The Curious History and Evolution of FOIA

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FOIA, or the Freedom of Information Act, is a crucial law that grants citizens the right to access government records to ensure transparency and accountability in government operations.

If you want to know about:

  • The salary of an FBI agent
  • COVID-19 vaccination rates
  • Hazardous waste disposal from power plants
  • How much the ICE spent on new computers last year
  • How your senator voted on a hot-button issue

…You have FOIA to thank.

In the modern era, the right to get information about our government seems fundamental to us in the United States. But it hasn’t always been that way.

Understanding the history of FOIA isn’t just about exploring the past—it’s about grasping the roots of our rights to access government information. By delving into FOIA’s history and evolution, we gain insights into the struggles, triumphs, and pivotal moments that have shaped our democracy.

Post-War and Cold War Roots of FOIA

The roots of FOIA go back to the Administrative Procedure Act of 1946, which established requirements for publishing proposed and final legislation in the Federal Register and opportunities for public comments.i  

Then, in 1955, worries about increasing secrecy during the Cold War prompted Congressman John Moss of California to ask Congress to create the special subcommittee on Government Information. The subcommittee’s main goal was to preserve the press’s and public’s right to access government information by modifying Section 3, Chapter 324 of the Administrative Procedure Actii. 

But these changes, bundled into a proposed Freedom of Information Act, were stalled for nearly 12 years. Why? Because almost every single federal agency opposed it. Even the Migratory Bird Conservation Commission wanted to keep some of its reports private! 

Finally, in 1966, Congress passed FOIA by unanimous vote. President Lyndon B. Johnson (reluctantly) signed it into law, but drafted a signing statement focused on exemptions for national security and “room for interpretation.”iii  

Opening the Gate to Information Access

The passage of FOIA was a big step in government transparency. Still, the law wasn’t strong enough to compel agencies to fulfill information requests.

But in the aftermath of Watergate, Congress heard testimony about how agencies were still trying to withhold information. Some agencies were charging as much as $1 per page and $7 per hour for searching—at a time when the median hourly wage was around $4 per hour!

In 1974, both houses passed numerous changes despite President Gerald Ford’s veto. These new requirements included:

  • Penalties for agencies that wrongly withhold information
  • Fee waivers for journalists and public interest groups
  • New timeframes for compliance

Despite his earlier veto, President Ford signed the Government in the Sunshine Act into law two years later. The Act requires that “every portion of every meeting of an agency shall be open to public observation” and that agencies must maintain a copy of recordings or minutes. This included the usual exceptions for meetings pertaining to national defense, agency personnel matters, and trade secrets.iv

While not directly amending FOIA, the Government in the Sunshine Act complements FOIA’s goal of transparency by ensuring public access to government proceedings and enhancing accountability in decision-making processes.

The Teeter Totter of Transparency

The sunshine law became the model for similar laws enacted by states over the years, but it didn’t exactly solidify how administrations viewed FOIA and the notion of “transparency.” Various laws and resolutions have been passed and repealed, then passed and repealed again, complicating the history of FOIA. 

In 1977, Attorney General Griffin Bell’s memorandum advised federal agencies involved in FOIA court cases that “the government should not withhold documents without some arguable legal basis for the withholding.” Bell also suggested that his office would only defend agencies when they could prove that disclosing the requested information would be harmful.

Attorney General William French Smith issued a memorandum in 1981 that reversed much of Attorney General Bell’s memorandum. The following year, President Reagan signed Executive Order 12356, which made withholding “potentially sensitive” data easier. In addition, Congress in the 1980s gave law enforcement agencies greater leeway under Exemption 7 for withholding data related to criminal cases. In 1986, Attorney General Edwin Meese added a memorandum to the Anti-Drug Abuse Act, which, among other provisions, would allow agencies to deny the existence of requested data when they didn’t want to provide it. 

A 1993 memorandum by Attorney General Janet Reno essentially reversed Attorney General Smith’s 1981 memorandum. Despite not being codified into law, Meese’s deny-the-existence guidance remained unofficial policy for some agencies. Attorney General William Holder wanted to codify this guidance as official policy. In essence, the Justice Department could legally lie about the existence of certain records. But in 2011, Senator Chuck Grassley, the ACLU, and open-government advocates strongly challenged this idea, and they withdrew Justice Department Pinocchio privileges.

In response to September 11, 2001, Attorney General John Ashcroft created a memorandum that effectively repealed the memorandum by Janet Reno. Approximately one month later, President George W. Bush signed Executive Order 13233, which limited access to former presidential records “reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisers.” In 2009, Executive Order 13489 reversed most of Executive Order 13233, restoring access to former presidential records (and pleasing the Society of American Archivists and other historic preservation groups).

The Digital Era of FOIA

In 1996, President Clinton signed the Electronic Freedom of Information Act Amendments. These amendments brought FOIA into the digital age and required agencies to make documents available in electronic formats with digital distribution. The following excerpt from President Clinton’s statement after signing the amendments into law shows just how much has changed since then:
“The world has changed a great deal. Records are no longer principally maintained in paper format. Now, they are stored in various technologies, including CD-ROM and computer tapes and diskettes, making it easier to put more information online.”

OPEN Government Act of 2007

President George W. Bush signed the wide-ranging OPEN Government Act of 2007 that placed greater restrictions on lobbying, politicians’ ability to accept gifts and tightened Senate ethics rules. Regarding FOIA, the Act established the Office of Government Services to oversee agency compliance with FOIA requirements. It also expanded the meaning of the term “news media” to include alternative journalists and bloggers.

FOIA Improvement Act of 2016

With President Obama’s signing of the FOIA Improvement Act, federal agencies are required to create online portals allowing citizens to make FOIA requests online. This law required agencies to update their FOIA standards and placed a limit of 25 years for any agency to withhold information under the deliberative process privilege, which covers “predecisional materials written as part of the decision-making process in federal agencies.” In addition, the Act solidified the language surrounding the “presumption of openness” regarding the majority of public records, even if the release of those records could prove “embarrassing.”

Moving into the Future With Your FOIA Partner

Now that we’ve taken a journey together through the history of FOIA, let’s talk about how JustFOIA can help you better serve your community by simplifying the management of records requests.

With over 20 years of experience working with public sector clients, we’ve developed the best approach for tackling requests and the most powerful and easy-to-use records request solution.

Are you ready to simplify your records requests management process? Contact us today!