By David C. Vladeck, Contributing Writer
Updated February 2009
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:
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.
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 far-fetched.
[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 cover-up.]
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 implausible.
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 Deptartment of Treasury v. 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. 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 United States v. Weber Aircraft Corp., 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 openness.
First Amendment Center legal researcher Bill Kenworthy contributed to this article.