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Revising FOIA for Improved Access to Government Information
Posted On August 19, 2014
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Speaking in Texas the day before he was assassinated, President John F. Kennedy affirmed, “We seek a free flow of information … We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.” One of the key assets to our democracy came with the internet and the ability to make government information widely available through any browser. However, not all information is readily available. The U.S. Constitution itself does not provide any public access rights to inspect or copy government records.

Even before the internet, journalists and others tried to make it easier to get information from government agencies. The dramatic growth of the federal government after World War II made it difficult for even Congress itself to get the information that it needed from the various government offices. Congress mounted a series of open government efforts after the war, resulting in the Administrative Procedure Act (APA) of 1946. The APA’s language was limited, giving broad discretion to agencies and permitting access only to “persons properly and directly concerned” with records; however, it was a start to providing a structure for a more comprehensive right of access.

In 1966, President Lyndon B. Johnson signed the Freedom of Information Act (FOIA) into law. FOIA is actually a revision of the earlier APA legislation. Since then, many amendments, acts, and executive orders have followed. Last year, Congress introduced a bill that is now known as the FOIA Oversight and Implementation Act of 2014. This law would allow for easier information requests and faster receipt. The impact and value this legislation would have are difficult to measure; however, it is widely seen as further eroding the existing roadblocks to accessing government information.

Yet even with this legislation, a recent Vanderbilt Law Review article finds that “both privacy-based exemptions, along with the other statutory limitations on disclosure, demonstrate that FOIA is not a full-throated endorsement of government transparency.” President Barack Obama published a memorandum in 2009 in which he emphasized that the “Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”

Congress considered bills to reform the law, most notably the FOIA Improvement Act of 2014. (A study by the National Security Archive, a nonprofit based at The George Washington University’s Gelman Library, finds that despite this initiative, there has been little change on agency practices.) The bill would clarify what types of fees might be assessed for the preparation and release of data and determine that OGIS (Office of Government Information Services) has the authority and responsibility to submit reports and testimony directly to Congress and the president to help gauge the implementation of FOIA.

Impacts of Noncompliance

Matt Ehling is the founder and president of the Minnesota-based PRM (Public Record Media) journalism project. Ehling explains that FOIA led to important public disclosures such as the use of Agent Orange during the Vietnam War and the 2002 torture memo from President George W. Bush’s administration. He argues that:

Such disclosures have resulted in changes to federal law, and have helped to check the power of the executive branch in many instances. In recent years, government FOIA compliance has slipped in important ways, even as the Obama administration has publicly committed itself to making transparency one of its institutional priorities. One can see statistical evidence of this by looking to agency use of FOIA ‘exemptions’ to withhold documents. The FOIA has long included certain legal exemptions that permit the government to withhold specific types of records—such as records relating to ongoing criminal investigations. A current compliance problem stems from the fact that agencies have broadened their use of FOIA exemptions to cover scores of documents that should rightfully be public.

In particular, Ehling and the MNCOGI (Minnesota Coalition on Government Information) (of which this author is a member) have expressed concerns about FOIA’s Exemption 5, which, Ehling notes, “allows for the redaction or withholding of ‘deliberative process’ information that would be exempt under civil discovery rules.” He continues:

Exemption Five redactions have increased sharply in recent years, and have been used to cover a wide variety of other records—including, oddly, records that already exist in a public form elsewhere. Exemption Five has also been used to withhold final legal opinions, despite the fact that the FOIA explicitly requires the disclosure of such documents. For example, the Department of Justice Office of Legal Counsel (OLC) recently used Exemption Five to withhold access to final opinions about the federal government’s interpretation of its military detention powers under the 2012 National Defense Authorization Act. There are perhaps few matters of greater public importance than how the government views its own detention powers. However, under OLC’s reading of the FOIA, the public is unable to view final legal opinions that guide the implementation of those same powers.

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Nancy K. Herther is a research consultant and writer who recently retired from a 30-year career in academic libraries.

Email Nancy K. Herther

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