Access to Government Information in the United States: A Primer
Released: 2016-03-18T00:00:00

History and Background

Throughout the first 150 years of the federal government, access to government information does not appear to have been a major issue for the federal branches or the public. There were a few instances during this period when the President, arguing the need to maintain the constitutional independence and equality of his branch, vigorously resisted attempts by Congress and the courts to obtain executive records. During this same era, an active federal public printing program was established and effectively developed, making government documents more accessible.

Following World War II, some information was available from certain federal departments and agencies. The public availability of records held by the executive branch was limited by narrow interpretation of the "housekeeping" statute of 1789 (now codified at 5 U.S.C. §301), which authorized the heads of departments to prescribe regulations regarding the custody, use, and preservation of their agencies' records, papers, and property. Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information. Section 3(b) of the Administrative Procedure Act of 1946 (5 U.S.C. §551) indicated that matters of official record should be available to the public, but added that an agency could restrict access to its documents "for good cause found" or "in the public interest." These discretionary authorities were relied upon to restrict the accessibility of unpublished agency records and documents.

Some congressional panels began examining information access issues and seeking responsive legislative solutions. Among these legislative responses were the enactments of four statutes.

Two provide access to federal records:

the Freedom of Information Act (1966) and the Privacy Act (1974).

Two provide access to federal meetings:

the Federal Advisory Committee Act (1972); and the Government in the Sunshine Act (1976).

This report offers an overview of each of these statutes, including the boundaries of their authority. This report then provides citations to additional resources on each of the laws.

Freedom of Information Act (5 U.S.C. §552)

In 1966, Congress enacted the Freedom of Information Act (FOIA), the first law requiring public access to executive branch records. Pursuant to the statute, FOIA does not apply to the legislative or judicial branches of the federal government or to state, local, or tribal governments. Legislative records were not included in the bill because Congress believed that its own deliberations and proceedings were adequately subject to public observation. For example, the Constitution explicitly permits each house of Congress to keep portions of its journal of proceedings secret and disallows the questioning of Members of Congress "in any other Place" regarding official speech or debate. Legislators also were satisfied with the openness of federal court files and hearing rooms. Thus, the departments and agencies were the principal object of government information access reform laws.

FOIA established, for any person—corporate or individual, citizen or otherwise—presumptive access to existing, unpublished agency records on any topic. The law specifies nine categories of records that may be exempted from the rule of disclosure. Agencies within the federal intelligence community are prohibited from making any record available to a foreign government or a representative of same pursuant to a FOIA request. Disputes over the accessibility of requested records may be settled, according to the provisions of the act, in federal court or may be mediated in the Office of Government Information Services (OGIS).

Fees for search, review, or copying of materials may be imposed, while certain types of requesters may be granted fee waivers or reductions. FOIA was amended in 1996 to provide for public access to information in an electronic form or format. These amendments are often referred to as e-FOIA. In 2007, FOIA was further amended to

redefine qualifications for fee waivers for those seeking records, require the National Archives and Records Administration to establish OGIS to act as a centralized FOIA oversight office and FOIA dispute mediator, and require agencies to create tracking systems that allow requesters to determine the status of their information requests, among other modifications.

In 2009, provisions of the OPEN FOIA Act of 2009 were enacted as amendments to the Department of Homeland Security Appropriations Act, 2010. Among other requirements, the provisions established specific criteria for the future statutory creation of exemptions that would allow federal executive branch agencies to withhold certain categories of records. For example, the enacted provisions require that qualifying future statutory exemptions from FOIA cite specifically to 5 U.S.C. §552 in their authorizing language.

Federal Advisory Committee Act (5 U.S.C. App.)

A 1972 statute, the Federal Advisory Committee Act (FACA), requires that the meetings of all federal advisory committees serving executive branch entities be open to public observation and that all committee records be accessible to the public. FACA was designed to eliminate duplication of committee expertise and make advisory bodies in the executive branch more transparent. Committees that fit certain FACA criteria are governed by FACA's guidelines. Congress can decide, however, to place some or all or FACA's transparency and access provisions on an advisory body that it statutorily establishes.

The statute specifies certain categories of debate that federal advisory committees may conduct outside of public view as well as advisory committee records that may be withheld from public release. Disputes over the proper public notice for a committee meeting or the closing of a session may be pursued in federal court.

Privacy Act (5 U.S.C. §552a)

Legislated in 1974, the Privacy Act provides U.S. citizens or permanent resident aliens presumptive access to personally identifiable files on themselves held by federal agencies—generally excepting law enforcement and intelligence entities. The statute specifies seven types of information that may be exempted from the rule of access. When a citizen or resident alien contends that a federal record on him or herself contains inaccurate information, the act allows correction through a request to the agency that possesses the record. Disputes over the accessibility or accuracy of personally identifiable files may be pursued in federal court.

Government in the Sunshine Act (5 U.S.C. §552b)

Enacted in 1976, the Government in the Sunshine Act is intended to open the policymaking deliberations of any agency headed by a "collegial body" —such as boards, commissions, or councils—to public scrutiny. Pursuant to the statute, agencies are required to publish advance notice of impending meetings and make those meetings publicly accessible. The act includes 10 conditions under which agency meetings are to be exempted from the act. Disputes over proper public notice of such meetings or the propriety of closing a deliberation may be pursued in federal court.

Interbranch Access

Congress routinely requests nonpublic information from executive branch agencies. When agencies resist these requests, Congress has formal and informal methods of encouraging or requiring agencies to comply. Language within FOIA explicitly states that the statute does not permit agencies to withhold information from Congress. In general, an agency's dispute with the legislature over access to information is often resolved through negotiation—reduction of the quantity of records initially sought, substitution of other information, alternative delivery mechanisms, or limitation of the number of individuals who will examine materials provided by another branch. Congress could use its "power of the purse" and the Senate could use its advice and consent power to leverage its information access demands.

Federal courts rely upon a spirit of justice and fair play to sustain their orders for the production of information by another branch. In view of the American separation of powers model of government, such conflicts among the three branches are neither unexpected nor necessarily destructive—and probably will continue to occur.

Both Congress and the judiciary have subpoena powers that can compel the production of materials by another branch. Subpoenas, however, are usually only issued after other methods of securing requested information have been unsuccessful. Even subpoenas, however, have sometimes been resisted. In 2012, for example, the Attorney General refused to turn over certain documents subpoenaed by the House Committee on Oversight and Government Reform, citing the President's determination that the information was protected by a form of executive privilege. A federal district court, in Committee on Oversight and Government Reform v. Lynch, rejected the claim of privilege over the items sought, and ordered the Attorney General to produce the responsive documents.

Using the Information Access Laws

Statistics on Usage

FOIA21

FOIA requires each federal agency to submit a report on or before February 1 each year to the Attorney General describing the agency's freedom of information workload. Annual reports from all of the departments and agencies are posted online by the U.S. Department of Justice. In March 2011, DOJ launched FOIA.gov, a government portal that allows users to explore various metrics on the administration of FOIA in executive branch agencies. The portal uses the data agencies provide in their annual FOIA reports to allow users to compare among agencies the number of requests they receive, answer, deny, have appealed, and the average number of days it takes to respond to a request—among other metrics. According to FOIA.gov , in FY2014, the federal government received 714,231 FOIA requests—9,837 more than in FY2013. In FY2014, the federal government had 159,741 "backlogged " FOIA requests, more than 64,000 additional backlogged requests than in FY2013. The Department of Homeland Security (DHS) received 291,242 requests in FY2014, more than any other agency. DHS also had the greatest number of backlogged requests with 103,480 in FY2014, more than 64% of all backlogged FOIA requests govermentwide.

FACA

According to the FACA Database, which is hosted by the General Services Administration, 1,050 active advisory committees operated in FY2014, costing more than $339 million.

Litigation

A certain number of requests for information under the various access to information acts result in judicial action. The Administrative Office of the U.S. Courts provides statistical information on the number of FOIA cases filed in U.S. District Courts in its compendium, Judicial Business of the United States Courts . According to that report, 446 cases related to FOIA commenced in U.S. District Courts in FY2014 (16.8% more than the 382 cases reported in FY2013).

The Transitional Access Web Clearinghouse (TRAC), a "data gathering, data research and data distribution organization at Syracuse University," maintains a website called FOIAProject.org that tracks federal FOIA-related lawsuits around the country. According to TRAC's research, in FY2014, 401 FOIA lawsuits were filed in U.S. District Court. Also in FY2014, TRAC found that 504 FOIA cases were pending in U.S. District Court.

Other transparency watchdog organizations also track litigation related to federal access laws. Judicial Watch, a public interest group that seeks to promote transparency in government, has posted information about its own lawsuits under "The Docket." Citizens for Responsibility and Ethics in Washington, a nonprofit organization that seeks to promote government accountability, has a webpage devoted to lawsuits in which it is involved. EPIC, a public interest nonprofit that focuses on civil liberties and privacy issues, also has a webpage devoted to FOIA-related litigation .

Guides to Records Access

Individuals, groups, and organizations all possess a right to access some government information. Both government and private groups publish guides to the information acts in paper and on the Internet as well.

The U.S. House of Representatives Committee on Government Reform has published several editions of its report, A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records —most recently in September 2012. In addition to the text of the acts, the Citizen's Guide contains descriptions and explanations, sample document request forms, and bibliographies of related congressional and non-congressional material.

The Office of Government Information Services (OGIS), which began operations in 2009, hosts a webpage that provides "tips and tools" to agencies and requesters. The website includes best practices for making FOIA requests, information on FOIA training for agency administrators, information on how agencies can work with OGIS, and FOIA contacts at agencies for requesters.

The General Services Administration's Federal Citizen Information Center publishes Your Right To Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act . Like the Citizen's Guide , this publication contains explanations, samples, and texts, although in less detail than found in the Citizen's Guide .

The Department of Justice (DOJ) is responsible for overseeing and coordinating administration of the Freedom of Information Act. DOJ's Office of Information Policy maintains online extensive material about FOIA, statistics on its usage, guidelines for making requests, and freedom of information contacts at other federal agencies.

Among many nongovernmental groups that publish information about freedom of information are Public Citizen and the National Security Archive. Public Citizen, a nonprofit organization that represents a variety of citizen interests, maintains a website that provides FOIA resources and information. The National Security Archive, a collective of journalists and scholars who "check rising government secrecy," maintains a website that contains a number of FOIA guides, including "Effective FOIA Requesting for Everyone: A National Security Archive Guide," which was published in January 2008.

Records on each of the active federal advisory committees are available on the General Services Administration's FACA Database. The website includes each committee's charter, information on the members of each committee and their contact information, and cumulative data on the cost of federal advisory bodies.

Selected CRS Reports

CRS Report R41933, The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues , by [author name scrubbed]

CRS Legal Sidebar WSLG93, The Freedom of Information Act (FOIA) and the Drone Strikes Program , by [author name scrubbed]

CRS Report R43924, Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis , by [author name scrubbed] and [author name scrubbed]

CRS Report R44253, Federal Advisory Committees: An Introduction and Overview , by [author name scrubbed]

CRS Report R44232, Creating a Federal Advisory Committee in the Executive Branch , by [author name scrubbed]

CRS Report R44248, The Federal Advisory Committee Act: Analysis of Operations and Costs , by [author name scrubbed]

CRS Report RL30240, Congressional Oversight Manual , by [author name scrubbed] et al.

CRS Legal Sidebar WSLG288, The Privacy Act: Nearing Middle Age and Needs Improvement? , by [author name scrubbed]

Selected Additional Resources

Legislative Branch Resources

U.S. Congress, House, Committee on Government Reform, A Citizen' s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records , H.Rept, 112-698, September 2012, at https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf .

U.S. Congress. Senate, Committee on Governmental Affairs, Federal Advisory Committee Act (Public Law 92-463)—Source Book: Legislative His tory, Texts, and Other Documents, Committee Print, 95 th Congress, second session, Washington: GPO, 1978.

Executive Branch Resources

U.S. Department of Justice, 2014 Litigation and Compliance Report , at http://www.justice.gov/oip/2014-foia-litigation-and-compliance-report .

U.S. Department of Justice, The Department of Justice Guide to the Freedom of Information Act (Online Edition), at http://www.justice.gov/oip/doj-guide-freedom-information-act-0 .

U.S. Department of Justice and U.S. General Services Administration, Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act, 2011 , http://publications.usa.gov/USAPubs.php?PubID=6080 .

U.S. General Services Administration, FACA Database Case Digest , at http://casedigest.faca.gov/Case/ShowCaseTablePage.aspx .

David M. Pritzker, Reducing FOIA Litigation Through Targeted ADR Strategies , Administrative Conference of the United States, Washington, DC, June 2014, https://www.acus.gov/research-projects/reducing-foia-litigation-through-targeted-adr-strategies .

Private Sector Resources

The George Washington University, Effective FOIA Requesting for Everyone: A National Security Archive Guide , 2009, at http://nsarchive.gwu.edu/nsa/foia/foia_guide.html .

Richard K. Berg, Stephen H. Klitzman, and Gary J. Edles, An Interpetive Guide to the Government In the Sunshine Act , 2 nd ed. (Chicago: American Bar Association, 2005).