FIOA History
The United States was founded on the principals of an open representative government, but the statutory requirement of allowing citizens access to government records is a relatively new development in the country’s history.
The roots of the 1966 Freedom of Information Act go back to the administration of President George Washington. In 1789, Congress passed a law to give federal agency leaders the power to write regulations for record keeping within each department (Feinberg, 1986).
But record keeping was spotty for decades, as was disclosure of information to the general public. Alexis De Tocqueville commented in his Democracy in America that government officials had given him public records to keep and the institutional memory was that of an oral tradition, not an archival one (Feinberg, 1986).
It was during World War II that the concept that the federal government records belonged to the people, not agencies, began to gain traction (Feinberg, 1986). Putting that concept into law took time.
In 1946, the Administrative Procedure Act established the Federal Register and required agencies to publish regulations and other information there (Feinberg, 1986). In 1958, the law was amended to prevent agencies from using the Administrative Procedure Act to withhold information (Feinberg, 1986).
However, two phrases in the Administrative Procedure Act created a situation where agency officials had an incredible amount of discretion over releasing government information. Officials could withhold documents if a “good cause found” and prevent people who were deemed not to be “properly and directly concerned” with the information (Feinberg, 1986, p 616).
It took another eight years to address these issues with the 1966 passed of the federal Freedom of Information Act (FOIA). FOIA was amended in 1974 two years of Congressional hearings to prevent agencies from restricting information and allow requesters to provide general details about the information they sought. Between 1966 and 1985, the U.S. Supreme Court had weighed in on FOIA 19 times (Feinberg, 1986, p 616).
Since the mid-1980s the executive branch’s support of FOIA has waned and waxed. President Regan Reagan issued executive orders restricting access to some information, especially that collected by agencies involved in law enforcement and national security (Feinberg, 1986). In the early 1990s, President William Clinton and then Attorney General Janet Reno rescinded the Regan administration rules (Isikoff, 1993).
In 1996, the Electronic Freedom of Information Act Amendments (E-FOIA) passed ensuring that government information that was kept on websites, databases, e-mail, and other electronic formats was public information (The National Security Archives, 2009).
Shortly after the September 11, 2001, terrorist-caused plane crashes in New York, Pennsylvania, and Washington, D.C., President George W. Bush’s Attorney General John Ashcroft clamped down on FOIA releases and legislation in 2001 and 2002 allowed the Environmental Protection Agency, the U.S. Department of Agriculture, and Health and Human Services to classify documents as secret and prevent their release (Clymer, 2003).
No agency or branch of the federal government had been tasked with overseeing compliance with FOIA until passage of the Openness Promotes Effectiveness In Our National Government Act of 2007 (Public Law NO. 110-175). The OPEN Government Act paved the way for the creation the Office of Government Information Services in the National Archives and Records Administration, which provides some oversight of FOIA compliances.
Under the OPEN Government Act, the Office of Government Information Services (OGIS) must review FOIA policies and procedures, review compliance with FOIA, and recommend changes to Congress and the President (The Freedom of Information Act, 5 U.S.C. 552 (h)(2)(A)-(C)).
For the first time, people seeking government information have an agency to turn to when their FIOA requests are denied. The OGIS acts as a FOIA ombudsman and offers a mediation service between requesters and agencies, potentially resolving disputes or paving the way for a request to met (Office of Government Information Services, 2011).
Additionally, President Obama’s 2009 Executive Order 13,392 Improving Agency Disclosure of Information (E.O. 13,392) countered the Ashcroft directive. Obama requires agencies to become more transparent, improve access and make access more consistent across the executive branch of government. Among the changes were the user-friendly requirement of using a consistent pattern in naming agencies’ FOIA webpages (Office of Information Policy, 2011, Open Government) and the goal of consistent listing of resources on agencies’ websites (Office of Government Information Services, 2011, March).
Still, there are indicators that that obstacles remain to easily obtaining government information. One of the complaints of journalists is the federal government does not have the resources to handle the annual 500,000 to 600,000 FOIA requests filed by the general public, lawyers, historians, journalists, and other open government advocates (Duff, 2002).
In 2009, a survey of media lawyers found that 53 percent of the respondents reported an increase in open government violations between 2003 and 2007 (Knight FOIA Fund, 2009 circa). Although the survey response rate was too low to generalize, the results indicate a need for more in-depth study of recent FOIA violations.
A non-governmental organization’s audits in 2010 and 2011 found that only 13 of 90 agencies in 2010 were in compliance of Obama’s executive order, though that number rose to 49 of 90 in 2011 (The National Security Archive, 2011). To learn more about that survey, watch this YouTube video.
The roots of the 1966 Freedom of Information Act go back to the administration of President George Washington. In 1789, Congress passed a law to give federal agency leaders the power to write regulations for record keeping within each department (Feinberg, 1986).
But record keeping was spotty for decades, as was disclosure of information to the general public. Alexis De Tocqueville commented in his Democracy in America that government officials had given him public records to keep and the institutional memory was that of an oral tradition, not an archival one (Feinberg, 1986).
It was during World War II that the concept that the federal government records belonged to the people, not agencies, began to gain traction (Feinberg, 1986). Putting that concept into law took time.
In 1946, the Administrative Procedure Act established the Federal Register and required agencies to publish regulations and other information there (Feinberg, 1986). In 1958, the law was amended to prevent agencies from using the Administrative Procedure Act to withhold information (Feinberg, 1986).
However, two phrases in the Administrative Procedure Act created a situation where agency officials had an incredible amount of discretion over releasing government information. Officials could withhold documents if a “good cause found” and prevent people who were deemed not to be “properly and directly concerned” with the information (Feinberg, 1986, p 616).
It took another eight years to address these issues with the 1966 passed of the federal Freedom of Information Act (FOIA). FOIA was amended in 1974 two years of Congressional hearings to prevent agencies from restricting information and allow requesters to provide general details about the information they sought. Between 1966 and 1985, the U.S. Supreme Court had weighed in on FOIA 19 times (Feinberg, 1986, p 616).
Since the mid-1980s the executive branch’s support of FOIA has waned and waxed. President Regan Reagan issued executive orders restricting access to some information, especially that collected by agencies involved in law enforcement and national security (Feinberg, 1986). In the early 1990s, President William Clinton and then Attorney General Janet Reno rescinded the Regan administration rules (Isikoff, 1993).
In 1996, the Electronic Freedom of Information Act Amendments (E-FOIA) passed ensuring that government information that was kept on websites, databases, e-mail, and other electronic formats was public information (The National Security Archives, 2009).
Shortly after the September 11, 2001, terrorist-caused plane crashes in New York, Pennsylvania, and Washington, D.C., President George W. Bush’s Attorney General John Ashcroft clamped down on FOIA releases and legislation in 2001 and 2002 allowed the Environmental Protection Agency, the U.S. Department of Agriculture, and Health and Human Services to classify documents as secret and prevent their release (Clymer, 2003).
No agency or branch of the federal government had been tasked with overseeing compliance with FOIA until passage of the Openness Promotes Effectiveness In Our National Government Act of 2007 (Public Law NO. 110-175). The OPEN Government Act paved the way for the creation the Office of Government Information Services in the National Archives and Records Administration, which provides some oversight of FOIA compliances.
Under the OPEN Government Act, the Office of Government Information Services (OGIS) must review FOIA policies and procedures, review compliance with FOIA, and recommend changes to Congress and the President (The Freedom of Information Act, 5 U.S.C. 552 (h)(2)(A)-(C)).
For the first time, people seeking government information have an agency to turn to when their FIOA requests are denied. The OGIS acts as a FOIA ombudsman and offers a mediation service between requesters and agencies, potentially resolving disputes or paving the way for a request to met (Office of Government Information Services, 2011).
Additionally, President Obama’s 2009 Executive Order 13,392 Improving Agency Disclosure of Information (E.O. 13,392) countered the Ashcroft directive. Obama requires agencies to become more transparent, improve access and make access more consistent across the executive branch of government. Among the changes were the user-friendly requirement of using a consistent pattern in naming agencies’ FOIA webpages (Office of Information Policy, 2011, Open Government) and the goal of consistent listing of resources on agencies’ websites (Office of Government Information Services, 2011, March).
Still, there are indicators that that obstacles remain to easily obtaining government information. One of the complaints of journalists is the federal government does not have the resources to handle the annual 500,000 to 600,000 FOIA requests filed by the general public, lawyers, historians, journalists, and other open government advocates (Duff, 2002).
In 2009, a survey of media lawyers found that 53 percent of the respondents reported an increase in open government violations between 2003 and 2007 (Knight FOIA Fund, 2009 circa). Although the survey response rate was too low to generalize, the results indicate a need for more in-depth study of recent FOIA violations.
A non-governmental organization’s audits in 2010 and 2011 found that only 13 of 90 agencies in 2010 were in compliance of Obama’s executive order, though that number rose to 49 of 90 in 2011 (The National Security Archive, 2011). To learn more about that survey, watch this YouTube video.
Dynamic history
The history of FOIA is dynamic. Presidents, attorney generals, and appeals court cases can change how agencies respond to requests. To keep on top of FOIA issues and history as it is made, you might watch for news postings at the websites of the following websites:
- Office of Information Policy in the U.S. Department of Justice,
- Office of Government Information Services in the National Archives and Records Administration
“The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.”
- Supreme Court Justice Hugo Lafayette Black
Barr v. Matteo, 360 U.S. 564 (1959)
Barr v. Matteo, 360 U.S. 564 (1959)