“Public business is the public’s business. The people have the right to know. Freedom of information is their just heritage. Without that, the citizens of a democracy have but changed their kings.” (Cross, xiii)
Without understanding the history of the Freedom of Information Act (FOIA), knowing how it works, staying abreast of issues that continue to confront the freedom of government information by the citizens that it serves, and the roles that libraries play in preserving and facilitating government information to society, we will be governed by ignorance and left to wonder what others are doing. James Madison, the “Father of the Constitution” and Fourth President of the United States, has an oft cited quote that people reference when speaking in support of the freedom of information and self-governance, and I would like to share it with the reader. Madison stated that
“Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with the power knowledge gives. 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.” (Letter to W.T. Barry)
In this paper I will explore the history of the FOIA so as to provide context for it’s purpose, briefly go over how the FOIA works, look at a couple issues that still exist with the FOIA, and explain the Library’s and the librarian’s role in the freedom of information. This paper should serve as a guide for librarians who are looking to understand the FOIA and aid patrons in submitting a FOIA requests. Though most of this paper will examine the history of the FOIA, the historiography should not serve as the primary focus of the reader. Rather, the focus should be on the importance of how this legislation has manifested itself into the fabric of our great nation, and the importance of the American public’s right to information about their government.
History of FOIA: In Brief
The FOIA is one of the many laws that help protect and promote our freedom to information about our government as American citizens. Thankfully, it is not alone, but is part of a larger component of American law that promotes this idea; other legislation includes: The United States Constitution (1791), the Printing Act (1895), the Copyright Act (1909), the Depository Library Act (1962), the Government in the Sunshine Act (1976), and the Presidential Records Act (1978) among others. In this section I will be addressing the history of the FOIA, to help us understand how the law came to be and has grown through the decades, since its passage in 1966; this will be a selective rather than a comprehensive history.
It is important to remember the context for why the legislation was initiated. In 1994 Anne Branscomb wrote that:
“The specter of growing government-collected and government-controlled information about its citizens, inaccessible to them, is what prompted Congress to enact the Freedom of Information Act.” (Branscomb, 16)
In the mid to late 1950s, the United States was in a post World War II society and the Cold War was already into it’s first decade. Though the First Amendment had a large number of freedoms and protections embodied, there was no law that directly stated the American public’s right to access information from the government that the government collected. It is in this context that we meet John E. Moss, a champion of information freedom and the man we have most to thank for passage of the FOIA. He was a member of the U.S. House of Representatives representing California’s 3rd district from 1953-1979.
Moss was appointed as the chairman of the Special Subcommittee on Government Information, established on June 9, 1955 and part of the Government Operations Committee. It was from that vantage point that he began his long standing fight for the freedom of government information for the American public. One particular instance that set him off was when serving on the Post Office and Civil Service Committee he “formally requested that the Civil Service Commission produce the records relating to the discharge of …twenty-eight hundred employees for claimed security reasons. [His] request was flatly denied by the Civil Service Commission.” (Lemov, 48) This, in conjunction with the general secrecy of information from the Eisenhower administration, (Lemov, 49-50) seems to serve as the impetus behind the 1956 study by the House on The Right to Obtain Information from the Executive, which Moss was a part of. In the same year as this study, Kent Cooper, in his book The Right to Know: An Exposition of the Evils of News Suppression and Propaganda, wrote “American newspapers do have the constitutional right to print…but they cannot properly serve the people if governments suppress the news.” (Cooper, 1956)
1956- House Study on the Right to Obtain Information from the Executive
When Chairman of the Committee on Government Operations William L. Dawson of Illinois established the Special Subcommittee on Government Information he did so stating that “an informed public makes the difference between mob rule and democratic government….”(Ladd, 190) This study primarily is looking at the right for Congress to access information from the government, but it is the beginning of the process for legislation securing the right of access and not the end.
The study, after going through a summary of how our governing systems functions, begins to explore the nature of government agencies, quasi-agencies, and distinguishing between agencies established by the Executive and those established by the Legislature. I would like the reader to look at four excerpts from the report to help understand the necessity of the legislation that was to develop. This first quote establishes the purpose and necessity of the committee and the report.
“In the course of such contests between the branches probably no problem has been more frequently recurrent in our Government or more important to the safeguarding of democracy than that of access to information in the possession of departments and agencies of the Federal Government.” (Right of Congress, 2)
The report begins by stating the issue of access to information, and highlighting that the problem of accessing this information is a recurring theme. This excerpt also highlights how access to information is beneficial because it is a means to “safeguarding our democracy.” The next excerpt brings in another branch of government, the Judicial.
“Judicial interpretation and precedent seem to indicate that neither the executive agencies nor the independent regulatory commissions have any inherent right to withhold information from the Congress….It should be stated at the outset that judicial precedents do not recognize any inherent right in any officer of the United States to withhold testimony or documents either from the judiciary or from the Congress of the United States.” (Right of Congress, 6)
This excerpt discusses the issue in context of historical judicial interpretation and precedent. What is most notable in this excerpt is that there is no “inherent right in any officer of the United States to withhold testimony or documents either from the judiciary or from the Congress” thus reaffirming the need for, and ability to enact, checks and balances from one aspect of our government on another. The next quote discusses the role that Congress has in facilitating that check over the executive; remember that this is a decade before the FOIA was enacted.
“At the same time Congress has never exercised its ultimate sanctions to compel such testimony or production of documents. Nevertheless there is little or no doubt that Congress (a) may by legislation regulate the release of Government information and (b) may compel such release on its own by exercising its power of process for contempt of Congress directly and/or by punishment under criminal statute for contempt of Congress.” (Right of Congress, 7)
The first proposition has been used multiple times with extensions and clarifications to the FOIA and similar legislation. I am unaware how much the second proposition has been used, and, as it does not pertain to the research for this paper, I did not examine it’s usage. Lastly, in section four of their conclusion, the House found that even when the President has immunity from legal enforcement, the heads of departments and agencies do not stating:
“Any possible presidential immunity from the enforcement of legal process does not extend to the heads of departments and other Federal agencies. Judicial opinions have never recognized any inherent right in the heads of Federal agencies to withhold information from the courts. The courts have stated that even where the head of the department or agency bases his action on statutory authority the courts will judge the reasonableness of the action in the same light as any other claim of privilege. The courts have held that the mere claim of privilege is not enough.” (Right of Congress, 25-26)
In a 102 page rebuttal to the report, the Department of Justice wrote that “Congress cannot under the Constitution compel heads of departments to make public what the president desires to keep a secret in the public interest. The president alone is the judge of that interest and is accountable only to his country… and to his conscience.” (CQS, 1956) What developed was a growing tension between the executive branch and the Moss committee that would last for many years throughout various administrations.
1966- Passage of the FOIA- 5 U.S.C. § 552
“The important point about this sort of legislation is that access is provided to a whole range of so-called ‘gray’ data, providing information which is unclassified but which is normally accessible only with the permission of those charged with keeping control of it.” (Mount, 12)
Moss spent well over a decade working on this legislation with the help of many, and the criticism of many others. On June 20, 1966 the House unanimously passed the Freedom of Information Act; it was the Senate version which meant that the legislation did not need to go through a conference committee and could be sent straight to the President. The act was sent to President Johnson on June 26, 1966, and was signed, reluctantly, nine days later- July 4, 1966.
1978- NLRB v. Robbins Tire & Rubber Co.
In the 1978 case NLRB v. Robbins Tire & Rubber Co. the supreme court ruled in favor of transparency over a labor dispute. The National Labor Relations Board had denied Robbins Tire & Rubber Co. of information regarding an investigation claiming exemption under exemption seven, investigatory files. Justice Marshall delivered the court opinion in which he stated:
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” (NRLB v. Robbins Tire & Rubber Co., 1978)
Again, Justice Marshall is driving forward the intent of the law, that Americans have a necessity to know what the government is doing. He drives this home with the point that we are all better off when American citizens are knowledgable. With regards to the language used here, Justice Marshall states that FOIA “ensures” the right to know.
1985- Data Center
In 1985 Data Center released a collection of articles entitled The Right to Know highlighting government restriction on information. These were pulled from such sources as the Congressional Record, Oakland Tribune, The Washington Post, The Guardian, Businessweek, and the American Library Association. The purpose of this two volume compilation was to identify “the ways in which barriers are being erected which threaten our access to information.” (Data Center, Preface)
After being elected to his first term, President Obama set out an initiative for openness and transparency in government as a means to help secure trust in government. He had this to say about the FOIA shortly after taking the oath of office:
The FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.” (Obama, 2009)
President Obama succinctly captured the spirit of the law with this statement. It would seem that many times, executive branch agencies would like to shield themselves from embarrassing controversies by denying the public access to vital information, or information that would help the public keep the administration accountable and in service to the people they serve.
“Before he died in 1997, Moss recalled that he knew from the beginning that the Freedom of Information Act would require continuing change. It would be, he predicted, a never-ending battle.” (Lemov, 69)
Writing in 1994, Branscomb describes one of the issues with FOIA requests as implemented is the fee structure and the delivery method can be burdensome. She describes an incident that happened in 1990 where a consumer lobbying group paid $3000 for a FOIA request that was delivered in “six boxes of computer printouts” rather than in a machine readable computer file (Branscomb, 160); a file would have saved time and money for the agency and the lobbying group. The FOIA Improvement Act of 2015, if it passes, will fix some of these issues, reaffirming what President Obama stated in 2009 “All agencies should use modern technology to inform citizens what is known and done by their government. Disclosure should be timely.” (Obama, 2009)
How FOIA Works
“Under FOIA, any member of the public may request access to Government Information, and FOIA requesters do not have to show a need or reason for seeking information.” (Report on FOIA Improvement Act of 2015, 2) There are 100 executive branch agencies that process FOIA requests, and most agencies now have an online FOIA portal where requesters can access and easily submit a FOIA request, or search for already released FOIA documents. A FOIA request does not require the agency to do the research for you or analyze the data received. All it does is require them to provide access to sought after information unless it is subject to an exemption, which must be clearly stated to the requester in a timely response.
To submit a request, the requester should narrow the scope as much as possible and determine which agency would be the best to submit the request to. The requester should provide as much detail as possible when submitting a request, and also let the agency know which format in which the information is needed; also be sure to adhere to any specific agency requirements. Because agencies are required to publish frequently requested material (more than three times), it is best to make sure that the information being requested has not already been made available. If the requester is unsure where to start, FOIA.gov has a compilation of FOIA data that can be used to generate reports , and FOIA.gov can inform a requester or librarian on how to contact various agencies who can provide further assistance.
There are nine exemptions to the FOIA that the government can use to deny access to sought after information. These are:
- national defense and foreign policy;
- internal personnel rules and practices;
- information exempt under other rules;
- confidential business information;
- executive privilege;
- personal privacy;
- investigatory files;
- financial institution reports- regulatory agencies; and
- geological and geophysical information and data.
If a requester does receive a letter claiming an exemption this should not be viewed as an absolute no. The requester may file an appeal to the Office of Information Policy, formerly the Office of Information and Privacy, at the Justice Department. If the appeal process does not work, the requester does have the right to sue the government in federal court as a last resort to release the information. (Henry, 12-13)
Records Required for Release- Proactive Disclosures
Certain types of records are required to be released proactively under subsection (a)(2) of 5 U.S.C. § 552. These include:
- final opinions and orders made in the adjudication of cases;
- final statements of policy and interpretations which have not been published in the Federal Register;
- administrative staff manuals and instructions to staff that affect members of the public;
- copies of records that have been the subject of a FOIA requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the agency’s handling of FOIA requests. ( 5 U.S.C. § 552 (a)(2))
It may be helpful to begin your information search by exploring the FOIA reading room of various agencies and departments, or searching for information on FOIA.gov.
Issues Confronting the FOIA
In his 1964 book Freedom or Secrecy, James Russell Wiggins made the assertion that “the more a government becomes secret, the less it remains free” summarizing the battle over the right of the governed to information about, and from, the government. Continual improvements to the law are good and healthy because they continue to shed more light on what the government does on our behalf. In this unique way, government reflects the nature of the people it serves.
Though the exemptions are often justifiable, when they are relied on too heavily, and unnecessarily, they defeat the spirit of the law. “There is a growing and troubling trend towards relying on these discretionary exemptions to withhold large swaths of Government information, even though no harm would result from disclosure.” (Report on FOIA Improvement Act of 2015, 3) It is good that Congress is doing something to ensure the continued access to government information and combat any prohibitions that are arising now, or will arise in the future, by seeking to improve the FOIA.
Sometimes the situation is unclear regarding information, and new legislation can help supply clearer guidance. This was reaffirmed in the Report on FOIA Improvement Act of 2015 where on page three the Committee on the Judiciary found that
“agencies need clearer guidance regarding when to withhold information covered by a discretionary FOIA exemption. Codification of this policy also makes clear that FOIA, under any administration, should be approached with a presumption of openness.”
Modern computer technology has aided in the ease in which information can be found, processed, and disseminated, but that does not prevent an agency from playing hardball if it so chooses as with the lobbying group that received six boxes of computer printouts mentioned earlier. Providing the information in a machine readable manner makes the information much easier to sift through for all parties involved.
In 1985 Branscomb wrote that “in virtually all societies, control of and access to information became instruments of power…” (Branscomb, 1) The American system, by virtue of the vastness of it’s laws promoting the opposite, has done well to overcome and prevent this, but even today there are attempts to shroud information with the cloak of government secrecy as can be evidenced by the deletion of a server that may have contained important government records of benefit to a House Select Committee investigation. (Statement Regarding Subpoena Compliance, 2015)
As continued improvements to the law have shown the law is not perfect, but if we keep our eyes on the spirit of the law, rather than on the letter of it, it can be more fruitful to us as a society by allowing us to keep a watchful eye upon the encroaching arms of an overwhelming state that does not necessarily have our best interest at heart.
FOIA and the Library
“Government information belongs to the people, and it is necessary for the citizen and the information professional to exercise their rights of access in order to preserve them. Restriction on information does not necessarily mean that it cannot be obtained. The FOIA is the statute that should be used to challenge that restriction so that the users’ informational requirements are better served.” (Mount, 149-150)
Without knowing why we have access to information, and the means to acquire it from our government, the library cannot effectively serve the public’s information need in that area. It would serve the Federal Depository Library Program (FDLP) well to catalog their own copies of FOIA released documents and housing them on their own servers, an example of which can be seen in the National Security Archives hosted at George Washington University’s Gelman Library.
DOJ Pulls Item Out of Libraries
After the Department of Justice pulled a series of publications through theGovernment Printing Office dealing with the attainment of “items that may have been confiscated by the government during an investigation” (Blumenstein, 16) librarians rose up to protest in droves. The American Library Association even submitted a FOIA request on why “DOJ requested that documents that have been available for as long as four years be removed.” (Blumenstein, 16) In the end, it was decided that the books could stay in the FDLP because they were not sensitive enough for an exemption; nonetheless, the libraries battle for access to information was an important stance.
Privacy of FOIA Requesters
Sarah Shik Lamdan, in her article Why library cards offer more privacy rights than proof of citizenship: Librarian ethics and Freedom of Information Act requester policies, explains why librarians take umbrage when user privacy is being asked to be violated. She explores the historical, philosophical, ethical, and legal underpinnings of major library positions, and has a section in the paper on how FOIA requestors lack basic privacy protection after their requests because the nature of their request is now publicly available information. (Lamdan, 135) She concluded that:
“The goal of FOIA is not to hide information, but to reveal it. However, a line must be drawn in revealing government information to the public to protect those requesting the information, in order to keep the flow of information open and the government a welcoming center for inquiry.”
The question that arises from this is how should agencies regard the information of their FOIA requesters? Could they take a cue from their librarian friends and not keep personally identifiable records after the requested information is delivered?
Librarian’s Skillset and the FOIA
Richard Peltz, writing for the University of Arkansas at Little Rock law review, addresses how the FOIA would not be possible without the skills which librarians and archivists possess, namely records retention and access.
“Although investigative journalism and the “right to know” lead to Pulitzer Prizes and riveting revelations of government scandal, it is humble records retention that lurks behind the curtains and puts on the show. For without an obligation on government to retain records of its affairs, there is nothing for the journalist to investigate, nothing for the public to learn” (Peltz, 175)
Librarians working in federal agencies can aid ease of findability by promoting good information management tools and records management in their respective agencies.
He even discusses a problem readily known to many in the information world when describing how electronic records preservation is “no panacea” (Peltz, 176); one of the largest issues facing electronic records management is the constant change of computer technology, or “impermanence” (Peltz, 197). Librarians can help facilitate in the electronic preservation of government records with the knowledge of file format guidelines that are sustainable. Without some kind of record management system in place, the FOIA loses it’s ability to function, or as Peltz stated, “a freedom of information system can only be as strong as its companion records retention program.” (Peltz, 177)
DHS pulls document; ALA responds
In 2003, the Department of Homeland Security pulled the document Hazardous Materials Emergency Plans off of the shelves of libraries in Ohio. (ALA, 2003a) Due to this and other similar incidents, the ALA established a task force on the Restrictions on Access to Government Information which released a report on June 9th of 2003 with ten recommendations for promoting, preserving, and securing access to government information. The report concludes with the statement:
“In light of restrictions and access to and removal of government information in the aftermath of September 11, 2001 recommended that ALA investigate various library-based models for distributing long term access to government information as a mechanism for assuring that information withdrawn from public access is not forever lost.” (ALA, 2003b)
I have not done research to see if there was any follow up to these recommendations, but that could be a possibility for further research.
Libraries have long served as defenders of access to information. The FOIA provides libraries with another means of preserving and nurturing our cultural values of open discussion, public participation in government, and rational inquiry while at the same time providing privacy protections and security measures for the government to act on our behalf. The public discussion on the freedom of information is an important debate that must continue to be had so that a free people can maintain their right to self governance.
ALA (2003a). Homeland security agents pull Ohio libraries’ haz-mat documents. American Library Association. American Library Association Newsletter
ALA (2003b). Committee on legislation and government documents round table task force on Restrictions on Access to Government Information. Documents to the People, 31, 29-35.
Blumenstein, L., & Oder, N. (2004). Recalled government papers prompt librarian protest, then reversal. Library Journal, 129(14), 16-17.
Branscomb, A. W. (1994). Who owns information?: From privacy to public access. New York: Basic Books.
Congressional Quarterly Service, 1956, 1738. Found in: Lemov (2011) p. 57
Cross, H. L. (1953). The People’s right to know; legal access to public records and proceedings. New York: Columbia University Press.
Cooper, K. (1956). The Right to Know: An Exposition of the Evils of News Suppression and Propaganda. New York: Farrar, Strauss & Cudahy. xii-xiii
Henry, C. L. (Ed.). (2003). Freedom of Information Act. New York: Novinka Books.
Horn, Z. (Ed.). (1985). The Right to Know. Oakland, CA: Data Center.
U.S. House of Representatives. (1956). The Right of Congress to Obtain Information from the Executive and from Other Agencies of the Federal Government: Study by the Staff. Washington D.C.: Government Printing Office.
Ladd, B. (1968). Crisis in Credibility. New York: The New American Library. 190
Lamdan, S. S. (2013). Why library cards offer more privacy rights than proof of citizenship: Librarian ethics and freedom of information act requestor policies. Government Information Quarterly, 30(2), 131.
Lemov, M. R. (2011). People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights. Lanham, Md: Rowman & Littlefield.
Madison, J. (1953). Letter to W.T. Barry, 4 August 1822. In S. Padover (Ed.), The Complete Madison (p. 337). New York: Harper & Brothers.
Mount, E., & Newman, W. B. (1985). Top Secret/Trade secret: Accessing and safeguarding restricted information. New York: Neal-Schuman Publishers.
National Labor Relations Board v. Robbins Tire & Rubber Co. 437 U.S. 214 (1978).
Obama, B. (2009). The White House: Office of the press secretary. Presidential Studies Quarterly, 39(3), 429-430.
Peltz, R. J. (2006). Arkansas’s public records retention program: Finding the FOIA’s absent partner. University of Arkansas at Little Rock Law Review, 28, 175.
U.S. House of Representatives Select Committee on Benghazi. (2015). Statement regarding subpoena compliance and server determination by former secretary of state Hillary Clinton.
U.S. Senate, Committee on the Judiciary. (2015). Senate report 114-4 – FOIA IMPROVEMENT ACT OF 2015. ( No. 114-4). Washington, D.C.: Government Printing Office.
Wiggins, J. R. (1964). Freedom or Secrecy (Revised Edition ed.). New York: Oxford University Press. p. xi