The Freedom of Information Act

In 1863, during the Gettysburg Address, Abraham Lincoln described our government as one of, by and for the people. Even earlier, during the birth of our nation, Thomas Jefferson wrote in the Declaration of Independence that the people of the United States were taking, and keeping, the right to overthrow the government when necessary. Despite these very high claims, there was, during the bulk of our history, a right we were lacking which made both of those statements a little difficult to have confidence in: the right to know what our “government of the people” was doing.

Until 1967, during the presidency of Lyndon Johnson, it was up to the general public to prove they had a right to gain access to a particular document of the executive branch. After the Freedom of Information Act (FOIA) went into effect it became the responsibility of the government to provide information when it was requested unless there was good cause to withhold that information (The National Security Archive).

After the Watergate scandal there was a stronger desire from the public to gain access to information. Congress responded by voting in a bill that would significantly increase the power of FOIA, and despite the fact that it was vetoed by President Ford, the veto was overruled and in 1974 agencies' decisions on information dissemination became subject to judicial review, fee limitations went into effect, and agencies were required to respond to requests within ten days (The National Security Archive).

In the past three decades the FOIA has gone through several changes with each new administration. Under Reagan and Bush, Jr. the intelligence agencies were able to close access to many of their records. Under Clinton all offices were required to become more open, and the EFOIA Act, which requires executive branch offices to post electronic documents in online reading rooms, was enacted (The National Security Archive). Sometimes alterations were made through official legislation, and some narrowing and broadening came naturally with the moods and policies of the presidency of the time.

The current administration’s policy is, at least on paper, one of openness. President Obama states in his FOIA memo that, “accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government,” and, “In the face of doubt, openness prevails. It is implied throughout the memo that if an agency doesn’t know if something should be released or not, it should (Obama). In reality it seems that our executive branch has been just as noncompliant in its releases as the previous administration:

“One of the exemptions allowed to deny Freedom of Information requests has been used by the Obama administration 70,779 times in its first year; the same exemption was used 47,395 times in Bush's final budget year.” (Malcom, 2010)

Apparently after these and other figures came into light a second memo was released to the executive branch offices instructing them again to have a policy of transparency, but only time will tell.

Listed below are the current exemptions to FOIA that agencies can use to withhold information:

Exemption 1 – Protects information that is properly classified in the interest of national security pursuant to Executive Order 12958.
Exemption 2 – Protects records related solely to the internal personnel rules and practices of an agency.
Exemption 3 – Protects information exempted from release by statute.
Exemption 4 – Protects trade secrets and commercial or financial information which could harm the competitive posture or business interests of a company.
Exemption 5 – Protects the integrity of the deliberative or policy-making processes within the agency by exempting from mandatory disclosure opinion, conclusions, and recommendations included within inter-agency or intra-agency memoranda or letters.
Exemption 6 – Protects information that would constitute a clearly unwarranted invasion of personal privacy of the individuals involved.
Exemption 7 – Protects records or information compiled for law enforcement purposes the release of which could reasonably be expected:

• a. 7(A) – to interfere with enforcement proceedings.
• b. 7(B) – would deprive a person of a right to a fair trial or an impartial adjudication.
• c. 7(C) – to constitute an unwarranted invasion of the personal privacy of a third party/parties (in some instances by revealing an investigative interest in them).
• d. 7(D) – to disclose the identity/identities of confidential sources.
• e. 7(E) – would disclose techniques and procedures for law enforcement investigations or prosecutions.
• f. 7(F) –to endanger the life or physical safety of an individual.

Exemption 8 – Protects information that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
Exemption 9 – Protects geological and geophysical information and data, including maps, concerning wells. (FOIA Exemptions, 2011)

Do these exemptions all seem legitimate?
Are there any that you think should be added or removed?
How do you feel about our current ability to gain access to government documentation?

Works Cited

FOIA Exemptions. (2011, March 24). Retrieved November 2011, from Department of Homeland Security: http://www.dhs.gov/xfoia/gc_1208265747435.shtm

FOIA. (n.d.). Retrieved November 2011, from Federal Communication Commission: http://www.fcc.gov/foia

Lincoln, A. (n.d.). Retrieved November 2011, from Our Documents: http://www.ourdocuments.gov/doc.php?doc=36&page=transcript

Malcom, A. (2010, March 21). A little secret about Obama's transparency. L.A. Times.

Obama, B. (n.d.). Freedom of Information Act. Retrieved November 2011, from The White House: http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/

The National Security Archive. (n.d.). Retrieved November 2011, from http://www.gwu.edu/~nsarchiv/nsa/foia/special.html

by Erin Yancey