frequently asked questionscases & resources
Overview >
By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

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 people.

Because freedom of information is established by statute, the public’s right to government records is frequently subject to political pressures and bureaucratic whims.

Each of the states and the District of Columbia has enacted its own open-records law. As can be imagined, these laws vary in a number of ways. Generally, however, they 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 request.)

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 nine grounds:

  • 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 practices.
  • 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 locations.

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 requests.

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 against requesters.

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. 11.

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, first-served basis.

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

Connecticut judicial officials lack authority to vacate Superior Court judges' sealing orders, federal judge holds. 11.14.03

Idaho judge orders case struck from record
Other records missing in case involving Brad Stowell, Boy Scout leader convicted of molesting children. 01.19.05

Utah scores a ‘B’ on statewide public-information access
Audit of local governments, school districts, police departments shows some citizens don’t receive records they’re entitled to see. 05.21.05

N.Y. agency must stop tipping off subjects of record search
Since 2003 ruling, state court has had to remind racing board not to let other entities prescreen FOI requests. 05.22.05

Proposed clamp on N.J. government records access to be withdrawn
State task force tries to balance security needs, open government. 09.02.05

Ohio state employees' home addresses not public records
But state supreme court warns agencies not to overinterpret its ruling, deny other records requests. 09.08.05

Newspaper's suit for sex-harassment records tossed
Tennessean says Gov. Phil Bredesen's administration withholding documents about investigations of incidents at government workplaces. 10.02.05

AP: Thousands of federal cases kept secret
Most of 5,000 defendants in cases from 2003-2005 are involved in drug gangs, though lately small number come from terrorism cases. 03.08.06

Ohio Supreme Court rules against Akron records destruction
City could be forced to pay $860,000 for destroying secretaries' time sheets. 03.21.06

N.J. court rejects town's $55 charge for meeting minutes
Calling fee unreasonable, appeals court says Edison Township was trying to discourage public access to government workings. 03.27.06

Web site seeks release of Mel Gibson arrest tapes
Invoking California Public Records Act, celebrity-news site says public should be able to know if actor received preferential treatment. 08.04.06

Wis. court orders disciplinary records released
Agency had denied Lakeland Times access to files on state employee accused of improperly having license plate traced. 10.15.06

Obtaining public records not always easy, Colo. survey finds
Statewide study shows that process can be intimidating and disheartening for members of public, says director of Colorado Press Association. 10.18.06

Budget cuts forcing some EPA library closures
By Melanie Bengtson GAO investigating; environmental agency plans to digitize, keep available info from its regional libraries, but skeptics worry about access. 10.30.06

N.C. appeals court says town must release public records
Outer Banks Sentinel will receive information so it can report on condemnation of oceanfront land by Kitty Hawk. 01.04.07

Wis. appeals court orders 3 towns to allow access to databases
Municipalities violated state's open-records law by handing off requests for property-assessment databases to the contractors that compiled them. 01.04.07

Texas concealed-gun records closed to public
Search-warrant information also restricted as state Legislature wraps up session. 06.03.07

New Tenn. records ombudsman office focuses on education
Staff hasn't been given authority to enforce public-records law but hopes officials who try to withhold local government records will relent once statute is explained to them. 01.06.08

Miss. government often surrounded by secrecy
Open access to public meetings, records is essential to government accountability, yet Mississippi's laws are full of exemptions that perpetuate a culture of secrecy. 02.12.08

Okla. high court to cut off online access to court records
When rules go into effect on June 10, only court dockets from state Supreme Court and district courts will be available on the Web; press advocates criticize decision. 03.13.08

Exemptions erode Tenn. public-records law
Since state declared government documents open to public in 1957, lawmakers and judges have spent last 50 years closing some of those records. 04.08.08

Measure to close handgun records fails in Tenn. Senate
Opponents call narrow vote a victory for open records in government. 06.18.09

Judge to sanction Arizona sheriff over records
Joe Arpaio's office acknowledges destroying records in lawsuit accusing deputies of racially profiling Hispanics in immigration patrols. 02.15.10

Post-9/11 secrecy: pervasive and dangerous
By Paul K. McMasters With too closed a government, we court dysfunctional democracy, or government by hindsight, in which post-crisis panels struggle to explain what never should have happened. 09.11.05

Open meetings, open records: It’s the public’s business
By Gene Policinski Note to those who picked East Tennessee county officeholders by secret vote: Sunshine laws don't paralyze government, they make it accountable. 10.21.07

print this   Print

Last system update: Monday, February 15, 2010 | 11:19:26
Freedom of Information issues >
Open records
Open meetings
National FOI Day
Post-9/11 info access
How to file an FOIA request