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Privacy Rights in the Digital Age

Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1966)

by Daniel J. Metcalfe

An openness-in-government or “government access” statute that was enacted by the U.S. Congress in 1966. It took effect on July 4, 1967, the American Independence Day, and became only the third such law in the world, after one that was enacted in Sweden (and later devolved to Finland) exactly 200 years earlier. The U.S. FOIA allows the American public (or even “any person” in the world, with only limited exceptions for “intelligence community” files) to request access to any record or information maintained by any agency of the executive branch of the federal government (that is, not including Congress or the federal judiciary), except for (due to constitutional reasons) the records of the “inner White House” (that is, those of the president and his closest advisers).

If a FOIA “requester” is not satisfied with the agency's response to his or her request, he or she (or it) may file a lawsuit in federal court to enforce this right. There have been an estimated 10,000 such FOIA lawsuits filed thus far, with thirty-two of them ultimately adjudicated through decisions issued by the U.S. Supreme Court. The most significant of these is the Supreme Court's landmark Reporters Committee decision, issued in 1989, which established several key principles for the balancing of personal privacy interests against the public interest in disclosure under FOIA's two privacy exemptions, Exemptions 6 and 7(C), which by far are the exemptions most frequently invoked (that is, in more than 53 percent of cases between the two). Most recently, in 2011, the Supreme Court's decision in Milner v. Department of the Navy flatly rejected the broad interpretation of Exemption 2 that had prevailed for nearly three decades, leaving that exemption effectively eviscerated and the government unable to protect some information of particular homeland security sensitivity.

Most fundamentally, FOIA has become a key foundation for the democratic form of government, fostering democracy by allowing Americans to be more aware of “what their government is up to” and thereby to become a more informed electorate. It also promotes government accountability to its citizenry, indirectly supports the freedom-of-the-press mandate of the First Amendment to the U.S. Constitution, and in recent years has become an increasingly vital tool in combating government corruption. In fact, while other nations were slow to embrace the freedom-of-information principle (for instance, only two more countries had such laws by the time of FOIA's fifteenth anniversary), today more than 100 nations of the world have followed the United States's example in enacting and effectively implementing their own FOIA-type laws—thus creating a vibrant, worldwide openness-in-government community and establishing “transparency” (a term imported to the United States from Europe in the mid-2000s) as an important new societal norm. And in the United States, similar laws exist for the records of all states and many government localities as well.

The operation of FOIA is relatively simple: A FOIA requester sends a letter (or an email message or a website submission, where permitted) to an agency of the federal government seeking access to identifiable records that exist within that agency's control in either paper or electronic (for example, database or email) form. (In 1996, Congress enacted the Electronic Freedom of Information Act Amendments, which in effect brought FOIA into the twenty-first century by updating its provisions for the electronic age.) The requester's obligation is only to “reasonably describe” the records sought so that they can be located efficiently. Under the law, an agency is not required to create a record in order to satisfy a request (though agencies sometimes do so, as a matter of administrative discretion), nor is an agency required to comply with any request framed in the form of a question or without respect to existing records or information at that agency.

Apart from that—and the possible payment of applicable fees for the direct costs of records searches, duplication, and (for commercial requesters) document review—the burden is entirely on the agency to do what is necessary to satisfy the request, usually by mailing the disclosed records in paper form but sometimes in requested electronic form. In the United States, hundreds of thousands of FOIA requests are filed with the approximately 100 federal departments and agencies each year, at an annual cost that now approaches $500 million. Almost since its inception, however, FOIA generally has been underfunded by Congress, resulting in large backlogs of pending FOIA requests at many agencies, particularly those with law enforcement, national security, or international responsibilities; this alone can be the cause of considerable, intractable conflict between requesters and agencies.

Beyond FOIA's procedural aspects—which include a basic response deadline of twenty working days, special provisions for media requesters, automatic “electronic reading room” disclosure, and the right to appeal administratively to a higher-level agency official any “adverse determination”—the heart of FOIA lies in its exemptions to required disclosure, which have been the greatest focus of dispute, policy interpretation, amendment, and litigation over the years. FOIA's exemptions, which total fourteen (nine enumerated ones, with one comprised of six subparts), encompass certain types of records (or portions thereof) that hold particular sensitivity under the U.S. legal system.

These exemptions cover: (1) classified national defense and foreign relations information; (2) information related to internal agency personnel rules and personnel practices; (3) information that is prohibited from public disclosure by another federal statute; (4) trade secrets and other confidential or privileged commercial or financial information submitted from the private sector; (5) interagency or intra-agency communications that are routinely protected by recognized legal privileges such as the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege; (6) information about identifiable individuals involving matters of personal privacy in which there is no overriding public interest in disclosure; (7) records or information compiled for law enforcement purposes the disclosure of which (a) could reasonably be expected to interfere with an ongoing or prospective law enforcement proceeding, (b) would deprive a person of a right to a fair trial, (c) could reasonably be expected to constitute an unwarranted invasion of an identifiable individual's personal privacy, (d) could reasonably be expected to disclose the identity of and/or information provided by a confidential source, (e) would disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions, but in the latter case only if that could reasonably be expected to risk circumvention of the law, or (f) could reasonably be expected to endanger the life or physical safety of any individual; (8) information relating to the supervision of banks and other financial institutions; and (9) geological information on wells. In addition, FOIA was amended by Congress in 1986 to include three special record “exclusions” for matters of exceptionally acute law enforcement or national security sensitivity. The language of FOIA's exemptions has been amended four times, most recently in 2009, and its exact contours have been shaped greatly over the years by authoritative judicial decisions as well.

FOIA is administered throughout the federal government on a decentralized basis. In other words, each federal agency, as well as major subagencies of the fifteen federal departments (for example, the Federal Bureau of Investigation, which is part of the U.S. Department of Justice), handles its own FOIA requests, with the authority for adjudicating administrative appeals vested in each agency head. Overall, less than 2 percent of FOIA requests proceed to the administrative appeal stage, and only 0.1 percent of FOIA requests become the subject of litigation. Traditionally, the responsibility for overseeing and guiding FOIA's government-wide administration rests with the Attorney General, who discharges this responsibility (and also is responsible for defending FOIA lawsuits in court) through the Justice Department's Office of Information Policy (OIP), which was created in 1981. An additional government-wide office, called the Office of Government Information Services (OGIS) and located within the National Archives and Records Administration, holds partly overlapping responsibilities and came into existence in 2009.

Attorneys General also traditionally issue major guidance memoranda setting general FOIA implementation policy for an incoming presidential administration. The current one, issued by Attorney General Eric H. Holder, Jr. on March 19, 2009, most significantly calls on all federal agencies to employ a “foreseeable harm” standard and concomitantly to make discretionary disclosures in applying FOIA exemptions. (Such disclosures are not permitted, however, for any information about U.S. citizens that is protected by the Privacy Act of 1974.) This policy replaced the policy that prevailed during the George W. Bush administration, which was less inclined to disclose, and it served to reinstate the exact same policy standard originally established by Attorney General Janet Reno for the Clinton administration in 1993. Although President Barack Obama created exceedingly high expectations when he first took office in promising to have “the most transparent administration in history,” by nearly all accounts those expectations have been far from met; no small part of this appears to be the increasing difficulty of achieving optimal federal government transparency in a post-9/11 world, especially in related areas of public controversy.

While journalists make up only a surprisingly small percentage of FOIA requesters (the vast majority of FOIA requesters are commercial entities or individuals seeking records about themselves), the most striking use of FOIA is when it contemporaneously compels the disclosure of records pertaining to matters of government “scandal,” including the files of internal investigations, where controversy over the very handling of a FOIA request itself can add “fuel to a fire.” This was especially so during the Clinton administration, but the subsequent administrations of George W. Bush and Barack Obama have been continually plagued by disclosure as well. More than anything else, the steps taken by the United States in the wake of 9/11 have spawned intense FOIA activity at, and subsequent criticism of, many federal agencies.

In summary, FOIA is a vital and continuously developing government disclosure mechanism. With refinements over time to accommodate both technological advancements and society's maturing interests in transparency, it has truly enhanced, and will enhance, the American way of life.

Further Reading

1 

American University. Web Site of the Collaboration on Government Secrecy, edited by Professor Daniel J. Metcalfe. Washington, DC: Washington College of Law, 2014. https://www.wcl.american.edu/lawandgov/cgs/.

2 

Hammitt, Harry A., et al., eds. Litigation under the Federal Open Government Laws. Washington, DC: Electronic Privacy Information Center, 2010. http://epic.org/bookstore/foia2010/.

3 

Metcalfe, Daniel J. “Amending the FOIA: Is It Time for a Real Exemption 10?” Administration and Regulation Law News 37, no. 16 (Summer 2012). https://www.wcl.american.edu/faculty/metcalfe/ABA.article.2012.pdf.

4 

Metcalfe, Daniel J. “Hillary's E-Mail Defense Is Laughable.” POLITICO Magazine, March 16, 2015. http://www.politico.com/magazine/story/2015/03/hillary-clinton-email-scandal-defense-laughable-foia-116116.html#.VXw6lvlViko.

5 

Metcalfe, Daniel J. “The History of Transparency,” in Research Handbook on Transparency, edited by Padideh Ala'i and Robert G. Vaughn. Northampton, MA: Edward Elgar, 2014.

6 

Metcalfe, Daniel J. “The Nature of Government Secrecy.” Government Information Quarterly 26, no. 305 (2009) https://www.wcl.american.edu/faculty/metcalfe/nature.pdf.

7 

United States Department of Justice. Department of Justice Guide to the Freedom of Information Act. 2009. http://www.justice.gov/oip/doj-guide-freedom-information-act-0\.

8 

United States Department of Justice. “OIP Gives FOIA Implementation Advice to Other Nations.” FOIA Post, December 12, 2002. http://www.justice.gov/archive/oip/foiapost/2002foiapost30.htm.

See also: Electronic Communications Privacy Act; First Amendment to the U.S. Constitution; Legal Evolution of Privacy Rights; Privacy Act of 1974; The Right to Privacy; September 11, Supreme Court of the United States

Citation Types

MLA 9th
Metcalfe, Daniel J. "Freedom Of Information Act (FOIA), 5 U.S.C. § 552 (1966)." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0097.
APA 7th
Metcalfe, D. J. (2016). Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1966). In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Metcalfe, Daniel J. "Freedom Of Information Act (FOIA), 5 U.S.C. § 552 (1966)." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.