Although often considered one of the press freedoms guaranteed by the First
Amendment, freedom of information instead is a creation of statute. The First
Amendment-related philosophy behind freedom information is that a free press
needs access to public information in order to do its job of informing the
Because freedom of information is established by statute, the public’s right
to government records is frequently subject to political pressures and
Each of the states and the District of Columbia has enacted its own
open-records law. State laws control local governments and agencies' policies, which may grant even more access to their records than the minimum level set by the state. As can be imagined, these laws vary in a number of ways.
Generally, however, the state laws follow the basic format of the Freedom of Information
Act, 5 U.S.C. Section 552, which governs access to federal records. (See How to file an FOIA
The FOIA was adopted in 1966 and amended significantly in 1996 to clarify
citizens’ rights to federal electronic records. FOIA was most recently amended
on Dec. 31, 2007, to make FOIA more user-friendly, to clarify that
nonproprietary information held by government contractors is subject to FOIA and
to expand the definition of “representative of the news media” to include many
freelance journalists. At its core, FOIA requires federal government agencies to
disclose certain types of records when requested and establishes the procedures
for requesting records and responding to requests. FOIA also establishes the
right to sue agencies that fail to comply with the law.
The agencies covered by FOIA are the agencies, offices and departments of the
executive branch of the federal government (the Department of Defense and the
Office of Management and Budget, for example), independent federal regulatory
agencies (such as the Environmental Protection Agency and the Federal
Communications Commission) and government-controlled corporations (the U.S.
Postal Service, the Smithsonian Institution and others).
FOIA does not apply to Congress, the courts or executive staff who advise and
assist the president.
At times, it seems that the exemptions in FOIA swallow the law’s disclosure
requirements. Agency employees and judges can deny access to records on any of
- The records “reasonably could be expected to cause damage to the national
security” if disclosed.
- The information relates solely to internal agency personnel rules and
- The documents are specifically exempted from disclosure by another statute.
- The records contain trade secrets or other sensitive commercial or financial
information obtained from a person.
- The documents are interagency or intra-agency memoranda that concern
confidential communications or that contain advice on recommendations that are
part of government’s decision-making process.
- The records contain personal information that would lead to an invasion of
personal privacy if released.
- The data was compiled for law-enforcement purposes, and release of the data
would compromise a legitimate law-enforcement goal.
- The records relate to the examination, operation or condition of financial
institutions that are subject to federal regulation.
- The documents contain geological information concerning oil and gas well
The meaning and breadth of these exemptions have been the focus of countless
agency reviews and hundreds of court decisions. Most of these administrative and
judicial appeals result from many agencies’ almost knee-jerk denial of FOIA
Occasionally, however, more legitimate issues of interpretation reach as high
as the U.S. Supreme Court. Perhaps the Supreme Court’s most important FOI
decision to date is its ruling in Department
of Justice v. Reporters Committee for Freedom of the Press (1989), in
which the Court held that criminal rap sheets are exempt from disclosure under
FOIA because such disclosure would invade personal privacy. In the FOIA cases it
has considered, the Supreme Court usually has sided with the government and
Political philosophies and current events also influence the ease with which
records can be obtained. Most recently, many federal agencies (and their state
counterparts) have determined that the increased threat of domestic terrorism
requires even more limited disclosure of many categories of documents. On Oct.
12, 2001, for example, Attorney General John Ashcroft issued an FOIA memorandum
requiring that federal agencies use a “sound legal basis” standard for denying
access to documents, rather than the “foreseeable harm” test used before Sept.
When the proposed 2007 FOIA amendments were working their way through
Congress, a provision to overturn the Ashcroft standard and restore the
presumption in favor of disclosure was included in the House of Representatives
version of the bill. That provision, however, was not part of the Senate bill
ultimately signed by the president.
Technically, an agency is required to respond to an FOIA request within 20
days unless “exceptional circumstances” exist. Rarely, however, do agencies
comply with this deadline. Courts generally have been sensitive to agency claims
that the deadline is impossible to meet, often holding that a large backlog of
requests constitutes an exceptional circumstance and that the agency need do no
more than show it is actively processing FOIA requests on a first-come,
Note: Although FOIA doesn't apply to courts, lower courts have tended to
allow a right of access to court files and other court documents. These courts,
however, have struggled to define the reach of that right. Courts across the
country, for example, disagree about whether the news media are entitled to
copies of videotapes, audiotapes and documents that are introduced as evidence.
Courts also disagree about the circumstances under which it is lawful to seal
settlement agreements and other court records. While courts more consistently
hold that members of the press and the public are not entitled to obtain unfiled
discovery materials or attend depositions, a few courts have held that discovery
proceedings, including depositions, are presumptively open.
Updated January 2008
Suit seeking to open sealed court cases dismissed