Loyola University Chicago School of Law, JD 2019
On October 26, 2017, the United States government released files relating to the assassination of President John F. Kennedy and the investigation that followed. The majority of the documents generated by the investigation – about 88% of all FBI, CIA, and other agencies’ files – have been available for years, but the rest of the documents were due to be released this year. On the recommendation of the investigatory agencies, President Trump decided to keep some of this remaining information redacted due to “national security, law enforcement, and foreign affairs concerns.” Speculation as to the contents of these documents and the reasons for redacting secure information have renewed a continuing discussion about what information the public should be privy to and how this information can be accessed.
Citizens should have transparency with information regarding their government. A forty-year-old law, the Freedom of Information Act (FOIA), is the most effective tool in ensuring their leaders are compliant.
What Information Citizens Are Entitled To
The Freedom of Information Act, effective since 1967, is a federal law providing citizens with the supposed “freedom of information,” allowing for the full or partial disclosure of records controlled by the United States government. FOIA is a vital part of our democracy under various levels of protection by all three branches of our government. Under FOIA, documents requested by the public must be disclosed, and agencies are also required to proactively post online certain information including frequently requested records. There are however, certain exemptions that allow government agencies to withhold information when requested. Agencies can withhold information when it pertains to:
- Classified information for national defense or foreign policy;
- Internal personnel rules and practices;
- Information that is exempt under other laws;
- Trade secrets and confidential business information;
- Inter-agency or intra-agency memoranda or letters that are protected by legal privileges;
- Personnel and medical files;
- Law enforcement records or information;
- Information concerning bank supervision; and
- Geological and geophysical information.
Additionally, there are three categories of information excluded from disclosure. These include 1) the existence of an ongoing criminal investigation where the subject is unaware of the investigation and disclosure could affect this, 2) the existence of informant records when the informant’s status is not officially confirmed, and 3) the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. All records falling under these categories are excluded from FOIA disclosure.
The history of this act shows its general ineffectiveness and impact to be, at best, inconsistently enforced. For instance, President Reagan signed an executive order in 1982 allowing agencies to withhold enormous amounts of information under the national security exemption. Due to public outcry, President Clinton altered these restrictions during his administration in 1995. President Bush signed another executive order in 2001 restricting public access to records of former presidents, which was overturned by President Obama in 2009. President Obama, on his first day in office, directed that FOIA “should be administered with a clear presumption: In the fact of doubt, openness prevails.” Essentially, when in doubt, disclose or partially disclose. This “presumption of openness,” however, has been met with skepticism. While optimistic on its face, critics doubt the ability of this policy to enact any real change, particularly when the most common reason for use of the exemptions above is to protect non-discretionary business sensitive information.
How To Submit FOIA Requests
While FOIA requests can be made for records pertaining to federal agencies, this does not include congressional, court, state or local records. Additionally, the government is not expected to do research on behalf of the requester.
First, search to see if the information you are requesting is already publicly available on the FOIA- or relevant agency’s website. (You should also know which agency has the records you seek). If not, you can submit a FOIA request to the agency’s FOIA office. According to the FOIA website and the law, there is no specific form but the request must be “in writing and reasonably describe the records you seek.” These requests can be submitted to the relevant agency’s FOIA office electronically, but each agency may have their own criteria. That can be found here.
Since the government will not be analyzing your request beyond the bare minimum, you will need to clearly state which agency records you are requesting as well as the format in which you wish to receive the information. You do not have to explain the reason for your request, and government employees generally do not have the right to ask—the only exception is if you are seeking a waiver of costs. Costs vary by agency, but there is generally a $.10-$.25 per page fee. The first 100 pages and 2 hours of search time are free.
The request should state that it is made pursuant to the Freedom of Information Act (5 U.S.C. § 552) or the Privacy Act (5 U.S.C. § 522a) if the information is about yourself.
Requests are generally processed in order of receipt, but they can also be organized by complexity (i.e. simpler requests will be processed faster). In any case, the law provides for a deadline of 20 working days on an initial request, though this clock is stopped if the agency has to follow up for more information from a requester. The Obama Administration, in particular, was concerned with promptness in FOIA requests and enacted the FOIA Improvement Act of 2016, with the aim to increase efficiency and reduce backlog. One of the measures was the creation of an online portal for requests, to cut down on paper costs and time.
The agency may deny your request. In this instance, you are entitled to an appeal that must be filed within 30 days. If the agency does not respond to your initial or appeal request, you are entitled to go to court and demand a response.
In short, if the request can “reasonably describe” the information being sought, and all responses are timely, the requestor can obtain what they are looking for. If the requester is not satisfied, an appeal or litigation would be the next step. However, the exemptions above must be kept in mind. No matter what information the public needs, an ever-changing political and global atmosphere ultimately dominates what information the government will provide.