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Access to Government Information in the United States: A Primer

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. Access to Government Information Inin the United States: A Primer Wendy R. Ginsberg Analyst in Government Organization and Management January 16, 2013 Congressional Research Service 7-5700 www.crs.gov 97-71 CRS Report for Congress Prepared for Members and Committees of Congress c11173008 . Access to Government Information In the United States: A Primer Summary United States: A Primer March 18, 2016 (97-71) Jump to Main Text of Report

Summary

No provision in the U.S. Constitution expressly establishes a procedure for public access to government executive branch records or meetings. Congress, however, has legislated various public access laws. Among these laws are two records access statutes,the Freedom of Information Act (FOI Act or FOIA; 5 U.S.C. § 552), and the Privacy Act (5 U.S.C. § 552a), and two meetings access statutes, the Federal Advisory Committee Act (FACA; 5 U.S.C. App.), and the Government in the Sunshine Act (5 U.S.C. § 552b). These four laws provide the foundation for access to executive branch information in the American federal government. The records-access statutes provide the public with a variety of methods to examine how executive branch departments and agencies execute their missions. The meeting-access statutes provide the public the opportunity to participate in and inform the policy process. These four laws are also among the most used and most litigated federal access laws. While the four statutes provide the public with access to executive branch federal records and meetings, they do not apply to the legislative or judicial branches of the U.S. government. The American separation of powers model of government provides a collection of formal and informal methods that the branches can use to provide information to one another. Moreover, the separation of powers anticipates conflicts over the accessibility of information. These conflicts are neither unexpected nor necessarily destructive. Although there is considerable interbranch cooperation in the sharing of information and records, such conflicts over access may continue on occasion. This report offers an introduction to the four access laws and provides citations to additional resources related to these statutes. This report includes statistics on the use of FOIA and FACA and on litigation related to FOIA. The 113th114th Congress may have an interest in overseeing the implementation of these laws or may consider amending the laws. In addition, this report provides some examples of the methods Congress, the President, and the Courtscourts have employed to provide or require the provision of information to one another. This report is a primer on information access in the U.S. federal government and provides a list of resources related to transparency, secrecy, access, and nondisclosure. Congressional Research Service . Access to Government Information In the United States: A Primer Contents History and Background .................................................................................................................. 1 Freedom of Information Act (5 U.S.C. § 552)........................................................................... 2 Federal Advisory Committee Act (5 U.S.C. App.) .................................................................... 3 Privacy Act (5 U.S.C. § 552a) ................................................................................................... 3 Government in the Sunshine Act (5 U.S.C. § 552b).................................................................. 4 Interbranch Access ........................................................................................................................... 4 Using the Information Access Laws ................................................................................................ 5 Statistics on Usage ..................................................................................................................... 5 FOIA ................................................................................................................................... 5 FACA .................................................................................................................................. 5 Litigation ................................................................................................................................... 5 Guides to Records Access ......................................................................................................... 6 Selected CRS Reports................................................................................................................ 7 Selected Additional Resources .................................................................................................. 8 Contacts Author Contact Information............................................................................................................. 9 Acknowledgments ........................................................................................................................... 9 Congressional Research Service . Access to Government Information In transparency, secrecy, access, and nondisclosure. Access to Government Information in the United States: A Primer 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 for the federal branches or the public. There were a few instances during this period when the President, arguing the need to maintain the constitutional independence and equality of his branch, vigorously resisted attempts by Congress and the courts to obtain executive records.11 During this same era, an active federal public printing program was established and effectively developed, making government documents more accessible.2 2 Following World War II, some information was available from certain federal departments and agencies.33 The public availability of records held by the executive branch was limited by narrow interpretation of the “housekeeping”"housekeeping" statute of 1789 (now codified at 5 U.S.C. § 301), which authorized the heads of departments to prescribe regulations regarding the custody, use, and preservation of their agencies' records, papers, and property of their entity. Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information. Section 3(b) of the Administrative Procedure Act of 1946 (5 U.S.C. § 551) 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. Some congressional panels began examining information access issues and seeking responsive legislative solutions. Among these legislative responses were the creationenactments of four statutes. Two provide access to federal records:the Freedom of Information Act (1966); and • and the Privacy Act (1974); Two provide access to federal meetings: 1 The powers of Congress to access executive-branch records date back to as early as 1790, when the House established a select congressional committee to investigate the actions of former Superintendent of Finance Robert Morris. For more information see 1 Annals of Cong. 1168 (February 8, 1790). See also United States v. Nixon, 418 U.S. 683, 711 (1974). In U.S. v. Nixon, the Court said that if the extent of the President’s interest in withholding information for the purpose of confidentiality “relates to the effective discharge of a President’s powers, [the President’s interest] is constitutionally based.” See also House Committee on the Judiciary, “House Judiciary Committee Releases Rove and Miers Interview Transcripts and Over 5,400 Pages of Bush White House Documents,” at http://judiciary.house.gov/ news/090811.html. 2 Harold C. Relyea, American Federal Government Printing and Publication Reform: A Special Issue of Government Publications, Part A; Research Articles (Oxford, England: Pergamon Press, 1982). 3 See U.S. Congress, Senate Committee on the Judiciary, Bills to Amend the Administrative Procedure Act, and for Other Purposes, hearing on S. 1160, S. 1336, S. 1758, and S. 1879, May 12-14 and 21, 1965, 89th Cong., 1st sess. (Washington: GPO, 1965). At the hearing, Chairman James O. Eastland stated the following: Access to information about the activities of Government is crucial to the citizen’s ability to cope with the bigness and complexity of Government today.… There is no validity therefore, to the frequently heard argument that these [access to executive-branch information] proposals impinge on executive privilege for they would not affect the proper exercise of authority of the President and department heads. (p. 4) Congressional Research Service 1 . Access to Government Information In the United States: A Primer • .

Two provide access to federal meetings:

the Federal Advisory Committee Act (1972); and the Government in the Sunshine Act (1976). This report offers an overview of each of these statutes, including the boundaries of their authority. This report then provides citations to additional resources on each of the laws. Freedom of Information Act (5 U.S.C. § 552) In 1966, Congress enacted the Freedom of Information Act (FOIA), the first law requiring public access to executive branch informationrecords. Pursuant to the statute, FOIA does not apply to the legislative or judicial branches of the federal government or to state, local, or tribal governments. Legislative records were not included in the bill because Congress believed that its own deliberations and proceedings were adequately subject to public observation.44 For example, the Constitution explicitly permits each house of Congress to keep portions of its journal of proceedings secret and disallows the questioning of Members of Congress "in any other Place" regarding official speech or debate.55 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. FOIA established, for any person—corporate or individual, citizen or otherwise—presumptive access to existing, unpublished agency records on any topic.66 The law specifies nine categories of information records that may be exempted from the rule of disclosure. Agencies within the federal intelligence community are prohibited from making any record available to a foreign government or a representative of same pursuant to a FOIA request. Disputes over the accessibility of requested records may be settled, according to the provisions of the act, in federal court or may be mediated in the Office of Government Information Services (OGIS).7 7 Fees for search, review, or copying of materials may be imposed, while certain types of requesters may be granted fee waivers or reductions.8 FOIA was amended in 1996 to provide for public 4 The committees that developed FOIA—the House Committee on Government Operations and the Senate Committee on the Judiciary—were responding to perceived secrecy problems in the executive branch. Furthermore, these panels had no jurisdiction over legislation concerning congressional operations. Thus, FOIA was created, approved, and implemented with an executive branch focus. For more information on the limitations of FOIA applicability see Harold C. Relyea, “Congress and Freedom of Information: A Retrospective and a Look at the Current Issue,” Government Information Quarterly, vol. 26 (2009), pp. 437-440. For a more detailed examination of transparency and access in the executive branch see CRS Report R42817, Government Transparency and Secrecy: An Examination of Meaning and Its Use in the Executive Branch, by Wendy Ginsberg et al. 5 The U.S. Constitution, Article I, Section 6, at http://www.archives.gov/exhibits/charters/constitution_transcript.html. 6 For more detail on FOIA, see CRS Report R41933, Freedom of Information Act (FOIA): Background and Policy Options for the 112th Congress, by Wendy Ginsberg. 7 5 U.S.C. § 552(4)(B). See 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, H.Rept. 112-689, 112th Cong., 2nd sess. (Washington: GPO, 2012), at http://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guideon-Using-FOIA.2012.pdf. OGIS began operating in September 2009. It was statutorily created in the OPEN Government Act of 2007 (P.L. 110-175). Prior to its creation, the only method of challenging an agency’s interpretation of FOIA (beyond the agency’s internal appeal process) was through the court system. 8 5 U.S.C. § 552(h)(3). Congressional Research Service 2 . Access to Government Information In the United States: A Primer access to information in an electronic form or format. These amendments are often referred to as e-FOIA.9 In 2007, FOIA was further amended to • redefine qualifications for fee waivers for those seeking records, • require the National Archives and Records Administration to create offices of inspector general (OIGs) to act as a centralized FOIA oversight office and FOIA dispute mediator, and • require agencies to create tracking systems that allow requesters to determine the status of their information requests, among other modifications.10 Federal Advisory Committee Act (5 U.S.C. App.) A 1972 statute, the Federal Advisory Committee Act (FACA) requires that the meetings of all federal advisory committees serving executive branch entities be open to public observation and that all committee records be accessible to the public. FACA was designed to eliminate duplication of committee expertise and make advisory bodies in the executive branch more transparent. Committees that fit certain FACA criteria are governed by FACA’s guidelines.11 Congress can decide, however, to place some or all FACA requirements on a body that it statutorily created.12 The statute specifies certain categories of records and debate—identical to the record exemptions in FOIA—that permit a committee to hold meetings that are not accessible to the public or authorize agencies to withhold certain committee records from release.13 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 provides U.S. citizens or permanent resident aliens presumptive access to personally identifiable files on themselves held by federal agencies— generally excepting law enforcement and intelligence entities. The statute specifies seven types of information that may be exempted from the rule of access. 14 Where a file subject contends that a record contains inaccurate information about that individual, the act allows correction through a request to the agency that possesses the record. Disputes over the accessibility or accuracy of personally identifiable files may be pursued in federal court. 9 5 U.S.C. § 552 note. P.L. 110-175; 121 Stat. 2524. 11 41 C.F.R. Appendix to Subpart A of § 102-3. 12 For more information on FACA, see CRS Report R40520, Federal Advisory Committees: An Overview, by Wendy Ginsberg. 13 FACA cites 5 U.S.C. § 552(b), which is the section of the U.S. Code that states which records are exempted from FOIA. 14 5 U.S.C. § 552a(j) and 5 U.S.C. § 552a(k). Privacy Act exemptions are similar to FOIA’s exemptions, but include other exemptions, such as information maintained to protect the President and information “required by statute to be maintained and used solely as statistical records.” 10 Congressional Research Service 3 . Access to Government Information In the United States: A Primer Government in the Sunshine Act (5 U.S.C. § 552b) Enacted in 1976, the Government in the Sunshine Act is intended to open the policymaking deliberations of any agency headed by a “collegial body”15—such as boards, commissions, or councils—to public scrutiny. Pursuant to the statute, agencies are required to publish advance notice of impending meetings and make those meetings publicly accessible.16 The act includes ten conditions under which agency meetings are to be exempted from the act.17 Disputes over proper public notice of such meetings or the propriety of closing a deliberation may be pursued in federal court. Interbranch Access Congress routinely requests non-public information from executive branch agencies. When agencies resist these requests, Congress has formal and informal methods of encouraging or requiring agencies to comply.18 Language within FOIA explicitly states that the statute does not permit agencies to withhold information from Congress. In general, an agency’s dispute with the legislature over access to information are often resolved through 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. Congress could use its “power of the purse” and the Senate could use its advice and consent power 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 branch. In view of the American separation of powers model of government, such conflicts among the three branches neither unexpected nor necessarily destructive—and probably will continue to occur. Both Congress and the judiciary have subpoena powers that can compel the production of materials by another branch. Subpoenas, however, are usually only issued after other methods of securing requested information have been unsuccessful. Even subpoenas, however, have sometimes been resisted. In 1974, for example, a special prosecutor sought certain documents and tape recordings (known as the Watergate Tapes) that President Richard Nixon initially refused to provide, citing that they were protected by executive privilege. The Supreme Court, in United States v. Nixon, rejected the President’s claim of absolute executive privilege over the items sought, finding the competing judicial interest of the special prosecutor more compelling.19 15 5 U.S.C. § 552b(a)(1) defines “collegial body” as “composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency.” 16 5 U.S.C. § 552b(e)(3). 17 5 U.S.C. § 552b(c). These exemptions are similar to FOIA’s exemptions. 18 For example, on March 31, 2004, Senator Jim Jeffords, the then-Senate Committee on Environment and Public Works minority ranking member, said at a hearing that he was having difficulty acquiring documents from the Environmental Protection Agency even though he and the committee chairman had drafted a letter to the agency requesting that it respond to requests from either member. U.S. Congress, Senate Committee on Environment and Public Works, Nominations of the 108th Congress, 2nd Session, 108th Cong., 2nd sess., March 31, 2004, S.Hrg. 108-500 (Washington: GPO, 2004), pp. 3-4. 19 418 U.S. 683 (1974). See also, CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, (continued...) Congressional Research Service 4 . Access to Government Information In the United States: A Primer Using the Information Access Laws Statistics on Usage FOIA FOIA requires each federal agency to submit a report on or before February 1 each year to the Attorney General describing the agency’s freedom of information workload. Annual reports from all of the departments and agencies are posted on the Internet by the U.S. Department of Justice at http://www.justice.gov/oip/reports.html.20 In March 2011, DOJ launched FOIA.gov, a government portal to explore data on the administration of FOIA in executive branch agencies. The portal uses the data agencies provide in their annual FOIA reports to allow users to compare among agencies the number of requests they receive, answer, deny, have appealed, and the average number of days it takes to respond to a request. According to FOIA.gov, in FY2011, the federal government received 644,165 FOIA requests—46,750 more than in FY2010. In FY2011, the federal government had 83,490 “backlogged”21 FOIA requests, nearly 14,000 more backlogged requests than in FY2010. The Department of Homeland Security (DHS) received 175,656 requests in FY2011, more than any other agency.22 DHS also had the greatest number of backlogged requests with 42,417 in FY2011, more than 50% of all backlogged FOIA requests.23 FACA According to the FACA Database, which is hosted by the General Services Administration, 1,029 active advisory committees operated in FY2011,24 costing more than $395 million.25 Litigation A certain number of requests for information under the various access to information acts result in judicial action. The Administrative Office of the U.S. Courts provides statistical information on the number of FOIA cases filed in U.S. District Courts in its compendium, Judicial Business of (...continued) Practice, and Recent Developments, by Todd Garvey and Alissa M. Dolan 20 Data from the individual annual reports, which are posted on the Department of Justice website, are summarized in DOJ’s “Summary of Annual FOIA Reports,” available at http://www.justice.gov/oip/reports.html. 21 DOJ defines “backlog” as “[t]he number of requests or administrative appeals that are pending beyond the statutory time period for a response.” See Department of Justice, “FOIA.gov: Glossary,” at http://www.foia.gov/glossary.html. 22 According to FOIA.gov, the Department of Defense received the second highest number of FOIA requests in FY2011 with 74,117—101,539 fewer requests than DHS. 23 See http://www.FOIA.gov. 24 U.S. General Services Administration, Federal Advisory Committees Database, Government Statistics, FY2011, at http://fido.gov/facadatabase/rptgovtstats.asp. Data for each fiscal year are not validated by GSA until early in the next calendar year (usually in January or February of the following year). 25 U.S. General Services Administration, Federal Advisory Committees Database, FY2011 Government Totals, at http://fido.gov/facadatabase/rptgovttotals.asp. Congressional Research Service 5 . Access to Government Information In the United States: A Primer the United States Courts.26 According to that report, 388 cases related to FOIA commenced in U.S. District Courts in FY2011 (30.2% more than the 298 cases reported in FY2010).27 The Transitional Access Web Clearinghouse (TRAC), a “data gathering, data research and data distribution organization at Syracuse University”28 maintains a website entitle FOIAProject.org that tracks federal FOIA-related lawsuits around the country. According to TRAC’s research, which was not vetted by CRS, in FY2012, 313 FOIA lawsuits were filed in U.S. District Court.29 Also in FY2012, TRAC found that 555 FOIA cases were pending in U.S. District Court.30 Judicial Watch, a public interest group that seeks to promote transparency in government, has posted information about its own lawsuits under “The Docket.”31 Citizens for Responsibility and Ethics in Washington, a nonprofit organization that seeks to promote government accountability, has a webpage devoted to lawsuits in which it is involved.32 EPIC, a public interest nonprofit that focuses on civil liberties and privacy issues, also has a webpage devoted to FOIA-related litigation.33 Guides to Records Access Individuals, groups, and organizations all possess a right to access some government information. Both government and private groups publish guides to the information acts in paper and on the Internet as well. The U.S. House of Representatives Committee on Government Reform has published several 8 FOIA was amended in 1996 to provide for public access to information in an electronic form or format. These amendments are often referred to as e-FOIA.9 In 2007, FOIA was further amended to
  • redefine qualifications for fee waivers for those seeking records,
  • require the National Archives and Records Administration to establish OGIS to act as a centralized FOIA oversight office and FOIA dispute mediator, and
  • require agencies to create tracking systems that allow requesters to determine the status of their information requests, among other modifications.10

In 2009, provisions of the OPEN FOIA Act of 2009 were enacted as amendments to the Department of Homeland Security Appropriations Act, 2010.11 Among other requirements, the provisions established specific criteria for the future statutory creation of exemptions that would allow federal executive branch agencies to withhold certain categories of records. For example, the enacted provisions require that qualifying future statutory exemptions from FOIA cite specifically to 5 U.S.C. §552 in their authorizing language.

Federal Advisory Committee Act (5 U.S.C. App.)

A 1972 statute, the Federal Advisory Committee Act (FACA), requires that the meetings of all federal advisory committees serving executive branch entities be open to public observation and that all committee records be accessible to the public. FACA was designed to eliminate duplication of committee expertise and make advisory bodies in the executive branch more transparent. Committees that fit certain FACA criteria are governed by FACA's guidelines.12 Congress can decide, however, to place some or all or FACA's transparency and access provisions on an advisory body that it statutorily establishes.13

The statute specifies certain categories of debate that federal advisory committees may conduct outside of public view as well as advisory committee records that may be withheld from public release.14 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 provides U.S. citizens or permanent resident aliens presumptive access to personally identifiable files on themselves held by federal agencies—generally excepting law enforcement and intelligence entities. The statute specifies seven types of information that may be exempted from the rule of access.15 When a citizen or resident alien contends that a federal record on him or herself contains inaccurate information, the act allows correction through a request to the agency that possesses the record. Disputes over the accessibility or accuracy of personally identifiable files may be pursued in federal court.

Government in the Sunshine Act (5 U.S.C. §552b)

Enacted in 1976, the Government in the Sunshine Act is intended to open the policymaking deliberations of any agency headed by a "collegial body"16—such as boards, commissions, or councils—to public scrutiny. Pursuant to the statute, agencies are required to publish advance notice of impending meetings and make those meetings publicly accessible.17 The act includes 10 conditions under which agency meetings are to be exempted from the act.18 Disputes over proper public notice of such meetings or the propriety of closing a deliberation may be pursued in federal court.

Interbranch Access

Congress routinely requests nonpublic information from executive branch agencies. When agencies resist these requests, Congress has formal and informal methods of encouraging or requiring agencies to comply.19 Language within FOIA explicitly states that the statute does not permit agencies to withhold information from Congress. In general, an agency's dispute with the legislature over access to information is often resolved through 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. Congress could use its "power of the purse" and the Senate could use its advice and consent power 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 branch. In view of the American separation of powers model of government, such conflicts among the three branches are neither unexpected nor necessarily destructive—and probably will continue to occur.

Both Congress and the judiciary have subpoena powers that can compel the production of materials by another branch. Subpoenas, however, are usually only issued after other methods of securing requested information have been unsuccessful. Even subpoenas, however, have sometimes been resisted. In 2012, for example, the Attorney General refused to turn over certain documents subpoenaed by the House Committee on Oversight and Government Reform, citing the President's determination that the information was protected by a form of executive privilege. A federal district court, in Committee on Oversight and Government Reform v. Lynch, rejected the claim of privilege over the items sought, and ordered the Attorney General to produce the responsive documents.20

Using the Information Access Laws Statistics on Usage FOIA21 FOIA requires each federal agency to submit a report on or before February 1 each year to the Attorney General describing the agency's freedom of information workload. Annual reports from all of the departments and agencies are posted online by the U.S. Department of Justice.22 In March 2011, DOJ launched FOIA.gov, a government portal that allows users to explore various metrics on the administration of FOIA in executive branch agencies. The portal uses the data agencies provide in their annual FOIA reports to allow users to compare among agencies the number of requests they receive, answer, deny, have appealed, and the average number of days it takes to respond to a request—among other metrics.23 According to FOIA.gov, in FY2014, the federal government received 714,231 FOIA requests—9,837 more than in FY2013. In FY2014, the federal government had 159,741 "backlogged"24 FOIA requests, more than 64,000 additional backlogged requests than in FY2013. The Department of Homeland Security (DHS) received 291,242 requests in FY2014, more than any other agency.25 DHS also had the greatest number of backlogged requests with 103,480 in FY2014, more than 64% of all backlogged FOIA requests govermentwide.26 FACA

According to the FACA Database, which is hosted by the General Services Administration, 1,050 active advisory committees operated in FY2014,27 costing more than $339 million.28

Litigation A certain number of requests for information under the various access to information acts result in judicial action. The Administrative Office of the U.S. Courts provides statistical information on the number of FOIA cases filed in U.S. District Courts in its compendium, Judicial Business of the United States Courts.29 According to that report, 446 cases related to FOIA commenced in U.S. District Courts in FY2014 (16.8% more than the 382 cases reported in FY2013).30

The Transitional Access Web Clearinghouse (TRAC), a "data gathering, data research and data distribution organization at Syracuse University,"31 maintains a website called FOIAProject.org that tracks federal FOIA-related lawsuits around the country. According to TRAC's research, in FY2014, 401 FOIA lawsuits were filed in U.S. District Court.32 Also in FY2014, TRAC found that 504 FOIA cases were pending in U.S. District Court.33

Other transparency watchdog organizations also track litigation related to federal access laws. Judicial Watch, a public interest group that seeks to promote transparency in government, has posted information about its own lawsuits under "The Docket."34 Citizens for Responsibility and Ethics in Washington, a nonprofit organization that seeks to promote government accountability, has a webpage devoted to lawsuits in which it is involved.35 EPIC, a public interest nonprofit that focuses on civil liberties and privacy issues, also has a webpage devoted to FOIA-related litigation.36

Guides to Records Access

Individuals, groups, and organizations all possess a right to access some government information. Both government and private groups publish guides to the information acts in paper and on the Internet as well.

The U.S. House of Representatives Committee on Government Reform has published several
editions of its report, A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records—most recently in September 2012.34 In addition to 26 The Office of Thomas F. Hogan, Director of the Statistics Division at the Office of Justice Programs, “Judicial Business of the United States Courts,” at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/ JudicialBusiness2011.pdf 27 Ibid., p. 127 (Table C-2). 28 Transitional Access Web Clearinghouse, “About Us,” at http://trac.syr.edu/aboutTRACgeneral.html. 29 This total was calculated by taking the total number of reported FOIA lawsuit filings in FY2012 (335) and subtracting the number of lawsuits filed in which the defendant organization was listed as “not a federal agency [22].” See The FOIA Project, “FOIA Lawsuits,” at http://trac.syr.edu/phptools/foiaproject/lawsuit/. According to the FOIA Project’s website, the “not a federal agency” category “reflects cases where no federal agency (or federal official sued in his/her official capacity) was named as a defendant in the suit even though the nature of the suit for the case had been classified under the FOIA category. Sometimes these involved pro se cases filed by individuals without an attorney where the records being sought were from some nonfederal governmental body—such as a state agency or a local police or sheriff’s department. In other cases, while a federal body was sued it wasn’t subject to FOIA—for example, federal courts or Congress itself. Finally, in some cases, there was ambiguity over whether a particular federal body was subject to FOIA.” Emphasis in original. See The FOIA Project, “FOIA Lawsuits—About the Data,” at http://foiaproject.org/foia-lawsuits-about-the-data/. 30 Ibid. This total was calculated by taking the total number of reported pending FOIA lawsuits (571) and subtracting the number of lawsuits pending in which the defendant organization was listed as “not a federal agency [16].” 31 Judicial Watch, “The Docket,” at http://www.judicialwatch.org/the-docket/. 32 Citizens Against Government Waste, “FOIA Requests: Legal Filings,” at http://www.citizensforethics.org/pages/ category-results/c/foia-requests2. 33 EPIC, “Litigation Docket,” at http://epic.org/privacy/litigation/. 34 37 In addition to the text of the acts, the Citizen's Guide contains descriptions and explanations, sample document request forms, and bibliographies of related congressional and non-congressional material.

The Office of Government Information Services (OGIS), which began operations in 2009, hosts a webpage that provides "tips and tools" to agencies and requesters. The website includes best practices for making FOIA requests, information on FOIA training for agency administrators, information on how agencies can work with OGIS, and FOIA contacts at agencies for requesters.38

The General Services Administration's Federal Citizen Information Center publishes Your Right To Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act.39 Like the Citizen's Guide, this publication contains explanations, samples, and texts, although in less detail than found in the Citizen's Guide.

The Department of Justice (DOJ) is responsible for overseeing and coordinating administration of the Freedom of Information Act. DOJ's Office of Information Policy maintains online extensive material about FOIA, statistics on its usage, guidelines for making requests, and freedom of information contacts at other federal agencies.40

Among many nongovernmental groups that publish information about freedom of information are Public Citizen and the National Security Archive. Public Citizen, a nonprofit organization that represents a variety of citizen interests,41 maintains a website that provides FOIA resources and information.42 The National Security Archive, a collective of journalists and scholars who "check rising government secrecy,"43 maintains a website that contains a number of FOIA guides, including "Effective FOIA Requesting for Everyone: A National Security Archive Guide," which was published in January 2008.44

Records on each of the active federal advisory committees are available on the General Services Administration's FACA Database.45 The website includes each committee's charter, information on the members of each committee and their contact information, and cumulative data on the cost of federal advisory bodies.

Selected CRS Reports

CRS Report R41933, The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, by [author name scrubbed]

CRS Legal Sidebar WSLG93, The Freedom of Information Act (FOIA) and the Drone Strikes Program, by [author name scrubbed]

CRS Report R43924, Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis, by [author name scrubbed] and [author name scrubbed]

CRS Report R44253, Federal Advisory Committees: An Introduction and Overview, by [author name scrubbed]

CRS Report R44232, Creating a Federal Advisory Committee in the Executive Branch, by [author name scrubbed]

CRS Report R44248, The Federal Advisory Committee Act: Analysis of Operations and Costs, by [author name scrubbed]

CRS Report RL30240, Congressional Oversight Manual, by [author name scrubbed] et al.

CRS Legal Sidebar WSLG288, The Privacy Act: Nearing Middle Age and Needs Improvement?, by [author name scrubbed]

Selected Additional Resources Legislative Branch Resources

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, H.Rept, 112-698, September 2012, at https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf.

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, second session, Washington: GPO, 1978.

Executive Branch Resources

U.S. Department of Justice, 2014 Litigation and Compliance Report, at http://www.justice.gov/oip/2014-foia-litigation-and-compliance-report.

U.S. Department of Justice, The Department of Justice Guide to the Freedom of Information Act (Online Edition), at http://www.justice.gov/oip/doj-guide-freedom-information-act-0.

U.S. Department of Justice and U.S. General Services Administration, Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act, 2011, http://publications.usa.gov/USAPubs.php?PubID=6080.

U.S. General Services Administration, FACA Database Case Digest, at http://casedigest.faca.gov/Case/ShowCaseTablePage.aspx.

David M. Pritzker, Reducing FOIA Litigation Through Targeted ADR Strategies, Administrative Conference of the United States, Washington, DC, June 2014, https://www.acus.gov/research-projects/reducing-foia-litigation-through-targeted-adr-strategies.

Private Sector Resources

The George Washington University, Effective FOIA Requesting for Everyone: A National Security Archive Guide, 2009, at http://nsarchive.gwu.edu/nsa/foia/foia_guide.html.

Richard K. Berg, Stephen H. Klitzman, and Gary J. Edles, An Interpetive Guide to the Government In the Sunshine Act, 2nd ed. (Chicago: American Bar Association, 2005).

Author Contact Information

[author name scrubbed], Analyst in American National Government ([email address scrubbed], [phone number scrubbed])
[author name scrubbed], Information Research Specialist ([email address scrubbed], [phone number scrubbed])

Acknowledgments

Parts of this report were originally written by [author name scrubbed], who has since retired from the Congressional Research Service.

Footnotes

1.

The powers of Congress to access executive-branch records date back to as early as 1790, when the House established a select congressional committee to investigate the actions of former Superintendent of Finance Robert Morris. For more information see 1 Annals of Cong. 1168 (February 8, 1790). See also United States v. Nixon, 418 U.S. 683, 711 (1974). In U.S. v. Nixon, the Court said that if the extent of the President's interest in withholding information for the purpose of confidentiality "relates to the effective discharge of a President's powers, [the President's interest] is constitutionally based." See also House Committee on the Judiciary, "House Judiciary Committee Releases Rove and Miers Interview Transcripts and Over 5,400 Pages of Bush White House Documents," at https://web.archive.org/web/20121209034437/http://judiciary.house.gov/news/090811.html.

2.

[author name scrubbed], American Federal Government Printing and Publication Reform: A Special Issue of Government Publications, Part A; Research Articles (Oxford, England: Pergamon Press, 1982).

3.

See U.S. Congress, Senate Committee on the Judiciary, Bills to Amend the Administrative Procedure Act, and for Other Purposes, hearing on S. 1160, S. 1336, S. 1758, and S. 1879, May 12-14 and 21, 1965, 89th Cong., 1st sess. (Washington: GPO, 1965). At the hearing, Chairman James O. Eastland stated the following:

Access to information about the activities of Government is crucial to the citizen's ability to cope with the bigness and complexity of Government today.… There is no validity therefore, to the frequently heard argument that these [access to executive-branch information] proposals impinge on executive privilege for they would not affect the proper exercise of authority of the President and department heads. (p. 4)

4.

The committees that developed FOIA—the House Committee on Government Operations (now the House Committee on Oversight and Government Reform) and the Senate Committee on the Judiciary—were responding to perceived secrecy problems in the executive branch. Furthermore, these panels had no jurisdiction over legislation concerning congressional operations. Thus, FOIA was created, approved, and implemented with an executive branch focus. For more information on the limitations of FOIA applicability see [author name scrubbed], "Congress and Freedom of Information: A Retrospective and a Look at the Current Issue," Government Information Quarterly, vol. 26 (2009), pp. 437-440.

5.

The U.S. Constitution, Article I, Section 6, at http://www.archives.gov/exhibits/charters/constitution_transcript.html.

6.

For more detail on FOIA, see CRS Report R41933, The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, by [author name scrubbed].

7. 5 U.S.C. §552(4)(B). See
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, , H.Rept. 112-689, 112th, 112th Cong., 2nd2nd sess. (Washington: GPO, 2012), at http://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf. Congressional Research Service 6 . Access to Government Information In the United States: A Primer the text of the acts, the Citizen’s Guide contains descriptions and explanations, sample document request forms, and bibliographies of related congressional and non-congressional material. The Office of Government Information Services (OGIS), which began operations in 2009, hosts a webpage that provides “tips and tools” to agencies and requesters. The website includes best practices for making FOIA requests, information on FOIA training for agency administrators, information on how agencies can work with OGIS, and FOIA contacts at agencies for requesters.35 The General Services Administration’s Federal Citizen Information Center publishes Your Right To Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act.36 Like the Citizen’s Guide, this publication contains explanations, samples, and texts, although in less detail than found in the Citizen’s Guide. The Department of Justice (DOJ) is responsible for overseeing and coordinating administration of the Freedom of Information Act. DOJ’s Office of Information Policy maintains online extensive material about FOIA, statistics on its usage, guidelines for making requests, and freedom of information contacts at other federal agencies.37 Among many non-governmental groups that publish information about freedom of information are Public Citizen and the National Security Archive. Public Citizen, a nonprofit organization that represents a variety of citizen interests,38 maintains a website that provides FOIA resources and information.39 The National Security Archive, a collective of journalists and scholars who “check rising government secrecy,”40 maintains a website that contains a number of FOIA guides, including, “Effective FOIA Requesting for Everyone: A National Security Archive Guide,” which was published in January 2008.41 Records on each of the active federal advisory bodies is available on the General Services Administration’s FACA Database.42 The website includes each committee’s charter, information on the members of each committee and their contact information, and cumulative data on the cost of federal advisory bodies. Selected CRS Reports CRS Report R40520, Federal Advisory Committees: An Overview, by Wendy Ginsberg. 35 Office of Government Information Services, “OGIS Toolbox,” at https://ogis.archives.gov/ogis-toolbox.htm. U.S. General Services Administration, “Your Right to Federal Records,” at http://www.pueblo.gsa.gov/cic_text/ fed_prog/foia/foia.pdf. 37 U.S. Department of Justice, “Office of Information Policy Home,” at http://www.justice.gov/oip/index.html. 38 Public Citizen, “About Us,” at http://www.citizen.org/Page.aspx?pid=2306. 39 Public Citizen, “Freedom of Information Act and Government Transparency,” at http://www.citizen.org/Page.aspx? pid=3194. 40 The National Security Archives, “About the National Security Archive,” at http://www.gwu.edu/~nsarchiv/nsa/ the_archive.html. 41 National Security Archive, “Effective FOIA Requesting for Everyone: A National Security Archive Guide,” at at http://www.gwu.edu/~nsarchiv/nsa/foia/foia_guide/foia_guide_full.pdf. 42 U.S. General Services Administration, “Federal Advisory Committee Act Database,” at http://fido.gov/facadatabase/. 36 Congressional Research Service 7 . Access to Government Information In the United States: A Primer CRS Report R41933, Freedom of Information Act (FOIA): Background and Policy Options for the 112th Congress, by Wendy Ginsberg. CRS Report R41406, The Freedom of Information Act and Nondisclosure Provisions in Other Federal Laws , by Gina Stevens CRS Report WSLG93, The Freedom of Information Act (FOIA) and the Drone Strikes Program, by Gina Stevens. CRS Report R42080, Fannie Mae, Freddie Mac, and FOIA: Information Access Policy for the Government-Sponsored Enterprises, by Wendy Ginsberg and N. Eric Weiss. CRS Report R40238, The Presidential Records Act: Background and Recent Issues for Congress, by Wendy Ginsberg. CRS Report RL33502, Protection of National Security Information, by Jennifer K. Elsea. CRS Report R41741, The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation, by Todd Garvey and Edward C. Liu. CRS Report RL30240, Congressional Oversight Manual, by Todd Garvey et al. CRS Report R42817, Government Transparency and Secrecy: An Examination of Meaning and Its Use in the Executive Branch, by Wendy Ginsberg et al. Selected Additional Resources Sam Archibald, “The Early Years of the Freedom of Information Act—1955 to 1974,” PS: Political Science and Politics, vol. 26, no. 4 (1993), pp. 726-731. Richard K. Berg, Stephen H. Klitzman, and Gary J. Edles, An Interpetive Guide to the Goverment In the Sunshine Act, 2nd ed. (Chicago: American Bar Association, 2005). Herbert N. Foerstel, Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act (Westport, CT: Greenwood Press, 1999). Harry A. Hammitt, Marc Rotenberg, and John A. Verdi, et al., Litigation Under the Federal Open Government Laws 2008: Covering the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, 24th ed (Washington, DC: EPIC Publications, 2008). Harry A. Hammitt, Access Reports: Freedom of Information, at http://www.accessreports.com/. Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (Westport, CT: Greenwood Press, 1981). U.S. Congress, House,https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf. OGIS began operating in September 2009. It was statutorily created in the OPEN Government Act of 2007 (P.L. 110-175). Prior to its enactment, the only method of challenging an agency's interpretation of FOIA (beyond the agency's internal appeal process) was through the court system. 8.

5 U.S.C. §552(h)(3).

9.

5 U.S.C. §552 note.

10.

P.L. 110-175; 121 Stat. 2524.

11.

P.L. 111-83, Section 564. 123 Stat. 2184.

12.

41 C.F.R. Appendix to Subpart A of §102-3.

13.

For more information on FACA, see CRS Report R40520, Federal Advisory Committees: An Overview, by [author name scrubbed]. For more information on how to establish a federal advisory committee by statute, see CRS Report R44232, Creating a Federal Advisory Committee in the Executive Branch, by [author name scrubbed].

14.

FACA cites 5 U.S.C. §552(b), which is the section of the U.S. Code that states which records are exempted from FOIA, making FACA's withholding exemptions identical to those found in the FOIA statute.

15.

5 U.S.C. §552a(j) and 5 U.S.C. §552a(k). Privacy Act exemptions are similar to FOIA's exemptions, but include other exemptions, such as information maintained to protect the President and information "required by statute to be maintained and used solely as statistical records."

16.

5 U.S.C. §552b(a)(1) defines "collegial body" as "composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency."

17.

5 U.S.C. §552b(e)(3).

18.

5 U.S.C. §552b(c). These exemptions are similar to FOIA's exemptions.

19.

One informal method of requesting agency documents is by letter. For example, in January 2016, House Committee on Oversight and Government Reform Chairman Jason Chaffetz and Subcommittee on Healthcare , Benefits, and Administrative Rules Chairman Jim Jordan wrote a letter to Attorney General Loretta Lynch asking for Department of Justice records related to an investigation into the Internal Revenue Service's handling of certain tax-exemption applications. In the letter, Mr. Chaffetz and Mr. Jordan noted that the committee had asked for and not received the documents, and stated, "If you continue to refuse to produce the full file voluntarily, the Committee will consider the use of the compulsory process to obtain these documents." See Letter from Jason Chaffetz, Chairman of the House Committee on Oversight and Government Reform, and Jim Jordan, Chairman of the Subcommittee on Healthcare, Benefits, and Administrative Rules, to Loretta Lynch, Attorney General, January 6, 2016, at https://oversight.house.gov/wp-content/uploads/2016/01/2016-01-06-JC-Jordan-to-Lynch-DOJ-IRS-invest.-due-1-19.pdf.

20.

2016 U.S. Dist. LEXIS 5713 (D.D.C. Jan. 2016). See also, CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by [author name scrubbed] and [author name scrubbed].

21.

A more thorough examination of executive branch FOIA administration statistics is available in CRS Report R41933, The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, by [author name scrubbed].

22.

U.S. Department of Justice, "Reports," at http://www.justice.gov/oip/reports-1.

23.

Data from the individual annual reports, which are posted on the Department of Justice website, are summarized in DOJ's "Summary of Annual FOIA Reports," available at http://www.justice.gov/oip/reports.html.

24.

DOJ defines "backlog" as "[t]he number of requests or administrative appeals that are pending beyond the statutory time period for a response." See Department of Justice, "FOIA.gov: Glossary," at http://www.foia.gov/glossary.html.

25.

See http://www.FOIA.gov. According to FOIA.gov, the Department of Justice received the second highest number of FOIA requests in FY2014 with 64,448—226,754 fewer requests than DHS.

26.

Congressional Research Service analysis of the data available at http://www.FOIA.gov.

27.

U.S. General Services Administration, Federal Advisory Committees Database, at http://facadatabase.gov/. Data for each fiscal year are not validated by GSA until early in the next calendar year.

28.

U.S. General Services Administration, Federal Advisory Committees Database, at http://facadatabase.gov/. Data for each fiscal year are not validated by GSA until early in the next calendar year.

29.

United States Courts, "Judicial Business 2014," at http://www.uscourts.gov/statistics-reports/judicial-business-2014.

30.

United States Courts, "Judicial Business 2014," Table C-2A Civil Cases Filed, by Nature of Suit, p. 4, at http://www.uscourts.gov/statistics/table/c-2a/judicial-business/2014/09/30.

31.

Transitional Access Web Clearinghouse, "About Us," at http://trac.syr.edu/aboutTRACgeneral.html.

32.

This total was calculated by taking the total number of reported FOIA lawsuit filings in FY2014 (422) and subtracting the number of lawsuits filed in which the defendant organization was listed as "not a federal agency [21]." See The FOIA Project, "FOIA Lawsuits," at http://foiaproject.org/lawsuit/. According to the FOIA Project's website, the "not a federal agency" category "reflects cases where no federal agency (or federal official sued in his/her official capacity) was named as a defendant in the suit even though the nature of the suit for the case had been classified under the FOIA category. Sometimes these involved pro se cases filed by individuals without an attorney where the records being sought were from some nonfederal governmental body—such as a state agency or a local police or sheriff's department. In other cases, while a federal body was sued it wasn't subject to FOIA—for example, federal courts or Congress itself. Finally, in some cases, there was ambiguity over whether a particular federal body was subject to FOIA." Emphasis in original. See The FOIA Project, "FOIA Lawsuits—About the Data," at http://foiaproject.org/foia-lawsuits-about-the-data/.

33.

Ibid. This total was calculated by taking the total number of reported pending FOIA lawsuits (517) and subtracting the number of lawsuits pending in which the defendant organization was listed as "not a federal agency [13]."

34. Judicial Watch, "The Docket," at http://www.judicialwatch.org/the-docket/. 35. Citizens Against Government Waste, "FOIA Requests: Legal Filings," at http://www.citizensforethics.org/pages/category-results/c/foia-requests2. 36. EPIC, "Litigation Docket," at http://epic.org/privacy/litigation/. 37. 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, H.Rept, 112-698, September 2012, at , H.Rept. 112-689, 112th Cong., 2nd sess. (Washington: GPO, 2012), at http://oversight.house.gov/wp-content/uploads/2012/09/ Citizens-Guide-on-Using-FOIA.2012.pdf. Congressional Research Service 8 . Access to Government Information In the United States: A Primer U.S. Congress. Senate, Committee on Governmental Affairs, Federal Advisory Committee Act (Public Law 92-463)—Source Book: Legislative History, Texts, and Other Document,. Committee Print. 95th Congress, second session, Washington: GPO, 1978. U.S. Department of Justice, 2011 FOIA Litigation and Compliance Reports, at http://www.justice.gov/oip/11introduction.html. U.S. Department of Justice, FOIA Reference Guide (January 2010), Washington, DC, 2010, http://www.justice.gov/oip/04_3.html. U.S. Department of Justice, Guide to the Freedom of Information Act, (2009 Edition), at http://www.justice.gov/oip/foia_guide09.htm. U.S. Department of Justice and U.S. General Services Administration, Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act, 2011, Washington: GSA’s Federal Citizen Information Center, 2011, at http://publications.usa.gov/ USAPubs.php?PubID=6080. Author Contact Information Wendy R. Ginsberg Analyst in Government Organization and Management wginsberg@crs.loc.gov, 7-3933 Acknowledgments Parts of this report were originally written by Harold C. Relyea, who has since retired from the Congressional Research Service. Congressional Research Service 9 Citizens-Guide-on-Using-FOIA.2012.pdf. 38.

Office of Government Information Services, "OGIS Toolbox," at https://ogis.archives.gov/ogis-toolbox.htm.

39.

U.S. General Services Administration, "Your Right to Federal Records," at http://publications.usa.gov/USAPubs.php?PubID=6080.

40.

U.S. Department of Justice, "Office of Information Policy Home," at http://www.justice.gov/oip.

41. Public Citizen, "About Us," at http://www.citizen.org/about/. 42.

Public Citizen, "Freedom of Information Act and Government Transparency," at http://www.citizen.org/Page.aspx?pid=5171.

43.

The National Security Archives, "About the National Security Archive," at http://nsarchive.gwu.edu/nsa/the_archive.html.

44.

National Security Archive, "Effective FOIA Requesting for Everyone: A National Security Archive Guide," at http://nsarchive.gwu.edu/nsa/foia/foia_guide/foia_guide_full.pdf.

45.

U.S. General Services Administration, "Federal Advisory Committee Act Database," at https://database.faca.gov.