In our democratic system governed by the rule of law,
government must be accountable to the citizenry for its policies and actions.
Under our constitutional system of checks and balances, Congress can impose a
direct check on executive action by oversight and legislation. But citizens can
do so only indirectly, either by voting the president out of office or by
invoking the powers of the courts to review executive action. For either
approach to work, citizens must know what the executive branch is doing, must
have the right to go to court to challenge unlawful actions, and must have
judges willing to compel the executive branch to obey the law.
The 1966 Freedom of Information Act (FOIA) is arguably the most important
tool Americans have to oversee the workings of their government. FOIA was
designed to bring an end to the idea that government could operate behind closed
doors. FOIA establishes a presumption that all government information is
available to the public, subject only to a few, narrowly circumscribed
exemptions. Some information — agency rules and final orders and decisions —
must be published and disseminated by the agency, and under newly added
provisions of FOIA, agencies must make this information available over the
Internet. But the heart of FOIA is its requirement that agencies, upon request,
disclose any record in the agency’s possession to anyone.
The following discussion is divided into two parts. The first part provides a
brief overview of FOIA and how it operates to open government files to public
inspection. As will become clear, FOIA is a general statute that sweeps with a
broad brush, resolving the basic policy question in favor of openness and
against secrecy. But FOIA leaves open many questions about how its exemptions
should be interpreted. The second part describes how those questions have been
answered by the courts, with a special emphasis on decisions by the U.S. Supreme
Court implementing FOIA.
FOIA, 5 U.S.C. Section 552, establishes a presumption that
all records of government agencies are accessible to the public unless they are
specifically exempted from disclosure by FOIA or another statute. FOIA imposes a
tripartite scheme of disclosure.
First, Section 552(a)(1) requires agencies to publish in the Federal
Register a host of information about the agency, its rules, its functions,
and statements of agency policy.
Second, Section 552(a)(2) requires agencies to make available for public
inspection certain basic agency records, including final opinions in agency
adjudications, statements of policy not published in the Federal
Register; administrative and staff manuals that affect the public; and, most
importantly, records processed and disclosed under FOIA that are likely to
become the subject of subsequent requests for the same records. For records
created after 1996, FOIA requires that they be made available in electronic
reading rooms accessible by computer.
The heart of FOIA is its third disclosure requirement. Section 552(a)(3)
requires an agency, “upon any request for records which reasonably describes
such records and is made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed, shall make the records
available to any person.”
The sweeping requirement is limited only by the nine exemptions set forth in
Section 552(b). Those exemptions are:
- Classified information.
- Internal agency personnel rules and practices.
- Information specifically exempted from disclosure by statute.
- Private commercial or trade secret information.
- Interagency or intra-agency privileged communications.
- Personnel, medical or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.
- Information compiled for law enforcement purposes.
- Information related to reports for or by an agency involved in regulating
- Geological information concerning oil wells.
Those exemptions are not mandatory bars to disclosure. Therefore, unless an
agency is otherwise prohibited by a more specific statute from releasing the
record, the agency may exercise its discretion to release even exempt
information. But most of the litigation under FOIA has centered on the meaning
of the act’s key exemptions.
Scope of act’s main exemptions
Judge Damon Keith said in a 6th
Circuit open-government case in 2002 that “Democracies die behind closed doors”
(Detroit Free Press v. Ashcroft). The struggle in FOIA litigation has
been to ensure that phrases like “open government,” “freedom of information” and
“right to know” do not become hollow promises. Thus far, the courts (especially
the Burger/Rehnquist Supreme Court) have made it increasingly difficult for
citizens to use FOIA to pry loose important government information.
National security information has taken on new meaning since the events of
Sept. 11, 2001. Those events have focused the public’s attention on the
government’s treatment of such information. The fact is that FOIA has not
fulfilled its promise in this area. The first exemption — Exemption 1 — shields
national security information classified by executive order from the president.
The current executive order, No. 12958, broadly exempts information that relates
to national security matters. Not surprisingly, the courts have been hesitant to
order the disclosure of national security information — a concern that has been
heightened in the aftermath of Sept. 11.
Exemption 1 was amended by Congress in 1974 to overturn in part the Supreme
Court’s ruling in EPA v.
Mink (1973), which held that courts had to accept without question
agency classification decisions. When Congress amended FOIA, it made it clear
that courts were to make certain that records were “in fact properly classified
pursuant” to an executive order on classification. However, the Court’s FOIA
decisions after the 1974 amendment make clear that Congress’ plea for real
judicial review in national security cases has not been honored by the Court.
Although technically decided under Exemption 3 because it addressed the scope of
the National Security Act of 1947, which directs that “intelligence sources or
methods” be kept secret, the Court’s decision in CIA v.
Sims (1985) reflects the Court’s hostility to FOIA in the national
security context. Not only did the Court rule that information relating to the
CIA’s infamous MK-ULTRA project could be withheld, but the Court also suggested
that intelligence information, any source, even the public library, could
be withheld. The unmistakable message of Sims is that courts should defer
to the executive branch to avoid entanglement in national security matters,
notwithstanding the fact that Congress has emphatically directed otherwise.
[There is no Supreme Court case holding that the First Amendment guarantees a
general “right of access” to government information. The first Supreme Court
case on the issue was Zemel
v. Rusk (1965) in which the Court held that “the right to speak and
publish does not carry with it the unrestrained right to gather information.”
There is, however, a patchwork of Supreme Court and lower court decisions
concerning press and public access to specific types of government-controlled
information, institutions, and events. In 1978 the Court also noted, in Houchins v. KQED, that “there is no
constitutional basis … for standards governing disclosure of or access to
information.” In only a few matters have the courts been willing to grant an
unqualified First Amendment right of access to the press or public. The Supreme
Court has nevertheless recognized that freedom of the press would be
“eviscerated” without some form of protection for gathering information and
news. See Branzburg
v. Hayes, 1972.]
The Supreme Court has also interpreted FOIA’s two privacy exemptions,
Exemption 6 (concerning personnel, medical and similar files) and Exemption 7(C)
(concerning law enforcement records), in a way that frustrates public access. In
FOIA, Congress directed the courts to tip the scales in favor of disclosure when
balancing the public’s right to know against an individual’s privacy interests.
Nevertheless, the high court has often accepted claims that disclosure might
jeopardize an individual’s privacy rights — claims that can readily be seen as
[In one such case, Favish
v. National Archives and Records Administration in 2004, the Supreme
Court ruled unanimously that the government did not have to release 11-year-old
photographs from the suicide of Clinton administration White House lawyer
Vincent Foster. The decision made it more difficult to use a public-records law
to access law enforcement records. Justices said the privacy rights of survivors
outweighed the benefits of releasing photographs sought by a California attorney
who said they might prove that Foster was murdered as part of a White House
In terms of the public’s right to know, a low point came with the Court’s
1989 decision in Department
of Justice v. Reporters Committee for Freedom of the Press. The
Reporters Committee asked for the arrest records of certain persons alleged to
have been involved in organized crime and illegal dealings with a corrupt
congressman. Holding that the records were exempt from disclosure under FOIA’s
privacy exemption, the Court dismissed the fact that the information would
expose public corruption and had already been made public. Most significantly,
however, the Court narrowed the scope of the public interest to be considered in
the FOIA balancing process by limiting it to “the core purpose of FOIA, namely
to shed light on an agency’s performance of its duties.” Thus, even if
government documents are important for other reasons, such as exposing
corruption or even criminal misconduct, they may be withheld so long as the
government can point to virtually any privacy interest, no matter how remote or
The Court more fully developed the rule of Reporters Committee in its
follow-up decision in 1991 in Department
of State v. Ray. At issue in Ray were notes by State Department
personnel on the treatment of Haitian refugees who had been involuntarily
returned to Haiti. The request was made by an immigration lawyer who wanted the
notes, and the names of the returnees, both to fortify his claim that the
returnees were subject to political persecution and to facilitate the
re-interview of the returnees by human rights activists. Applying Reporters
Committee, the Court allowed the State Department to withhold the notes to
protect the privacy interests of the returnees because release of their
identities “would not shed any additional light on the Government’s conduct of
its obligations.” In a classic Catch-22, the returnees’ own privacy interests
were used against them to deny their lawyers access to records that might assist
them and other returnees in developing their cases for asylum.
The rule of Reporters Committee has also been applied in cases
involving access to lists maintained by the government, of its own employees, or
of individuals who obtain government benefits. Thus, for example, in Department
of Defense v. Federal Labor Relations Authority (1994), the Court
rejected an effort by a labor union to obtain the names and addresses of certain
federal employees to aid in an organizing drive because it found that although
the privacy interests of the employees was minimal, it nonetheless outweighed
the public interest in disclosure, which was “negligible, at best.” Relying on
Reporters Committee, the Court reasoned that “disclosure of the addresses might
allow the unions to communicate more effectively with employees,” but it would
not appreciably further “the citizens’ right to be informed about what their
government is up to.” The Court applied the same approach in 1997 in Bibles v.
Oregon Natural Desert Association (per curiam), where it rejected an
effort by a group interested in preserving the Oregon desert to obtain a
government list of individuals who had requested information on the topic. The
Court found that disclosure would not enable the public to better understand the
government’s policies, and that that was the only interest served by FOIA.
The Reporters Committee rule escaped being tested again in the 2003
term when the Supreme Court backed out of reviewing Department of the Treasury v. City
of Chicago. In the case, the lower court ruled that the Treasury
Department had to turn over to Chicago information on individuals who had
purchased multiple guns because weapon-ownership information did not implicate
matters of personal privacy. The government argues that, even assuming that the
privacy interest in gun ownership information is modest, the disclosure of the
information would not enable citizens to monitor the performance of the
department and the Reporters Committee rule therefore forbids the
information’s release. The justices still might revisit the issue later.
The Court’s decisions relating to law enforcement similarly narrow access
under FOIA. Exemption 7 applies to records “compiled for law enforcement
purposes,” and Exemption 7(A), applies to law enforcement records whose
production could “reasonably be expected to interfere with law enforcement
proceedings.” The Court set the tone for its approach to Exemption 7 in NLRB v.
Robbins Tire & Rubber Co. (1978), where the Court held that the
National Labor Relations Board could withhold on law enforcement grounds
statements of witnesses likely to appear at NLRB hearings because disclosure
would prematurely reveal the NLRB’s case and could, in some cases, lead to
witness intimidation. The Court did not require a specific showing that
interference of any sort was likely to occur in this case, but instead ruled
that the NLRB could withhold all witness statements without making a more
specific showing of potential interference. As a result of this ruling, the
lower courts routinely allow the generic withholdings of broad categories of
records, even though the language of Exemption 7 suggests that a case-by-case
determination is required.
The Court has also broadened the reach of Exemption 7 by expansively
interpreting Exemption 7’s threshold requirement that, to qualify for
withholding, the records must have been compiled for “law enforcement purposes.”
In FBI v.
Abramson (1982), the Court held that summaries of information supplied
to the White House in response to “name checks” on prominent liberals were “law
enforcement records” even though they were compiled for political purposes. The
Court reasoned that because the summaries were derived from information in FBI
files that plainly were assembled for law enforcement purposes, information does
not lose that status simply when it is summarized in a new document for non-law
enforcement purposes. In a follow-up case, John Doe
Agency v. John Doe Corp. (1989), the Court ruled that records initially
compiled for routine audit and compliance purposes could become law enforcement
records if they later were “compiled” for that purpose. In a rare dissent in an
FOIA case, Justice Antonin Scalia observed that the exemption’s requirement that
records be “compiled” for law enforcement purposes “is readily evaded (or
illusory) if it requires nothing more than gathering up documents the government
does not wish to disclose, with a plausible law-enforcement purpose in mind.
That is a hole one can drive a truck through.”
The Court’s expansive reading of FOIA’s exemptions is also seen in its
interpretation of Exemption 5, which protects internal records that would be
subject to privilege claims in civil litigation or reflect the agency’s
deliberations. The Court’s first ruling on this exemption, NLRB v.
Sears, Roebuck & Co. (1975), drew a helpful line between
predecisional deliberative materials, which are exempt, and final agency
decisions, which are not. The Court held that memoranda that explain the
National Labor Relations Board general counsel’s decisions not to file a
complaint are final administrative decisions that must be disclosed because
Exemption 5 does not apply to final agency decisions or dispositions. On the
other hand, the Court ruled that memoranda explaining the general counsel’s
decisions to direct regional lawyers to file complaints are exempt because they
are not final dispositions of the matter and are, in any event, protected by the
attorney work-product privilege.
The privilege question next surfaced in Federal
Open Market Committee v. Merrill (1979), which held that the agency’s
domestic policy directives, which instruct federal reserve banks on matters of
monetary policy, were protected under FOIA under the qualified privilege for
financial information in Rule 26(c)(7) of the Federal Rules of Civil Procedure.
The Supreme Court reasoned that the privilege applied in this case because
otherwise the government would be placed at a competitive disadvantage by the
premature disclosure of the directives. The Court took a similarly expansive
view of government privilege in FTC v.
Grolier, Inc. In that 1983 ruling, the Court found that the work-product
privilege imported into FOIA by Exemption 5 applied even where the litigation
for which the documents were prepared was concluded, all related litigation was
concluded, and there was no longer any possibility of future litigation.
Ordinarily, these events signal the termination of the privilege. And in 1984 in
States v. Weber Aircraft Corporation, the Court found that the ordinary
privilege that applied to accident investigation reports applied with full force
to government investigations of air crashes.
Although the Supreme Court has not yet decided a case on the scope of
Exemption 4, which protects trade secrets and other confidential business
information, the D.C. Circuit has issued a troubling ruling that broadly
protects information submitted by corporations from disclosure under FOIA. In
its 1992 ruling in Critical Mass Energy Project v. NRC, the D.C. Circuit
fundamentally altered the analysis to be applied when a corporation submits
information to the government “voluntarily” — that is, not under the compulsion
of a subpoena or statute. Critical Mass left intact the prior rule that
in order to withhold information submitted to the government under compulsion, a
submitter must show that disclosure is likely to cause substantial competitive
harm. But where information is submitted voluntarily, the appeals court
held that no showing of likely competitive injury was required; all that a
submitter had to show was that it did not customarily disclose the information
to the public.
The consequences of the ruling, which the Supreme Court declined to review,
are far-reaching. Cases that have followed Critical Mass reveal that even
where the government could use compulsory process to obtain information, the
information is nonetheless exempt if the company submitted it voluntarily.
1 This reading allows agencies to evade FOIA disclosure
whenever they want to keep the information secret; an agency can always agree to
accept “voluntary” submission of information rather than compelling its
submission, thus the information becomes off-limits under FOIA. Before
Critical Mass, if information was required to be submitted in compliance
with a statute, regulation, some less formal mandate, or as a condition for a
valuable government benefit, it was unlikely that it could be withheld under
FOIA. Now, under Critical Mass, it is unlikely to be disclosed.
So far only the 2nd Circuit has offered an opinion on the Critical
Mass test. In a 2006 opinion concerning a request for information from the
Federal Reserve Board by an advocacy group, Inner City Press/Community on the Move v. Board of Governors of Federal Reserve System, the court stated that since the
parties in the case didn’t argue for the adoption of the test “We decline to
adopt nostra sponte (on their own initiative) the Critical Mass test.”
Also, in 2003, a federal district court in California rejected use of the
Critical Mass test. The decision not to use the test was upheld by the
same court in 2006.
There is one significant FOIA ruling that benefits requesters, but it has a
limited reach. In Department
of the Interior v. Klamath Water Users Protective Association (2001),
the Supreme Court rejected the government’s argument that Exemption 5 shielded
from public disclosure records exchanged between the Department of the Interior
and the Klamath and other Indian tribes regarding disputed water rights because
the department’s special role as trustee to the Indian tribes made the tribes
more like government consultants than outsiders. The Court rejected this and
other pro-secrecy arguments because it recognized that the tribes had interests
separate and distinct and, at times, at odds with those of the department.
Though this suggests that the Court will not automatically rubber-stamp
government exemption claims, it does not signal any measurable shift in the
Court’s FOIA rulings.
The U.S. Circuit Court of Appeals for the District of Columbia heard a case
similar to Klamath and accepted the argument that the Supreme Court had
rejected, showing the limited nature of the Klamath decision. In National
Institute of Military Justice v. Department of Defense, the plaintiff,
NIMJ, sought records from the DOD in connection with the establishment of
military commissions to try suspected terrorists under President Bush’s Nov. 13,
2001, Military Order. In particular the NIMJ sought all communications between
the DOD and, as identified by then-Defense Secretary Donald Rumsfeld, “a number
of non-Defense Department individuals” who contributed “in the development of
the commissions’ procedures.”
The D.C. Circuit agreed that the non-DOD personnel were, in this instance,
essentially the same as DOD personnel because they were solicited by the
department for their opinions and recommendations. The appeals court pointed out
that the precedent in their circuit supported this position. It also noted that
the Supreme Court in Klamath discussed how some courts of appeals have
held that in some circumstances a document prepared outside the government may
qualify as an intra-agency memorandum under Exemption 5 and the Supreme Court
declined to decide whether such memoranda qualify as “intra-agency” under
Exemption 5. Finally, the appeals court distinguished its opinion from the
Klamath decision by pointing out that, unlike the Indian tribes in
Klamath, the non-department personnel had no individual interests to
promote — they were solicited by the department for their input based on their
experience and qualifications.
As should be evident, the Court’s decisions broadly
construing FOIA’s exemptions seriously jeopardize FOIA’s promise to expose
government decision-making to the disinfectant of sunlight. But there is reason
to hope. Judge Keith’s admonition that “Democracy dies behind closed doors” is
not an isolated statement by a rogue judge. Rather, it came in a majority
decision by the 6th Circuit — a court not noted for its liberal leanings.
Perhaps the pendulum will soon begin to swing back in the direction of
First Amendment Center legal researcher Bill Kenworthy contributed to this
Updated February 2009
Notes1 Center for Auto Safety v.
NHTSA, 244 F.3d 144 (D.C. Cir. 2001) and compare Public
Citizen’s brief in the case.