Order Code 97-71 GOV
Updated January 23, 20037, 2005
CRS Report for Congress
Received through the CRS Web
Access to Government Information
In the United States
Harold C. Relyea
Specialist in American National Government
Government Division
Summary
The Constitution of the United States makes no specific allowance for any one of
the co-equal branches to have access to information held by the others and contains no
provision expressly establishing a procedure for, or a right of, public access to
government information. Nonetheless, Congress has legislated various public access
laws. These include two records access statutes— — the Freedom of Information Act (5
U.S.C. 552) and the Privacy Act (5 U.S.C. 552a)— — and two meetings access
statutes— statutes
— the Federal Advisory Committee Act (5 U.S.C. App.) and the Government in
the the
Sunshine Act (5 U.S.C. 552b). Moreover, due to the American separation of powers
model of government, interbranch conflicts over the accessibility of information are
neither unexpected nor necessarily destructive. The federal courts, historically, have
been reluctant to review and resolve “political questions” involving information disputes
between Congress and the executive branch. Although there is considerable interbranch
cooperation, such conflicts probably will continue to occur on occasion.
History and Background
Throughout the first 150 years of the federal government, access to government
information does not appear to have been a major issue among the three branches or for
the citizenry. There were a few instances during this period when the President, for
reasons of maintaining the constitutional independence and equality of his branch,
vigorously resisted attempts by Congress and the courts to obtain executive records.
Furthermore, during this same era, an active federal public printing program was
established and effectively developed.
Following World War II, however, information came to be of limited availability
from federal departments and agencies. Conditioned by information restrictions prompted
by recent global hostilities, fearful of Cold War spies, intimidated by zealous loyalty
investigators within and outside of government, and anxious about various efforts at
reducing the executive workforce during the postwar reconversion, the federal
Congressional Research Service ˜ The Library of Congress
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bureaucracy generally was not eager to have its activities and operations disclosed to the
public, the press, or other governmental entities. Prevailing law tolerated this state of
affairs, offering citizens no clear avenue of access to agency information. The public
availability of records held by the executive branch was limited by artful interpretation
of the housekeeping statute of 1789 authorizing the heads of departments to prescribe
regulations regarding the custody, use, and preservation of the records, papers, and
property of their entity. Moreover, a provision of the Administrative Procedure Act of
1946 indicated that matters of official record should be available to the public, but added
that an agency could restrict access to its documents “for good cause found” or “in the
public interest.” These discretionary authorities were relied upon to restrict the
accessibility of unpublished agency records and documents.
Such conditions also contributed to the increasing difficulties of congressional
committees and subcommittees in gaining access to both records and officials of federal
departments and agencies during the 1950s. In response, some congressional panels
began examining these information access issues and seeking responsive legislative
solutions.
Public Access Laws. Apart from interbranch information access dilemmas,
Congress, in 1966, undertook fashioning various statutory arrangements for realizing
public access to executive branch information. This focus resulted because legislators felt
that Congress adequately made its deliberations and proceedings subject to public
observation, largely published its records, and otherwise was constitutionally authorized
to engage in information restriction. For example, the Constitution explicitly permitted
each House of Congress a discretion to keep portions of its journal of proceedings secret
and disallowed the questioning of Members of Congress “in any other Place” regarding
official speech or debate. Legislators also were satisfied with the openness of federal
court files and hearing rooms. Thus, the departments and agencies were the principal
object of government information access reform laws. Executive branch officials,
however, were not supportive of these measures and, initially, did not always promote or
pursue their faithful administration. The current major federal laws facilitating public
access to government information are briefly described below; the full text of each statute
may be consulted by using the appropriate United States Code reference provided.
!
Freedom of Information Act (5 U.S.C. 552)
Initially enacted in 1966 and subsequently amended, the Freedom of Information
(FOI) Act establishes for any person— — corporate or individual, regardless of
nationality— nationality
— presumptive access to existing, unpublished agency records on any topic.
The law
specifies nine categories of information that may be permissibly exempted from
the rule
of disclosure. Agencies within the federal intelligence community are prohibited
from from
making any record available to a foreign government or a representative of same
pursuant pursuant
to a FOI Act request. Disputes over the accessibility of requested records may
be settled,
according to the provisions of the Actact, in federal court. Fees for search,
review, or copying
of materials may be imposed; also, for some types of requesters, fees
may be reduced or
waived. The FOI Act was amended in 1996 to provide for public
access to information
in an electronic form or format.
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!
Federal Advisory Committee Act (5 U.S.C. App.)
A 1972 statute, the Federal Advisory Committee Act (FACA), in part, presumptively
requires that the meetings of all federal advisory committees serving executive branch
entities be open to public observation. The statute specifies nine categories of
information— — similar to those of the FOI Act— — that may be permissively relied upon to
to close advisory committee deliberations when such matters are under discussion. Disputes
Disputes over the proper public notice for a committee meeting or the closing of a session
may be
pursued in federal court.
!
Privacy Act (5 U.S.C. 552a)
Legislated in 1974, the Privacy Act, in part, establishes for individuals who are
United States citizens or permanent resident aliens, presumptive access to personally
identifiable files on themselves held by most federal agencies (generally, however, not
law enforcement and intelligence entities). The statute specifies seven types of
information that may permissively be exempted from the rule of access. Where a file
subject contends that a record contains inaccurate information about that individual, the
Actact allows correction through emendation. Disputes over the accessibility of personally
identifiable files may be pursued in federal court.
!
Government in the Sunshine Act (5 U.S.C. 552b)
Enacted in 1976, the Sunshine Act presumptively opens the policymaking
deliberations of collegially headed federal agencies— — such as boards, commissions, or
councils— — to public scrutiny unless closed in accordance with any of nine exemptions to
to the rule of openness. Disputes over proper public notice of such meetings or the propriety
propriety of closing a deliberation may be pursued in federal court.
Interbranch Access. No statutory arrangements have been created to facilitate
access by one branch of the federal government to records and information holdings of
the other two branches. Both Congress and the judiciary have subpoena powers which
can be exercised to compel the production of materials by another branch, but even these
demands have sometimes been resisted. Occasionally, but rarely, the courts have ruled
on these disputes. In 1974, for example, a Special Prosecutor sought certain tape
recordings that President Richard Nixon, on a claim of constitutional privilege, initially
refused to provide. The Supreme Court, in United States v. Nixon (418 U.S. 683),
disallowed the President’s claim of privilege, finding it too general and overbroad and the
needs of the Special Prosecutor to pursue criminal prosecutions more compelling.
In general, interbranch disputes over access to information are political conflicts of
the highest order. The federal courts, historically, have been reluctant to review and
resolve such “political questions.”
Resolution is often reached through
negotiation— negotiation —
reduction of the quantity of records initially sought, substitution of other
information,
alternative delivery mechanisms, or limitation of the number of individuals
who will
examine materials provided by another branch. Sometimes appeals to public
opinion will
pressure an information access deadlock to settlement. Congress can use its
“power of
the purse” to leverage its information access demands; federal courts rely upon
a spirit of
justice and fair play to sustain their orders for the production of information by
another another
branch. In view of the American separation of powers model of government, such
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such conflicts are neither unexpected nor necessarily destructive. Furthermore, they
probably probably
will continue to occur.
Selected References
U.S. Congress. House Committee on Government Reform. A Citizen’s Guide on Using
the Freedom of Information Act and the Privacy Act of 1974 to Request Government
Records. 107th108th Congress, 2nd1st session. H. Rept. 107-371108-172. Washington: GPO, 20022003.
U.S. Congress. Senate Committee on Governmental Affairs. Federal Advisory
Committee Act (Public Law 92-463)— — Source Book: Legislative History, Texts, and
Other Documents. Committee print. 95th Congress, 2nd session. Washington: GPO,
1978.
–––—— — -, Government in the Sunshine Act: History and Recent Issues. Committee print.
101st Congress, 1st session. Washington: GPO, 1989.
CRS Report RL30671. Personal Privacy Protection: The Legislative Response, by
Harold C. Relyea,RL30966. Congressional Access to Executive Branch Information:
Legislative Tools, by Louis Fisher.
CRS Report RL30319. Presidential Claims of Executive Privilege: History, Law,
Practice and Recent Developments, by Morton Rosenberg,.
CRS Report 98-687. Public Printing Reform: Issues and Actions, by Harold C. Relyea,
CRS Report 97-771. Security Classification Policy and Procedure: E.O. 12958, as
Amended, by Harold C. Relyea.