Freedom of Information Act

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The Freedom of Information Act (FOIA) which was signed into law by President Lyndon B. Johnson on July 4, 1966, went into effect the following year.

Contents

Why the FOIA?

Freedom of information is a phrase bandied about almost daily by press and public alike. And with the perennial stress on both constitutional and inherent rights of American citizens, with the added assertion of government subservience to the individual, it was necessary that government information would be available to the public. Issues of counter-rights, such as sensitivity of government information or private interests, clash. It was, therefore, attempted in 1966 to enact a Freedom of Information Act (FOIA) which would effectively deal with requests for government records consistent with the idea that the people have the “right to know” about them. Also, close in hand, the Privacy Act (PA) of 1974 covered government documents charting individuals.

However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine and ten, respectively, exemptions to the FOIA and PA address the issues of sensitivity and personal rights. Many citizens, over the course of the years, have felt cheated by these exemptions, due to persistent government action on many levels geared towards exploiting these exception-clauses of the acts to withhold information which, in reality, did not uphold a national or constitutional right, but personal/political biases. The forms of cases against the government were many, and still continue. The major defendants in these cases have been the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA) and the National Security Council (NSC), but the President has often been involved. The scope of the FOIA and PA is large, however, and compasses even ancillary roles in murder cases. The Freedom of Information Act (and corollary legislation) presents the United States with the problem of a ‘slippery slope’ of free information. How much information is the government obligated to reveal? Is there a point at which boundaries of public availability should not be crossed? And most importantly, who determines and enforces those boundaries to the benefit or detriment of those seeking and withholding information? The FOIA is perennially thwarted by government misuse of its exemption laws.

FOIA and government

The Freedom of Information Act (1966), for one, explicitly applies to government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedure for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.” [III - Section 552 – (a)4(F)] In this way, there is recourse for one seeking information to go to a Federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding “ specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “ clearly unwarranted invasion of personal privacy.” [III - Section 552 – (b) 1, 4 and 6] Thus, in all cases, the President has unlimited power in declaring something off-limits or necessarily classified in the concern of national safety. This loophole has presented numerous problems for individuals seeking information under the FOIA.

The Privacy Act

The Privacy Act (1974) is, summarily, a similar act regulating government control of documents which concern a citizen. It gives one “ (1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one’s] records unless specifically permitted by the Act.” [V] In conjunction with the FOIA, the PA is used to further the rights of an individual gaining access to information held by the government. The Justice Department's Office of Information and Privacy and federal district courts (I – pg. 27) are the two channels of appeal available to seekers of information.

Redactions: how much information is getting through?

A major issue in released documentation is government redaction of certain passages deemed applicable to the Exemption section of the FOIA. FBI officers in charge of responding to FOIA requests " so heavily redacted the released records as to preclude needed research." (I - pgs. 21-22) This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar Hoover. Of the 164 files of about eighteen thousand pages collected by the FBI, 2/3 were withheld from Athan G. Theoharis and plaintiff, most notably one whole folder entitled the 'White House Security Survey.' Despite finding out that the Truman Library had an accessible file which pretty much documented all the reports of this folder, the FBI and Office of Information and Privacy put forth "stony resistance" to the FOIA appeal process. (I – pg. 27) It wasn't truly this sixteen year series of three appeals to the Justice Department which gained a further opening of the files but the case of the U.S. Department of Justice v. Landano which spurred on a break in stolid FBI opposition.

A murder trial decided in the year of 1993, U.S. Department of Justice v. Landano, involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor wrote the unanimous opinion. " In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation." [IV] In defense, the FBI put forth a claim that the redacted sections of the documents requested were withheld in accordance with FOIA regulations protecting the identity of informants who gave information regarding case details. However, being that common sense advocated withholding of document information only if it violated fundamental principles of witness anonymity, O'Connor argues that those who supplied information had no need to remain anonymous in the court setting. " To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits." The court thus remanded the case to the Circuit Courts and rejected the FBI's claim of confidentiality as being valid reason to withhold information.

" While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed." [IV] Thus, when Theoharis and company were in the middle of fighting with intransigent FBI and OIP officers to obtain J. Edgar Hoover files, they benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993. The unwavering quest for research documents was aided directly and indirectly by cases having nothing to do with research. This complex and lengthy process is indicative of the cumbersome nature of the FOIA cases and related history.

FOIA and e-mail

As expressed in a 1965 Senate meeting and related by Anna W. Branscomb, "The legislative history of the FOIA reflects this deep concern about the ability of the American people to obtain information about the internal workings of their government." (II - pg. 167) This "deep concern" was thwarted in the case of Scott Armstrong et al. v. Executive Office of the President et al., which illustrates the involvement of a trans-party Presidential offensive against private requisitioning of National Security Council (NSC) records. There was in use in the White House the PROFS (I - pg. 142) computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran-Contra affair (arms-for-hostages) under the Reagan administration were insulated. However, they were also backed up and transferred to paper memos. These memos were to be destroyed. The National Security Council, on the eve of the Bush move into the White House, planned to destroy these records. The National Security Archive, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Record Administration (NARA), and the NSC's purging of PROFS records. Called a Temporary Restraining Order (TRO), this injunction was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records. [I – pgs. 151-152]

By this time, the Bush administration was on its way out. Richey gave a further injunction to prevent a purging of Bush administration records as well. On counts of leaving the White House clean for the new Clinton administration, the Bush group appealed was denied its request. Finally, the Clinton administration, intent on suppressing White House e-mail records, appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency, but a group of aides to the president, and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office… or twelve years if the records [were] classified." [I – pg. 156] The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $ 9.3 million on shutting down the National Security Archive FOIA requests for PROFS e-mail records. (I - pg. 159)

An overview of the FOIA

As seen from the Armstrong case, strong antipathy to open access to government information subverts the FOIA using its exemption laws, which give executive powers and non-'agency status' governmental groups impunity in the face of the FOIA. Arbitrarily pronouncing various documentation 'classified' under reasons of national security or with justification of FOIA exemption does not always follow the true intent of the FOIA. It was intended to disclose fully to the public information which did not conflict with essentially American freedoms, such as those of privacy, or compromise national security. There are perhaps thirteen primary issues which govern the citizen's right over information (II - pg. 181): secrecy, privacy, confidentiality, publicity, commerciality, accessibility, reciprocity, integrity, interoperability, responsibility, liability, commonality and equity. How many of these issues apply to government is debatable, for it may be argued that all government rights are secondary to the public interest. However, the FOIA addresses issues concerning retention of certain information in its exemptions. Whether these exemptions are abused by government is hotly contested by a mix of advocates drawn from both government and citizenry.

Related articles

External links

References

I) Theoharis, Athan G. (Ed.) A Culture of Secrecy: The Government Versus the People’s Right to Know. Kansas: University Press of Kansas, 1998.

II) Branscomb, Anne W. Who Owns Information?: From Privacy To Public Access. New York: BasicBooks, 1994.

III) "Freedom Of Information Act." U.S. Gov. Info/ Resources by About.com. [1]

IV) "United States Dep't of Justice v. Landano (91-2054), 508 U.S. 165 (1993)." Cornell Law School Resources. [2]

V) "Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act, 1992." Electronic Privacy Information Center. [3]

VI) "Report of the Commission on Protecting and Reducing Government Secrecy 1997." Federation of American Scientists. [4]

VII) "Statement of Senator Daniel Patrick Moynihan Before the Committee on Governmental Affairs; United States Senate." Federation of American Scientists. [5]

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