Freedom of Information Act and Other Open Government Acts

• Pages: 175-183
• Author: Richard J. Pierce, Jr.

175

Chapter 12

FREEDOM OF INFORMATION

ACT AND OTHER OPEN

GOVERNMENT ACTS

Congress has enacted several statutes that are designed to make

the agency decisionmaking pro cess more transparent and accessible

to the public. The four most important are discussed in this chapter—

the Freedom of Information Act (FOIA), the Privacy Act (P A), the

Government in the Sunshine Act (GSA), and the Federal Advisory

Committee Act (FACA).

A. The Freedom of Information Act

FOIA confers on “any person” a right to obtain information

contained in any “agency re cord” unless the information falls within

one of ten exemptions.

1. Disclosure to Any Person

FOIA confers on “any person” a right to obtain information

contained in any “agency re cord” unless the information falls within

one of ten exemptions. FOIA is used by investigative reporters,

interested members of the public, lawyers, regulatees, organized

crime syndicates, and foreign intelligence agencies. Congress and

courts are well aware that FOIA can be used for such laudatory

purposes as exposure of government corruption or incompetence and

for such odious pu rposes as identification of government informants

and sources of U.S. intelligence for assassination by crime syndicates

or foreign intelligence agents. That awareness forces Congress to

draft, and courts to interpret and apply, the exemptions from the

duty to disclose with sensitivity to the p otential h igh costs of

inappropriate disclosure as well as the benefits of disclosure. An

“agency record” is defined broadly to include any record, paper or

electronic, that has been created or retained by an agency and that is

in the control of the agency.

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2. Timing and Cost of Disclosure

Shortly after FOIA went into effect in 1967, Congress began to

receive widespread complaints that agencies were delaying

interminably their responses to FOIA requests. Congress responded

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Department of Justice v. Tax Analysts, 492 U.S. 136 (1989); Forsham v.

Harris, 445 U.S. 169 (1980); Kissinger v. Reporters Committee for Freedom of Press,

445 U.S. 136 (1980).