A difficult road for FOIA

From the Winter 2007 issue of The News Media & The Law, page 5.

1789: The first federal Congress enacts the Housekeeping Statute. This law permits federal government agencies to utilize and store records. Burgeoning executive agencies during the 20th century will cite the “use and preservation” authority granted by the law to justify withholding government information from the public.

1940: President Franklin D. Roosevelt issues an executive order allowing military officials to classify documents based on national security.

1946: Congress enacts the Administrative Procedure Act. The APA is the backbone of the current executive agency system as it exists today. Section 3 of the APA governs agency information management and leaves great discretion to agency heads. Section 3’s vague standards allows bureaucrats to keep documents “confidential for cause found.”

1951: President Harry Truman issues an executive order allowing nonmilitary civilian agencies such as the CIA to classify national security information.

1955: Former President Herbert Hoover leads the Commission on Organization of the Executive Branch of the Government that criticizes executive agency secrecy and proposes changes to Section 3 of the APA.

1958: Congress amends the Housekeeping Statute to clarify that the power to use and store records is not the power to withhold records from the public.

1966: On July 4, President Lyndon B. Johnson signs the Freedom of Information Act. The timing does not reflect any sweeping democratic symbolism — instead, this is the last day the reluctant president can sign the bill into law before it expires, which would work as a veto. FOIA creates for the first time a legally enforceable right to access government documents. The law creates a presumption that documents should be released, subject to nine exemptions:

1972-73: A House report says bureaucratic foot-dragging is seriously impeding the public’s right to know. Also, as details of the Watergate scandal begin to emerge, so grows an appetite for a tougher FOIA.

1974: Congress amends FOIA for the first time, creating uniform copying fees and requiring agencies to respond to a requester within 10 days. The law also requires agencies to redact exempt material while still disclosing the document as a whole.

Most significantly, Exemption 1 is clarified to allow agencies to block release of material on national security grounds only when it is “specifically authorized under criteria established by an Executive Order . . . [and is in fact] properly classified pursuant to such Executive Order.” If a FOIA dispute ends up in court, a judge can now review whether a record is properly classified pursuant to an executive order.

Congress votes for these amendments overwhelmingly, overriding a veto by President Gerald Ford.

1976: Congress amends FOIA for the second time, limiting the instances when an agency can use Exemption 3, which allows for the withholding of records when required by a federal law other than FOIA. Agencies have asserted broad power to withhold information generally based on other laws, and the U.S. Supreme Court permits this practice until Congress clarifies that Exemption 3 does not constitute a blank check.

1986: Congress amends FOIA for the third time, passing the Freedom of Information Reform Act, which deals mostly with the cost of obtaining records. This law further reduces fees for obtaining records, makes it easier for journalists to qualify for favorable fee status by broadening what it means to be a member of the news media, and expands instances when fee waivers are available for requests made in the public interest.

1996: Congress amends FOIA again when it passes the Electronic Freedom of Information Act. First, the law establishes that electronic records are, in fact, subject to FOIA, contrary to the arguments some agencies had been making in denying access to computer records. Second, agencies are required to provide information in the format asked for by the requester. Third, the law requires agencies to use computerized searches to find records when appropriate. Finally, Congress orders agencies to post on the Internet frequently requested information such as annual reports.

Source: The Freedom of Information Act 1966-2006: A Retrospective on the Rise of Privacy Protection Over the Public Interest in Knowing what the Government’s up to, Martin E. Halstuk and Bill F. Chamberlin, Communication Law & Policy Journal, Fall 2006.