter­ests should receive greater weight here. Before the privacy interest prevails in Exemption 6, the intrusion must be “clearly unwarranted.” Here it must only be “unwar­ranted.” In Department of Justice v. Reporters Committee for Free­dom of the Press, the Court held that a request for infor­ma­tion about a person’s criminal history was unwarranted since it shed little light on “public understanding of the op­erations or ac­tivities of government.” 489 U.S. 749, 775 (1989).

The case is important, not just for an explanation of the sub­stantive test to be used here, but for the insights it pro­vides about the Court’s attitude toward electronic data. Most of the records the Reporters Committee sought were available in one place or another in the form of accessible, traditional, paper records. Get­ting them would require a lot of leg work. The federal government had them all in one place — a computer. But the Court said the records, in elec­tronic form, were qualitatively different; the power of the computer to assemble and manipulate the data held vastly greater potential to violate personal privacy.

In 2004, the U.S. Supreme Court decided another important FOIA case involving the conflict between access and privacy and ruled in favor of “survivor privacy” in National Archives and Records Administration v. Favish. 124 S. Ct. 1570 (2004). California attorney Allan Favish sued for access to photos taken at the death scene of former top aide to President Bill Clinton, Vince Foster. The Court held exemption 7© allowed the government to withhold documents that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. at 1580. The Court ruled that survivors of deceased person could assert a privacy interest in “their own piece of mind and tranquility.” Id. at 1577.

The government has interpreted Favish broadly, advising federal agencies to “take heed of the Court’s explicit recognition in Favish that unfortunately today’s ‘sensation-seeking culture’ breeds the potential for ‘unwarranted public exploitation’ of FOIA-disclosed records.” U.S. Dept. of Justice FOIA Post,, available at http://www.usdoj.gov/oip/foiapost/2004foiapost12.htm.

Exemption 8: Records of Financial Institutions. This ap­plies to records related to government supervision of fi­nancial in­stitutions such as banks and savings and loans. The purpose is to protect the security and integrity of fi­nancial institutions.

The primary purpose of Congress in adopting Exemption 8 was to “ensure the security of financial institutions” against the possibility that disclosure of examination, operation, and condition reports containing frank evaluations of the investigated banks might undermine public confidence and cause unwarranted runs of banks.” Consumers Union v. Heimann, 589 F.2d 531, 534 (D.C. Cir. 1978).

Exemption 9: This exemption applies to “geological and geo­physical infor­mation and data, including maps, concerning wells.” This exemp­tion pro­tects oil well data and has been criticized as a “Texas touch,” providing blanket protection for oil well materials. The Interior Department has cited it on occasion to apply to water wells.

E. The Electronic FOIA

Congress passed the Elec­tronic Freedom of Information Act Amendments in 1996, thirty years after the FOIA was passed. 5 U.S.C. § 552 (1996). The EFOIA guarantee that records maintained in computer databases are as accessible as paper records. Among other things, the law requires that agencies make regulations, opinions, policy statements and similar infor­mation available on-line, on CD-ROM or on computer disc. It also requires agencies to pro­vide information in the format requested whenever possi­ble. This provision was intended to overrule a 1983 federal district court deci­sion, Dismukes v. Dep’t of the Interior, 603 F. Supp. 760 (D.D.C. 1984), which held that agencies had no obligation to accommodate a requester’s preference for computer access as long as the information was available in a reasonably accessible form. And it allows reporters expedited access if they can demonstrate a “compelling need” for the federal records they request under FOIA. 5 U.S.C. § 552 (a)(6)(vi) (1996).

Agencies are now required to respond faster in two situa­tions: (1) when failure to obtain records can pose an immi­nent threat to an individual’s life or physical safety, and (2) when a request is made by a person “primarily engaged in disseminating information ... to inform the public concerning actual or alleged federal gov­ernment activity.” 5 U.S.C. § 552 (a)(6)(E)(v)(II) (1996). According to the new law, expedited access requests must be pro­cessed within ten days. In addition, the new law changes the time limit for other requests from ten to twenty days.

Ultimately, the EFOIA should also improve access to database searches. Agencies must make reasonable efforts to search for re­quested records in electronic form, except when a search would significantly interfere with agency in­formation. Programming cre­ated to facilitate a database search does not amount to the cre­ation of records. 5 U.S.C. § 552(a)(3)(C) (1996).

Commentators believe that the legislative history sur­rounding the new law may provide broader access to gov­ernmental informa­tion and limit the Supreme Court’s prob­lematic ruling in Depart­ment of Justice v. Reporters Com­mittee. 489 U.S. 749 (1989). In Reporters Commit­tee, the Supreme Court lim­ited access to governmental records that revealed informa­tion relevant to the agency’s “core purpose.” Access advo­cates, including those in Congress, disagreed with the Court’s decision. Congressional leaders indicated they crafted this FOIA amendment to address this restrictive view of access to pub­lic records.

“The purpose of the FOIA is to require agencies of the federal government to make records available to the public through pub­lic inspection and upon the request of any per­son for any public or private use,” according to the findings of the Senate. 5 U.S.C. § 522 (a)(2)(a) (1996). With this finding, Congress challenges the Supreme Court’s narrow inter­pretation of the purpose of FOIA in Reporters Committee.

In language intended to clarify the FOIA’s purpose, one of the bill’s sponsors, Democratic Senator Patrick Leahy of Vermont said:

The purpose of the FOIA is not limited to making agency records and information available to the public only in cases where such material would shed light on the activi­ties and op­erations of gov­ernment. Efforts by the courts to articulate a “core purpose” for which information should be released im­poses a limitation on the FOIA that Congress did not intend and that cannot be found in its language, and distorts the broader import of the Act in effec­tu­ating government open­ness. S. Rep. No. 104-272 (additional views of Sen. Patrick Leahy, at 23).

Many access advocates have been disappointed with the govern­ment’s response to the new amendments. Even with the new pro­visions, it is not unusual to wait for months or even years for a re­sponse. According to the National Security Archive's 2003 audit, processing times for FOIA requests are as high as 905 business days at the Department of Agriculture and 1,113 business days (more than four years) at the Environmental Protection Agency. Some requests have been pending for more than a decade, according to the study. Seth Porges, Reporters Run into FOIA Roadblocks: Freedom's Just Another Word?, Editor & Publisher, Dec. 2003, at 4. According to congressional tes­ti­mony offered by then executive director of the Re­porter’s Committee for Freedom of the Press, Jane Kirtley, “For the most part, federal agencies have missed their dead­lines for compliance with the Act in the same way they have been missing FOI deadlines for decades.” Government Reform and Oversight on the Implementation of the Elec­tronic Freedom of Information Act Amendments of 1996: Hearing before the Subcom­mittee on Government Management, Information and Technology of the House Committee on Government Reform and Oversight, 105th Cong., June 9, 1998 (statement by Jane Kirtley).
Agencies say they do the best they can with their re­sources.

For example, in 1997, the FBI spent $21 million a year and employed 300 peo­ple to process FOIA requisitions, which it receives at the rate of one per minute. Nancy Ferris, Virtual Records, Gov’t Executive, Aug. 1997, at 43.
Some agencies meet the time limits to respond to re­quests. Most do not. According to one estimate, the gov­ernment receives about 600,000 requests a year and spends an average of $500 to re­spond to each request. Ferris, supra note 57, at 57.

While the EFOIA has triggered major reforms in elec­tronic in­formation processing, including the development of numerous government-agency Web pages filled with useful information, the courts and executive branch have ignored the amendment’s find­ings intended to broaden FOIA’s use to serve “any public or pri­vate purpose.” See Government Reform, supra note 56.

While using the FOIA and EFOIA takes patience and many of its promises have yet to be fulfilled, many of the nation’s most impor­tant stories, including numerous Pulitzer Prize winners, have come from government documents ac­cessed through the FOIA. Important stories have focused on human rights violations, cor­ruption by public officials, work­place and aircraft accidents, bridge safety, cocaine traf­ficking, unsafe consumer products, serious health hazards and questionable research programs on hu­mans. FOI-Based Journalism, Quill, Sept. 1997, at 34-36.

F. Access in an Age of Terrorism

The terrorists’ attacks on in New York and Washington had an immediate impact on federal freedom of infor­mation September 11, 2001, laws and access to information. Following the attacks, President George W. Bush’s administration adopted numerous measures that increased government secrecy and restricted the public’s right to know. It is now more difficult to get information from federal agencies under FOIA, access information from gov­ernmental web sites and review presidential records.

A month after the attacks, Attorney General John Ashcroft is­sued an official memorandum directing agencies to withhold in­forma­tion from FOI requesters if there were any “sound legal ba­sis.” U.S. Dept. of Justice, Memorandum for Heads of All Federal Department and Agencies, available at http://www.usdoj.oip/foiapost/2001foiapost19. htm. See also Don Wycliff, Top Secret: Just Whose Government Is It?, Chi. Trib., Jan. 17, 2002, at 23. This action reversed a policy adopted during President Bill Clin­ton’s administration that created a presumption of “maximum re­sponsible disclosure of information.” Eric Sinrod, Defanging the Freedom of Information Act, N.Y. L.J., Jan. 22, 2002, at 5. Then Attorney General Janet Reno had instructed federal agencies not to use discre­tionary exemptions to FOIA unless they could point to a “fore­see­able harm” that would occur from disclosure. Office of the Attorney General, Memorandum for Heads of Departments and Agencies, available at http:///www.fas.org/sgp/clinton/reno.html. See also Tamara Lytle, White House Clamps Down on Information, Orlando Sent., Mar. 10, 2002, at A22. As a result, the presumption of openness to federal records was reversed and agencies were encouraged to withhold massive amounts of infor­mation formerly available to the public. See Jane Kirtley, Hiding Behind National Security, Am. Journ. Rev., Jan.-Feb. 2002, at 62.

On Nov. 19, 2002, Congress passed and President Bush signed the Homeland Security Act. P.L. 107-296, Sec. 214. One staunch FOI advocate, Sen. Patrick Leahy, called it “the most severe weakening of the Free­dom of Information Act in its 36-year history.” Dan Morgan, Disclosure Curbs in Homeland Bill Decried; Information From Companies at Issue, Wash. Post, Nov. 16. 2002, at A13. The act contains a provision that provides mandatory confidentiality for informa­tion submitted to the government by business. This section is de­signed to protect information about the vulnerabilities of the country’s critical infrastructure. The new act criminalizes agency disclosure of critical infrastructure information without the con­sent of the business. Companies that voluntarily share informa­tion with the government are guaranteed that the government will keep the information secret. In addition, they become immune from civil liability if the information reveals wrongdoing and immu­nity from antitrust suits for sharing the information with the gov­ernment and each other. Homeland Security Act of 2002, Pub. L. No. 107-296; 116 Stat. 2135 (2002) (codifying various new surveillance and security measures and creat­ing the Department of Homeland Security).

Citizen activists, public interest groups and environmental groups insisted that FOIA already protected against any legitimate risk of harmful disclosure. The groups argued, unsuccessfully, that knowing about vulnerabilities is the first step to correcting them. Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know (3d ed. 2003), available at http:// www.rcfp.org, at 55 (Mar. 2003).

The most notable FOIA case of 2002 had to do with information about potential terrorists and their supporters. A number of pub­lic interest groups filed suit to force the government to disclose the names of detainees arrested after September 11. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002). The federal appel­late court reversed a lower court’s decision, ruling the government did not have to release the information. “Both the Supreme Court and this Court have expressly recognized the propriety of defer­ence to the executive in the context of FOIA claims which impli­cate national security,” the court ruled. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003), 2003 U.S. App. LEXIS 11910, at 23.

Information available on the Internet was also severely limited fol­lowing the terrorists’ attacks. A number of federal agencies re­moved information from their Web sites, posting notices on the site that the information had been removed because of its possi­ble usefulness to terrorists. See Kevin Galvin, Wary Agencies Stem Flow of Information, Seattle Times, Dec. 11, 2001, at A1. OMB Watch, a Washington, D.C., group that encourages citizen participation and open government, reported that twenty-one online sources have been partially or completely shut down since September 11. Dale Dempsy, Databases Shut Down for Security; Federal Agencies Strive to Thwart Terror Attacks, Nov. 11, 2001, Dayton Daily News, Lexis.

“The atmosphere of terror induced public officials to abandon this country’s culture of openness and opt for secrecy as a way of ensuring safety and security,” according to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “No one has demonstrated however, that an ignorant society is a safe society,” she added. White House Embarked on Path of Secrecy After Sept. 11, Report Says, available at http://www.rcfp.org/2002/ 0315report.html (Mar. 15, 2002).

As a matter of public policy, many state and local gov­ernments are selling computer-generated data to pay for computer systems.

G. Privacy Concerns

The same power that makes electronic information so at­tractive to many private and commercial interests raises grave privacy con­cerns to others. Remember, the Supreme Court found a com­puter database to be much more than the sum of its parts. It was not the release of the individual rap sheet that the Court found to be an inva­sion of privacy — it was the vast power of the computer to ac­quire and manipulate the data. Privacy advocates are suc­cess­fully raising these issues in many states and at the fed­eral level.

In 1994, the U.S. Congress, concerned about protecting privacy, passed legislation that controls access to state gov­ernment records. The Drivers Protection Privacy Act is a complex federal statute that prevents public access to personal information in state drivers’ records. 18 U.S.C. § 2721-2725 (1994 & Supp. IV. 1998). The Act is filled with irony. Congress passed it following the 1989 death of Rebecca Schaeffer, who was killed by an obsessed fan. The fan hired a private investigator to obtain the ac­tress’s address by accessing her California motor ve­hicle record. The irony is that private investigators continue to have access to this information under the relatively new federal law.

The U.S. Supreme Court upheld the Drivers Protection Privacy Act in early 2000, ruling in Reno v. Condon that Congress has the authority to tell state governments not to release certain records otherwise available under state law. 528 U.S. 141 (2000). The federal statute had been challenged by the at­torney general of South Carolina, who argued that such a law violated the Tenth Amendment to the U.S. Consti­tution. The Tenth Amendment prohibits the federal government from intruding on the state’s right to govern themselves. In this case, the Court ruled that the DPPA was a valid exer­cise of con­gressional power. As a result, federal law trumps state law, and states that want to keep the records open must obey the federal mandate.

H. New Legislative Initiatives

Recognizing that in practice FOIA has not always lived up to the ideals of the Act, Congress began hearings this past spring to consider the Open Government Act of 2005. This bill is a bipartisan effort to achieve meaningful reforms to federal government information laws, including most notably the Freedom of Information Act, in order to improve the openness and accessibility of the federal government to the American people. The Act includes a number of congressional findings that reiterate that the Freedom of Information Act (“FOIA”) establishes a presumption of openness, and that our government is based not on the need to know but upon the fundamental right to know. The Act also contains over a dozen substantive provisions, designed to achieve the following four objectives:

(1) strengthen FOIA and close loopholes,;
(2) help FOIA requestors obtain timely responses to their requests;
(3) ensure that agencies have strong incentives to act on FOIA requests in a timely fashion, and
(4) provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible.

In addition, The Faster FOIA Act, which seeks to create a commission to recommend improvements in the processing of FOIA requests, was introduced in the Senate on March 11, 2005.

Access advocates will be monitoring, testifying and reporting on these legislative developments. A new organization, the Coalition for Journalists for Open Government, provides timely information on freedom of information issues and on what journalism organizations are doing to foster greater transparency in government. Pete Weitzel, longtime journalist in Florida, is the coalition’s coordinator. CJOG’s Web site is: www.cjog.net.


For additional information, contact:

Prof. Sandra Chance
The Brechner Center for Freedom of Information
College of Journalism and Communications
University of Florida
Gainesville, Florida 32611-8400
353-392-2273
schance@jou.ufl.edu
www.Brechner.org

Dear Sir or Madame:

This is a request under the Freedom of Information Act as amended (5 U.S.C. Sec. 522) on behalf of (name of news organization and ___________________ one of its reporters).

We request a copy of the following:

(Describe information requested as precisely as possible).

As you know, the Act provides that if some parts of a file are exempt, the "reasonably segregable" portions shall be provided. I, therefore, request that, if you determine that some portions of the requested information are exempt, you provide me immediately with a copy of the remainder of the information. I, of course, reserve my right to appeal any such decisions.

If you determine that some or all of the information is exempt from release, I ask you to advise me as to which exemption you believe covers the material which you are not releasing.

I am prepared to pay reasonable duplication fees for processing this request. I am willing to pay up to a maximum of $. If you estimate that the fees will exceed this limit, please inform me first.

As you know, the Act permits you to reduce or waive the fees if it "is in the public interest because furnishing the information can be considered as primarily benefiting the public." Since the information is sought for publication by (name of news organization), I believe that this request plainly fits that category and ask you to waive any fees.

If you have any questions regarding this request, please telephone me at _____________________.

As provided in the Act, I will expect to receive a reply within 20 business days, as the statute requires.

Sincerely,

RE: FREEDOM OF INFORMATION ACT APPEAL

Dear________________:

This is to appeal the denial of my request for information pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 522.

On ___________________________________ (date), I received a letter from ___________________ (individual's name) of your agency denying my request for access to _________________________ (description of information sought).

I am enclosing a copy of this denial along with a copy of my original request. I trust that an examination of these communications and the exemptions which are cited to deny my request will lead you to the conclusion that the information I am seeking should be disclosed.

However, even if the exemptions technically could be invoked, I urge you to release the requested information unless you determine that some demonstrable harm will occur as a result of disclosure.

(When agency delays) It has been (state number) of days since your agency received my request. This clearly exceeds the 20 days provided by statute, thus I deem my request denied. A copy of my correspondence and the postal form showing receipt by your office is also enclosed.

The information that I have requested is clearly releasable under the FOI Act.

I made this request in the capacity as a journalist. The information is timely and its release serves an important public policy. Therefore, I would appreciate your expediting the consideration of my appeal in every way possible. In any case, I will expect to receive your decision within 20 business days, as required under the statute.

Thank you for your assistance,

Sincerely,

Signature
Name
Address
City, State, Zip