This essay is excerpted from Media Law Handbook, published by the Bureau of International Information Programs.
Most freedom of information laws share common principles and characteristics. Many recent examples were influenced by the U.S. federal Freedom of Information Act (FOIA), so we will use that statute as an example.
President Lyndon B. Johnson signed FOIA into law on July 4, 1966. Despite its name, the statute does not actually create a right of access to information. Rather, it establishes a presumptive right of access to existing records, in paper or digital form, held by executive branch agencies, departments, regulatory commissions, and government-controlled corporations. These include, for example, the Departments of State, Defense, and Justice, as well as the Federal Bureau of Investigation and the Central Intelligence Agency, among many others. Unlike laws in countries like Ireland, FOIA does not list covered agencies by name, nor does it categorically exclude bodies that handle intelligence and security, as in the United Kingdom. But the U.S. FOIA covers neither the legislative nor judicial branches of government. Access to state and local executive branch agency records are covered by state open-government laws.
In the United States, as in most countries, anyone can make a FOIA request. Neither U.S. citizenship nor residency is required, and access is open to all, not just journalists. Requesters are encouraged to utilize government reading rooms, either brick-and-mortar or virtual, to gain free access to records already released under so-called E-FOIA initiatives or disclosed in response to an earlier FOIA request. They are also invited to contact the agency FOIA officer to discuss informally what types of records may be available before filing a formal access request. In the United States, no special form is necessary to file a FOIA request—just a simple letter, addressed to the pertinent FOIA officer, reasonably describing the records sought. Most agencies are prepared to accept requests in writing or electronically.
Despite the presumption of openness, however, nearly every freedom of information law includes exemptions—categories of records an agency can withhold. The U.S. FOIA has nine exemptions, which, under the terms of the statute and based on guidance from the Department of Justice, should be narrowly construed:
• national security;
• internal agency rules/practices;
• internal agency memoranda (such as working papers, reports, and studies prepared as part of the agency’s decision-making process);
• trade secrets;
• records made secret by another federal statute;
• some law enforcement records;
• bank records;
• oil and gas well data;
• records containing information that, if revealed, would constitute an unwarranted invasion of personal privacy.
Most of these exemptions are not mandatory. Agencies may release records if they conclude that the public interest in disclosure outweighs any harm. They must be prepared to justify any exemption and to withhold only the exempt portion of any record while releasing the balance. The necessity of withholding a particular record may evolve over time. In the case of classified records, requesters have the option to appeal to a special review board that will determine whether a previously classified record can now be made public. In some countries, although not in the United States, access laws include specific prohibitions on withholding certain categories of information.
Although the United States does not have an official secrets act of the type found in many other countries, records properly classified in accordance with a presidential executive order can be withheld. In the post-9/11 environment, the practice of classifying information has increased in much of the world. This imposes new obstacles to citizens seeking both intelligence and law enforcement records. And as governments collect more personally identifiable information, agencies frequently invoke the privacy exemptions as grounds to withhold many government records. These exemptions are sometimes vague and difficult to interpret, and the tendency for most records custodians is to withhold the record if there is any doubt.
A requester denied access to a record has a right to appeal. Under FOIA, and in most countries, she begins by seeking an internal review within the agency. This tactic sometimes, but not always, results in release of the records. The next step is to submit the appeal for external review. In the United States, that means filing a lawsuit in a federal district court, with subsequent appeals as necessary through the federal appellate courts and even to the Supreme Court. In other countries, and in some of the individual states in the United States, the requester may appeal to a freedom of information ombudsman, or to an independent tribunal or information commission. Even in those jurisdictions, a final review can be sought in the national courts.
A successful requester may be able to obtain not only the records but attorney’s fees, as well. In some U.S. states, and in many countries, courts can impose sanctions on government agencies and employees who willfully withhold records in violation of the law. These sanctions can include monetary fines and, in rare cases, even a jail sentence if the violation is particularly egregious.
Even where the law requires disclosure, administrative backlogs, lack of resources, or inefficiency may result in delays. Most freedom of information laws set short deadlines for initial responses but allow additional time to handle complex requests. In the United States, the National Security Archive, a private organization that conducts research on access policy, reported in 2007 that the oldest pending FOIA request was 20 years old, although many others are processed far more quickly. Under certain circumstances, as where a journalist demonstrates compelling public interest in immediate release, a requester may be entitled to expedited processing.
Agencies may be authorized to recoup costs from requesters, even if they do not fulfill the entire request. Some countries (although not the United States) assess a filing fee, regardless of the size or scope of the request. Others demand payment for administrative costs, including search time, redaction of exempt information, and copying. Under the U.S. FOIA, certain categories of requesters, including the general public and the press, are entitled to full or partial fee waivers, but commercial requesters (not including the news media) are required to pay all applicable costs, which are determined by the agency according to a fee schedule.
Freedom of information laws create a presumption of public access. FOIA disclosures have empowered journalists to write thousands of stories, some embarrassing to the U.S. government. These range from the revelation of the 1968 massacre at My Lai in Viet Nam to unsanitary conditions in food-processing plants; from cost overruns by defense contractors to the most dangerous places to work in the United States. Even features about unidentified flying objects (UFOs) are based on information obtained under the FOIA. All that is required is the persistence to make use of it.
