08 June 2009
Freedom of Information Is Bedrock of Free and Open Societies
Obama administration refines 43-year-old law
Washington — The 43-year-old Freedom of Information Act is considered a bulwark of democracy by scholars, journalists and common citizens seeking information held by the U.S. government.
The Freedom of Information Act (FOIA), enacted in 1966 and refined over the years, allows individuals and organizations (including non-U.S. citizens and groups) to request access to unpublished documents held by the executive branch of the federal government without having to provide a reason for the request.
When FOIA first was enacted, it was considered revolutionary. Only Finland and Sweden had similar legislation. Since then, about 80 nations have created similar laws, says Tom Blanton, director of the National Security Archive, a leading U.S. research institute that collects and publishes information gathered through FOIA requests.
President Lyndon Johnson was not enthusiastic about signing the act requiring the executive branch of the U.S. government to make many documents available upon request by the public. Many officials felt the transparency called for by FOIA would constrain them from communicating sensitive information in documents, thereby hampering government functions.
Since its inception, FOIA has become a popular tool of inquiry for journalists, scholars, businesses, lawyers, consumers and environmental groups. It has helped bring openness to the workings of government.
Areas of information that are exempt for release under FOIA include: personal privacy information, certain classified national defense and foreign relations matters, and trade and business secrets. The law does not apply to the two other branches of the U.S. government — the judicial (federal courts) and legislative (Congress) — or states. Individual states have their own FOIA-type laws that cover state government information.
In 1996, FOIA went digital when Congress revised the law to provide for public access to information in electronic form. Federal agencies provide information online on how to make requests for documents.
On his second day in office, January 21, President Obama instructed the Department of Justice to further enhance accessibility of information to the public. Attorney General Eric Holder, whose department oversees the handling and administration of FOIA requests among federal agencies, issued a set of guidelines on March 19 implementing Obama’s order.
Calling Obama’s directive “a sea change in the way transparency is viewed across the government,” Holder said FOIA “reflects our nation’s fundamental commitment to open government” and the new guidelines are “meant to underscore that commitment and to ensure that it is realized in practice.”
The new guidelines, which apply to all executive branch agencies, include a requirement that when responding to an information request, agencies should ask: “What can I release?” An agency should not withhold information simply because it is technically allowed to do so.
The guidelines also call for:
• Releasing records in part when they cannot be released in full.
• Ensuring discretionary release of documents when possible.
• Working cooperatively with requests and responding promptly.
• Better reporting by agency FOIA personnel to the Department of Justice.
The new guidelines aim to make the FOIA process more efficient and quicker. In 2006, the 30 federal agencies with the largest volume of requests reported receiving more than 774,000 requests for access to information under FOIA.
FREEDOM OF INFORMATION OVERSEAS
Other nations have seen firsthand the impact of greater government transparency through FOIA-type laws.
The United Kingdom’s Freedom of Information Act, passed in 2000 but only implemented over the past few years, recently helped American freelance journalist Heather Brooke expose a government scandal. The journalist, who lives and works in the United Kingdom, used her experience as an investigative reporter in the United States to make FOIA requests on the expense claims of members of Parliament.
Brooke’s request kicked off a vigorous debate in the House of Commons on whether the governing Labour Party could get an exemption for expense claims under the new law.
A major British newspaper, the Daily Telegraph, gained access to some of the information and wrote a series of stories identifying 80 members of Parliament as alleged abusers of government expense accounts. The findings led to the resignation of the speaker of the House of Commons.
China is also experiencing greater government transparency after it recently promulgated its Regulations on the Disclosure of Government Information. The year-old law has resulted in more openness, an example being the Ministry of Finance’s decision to publish the government’s 2009 budget on the Internet on March 20. More environmental information has been released to the Chinese public over the past year.
Like its U.S. counterpart, the new Chinese FOIA also mandates that government agencies issue an annual public report on their progress in disclosing information to the public.
More information on how federal agencies process FOIA requests is available on the Department of Justice Web site.
Readers’ comments
20 September 2009
05:37:41-0400
Freedom of information is wonderful, but it is also being abused from outside of the USA and prejudicing some companies working in the USA. For example, oil companies working in the USA are suffering because they are listed companies, and this opens the way for market abuse, where investors then tap in to respective oil and gas government sites, find out information when a well is to be spudded, before a company has had chance to have a board meeting, or where there are commercially sensitive issues.
Instead this information is used to buy or sell shares in advance, and is used to make allegations against companies, not really giving them any say in commercially sensitive matter, where they have a duty of care both in the US and in the UK. Consequently it does not allow these companies to manage their own affairs, and frequently results in both the financial markets in the USA and the UK being adversely affected by premature leaking of information supplied under the FOI, from say Kansas oil authorities or others, where then investors can allege wrongdoing, supply a well report, or even announce to the market just after they have bought shares that a well had spudded. I believe there needs to be more safeguards for companies to have control and choice of when to release information in an orderly manner, otherwise the markets are distorted. Perhaps a way round this would be to keep the freedom of information, but in these sort of cases, restrict that information for say 14 days before being available, allowing a company to manage its own affairs, and preventing financial market abuse.
Best regards from the UK
