Freedom of Information Act (United States)
Encyclopedia
The Freedom of Information Act (FOIA) is a federal freedom of information law
that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. It was signed into law by President Lyndon B. Johnson
on July 4, 1966 (Public Law 89-554, 80 Stat. 383; Amended 1996, 2002, 2007), and went into effect the following year.
However, due to the sensitivity of some government information and private interests, others believed that certain types of government information should remain secret. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974
additionally covered government documents charting individuals.
However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code
, section 552):
, President Gerald R. Ford wanted to sign Freedom of Information Act-strengthening amendments in the Privacy Act of 1974
, but concern (by his chief of staff Donald Rumsfeld
and deputy Richard Cheney) about leaks and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia
, among others) persuaded Ford to veto the bill, according to documents declassified
in 2004.
However, Congress voted to override Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.
These amendments to the FOIA regulate government control of documents which concern a citizen. It gives one “(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one’s] records unless specifically permitted by the Act.” In conjunction with the FOIA, the PA 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.
, Exemption 3 of the FOIA was amended so that several exemptions were specified:
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.
and other historical events to be discussed openly.
, drafted by Alberto R. Gonzales and issued by President George W. Bush
on November 1, 2001, restricted access to the records of former presidents.
This order was revoked on January 21, 2009, as part of President Barack Obama
's . Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act
.
legislation were amendments to the FOIA (pertaining mainly to intelligence agencies) entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments":
Section 552(a)(3) of title 5, United States Code, is amended:
(1) in subparagraph (A) by inserting "and except as provided in subparagraph (E)," after "of this subsection,"; and
(2) by adding at the end the following:
"(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to--
"(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or
"(ii) a representative of a government entity described in clause (i)."
In effect, this new language precluded any covered US 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 other-than-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.
The agencies affected by this amendment are those that are part of, or contain "an element of," the "intelligence community." As defined in the National Security Act of 1947 (as amended), they consist of the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office (and certain other reconnaissance offices within the Department of Defense), the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps, the Federal Bureau of Investigation, the Department of the Treasury, the Department of Energy, and the Coast Guard, the Department of Homeland Security, the Bureau of Intelligence and Research in the Department of State, and "such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and the head of the department or agency concerned, as an element of the intelligence community."
Changes include the following:
issued Executive Order 13526
, which allows the government to classify certain specific types of information relevant to national security
after it has been requested. 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.
s 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."
Congress is likely to readdress the issue after the 2010 elections
.
(FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research." This has also brought into question just how one can verify that they have been given complete records in response to a request.
. Of the 164 files and about eighteen thousand pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis and plaintiff, most notably one entire folder entitled the "White House Security Survey." Despite finding out that the Truman Library had an accessible file which documented all the reports of this folder, the FBI and Office of Information and Privacy it put forth "stony resistance" to the FOIA appeal process. (I–pg. 27) Some argue that it was not even this sixteen year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of Department of Justice v. Landano
which spurred on a break in stolid FBI opposition.
, involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor
wrote the unanimous opinion. "In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland
, 373 U.S. 83, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation."
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." Thus, when Theoharis and company were in the middle of fighting in court to obtain J. Edgar Hoover files, they may well have benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993
E-mail
In the case of Scott Armstrong, v. Executive Office of the President, et al., the White House
used the PROFS
computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran-Contra affair
(arms-for-hostages) under the Reagan
Administration were insulated. However, they were also backed up and transferred to paper memos. The National Security Council, on the eve of President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive
, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Records Administration
and the National Security Council's purging of PROFS records. A Temporary Restraining Order was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records. [ – pgs. 151-152]
Richey gave a further injunction to prevent a purging of the George .H.W. Bush's administration's records as well. On counts of leaving the White House clean for the new Clinton
Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency but a group of aides to the President and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office… or twelve years if the records [were] classified." [ – pg. 156] The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $9.3 million on contesting the National Security Archive FOIA requests for PROFS e-mail records. ( - pg. 159)
Freedom of information legislation
Freedom of information legislation comprises laws that guarantee access to data held by the state. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions...
that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. It was signed into law by President Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
on July 4, 1966 (Public Law 89-554, 80 Stat. 383; Amended 1996, 2002, 2007), and went into effect the following year.
Background
With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some thought it was necessary for government information to be available to the public.However, due to the sensitivity of some government information and private interests, others believed that certain types of government information should remain secret. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974
Privacy Act of 1974
The Privacy Act of 1974, 5 U.S.C. § 552a, Public Law No. 93-579, establishes a Code of Fair Information Practice that governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies...
additionally covered government documents charting individuals.
However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code
Title 5 of the United States Code
Title 5 of the United States Code outlines the role of government organization and employees in the United States Code. It also is the Title that specifies Federal holidays .* Part I: The Agencies Generally...
, section 552):
- (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;
- specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters 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; FOIA Exemption 3 StatutesFOIA Exemption 3 StatutesStatutes Found to Qualify under Exemption 3 of the U.S. Freedom of Information Act, 5 USC 552.- Limitations of the list :The U.S. Freedom of Information Act exemptions from release of information can be found at 5 USC 552. Exemption 3 to FOIA is cited as 5 USC 552 b. In FOIA responses it is...
- trade secrets and commercial or financial information obtained from a person and privileged or confidential;
- inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
- personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
- records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
- contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
- geological and geophysical information and data, including maps, concerning wells.
Scope
The act explicitly applies only to executive branch government agencies. These agencies are under 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. If “agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] 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, there are nine exemptions, ranging from a withholding “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.”FOIA amendments and related executive orders
The FOIA has been changed repeatedly by both the legislative and executive branches.The Privacy Act Amendments of 1974
Following the Watergate scandalWatergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
, President Gerald R. Ford wanted to sign Freedom of Information Act-strengthening amendments in the Privacy Act of 1974
Privacy Act of 1974
The Privacy Act of 1974, 5 U.S.C. § 552a, Public Law No. 93-579, establishes a Code of Fair Information Practice that governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies...
, but concern (by his chief of staff Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
and deputy Richard Cheney) about leaks and legal arguments that the bill was unconstitutional (by government lawyer Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, among others) persuaded Ford to veto the bill, according to documents declassified
Declassification
Declassification is the process of documents that formerly were classified as secret ceasing to be so restricted, often under the principle of freedom of information. Procedures for declassification vary by country...
in 2004.
However, Congress voted to override Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.
These amendments to the FOIA regulate government control of documents which concern a citizen. It gives one “(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one’s] records unless specifically permitted by the Act.” In conjunction with the FOIA, the PA 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.
The 1976 Government in the Sunshine Act amendments
In 1976, as part of the Government in the Sunshine ActGovernment in the Sunshine Act
The Government in the Sunshine Act is a US law passed in 1976 which affects the operations of the federal government, Congress, Federal Commissions, and other legally constituted federal bodies...
, 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 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.
The 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 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 WarCold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
and other historical events to be discussed openly.
The Electronic Freedom of Information Act Amendments of 1996
The Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) stated that all agencies are required by statute to make certain types of records, created by the agency on or after November 1, 1996, available electronically. Agencies must also provide electronic reading rooms for citizens to use to have access to records. Given the large volume of records and limited resources, the amendment also extended the agencies' required response time to FOIA requests. Formerly, the response time was ten days and the amendment extended it to twenty days.2001 Executive Order limiting the FOIA
Executive Order 13233Executive Order 13233
Executive Order 13233 limited access to the records of former United States Presidents. It was drafted by then White House Counsel Alberto Gonzales and issued by George W. Bush on November 1, 2001...
, drafted by Alberto R. Gonzales and issued by President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on November 1, 2001, restricted access to the records of former presidents.
This order was revoked on January 21, 2009, as part of President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
's . Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act
Presidential Records Act
The Presidential Records Act of 1978, , is an Act of Congress of the United States governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential records...
.
The Intelligence Authorization Act of 2002 amending the FOIA
In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Public Law 107-306. Within this omnibusOmnibus bill
An omnibus bill is a proposed law that covers a number of diverse or unrelated topics. Omnibus is derived from Latin and means "for everything"...
legislation were amendments to the FOIA (pertaining mainly to intelligence agencies) entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments":
Section 552(a)(3) of title 5, United States Code, is amended:
(1) in subparagraph (A) by inserting "and except as provided in subparagraph (E)," after "of this subsection,"; and
(2) by adding at the end the following:
"(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to--
"(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or
"(ii) a representative of a government entity described in clause (i)."
In effect, this new language precluded any covered US 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 other-than-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.
The agencies affected by this amendment are those that are part of, or contain "an element of," the "intelligence community." As defined in the National Security Act of 1947 (as amended), they consist of the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office (and certain other reconnaissance offices within the Department of Defense), the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps, the Federal Bureau of Investigation, the Department of the Treasury, the Department of Energy, and the Coast Guard, the Department of Homeland Security, the Bureau of Intelligence and Research in the Department of State, and "such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and the head of the department or agency concerned, as an element of the intelligence community."
OPEN Government Act of 2007
President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007 on December 31, 2007. This law, also known as public law 110–175 and 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 in the National Archives and Records AdministrationNational Archives and Records AdministrationThe National Archives and Records Administration is an independent agency of the United States government charged with preserving and documenting government and historical records and with increasing public access to those documents, which comprise the National Archives...
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 which will offer mediation services to resolve disputes as non-exclusive alternative to litigation.
- it requires agencies to make recommendations personnel matters related to FOIA such as whether FOIA performance should be used as a merit factor.
- it requires agencies to specify the specific exemption for each deletion or redactionRedactionRedaction is a form of editing in which multiple source texts are combined and subjected to minor alteration to make them into a single work. Often this is a method of collecting a series of writings on a similar theme and creating a definitive and coherent work...
in disclosed documents.
2009 Executive Order permitting retroactive classification
On December 29, 2009, President Barack ObamaBarack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
issued Executive Order 13526
Executive Order 13526
Executive Order 13526 was enacted on December 29, 2009 by United States President Barack Obama. It is the latest in a series of executive orders from US Presidents outlining how classified information should be handled...
, which allows the government to classify certain specific types of information relevant to national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
after it has been requested. 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 secretTrade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
s 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
Securities Exchange Act of 1934
The Securities Exchange Act of 1934 , , codified at et seq., is a law governing the secondary trading of securities in the United States of America. It was a sweeping piece of legislation...
, the Investment Company Act of 1940
Investment Company Act of 1940
The Investment Company Act of 1940 is an act of Congress. It was passed as a United States Public Law on August 22, 1940, and is codified at through . Along with the Securities Exchange Act of 1934 and Investment Advisers Act of 1940, and extensive rules issued by the Securities and Exchange...
, and the Investment Advisers Act of 1940
Investment Advisers Act of 1940
The Investment Advisers Act of 1940, codified at through , is a United States federal law that was created to regulate the actions of investment advisers as defined by the law.-Overview:The law provides in part:-Contents:...
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."
Congress is likely to readdress the issue after the 2010 elections
United States elections, 2010
The 2010 United States elections were held on Tuesday, November 2, 2010. During this midterm election year, all 435 seats in the United States House of Representatives and 37 of the 100 seats in the United States Senate were contested in this election along with 38 state and territorial...
.
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 InvestigationFederal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
(FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research." This has also brought into question just how one can verify that they have been given complete records in response to a request.
J. Edgar Hoover
This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar HooverJ. Edgar Hoover
John Edgar Hoover was the first Director of the Federal Bureau of Investigation of the United States. Appointed director of the Bureau of Investigation—predecessor to the FBI—in 1924, he was instrumental in founding the FBI in 1935, where he remained director until his death in 1972...
. Of the 164 files and about eighteen thousand pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis and plaintiff, most notably one entire folder entitled the "White House Security Survey." Despite finding out that the Truman Library had an accessible file which documented all the reports of this folder, the FBI and Office of Information and Privacy it put forth "stony resistance" to the FOIA appeal process. (I–pg. 27) Some argue that it was not even this sixteen year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of Department of Justice v. Landano
Department of Justice v. Landano
Department of Justice v. Landano, 508 U.S. 165 was a case in which the Supreme Court of the United States set limits on the federal government's ability to use the exemptions in the Freedom of Information Act...
which spurred on a break in stolid FBI opposition.
Murder trial
A murder trial decided in 1993, Department of Justice v. LandanoDepartment of Justice v. Landano
Department of Justice v. Landano, 508 U.S. 165 was a case in which the Supreme Court of the United States set limits on the federal government's ability to use the exemptions in the Freedom of Information Act...
, involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
wrote the unanimous opinion. "In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland
Brady v. Maryland
Brady v. Maryland, 373 U.S. 83 , was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United...
, 373 U.S. 83, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation."
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." Thus, when Theoharis and company were in the middle of fighting in court to obtain J. Edgar Hoover files, they may well have benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
used the PROFS
OfficeVision
OfficeVision is an IBM proprietary office support application that primarily runs on IBM's VM operating system and its user interface CMS. Other platform versions are available, notably OV/MVS and OV/400...
computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran-Contra affair
Iran-Contra Affair
The Iran–Contra affair , also referred to as Irangate, Contragate or Iran-Contra-Gate, was a political scandal in the United States that came to light in November 1986. During the Reagan administration, senior Reagan administration officials and President Reagan secretly facilitated the sale of...
(arms-for-hostages) under the Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
Administration were insulated. However, they were also backed up and transferred to paper memos. The National Security Council, on the eve of President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive
National Security Archive
The National Security Archive is a 501 non-governmental, non-profit research and archival institution located in the George Washington University in Washington, D.C.. Founded in 1985 by Scott Armstrong, it archives and publishes declassified U.S. government files concerning selected topics of US...
, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Records Administration
National Archives and Records Administration
The National Archives and Records Administration is an independent agency of the United States government charged with preserving and documenting government and historical records and with increasing public access to those documents, which comprise the National Archives...
and the National Security Council's purging of PROFS records. A Temporary Restraining Order was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records. [ – pgs. 151-152]
Richey gave a further injunction to prevent a purging of the George .H.W. Bush's administration's records as well. On counts of leaving the White House clean for the new Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency but a group of aides to the President and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office… or twelve years if the records [were] classified." [ – pg. 156] The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $9.3 million on contesting the National Security Archive FOIA requests for PROFS e-mail records. ( - pg. 159)
See also
- Commission on Protecting and Reducing Government Secrecy
- DeclassificationDeclassificationDeclassification is the process of documents that formerly were classified as secret ceasing to be so restricted, often under the principle of freedom of information. Procedures for declassification vary by country...
- Freedom of information in the United StatesFreedom of information in the United StatesFreedom of information in the United States refers to the independent bodies of Freedom of information legislation at the federal level and in the fifty states.-Federal level:...
External links
- U.S. Department of Justice FOIA complete reference
- Stanford Libraries FOIA archive - Preserved collection of sites that deal with Freedom of Information Act (FOIA) requests and documents. This includes government sites that receive and distribute FOIA documents (aka "FOIA reading rooms") as well as non-profit organizations and government watchdogs that request large numbers of FOIA documents on specific topics like national security and civil rights.