Foia Laws: Do They Apply To Congress?

The Freedom of Information Act (FOIA) is a United States federal law that requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the US government upon request. The act applies to records created or obtained by an agency and under agency control at the time of the FOIA request. Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies, are subject to the FOIA. State governments, municipal corporations, the courts, Congress, and private citizens are not subject to the FOIA.

The Freedom of Information Act (FOIA) does not apply to elected officials, including Congress

Correspondence between members of Congress and individuals and even draft bills (many of which are voluntarily released) are protected as private, pre-decisional parts of the deliberative process. As such, applying FOIA to Congress would yield nothing.

The FOIA was enacted in 1966 as an amendment to the Administrative Procedure Act

The Freedom of Information Act (FOIA) was enacted in 1966 as an amendment to the Administrative Procedure Act of 1946. The amendment was intended to address concerns that Section 3 of the APA, which gave agencies broad discretion over the publication of governmental records, had become a mechanism for withholding information rather than disclosing it.

The FOIA amendment was passed as a standalone act to implement "a general philosophy of full agency disclosure". It required agencies to publish their rules, procedures, opinions, statements of policy, interpretations, and staff manuals in the Federal Register, as well as to make them available for public inspection and copying. Additionally, agencies were mandated to promptly provide any requested records that were reasonably described.

The FOIA amendment also outlined nine exemptions that defined categories of information not subject to disclosure. These exemptions include national security, law enforcement investigations, government employee personnel records, medical records, banking records, trade secrets, internal government agency memoranda, geological and geophysical data on oil and gas wells, and any material explicitly exempt by an act of Congress.

The FOIA was designed to increase transparency and make U.S. government agencies' functions more transparent, allowing the American public to more easily identify problems in government functioning and hold Congress, agency officials, and the president accountable. It grants the public the right to request access to records from any federal agency, with certain limitations, and has been instrumental in exposing government misconduct, waste, and threats to public health and safety.

The FOIA requires agencies to publish certain categories of information, including final opinions made in the adjudication of cases and statements of policy

The Freedom of Information Act (FOIA) requires agencies to publish certain categories of information. This includes final opinions made in the adjudication of cases and statements of policy.

Section 552(a) of the FOIA states that each agency shall make available to the public:

> (2) ... final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

>

> (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

Agencies are required to make this information available for public inspection and copying in an electronic format. They must also maintain and make available for public inspection current indexes providing identifying information for the public about any matter issued, adopted, or promulgated after July 4, 1967, and required by the FOIA to be made available or published.

In addition, agencies must proactively post online certain categories of information, including frequently requested records. This helps to promote transparency and accountability in government and is recognised by Congress, the President, and the Supreme Court as a vital part of democracy.

The FOIA contains nine exemptions that define categories of information not subject to disclosure

The Freedom of Information Act (FOIA) provides the public with the right to request access to records from any federal agency. There are nine exemptions that define categories of information not subject to disclosure. These exemptions serve to protect interests such as personal privacy, national security, and law enforcement.

Exemption 1 covers information classified under executive order to protect national security or foreign policy, while Exemption 2 relates to internal agency personnel rules and practices. Exemption 3 pertains to information prohibited from disclosure by federal law. Trade secrets, commercial or financial information, and privileged or confidential data are protected by Exemption 4.

Exemption 5 deals with inter-agency or intra-agency communications and legal privileges, including deliberative processes, attorney work products, and attorney-client communications. Exemption 6 safeguards personal privacy by withholding personnel, medical, financial, and similar files.

Exemption 7 protects law enforcement by withholding information that could interfere with proceedings, deprive a person of a fair trial, invade personal privacy, disclose confidential sources, or endanger lives. Exemption 8 covers records related to financial institutions, and Exemption 9 pertains to geological information on wells.

These exemptions allow federal agencies to maintain confidentiality in sensitive areas while still upholding the public's right to access information.

The FOIA has been changed repeatedly by both the legislative and executive branches

The Freedom of Information Act (FOIA) is the United States federal freedom of information law that requires the full or partial disclosure of information and documents controlled by the US government upon request. The act was intended to make US government agencies' functions more transparent so that the American public could more easily identify problems in government functioning and hold Congress, agency officials, and the president accountable.

The FOIA has been amended several times since its enactment in 1966, with changes made by both the legislative and executive branches. Here is a detailed look at how the FOIA has been changed over the years:

Legislative Changes to the FOIA:

The legislative branch has amended the FOIA multiple times to expand its scope and improve government transparency. Some notable legislative changes include:

• 1966 Amendments: Initially, Section 3 of the Administrative Procedure Act (APA) of 1946 gave agencies broad discretion over the publication of governmental records. However, due to concerns that agencies were withholding information rather than disclosing it, Congress amended the section in 1966 to implement "a general philosophy of full agency disclosure." The amendment required agencies to publish their rules, procedures, opinions, and other relevant information in the Federal Register, making it accessible to the public.
• Privacy Act of 1974: This Act was passed as a countermeasure to ensure the security of government documents containing private citizen information. It gave citizens the right to access and amend records about themselves and to sue the government for violations of the statute.
• 1976 Government in the Sunshine Act Amendments: In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended to specify several exemptions, including information related to national defense, internal personnel rules, accusations of crimes, privacy breaches, investigatory records, financial stability, and agency participation in legal proceedings.
• 1986 Omnibus Anti-Drug Abuse Act Amendments: Congress amended the FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records.
• Electronic Freedom of Information Act Amendments of 1996 (E-FOIA): The E-FOIA required agencies to make certain types of records available electronically and provide electronic reading rooms for citizens to access. It also extended the required response time for FOIA requests from 10 to 20 business days.
• OPEN Government Act of 2007: This Act established a definition of "a representative of the news media" and directed that attorney fees be paid by the agency's appropriation rather than the Judgment Fund. It also prohibited agencies from charging fees if they failed to comply with FOIA deadlines and established the Office of Government Information Services (OGIS) to review agency compliance with FOIA.

Executive Changes to the FOIA:

The executive branch has also made significant changes to the FOIA, primarily through executive orders and directives. Some key executive changes include:

• President Ronald Reagan's Executive Order 12356 (1982-1995): This order allowed federal agencies to withhold substantial information under Exemption 1, relating to national security, citing the need to protect the country and strengthen national security.
• President Bill Clinton's Executive Directives (1995-1999): President Clinton issued directives that permitted the release of previously classified national security documents older than 25 years and of historical interest, increasing public knowledge about the Cold War and other historical events.
• Executive Order 13233, drafted by Alberto R. Gonzales and issued by President George W. Bush (2001): This order restricted access to the records of former presidents, but it was later revoked by President Barack Obama in 2009, restoring public access to presidential records.
• Intelligence Authorization Act of 2002: This Act included amendments to the FOIA pertaining to intelligence agencies, prohibiting them from disclosing records in response to FOIA requests made by foreign governments or their representatives.
• Executive Order 13526, issued by President Barack Obama (2009): This order allowed the government to classify certain types of information relevant to national security even after a request for that information had been made under the FOIA.
• Dodd–Frank Wall Street Reform and Consumer Protection Act (2010): This Act included provisions shielding the Securities and Exchange Commission (SEC) from FOIA requests, but these provisions were later repealed in 2010 due to concerns about hindering SEC investigations.

These changes demonstrate the ongoing efforts of both the legislative and executive branches to balance the public's right to know with the need to protect sensitive information. The FOIA continues to evolve as new challenges and considerations arise, ensuring that government agencies remain accountable to the American people.

Frequently asked questions