Principles Defining Freedom of Information Laws in the USA
Principles Defining Freedom of Information Laws in the USA
Understanding the freedom of information (FOIA) laws in the US as currently constituted, requires a historical context. The FOIA is a product of history with each era and constitutional reform since its inception in 1966 adding an importance competent to its scope, therefore, enhancing its utility. Towards remaining true to its founding agenda, the law applies exclusively to the federal executive branch and its corresponding agencies and departments. It facilitates access the public to the records of the respective services of the executive helping promote transparency of the operations of the executive by optimizing accountability. It is the foundation of the public oversight that came into being through congressional subcommittees attempt to simplify access to federal information. While presidential records were not a primary concern to the congressional committees in the 1950s, they had recognized a pattern of misuse of terms such as confidential towards constraining the availability of information about the executive. Even though The US did not necessarily pioneer movement of governmental disclosure, the statute was revolutionary by virtue of its scope and depth relative to its Finnish and Swedish antecedents. The FOI implied that requestors had a presumed access shifting the burden of proof to the government, as the respective agencies must support their reason for denying the requested information. The presumed access has been interpreted differently depending on the presidential administration. The FOIA came into fruition despite intense opposition from the executive even Lyndon B. Johnson ratified it with a measure of reluctance. The resistance persists hence the need for congressional scrutiny to ensure its implementation. The close supervision of FOIA by the Congress has helped its provision to trickle down to the public shifting from its previous status as a luxury reserved for the elements within the legislative function.
The FOIA was enacted in response to domestic pressure to increase government transparency, therefore, enhance good governance. In 1966, after 11 years of development in the House and another six of deliberation in the Senate, FOIA was enacted. The law was expected to become active a year from the date, but it was substituted for a similar statute in June coming into effect on July 4, 1967 (Ginsberg, 2014). Senator John Moss that headed the Congressional committee on government information is accredited for pushing the Bill until its ratification. The resistance in implementation led to a series of amendments with six of the changes arising between from 1974 to 2010 to increase compliance by the federal agencies. The Privacy Act of 1974 was a significant development as it helped the citizens to get information on records on their lives. This was in light of increased scrutiny of government into the personal lives of its citizen’s. In contemporary society, a new wave of accountability has come to the fore demanding enactment of performance measures to evaluate the efficacy of the laws (Stevens, 2010). The need to standardize the laws became necessary given the tendency of each new regime to implement the law differently. The performance measures are still in their growth stage, yet they have helped to facilitate the seamless transition in the implementation of FOIA. Relative to the previous eras that lacked benchmarks, the distinctions between regimes became subtle dictated by the values of the incumbent with the Act’s core remaining practically unchanged. During the Bush administration, federal agencies were cautioned to make disclosure determinations only after a critical analysis of its implications. President Bush endorsed restraint in compliance with requests asserting that the Department of Justice (DOJ) would help to defend an agency’s decision based sound legal fundamentals. The public was given only the minimum compliance. When people go to the court as an individual, they were bound to lose in light of the opponent they were up against with many attorneys among other resources at their disposal. On the other hand, the Obama regime was inclined towards a more open government requiring that departments are forthcoming with information where possible. Disclosure rather restraint was the preferred approach reducing unnecessary opposition that characterized prior eras.
With a rise in civilian requests, the Department of Homeland Security (DHS) has led in public solicitations accounting for 29.3 % of the entire claims as of 2012. The spike in requests in the department is attributed to growth in immigration to the US, and the accompaniment fortification of security measures (Hazell & Worthy, 2010). Similarly, the rise was consistent with calls for community policing that was only possible in an environment with free flow of information. The relevant personnel in the respective department tasked with responding to the applicants’ queries ought to be adequately funded and properly trained to fulfill their mandate. Similarly, given the controversial nature of declassified information, their protection has to be guaranteed. With the safety assured, they can release documents devoid of fear of physical reprisals. In the wake of an international crisis that evokes patriotism from the nation, the executive would leverage the atmosphere to reduce the powers of the provisions. For instance, resident Bush Jr. Benefited from less scrutiny in the implementation of FOIA as he was cloaked under the 9/11 and subsequent war on terror initiative (LaMay, Freeman, & Winfield, 2013). The judiciary and Congress failed in the capacity as checks and balance as they did not to be perceived as unpatriotic. FOIA has provisions that allow for judicial review when the applicant’s request is unduly denied. The executive tends to withhold information with claims of the records in question can undermine national security. Judicial review can assess the credibility of these assertions. The precedence set in other cases where the judicial review demands disclosure is attributed to the breakthrough in the release J. Edgar Hoover records. While there are provisions to seek mediation or appeal administratively, often the cases end up in court.
The FOI laws scope should reflect the extensive nature of the executive’s activities. Given that the executive has jurisdiction over multiple facets of governance even operations related to other branches of government the subject of the inquiries should be equally vast. The above statement implies that the FOIA law is a very potent tool to people who know to exhaust its full capabilities (Hazell & Worthy, 2010). The officials responsible for it implementation should be made aware of its reality. While citizens should be vigilant of national events, the tool is most effective in when directed to the current affairs within their locality. This tool of inquiry was meant to build accountability of federal agencies from the grassroots leading up to the national scene. Participation in civic duties is best when initiated at the local level towards holding the local leaders accountable. From there the results will be reflected on the national stage.
While the FOI facilitates access to government records, some exemptions persist based on the probability of harm resulting from the disclosure. In the United States, there are nine exemptions articulated in the freedoms of information act. Information that is classified for foreign policy or national defense purpose is out of reach of the public, the Congress notwithstanding. Even the House of representatives requires special approvals to access this data. Information about the internal personnel practices and rules bears no relevance to the external world hence exempt. This provision has brought into question the Obama’s initiative to allow visitor logs to the white house to become public records. Thirdly, the presence of another statute that overrides the FOIA Act, therefore, leaving no discretion on the matter under purview qualifies for exemption. The above laws have established the criteria for the access to the named issues and if the law cited the above exclusion. If the information pertains to trade secrets that would make the private entity in question vulnerable to the competitive forces if revealed. Similarly, if the commercial information were confidential and, public awareness would lead to mass panic such as substantial withdrawal investments from a given organization. Fifthly, letters or memoranda’s that are otherwise unavailable to the public save for demand for disclosure through litigation remained confidential. Files that would amount to the unwarranted invasion of privacy such as medical records transcend the FOIA provision. Records that are constituted exclusively for purposes of law enforcement are excluded from FOIA reach. Information on the regulation of financial institution should equally be protected. The confidentiality of geophysical and geological information of a location completes the ninth exemption.
The essence of the exemptions is to ensure that government’s capability to govern adequately is not compromised. Following the denial of access to requested records, the aggrieved party may appeal to the agency’s head to reconsideration. Failure of this administrative approach demands the entity to seek judicial recourse at the federal district courts. Within the National Archives and Records Administration (NARA), the Office of Government Information Services was created to provide a third alternative, mediation. Nonetheless, this is the non-exclusive alternative to litigation is limited to an advisory capacity and is nonbinding (LaMay, Freeman, & Winfield, 2013). The Congress is tasked with supervision of the office of government information. The entity was created courtesy of the OPEN Government Act of 2007. Beyond mediating disputes between federal agencies and FOIA requesters, the agency is mandated with assessing the agencies compliance with the statutes and reviewing the procedures of administrative agencies. They facilitate the training and guidance of the regulatory agencies’ officials running point on the FOIA implementation. Similarly, they can be recommended amendments to Congress and the president towards improving the administration of the statute.
The office is perceived as the FOIA ombudsman, a task where passion for liberties of citizens and freedom of information is the bare minimum. The autonomy of this office is quintessential given the ability of lobby groups to curtail disclosure of information that would subvert their agendas often at the expense of the public (Hazell, & Worthy, 2010). The personality of the ombudsman has the impact of strengthening a weak law and even fortifying a stronger one. It has helped to streamline communication with the Congress, which hitherto its establishment had been constrained. Communication has contributed to mitigate hesitation from agencies as they recognize that the sanctions will be equally swift. The executive as mentioned earlier requires continuous oversight.
The FOI law is an evolving statute that requires reflecting on changes in the situations and technology. For instance, in a period of war data that would be otherwise widely available to the public may be required to be confidential. The Congress should continually probe for the weakness in the statute and work on its deficiencies (Stevens, 2010). For instance, the management of the implementation of IFOA is under deliberation on whether to centralize it to a single entity or leave it under the purview of the different agencies. Nonetheless, the applicants may be denied due to the amount of effort and resources required to retrieve the requested information. In the age of the internet and digital storage, the excuse of inaccessibility is usually perceived as insincere before a court of law. Nonetheless, the departments and agencies should not go to unreasonable lengths in the eyes of a neutral party to accommodate the demands of the applicants. The law cannot compel the government to use resources to retrieving records when they were committed to performing another task. Assembling the requesters’ responses requires utilization of the resource of time by searching for the files and duplicating them to retain them in the system. Record management can be simplified by utilizing technological tools. For instance, smart data movements endorse the creation of an open platform that empowers the public to manage and analyze machine-readable data. The proactive approach is consistent with the supposition of disclosure that the Freedom of Information Act embodies. The cloak of secrecy breeds corruption hence the need for transparency.
Ginsberg, W. (2014). The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues. Library of Congress Washington DC Congressional Research Service. Retrieved from http://digitalcommons.ilr.cornell.edu/key_workplace/1224/
Hazell, R., & Worthy, B. (2010). Assessing the performance of freedom of information. Government Information Quarterly, 27(4), 352-359.
LaMay, C. L., Freeman, R. J., & Winfield, R. N. (2013). Breathing life into freedom of information laws: the challenges of implementation in the democratizing world. Center for International Media Assistance. Retrieved from http://apo.org.au/node/35581
Stevens, G. (2010). The Freedom of Information Act and Nondisclosure Provisions in Other Federal Laws. Library of Congress Washington DC Congressional Research Service. Retrieved from http://www.dtic.mil/get-tr-doc/pdf?AD=ADA529711.
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