The U.S. government affirmed the right of public access to federal records other than classified or personal information. The act reversed long-standing government policies and practices regarding information access and established a more accountable government.

The participation of citizens in the democratic process is one of the most important factors in making a democracy work. This participation is effective, however, only if citizens have access to information about the way their government works. In the words of former president James Madison, “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.” This connection between information and participation in the process of government is the basis for the Freedom of Information Act (FOIA). Freedom of Information Act (1967)
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[kw]Freedom of Information Act Goes Into Effect (July 4, 1967)
[kw]Act Goes Into Effect, Freedom of Information (July 4, 1967)
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[c]Laws, acts, and legal history;July 4, 1967: Freedom of Information Act Goes Into Effect[09360]
[c]Government and politics;July 4, 1967: Freedom of Information Act Goes Into Effect[09360]
[c]Civil rights and liberties;July 4, 1967: Freedom of Information Act Goes Into Effect[09360]

The First Amendment to the U.S. Constitution addresses the right of the people to assemble and to express themselves, but it does not guarantee specific rights to gather information concerning the government. Throughout the history of the United States, various federal, state, and local governments have attempted to enact laws restricting access to government information. Sometimes these agencies have acted in the public interest, such as attempting to protect the privacy of citizens or to guard sensitive defense information. Other times, however, restrictions have been used to cover up illegal activity or hide major bureaucratic mistakes.

Journalists were the driving force behind the FOIA. In 1954, one of the premier journalism organizations in the United States, Sigma Delta Chi (later known as the Society of Professional Journalists), began to push for the adoption of a bill that would guarantee access to government records at the state level. Although this access would be available to all citizens, it would be particularly helpful to journalists, since their daily job involves the collection and dissemination of information. Within three years, nearly half the states in the country had open-record laws. Today, all states have some form of laws ensuring, in varying degrees, access to government records.

In 1966, Congress amended Section 3 of the Administrative Procedure Act Administrative Procedure Act (1946) of 1946 to incorporate the FOIA. The act made certain specific government records open to inspection, access, and use. It became law on July 4, 1967. The act includes limitations on the type of information that can be requested. It applies only to offices and departments of the executive branch of the federal government, such as the Defense Department, and independent federal regulatory agencies, such as the Environmental Protection Agency. The act does not apply to the legislative or judicial branches of the government. The records that are covered include documents, computer tapes, photographs, and other tangible forms of data. Requests are honored only for data in existing forms; the government is not required to generate new lists or records in response to an FOIA request, and one cannot request access to a person—for example, through an interview—through the FOIA.

The FOIA was based on the premise that, in a society whose government is the people, government records are, by definition, open to public inspection, unless an agency can give specific reasons why the records should be kept from the general public. The original act included nine exemptions that the government could use to block FOIA requests.

While these exemptions may appear to be sharply defined, considerable debate has developed over the scope of each category. For example, if a key federal official is suddenly fired from his or her job, a journalist might make an FOIA request to determine the reasons. A federal official could respond by citing the second or sixth exemption to keep the journalist from getting the information. In another example, the president of the United States might make an extremely controversial decision, and a reporter could make an FOIA request to see the same information that the president used, to determine whether the information supported the decision. The president might cite the executive privilege exemption to deny the request.

Such decisions frequently are challenged in court. Since the passage of the act, the courts have generally supported the rights of the person making the request, strengthening the law and placing the burden on the government to prove why information cannot be released. Cases such as Wellford v. Hardin (1970) Wellford v. Hardin (1970) and Department of the Air Force v. Rose (1976) Department of the Air Force v. Rose (1976) demonstrate that the growing body of legal decisions argues for disclosure rather than secrecy, and frequently limits the use of the exemptions to block FOIA requests.

Not all cases are decided in favor of the FOIA, however. In 1973, an FOIA case was appealed all the way to the U.S. Supreme Court, Supreme Court, U.S.;freedom of information and the court sided with the government in its attempt to block the request. Congresswoman Patsy Mink Mink, Patsy , along with thirty-two other members of Congress, had asked President Richard M. Nixon Nixon, Richard M.
[p]Nixon, Richard M.;governmental transparency immediately to release information on underground nuclear testing, and the request had been denied based on grounds of national defense and intra-agency activity. The Washington, D.C., Court of Appeals ruled that secret and nonsecret parts of the documents in question could be separated by a judge in privacy, so that Representative Mink could get some of the information. In Environmental Protection Agency v. Mink, Environmental Protection Agency v. Mink (1973) however, the Supreme Court disagreed when it ruled that the president’s executive order to keep documents secret was sufficient to block the FOIA request.

Although members of the press were instrumental in the development of the FOIA, anyone can make a request: members of the general public, corporations, foreign nationals, academicians, or representatives of state or local governments. Congressional reviews have shown that a significant percentage of the FOIA requests made to government agencies were made by journalists. The types of people making requests change from department to department: More than half the requests to the Drug Enforcement Administration, for example, come from federal prisoners.

An agency has up to thirty days from the date of the request to either provide the information or deny the request and explain the reason for the denial. The timeliness of the information can be extremely important for reporters trying to meet deadlines or attorneys building a case. Many federal agencies started with excellent compliance records when the act first became law, accepting as many as 98 percent of the requests and fulfilling nearly all of them within the specified time. As more people have started to use the FOIA, however, compliance has become more difficult. The Federal Bureau of Investigation, for example, developed such an extensive backlog of requests that it can take as long as a year to get information.

In 1986, Congress amended the act to allow agencies to charge fees for requests. These fees are based on three factors: the agency’s policy, the actions taken to fulfill the request, and the status of the person making the request. Fees vary from agency to agency. The actions taken to fulfill the request include finding, reviewing, and duplicating the documents. Commercial sources making requests pay for all three actions, while journalists or academicians making requests pay only for duplication costs. Fees may be waived on a case-by-case basis.

In 1996, the act was again amended, this time to address online access to requested materials. According to A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records (2005), documents “created on or after November 1, 1996, must be made available by computer telecommunications and in hard copy.”

As drafted, the FOIA has been generally regarded as a substantial improvement over earlier policy. In practice, however, the FOIA has often proved to be an inadequate means by which to obtain government information. The law affords many loopholes and exemptions, and requests can take five years or more to fulfill (or deny).

Lawsuits concerning denials of FOIA requests, however, have traditionally been favorable to plaintiffs (citizens), as the courts often rule against the government and for the claimant. These developments, though, have changed since the passage of the highly controversial Patriot Act in 2001, which was enacted not long after the September 11 terrorist attacks. Freedom of Information Act (1967)
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• Adler, Allan. Using the Freedom of Information Act: A Step by Step Guide. Washington, D.C.: American Civil Liberties Union Foundation, 1990. Pamphlet informing citizens how to make use of the law to obtain information contained in FBI and other government records.
• Dalglish, Lucy A., and Gregg P. Leslie, eds. Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know. 6th ed. Arlington, Va.: Reporters Committee for Freedom of the Press, 2005. A report available at http://www.rcfp.org/homefrontconfidential/. Includes a valuable chronology of events after Sept. 11, 2001.
• Holsinger, Ralph L. Media Law. 2d ed. New York: McGraw-Hill, 1991. Chapters 7 and 8 address the Freedom of Information Act.
• U.S. Congress. House of Representatives. Committee on Government Reform. A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records. Washington, D.C.: Government Printing Office, 2005. Valuable, updated introduction to the Freedom of Information Act and the Privacy Act of 1974. Also explains the process for making a request.
• U.S. Department of Justice. Attorney General’s Advocacy Institute. The Freedom of Information Act for Attorneys and Access Professionals. Washington, D.C.: Government Printing Office, 1989. Provides information for attorneys and other legal professionals. Includes bibliographic references.
• U.S. Department of Justice. General Services Administration Office of Citizen Services and Communication. Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act. Washington, D.C.: Government Printing Office, 2004. Federal government’s guide to using the FOIA.
• Weaver, Maureen, ed. The Freedom of Information Act: Why It’s Important and How to Use It. Washington, D.C.: Campaign for Political Rights, and the Center for National Security Studies, 1982. Handy pamphlet containing practical information.

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