Today's Article
A recent gov't report
contained a
fascinating,
little-known history of
FOIA that we think
every American
should read.
contained a
fascinating,
little-known history of
FOIA that we think
every American
should read.
The American Spark
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The 'Secret' History Of FOIA
By Cliff Montgomery - Feb. 27th, 2008
A January 7th Congressional Research Service (CRS) report on amendments to the Freedom of Information
Act (FOIA) contained a fascinating, little-known history of FOIA that we think every American should read.
We quote from the study below:
"Often referred to as the embodiment of 'the people’s right to know' about the activities and operations of
government, the Freedom of Information Act (FOIA) statutorily established a premise of presumptive public
access to information held by the federal departments and agencies.
"Enacted in 1966 to replace the ineffective public information section of the Administrative Procedure Act
(APA), the FOIA allows any person — individual or corporate, regardless of citizenship — to request, without
explanation or justification, existing, identifiable, unpublished agency records on any topic.
"At the time of its enactment, the FOIA was regarded as a somewhat revolutionary development. Only two
other nations — Sweden and Finland — had comparable law, and in neither case was it as sweeping as the
new American model.
"The law’s premise reversed the burden of proof that had existed under the public information section of the
APA.
"Under the previous arrangement, requesters had to establish a basis for their plea or a need for the
information being sought; whereas under the FOIA, accessibility was presumed, and the agencies had to
justify denying a requester access...to information.
"The FOIA provided clear exceptions allowing explicit types of information to be protected from disclosure;
while the APA section, which was vague, had come to be interpreted so as to give the agencies broad
discretion to withhold information sought by the public.
"Furthermore, the APA section was silent regarding the possibility of the denial of a request for information
being pursued in court; the FOIA specified this course of action after the exercise of an administrative appeal.
"The FOIA was also revolutionary in another regard. The product of 11 years of investigation, legislative
development, and deliberation in the House and half as many years of such consideration in the Senate, the
statute was almost exclusively a congressional creation.
"Indeed, no department or agency head had supported the legislation, and President Lyndon B. Johnson had
reluctantly signed the measure unceremoniously at the last possible moment under strong pressure from
press organizations.
"Because it was not enthusiastically received as law by the executive branch, the FOIA required close attention
by congressional overseers during its initial years of administration [...] because agency careerists consider the
statute intrusive, providing a means for outsiders to question, second-guess, or delay administrative actions
and policymaking.
"The access procedures of the FOIA apply only to the departments and agencies of the federal executive
branch. This scope has been shaped by historical and constitutional factors.
"During the latter half of the 1950s, when congressional subcommittees began examining government
information availability, the practices of the federal departments and agencies were of primary attention.
Complaints from the public and the press guided this focus, as did the experience of congressional
committees and subcommittees of being rebuffed when seeking information from these entities.
"The President might have been of interest in this regard, but his exercise of so-called 'executive privilege' —
the withholding of information based upon his authority as the head of the executive branch — was a matter of
some constitutional complexity and uncertainty, and had not resulted in widespread public protest. [... And] the
subcommittees probing the executive branch in this regard lacked jurisdiction for the legislative branch. [...]
"[...] The remedying FOIA was made applicable only to the federal departments and agencies. The historical
record underlying the FOIA and continuing 'executive privilege' considerations contributed to the President
being left outside of the scope of the new law. [...]
"Although the FOIA specifies nine categories that may be exempted from the statute’s rule of disclosure,
these exceptions do not require agencies to withhold records, but merely permit access restriction. [...]
"A person denied access to requested information, in whole or in part, may make an administrative appeal to
the head of the agency for reconsideration. After this step, an appeal for further consideration of access to
denied information may be made in federal district court.
"Agencies responding to FOIA requests are permitted by the statute to charge fees for certain activities —
records search, duplication, and review — depending upon the type of requester, such as a commercial user;
an educational or non-commercial scientific institution, whose purpose is scholarly or scientific research; a
news media representative; or the general public. [...]
"The statute has become a somewhat popular tool of inquiry and information gathering for various quarters of
American society — the press, business, scholars, attorneys, consumers, and environmentalists, among others
— as well as some foreign interests. [...]
"Agency information management professionals must efficiently and economically service FOIA requests,
doing so, of late, in the sensitized homeland security milieu.
"Requesters must be satisfied through timely supply, brokerage, or explanation. Simultaneously, agency FOIA
costs must be kept reasonable."
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark e-
newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!
By Cliff Montgomery - Feb. 27th, 2008
A January 7th Congressional Research Service (CRS) report on amendments to the Freedom of Information
Act (FOIA) contained a fascinating, little-known history of FOIA that we think every American should read.
We quote from the study below:
"Often referred to as the embodiment of 'the people’s right to know' about the activities and operations of
government, the Freedom of Information Act (FOIA) statutorily established a premise of presumptive public
access to information held by the federal departments and agencies.
"Enacted in 1966 to replace the ineffective public information section of the Administrative Procedure Act
(APA), the FOIA allows any person — individual or corporate, regardless of citizenship — to request, without
explanation or justification, existing, identifiable, unpublished agency records on any topic.
"At the time of its enactment, the FOIA was regarded as a somewhat revolutionary development. Only two
other nations — Sweden and Finland — had comparable law, and in neither case was it as sweeping as the
new American model.
"The law’s premise reversed the burden of proof that had existed under the public information section of the
APA.
"Under the previous arrangement, requesters had to establish a basis for their plea or a need for the
information being sought; whereas under the FOIA, accessibility was presumed, and the agencies had to
justify denying a requester access...to information.
"The FOIA provided clear exceptions allowing explicit types of information to be protected from disclosure;
while the APA section, which was vague, had come to be interpreted so as to give the agencies broad
discretion to withhold information sought by the public.
"Furthermore, the APA section was silent regarding the possibility of the denial of a request for information
being pursued in court; the FOIA specified this course of action after the exercise of an administrative appeal.
"The FOIA was also revolutionary in another regard. The product of 11 years of investigation, legislative
development, and deliberation in the House and half as many years of such consideration in the Senate, the
statute was almost exclusively a congressional creation.
"Indeed, no department or agency head had supported the legislation, and President Lyndon B. Johnson had
reluctantly signed the measure unceremoniously at the last possible moment under strong pressure from
press organizations.
"Because it was not enthusiastically received as law by the executive branch, the FOIA required close attention
by congressional overseers during its initial years of administration [...] because agency careerists consider the
statute intrusive, providing a means for outsiders to question, second-guess, or delay administrative actions
and policymaking.
"The access procedures of the FOIA apply only to the departments and agencies of the federal executive
branch. This scope has been shaped by historical and constitutional factors.
"During the latter half of the 1950s, when congressional subcommittees began examining government
information availability, the practices of the federal departments and agencies were of primary attention.
Complaints from the public and the press guided this focus, as did the experience of congressional
committees and subcommittees of being rebuffed when seeking information from these entities.
"The President might have been of interest in this regard, but his exercise of so-called 'executive privilege' —
the withholding of information based upon his authority as the head of the executive branch — was a matter of
some constitutional complexity and uncertainty, and had not resulted in widespread public protest. [... And] the
subcommittees probing the executive branch in this regard lacked jurisdiction for the legislative branch. [...]
"[...] The remedying FOIA was made applicable only to the federal departments and agencies. The historical
record underlying the FOIA and continuing 'executive privilege' considerations contributed to the President
being left outside of the scope of the new law. [...]
"Although the FOIA specifies nine categories that may be exempted from the statute’s rule of disclosure,
these exceptions do not require agencies to withhold records, but merely permit access restriction. [...]
"A person denied access to requested information, in whole or in part, may make an administrative appeal to
the head of the agency for reconsideration. After this step, an appeal for further consideration of access to
denied information may be made in federal district court.
"Agencies responding to FOIA requests are permitted by the statute to charge fees for certain activities —
records search, duplication, and review — depending upon the type of requester, such as a commercial user;
an educational or non-commercial scientific institution, whose purpose is scholarly or scientific research; a
news media representative; or the general public. [...]
"The statute has become a somewhat popular tool of inquiry and information gathering for various quarters of
American society — the press, business, scholars, attorneys, consumers, and environmentalists, among others
— as well as some foreign interests. [...]
"Agency information management professionals must efficiently and economically service FOIA requests,
doing so, of late, in the sensitized homeland security milieu.
"Requesters must be satisfied through timely supply, brokerage, or explanation. Simultaneously, agency FOIA
costs must be kept reasonable."
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark e-
newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!