In the Government Know: The Freedom of Information Act (FOIA)

The right to understand what transpires in our government is essential to democratic principles. Voting citizens recognize that their elected representatives, government appointees, and various programs produce an enormous quantity of records and other information. All of said information is categorized under strict laws affording it protection for national security or commercial reasons. However, releasable information can still provide insight on how public servants work to make the government transparent. Inherent with the right to vote is the right to know what happens inside an agency or department and the documents therein. This is the basis for one of the most significant pieces of legislation created in the last sixty years: the Freedom of Information Act (FOIA).

The Freedom of Information Act allows people to request specific information regarding agency operations, records, and government transparency. The act also establishes specific criteria for determining a record’s eligibility for public release pending a review process. The lifespan and accessibility of records change between agencies and each have their own additional criteria in addition to basic FOIA requirements. This is done to guard against the release of any sensitive, personal, or national security information. The act is also used to describe ‘opening up the government’ by letting the public see how it operates. In a famous court case, Fielding F. McGehee vs. CIA, the Washington DC Circuit Court of Appeals wrote in its closing statement that having an informed voter is essential to a functioning democracy:

“It has often been observed that the central purpose of the FOIA is to “open … up the workings of government to public scrutiny.” One of the premises of that objective is the belief that “an informed electorate is vital to the proper operation of a democracy.” A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions.”

McGehee v. CIA, US Court of Appeals, Washington DC Circuit, January 4, 1983
U.S. Representative John E. Moss (D-California) led the charge for implementing FOIA and the restructuring of information security levels (Image courtesy of U.S. Congress)

California Representative John E. Moss made it his congressional career to passing FOIA and signing it into law. He would ultimately spend twelve years garnering support and shepherding it through various committees. In the late 1950s, government classification of documents was being mishandled and accidental leaks were problematic. Representative Moss chaired the Government Information Subcommittee and took it upon himself to upgrade security classifications and draft rules on accessibility. On July 4, 1966 a hesitant President Lyndon Johnson signed bill S1160 into law. Johnson recognized the need for the law, but gave additional measure to protecting military interests and allowing government officials to discuss things frankly without having to mince their words and actions with the overarching specter of public investigation constantly overheard. [Statement by the President upon signing the ‘Freedom of Information Act, July 4, 1966] The law was initially repealed following a revision of Title 5 of the US Code, but a new version was eventually drafted and signed with the effective date of July 4, 1967, just one year later.

Since 1967, FOIA underwent numerous revisions and amendments strengthening, limiting, and reclassifying information security. The most impactful occurred with the increasing scrutiny on national security and the War on Terror. Today there are nine exemptions when a person files a FOIA request:

  1. National security and foreign policy classified by executive order
  2. Internal personnel rules of an agency
  3. Specifically exempted from disclosure
  4. Trade secrets, commercial, and financial information
  5. Interagency memorandums not subject to litigation
  6. Personnel and medical files of government employees
  7. Records relating to ongoing law enforcement and federal investigations
  8. Supervising agencies on financial institutions
  9. Geological information relating to wells and water tables

Agency employees still have to be conscious of what is in a document that’s being requested under FOIA rules. Redactions still take place to ensure no personal information is being leaked. This can sometimes cause confusion as the general public sometimes assumes that a FOIA requests means they can ask for anything unredacted. This is incorrect. FOIA requests generally take around twenty to thirty days to process depending on the agency and even then, FOIA officials or subject matter experts still review the packet before it goes to the requester. They are sometimes classified as ‘Government Information Specialists.’ This screening process can cause frustration as the included information becomes more complex. Rarely do federal agencies meet this twenty to thirty day deadline because of the steps involved to release public and redact private information.

While the FOIA request process is not a perfect one, the legislation itself is remarkably important to maintaining a transparent government that allows people to ask questions about its function and policies. An informed electorate is powerful in a representative and democratic government and FOIA is the best legislative tool to be in the know.

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