Access to Government Information: An Overview

March 31, 2022 – December 18, 2023 R47058

Access to Government Information: An
December 18, 2023
Overview
Meghan M. Stuessy
Congress has long recognized the people’s right to know about the operations and actions of the
Analyst in Government
federal government. A series of modern statutes provides a framework for ways the public may
Organization and
access government information. Built up over the past 60 years, these key statutes allow the
Management
public to access information about the federal government’s operations, information the

government might collect on individuals, and insight into some of the government’s
decisionmaking processes.

These key statutes include the
• Freedom of Information Act (FOIA; 5 U.S.C. §552),
• Privacy Act of 1974 (Privacy Act; 5 U.S.C. §552a),
• Government in the Sunshine Act (Sunshine Act; 5 U.S.C. §552b), and
• Federal Advisory Committee Act (FACA; 5 U.S.C. Chapter 10).
These statutes generally operate by using one or two access mechanisms: a request-based system for information, and
proactive or contemporaneous disclosure of the information in an open forum. Each method has its benefits and drawbacks
for individuals seeking to gain information from federal government actors. Implementation and understanding of these
statutes and corresponding policies have changed over time.
After enactment of these statutes and subsequent evolution in their implementation, Congress has continued to question
whether they provide for sufficient public inspection of government activity and whether federal government actors are
complying with or circumventing the intent of these statutes. To help determine whether or not information can be
sufficiently accessed, Congress might evaluate multiple questions, including whether the sought-after information is
exclusive to certain individuals or software, at what point the information can be retrieved during decisionmaking processes,
and if the information provided is sufficient to determine the context in which it was created. This report provides an
overview of each of the four statutes and includes a discussion of policy questions and legislative considerations for each one.

Congressional Research Service

Access to Government Information: An Overview

ongress has long recognized the people’s right to know about the operations and actions
of the federal government. Advocates of open government have often quoted James
Madison, considered the Father of the Constitution, who wrote:
C A popular Government without popular information, or the means of acquiring it, is but
a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern
ignorance; And the people who mean to be their own Governors, must arm themselves with
the power, which knowledge gives.1
During consideration of amendments to the 1946 Administrative Procedure Act (P.L. 79-404),
which laid the groundwork for modern access-to-government-information laws, the Senate
highlighted Congress’s intent to respond to Madison’s writing:
At no time in our history has this been truer than it is today, when the very vastness of our
Government and its myriad of agencies makes it so difficult for the electorate to obtain that
“popular information” of which Madison spoke. Only when one further considers that
hundreds of departments, branches, and agencies are not directly responsible to the people,
does one begin to understand the great importance of having an information policy of full
disclosure.2
Since the 1960s, Congress has legislated four key statutes which provide access to government
information:
1. Freedom of Information Act (FOIA; 5 U.S.C. §552);
2. Privacy Act of 1974 (Privacy Act; 5 U.S.C. §552a);
3. Government in the Sunshine Act (Sunshine Act; 5 U.S.C. §552b); and
4. Federal Advisory Committee Act (FACA; 5 U.S.C. Chapter 10).
Under these statutes, the public may access information through two approaches. The first
approach consists of placing a request with the federal government in which an interested party
requests information from the government (FOIA; Privacy Act). Members of the public may
request documents from agencies or information collected on themselves under these statutes.
The second approach consists of proactive or contemporaneous disclosure by the government in
which meetings or information are transparently available for public inspection (Sunshine Act;
FACA).3 FOIA contains elements of both approaches.

1 Letter from James Madison, former President, to W. T. Barry, August 4, 1822, https://www.loc.gov/resource/
mjm.20_0155_0159/?sp=1&st=text.
2 U.S. Congress, Senate Judiciary, Clarifying and Protecting the Right of the Public to Information and for Other
Purposes, report to accompany S. 1666, 88th Cong., 2nd sess., July 22, 1964, Report No. 1219, p. 8.
3 Other statutes provide additional means for public access to federal government information in narrower areas of
federal government activity without a need to formally request the information. These include statutes that govern
rulemaking and budgeting, among others. For discussion, see CRS In Focus IF10003, An Overview of Federal
Regulations and the Rulemaking Process, by Maeve P. Carey; and “Congress Evolving in the Face of Complexity:
Legislative Efforts to Embed Transparency, Participation, and Representation in Agency Operations,” by Clinton T.
Brass and Wendy Ginsberg, in CRS Committee Print CP10000, The Evolving Congress: A Committee Print Prepared
for the Senate Committee on Rules and Administration, coordinated by Walter J. Oleszek, Michael L. Koempel, and
Robert Jay Dilger. Other laws govern stewardship of agency information, including but not limited to the Federal
Records Act. See CRS In Focus IF11119, Federal Records: Types and Treatments, by Meghan M. Stuessy. The topic
of congressional access to government information is addressed in CRS Report RL30240, Congressional Oversight
Manual, coordinated by Christopher M. Davis, Todd Garvey, and Ben Wilhelm.
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Access to Government Information: An Overview

Key Concepts
The laws discussed in this report represent different approaches to managing and receiving
government information. While each statute contemplates access mechanisms in specific
contexts, all rely on terms that provide a common understanding to the concept of open
government. This section briefly considers the conceptual definition of government information
compared to other types of information, explores what it means for a user to access information,
and concludes with a discussion of the information life cycle as a structure to manage information
at different stages.
What Is Government Information?
There is no overarching definition of government information in statute. However, the Office of
Management and Budget’s (OMB’s) Circular No. A-130, which concerns “Managing Information
as a Strategic Resource,” defines information as “any communication or representation of
knowledge such as facts, data, or opinions in any medium or form, including textual, numerical,
graphic, cartographic, narrative, electronic, or audiovisual forms.”4 Agency heads and chief
information officers (CIOs) have certain statutory responsibilities to manage information
resources, which are also discussed in part within Circular No. A-130.5
The Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) discusses a particular type of
government information, federal records, as having value for future preservation. When the
information’s content is assessed and found to meet certain criteria, it is considered to be a federal
record. Federal record is defined under the Federal Records Act as
all recorded information, regardless of form or characteristics, made or received by a
Federal agency under Federal law or in connection with the transaction of public business
and preserved or appropriate for preservation by that agency or its legitimate successor as
evidence of the organization, functions, policies, decisions, procedures, operations, or other
activities of the United States Government or because of the informational value of data in
them.6
Broadly, government agencies and employees have specific legal obligations related to the
retention of federal records based on their assessed value.7
Government information, thus, may be construed to be recorded information, such as facts, data,
or opinions, that were created or received by a component of the federal government when
conducting public business.

4 OMB, Circular No. A-130: Managing Information as a Strategic Resource, July 28, 2016, p. 29,
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf#page=29. Circular No. A-
130 establishes general policy for information governance, acquisitions, records management, open data, workforce,
security, and privacy.
5 44 U.S.C. §3506. These responsibilities include, but are not limited to, implementing methods for collecting and
analyzing digital information; establishing goals for improving information resources management’s contribution to
program productivity, efficiency, and effectiveness; and implementing and enforcing requirements for archiving
information maintained in electronic format, particularly during the planning, design, and operation of information
systems.
6 44 U.S.C. §3301.
7 For more information about federal records and the process to assess federal records for permanent or temporary
preservation, see CRS In Focus IF11119, Federal Records: Types and Treatments, by Meghan M. Stuessy.
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Access to Government Information: An Overview

What Is Access?
In practice, the concept of access is multidimensional. Access to information may mean
increasing the volume of available information and the variety of formats in which the
information is presented. For example, the FOIA Improvement Act of 2016 (P.L. 114-185)
amended FOIA to require the proactive disclosure of information in a public and electronically
accessible format and mandated the creation of an electronic portal of requested information,
among other changes.
Assessing Access
The authors of the major legislation addressing access to government information weighed many factors when
considering how the statutes may be applied. Government entities acting under the statutes must also constantly
consider these factors:
•
Who can access the information, and what tools or software are needed to do so?
•
What is the process for requesting or accessing the information? What burden does the process put on requesters
and federal agencies? Is the process more burdensome or difficult than it needs to be?
•
When can the information be accessed? For what length of time is the information available?
•
Are the formats and materials on which the information is recorded and stored being properly preserved? Do they
need repair or modernization?
•
Is the information provided with sufficient context to understand the ful scope of the content? Are only certain
people or professionals able to understand the information?
Information Life Cycle
Government information policy has grappled with the concept of access. The term information
life cycle describes the movement and impact information makes throughout its usable period.
The information life cycle concept, according to the National Archives and Records
Administration (NARA), OMB, and others, describes the ways in which information moves and
is a method of understanding how laws and policies affect the use of information in the
government. Generally, the information life cycle can be thought of as comprising three stages:
(1) creation or receipt, (2) maintenance and use, and (3) disposition or destruction of the
information.8 The stage in which the requested information currently resides impacts whether and
in what format the requested information may be provided. For example, information being
collected by the federal government from individuals under an assurance of confidentiality might
have specific limitations on future sharing. Information that is currently in use by a government
agency to formulate and debate a policy may be considered pre-decisional and therefore
unavailable. Government access laws do not require agencies to respond to requests for
information that was never created or already destroyed.

8 NARA, Guide to the Inventory, Scheduling, and Disposition of Federal Records: Records Disposition Overview,
https://www.archives.gov/records-mgmt/scheduling/rdo. OMB Circular A-130 provides additional terminology on the
information life cycle. However, this definition is compatible with the simplified NARA definition used in the text of
this report. A-130 reads, “‘Information life cycle’ means the stages through which information passes, typically
characterized as creation or collection, processing, dissemination, use, storage, and disposition, to include destruction
and deletion.” OMB, Circular No. A-130, p. 29.
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Public Access Laws
Congress increasingly considered legislation on the transparency and management of government
information in the 1960s and 1970s. Legislators sought to make the executive branch’s operations
open and available for public inspection, just as Congress’s consideration of legislation is
available.9 Members determined that information policies promoting disclosure would enhance
government accountability, which was an important goal of the Administrative Procedure Act.10
Some Members highlighted the changing landscape of government functions and how computers
and digital information might change the nature of government services:
Somehow, the varied and wide-ranging functions which have been thrust very rapidly upon
the Federal management machinery of an earlier time have left great loopholes for the
gathering, use and disclosure of information about Americans in ways and for reasons that
should give us serious pause. The advent of computer technology and new ways of
information storage and sharing which have made it possible for government to provide
new services and to carry out new programs, have also encouraged the extension of some
practices of doubtful wisdom or constitutionality.11
Through these debates, as previously noted, Congress enacted statutes that generally operate by
using one of two access mechanisms: a request-based system for information from the
government and proactive or contemporaneous disclosure of certain information in an open
forum.
The results thus far of this legislative debate include four key statutes:
1. the Freedom of Information Act (1966),
2. the Privacy Act (1974),
3. the Government in the Sunshine Act (1976), and
4. the Federal Advisory Committee Act (1972).
The Freedom of Information Act
The Freedom of Information Act establishes a presumption that the public should have access to
information in the possession of executive branch agencies and departments of the federal
government. Prior to FOIA, a requester had the burden of proof to show a “need to know” to gain
access to government information. FOIA assumes a “right to know” and shifts the burden to the
federal government to establish a need to keep the information secret.12
Government-wide, agencies received 838,164 FOIA requests in FY2021. The top five agencies
that received the most FOIA requests were (1) the Department of Homeland Security, (2) the

9 Rep. Dante Fascell, “Conference Report on S. 5, Government in the Sunshine Act,” House debate, Congressional
Record, vol. 122 (August 31, 1976), p. H28474.
10 Sen. Edward V. Long, “Amendment of Administrative Procedure Act,” Senate debate, Congressional Record, vol.
110 (July 28, 1964), p. S17087. The Administrative Procedure Act (APA) of 1946 (5 U.S.C. §551 et seq.) was
originally written to bring regularity and predictability to agency decisionmaking, and it provides for, among other
things, both formal and informal rulemaking. For more information about the APA and the rulemaking process, see
CRS Report RL32240, The Federal Rulemaking Process: An Overview, coordinated by Maeve P. Carey.
11 Sen. Samuel J. Ervin, “Protection of the Right of Privacy,” Senate debate, Congressional Record, vol. 120
(November 21, 1974), p. S36981.
12 U.S. Congress, House Committee on Oversight and Government Reform, A Citizen’s Guide to Using the Freedom of
Information Act and the Privacy Act to Request Government Records, committee print, 112th Cong., 2nd sess.,
September 21, 2012, H.Rept. 112-689, p. 2, https://www.congress.gov/112/crpt/hrpt689/CRPT-112hrpt689.pdf.
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Access to Government Information: An Overview

Department of Justice (DOJ), (3) the Department of Defense, (4) the Department of Health and
Human Services, and (5) the Department of Veterans Affairs.13
Any person may make a request for information under FOIA. The statute does not specify that a
particular form must be used to make a request. Rather, the request must be in writing and
reasonably describe the records sought.14 Depending on the entity making the request and the
scope of the information sought, certain requests may be subject to the assessment of fees to
recoup agency staff and information reproduction costs.15 Many agencies also proactively make
information available on their FOIA library pages and may have already published relevant
records. DOJ has provided a web portal to allow for the searching of agency resources at
https://www.foia.gov/#learn-more.
FOIA establishes a three-part system that requires federal agencies to disclose a large swath of
government information to the public.16 Two of the three parts require a government agency to
proactively disclose certain information. First, FOIA directs agencies to publish substantive and
procedural rules, along with certain other important government materials, in the Federal
Register.17 Second, agencies must electronically disclose a separate set of information that
consists of, among other things, final adjudicative opinions and certain “frequently requested”
records.18
The third part is FOIA’s request-based system of disclosure. Any member of the public may
request existing government information from covered federal agencies.19 However, FOIA’s
presumptive right of access is limited when the requested information falls within the scope of
nine statutory exemptions. The nine statutory FOIA exemptions (5 U.S.C. §552(b)) that allow
agencies to withhold information are
1. National defense or foreign policy information properly classified pursuant to an
executive order;20
2. Information related solely to the internal personnel rules and practices of an
agency;
3. Data specifically exempted from disclosure by certain statutes;
4. Trade secrets and commercial or financial information obtained from a person
that is privileged or confidential;
5. Inter- or intra-agency materials that would not be legally available to a party
other than an agency in litigation with the agency;
6. Personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy;

13 CRS analysis of FOIA data located at https://www.foia.gov/data.html.
14 DOJ, FOIA.gov, http://www.foia.gov/faq.html.
15 For more information about FOIA fees, see CRS In Focus IF11272, Freedom of Information Act Fees for
Government Information, by Meghan M. Stuessy.
16 See CRS Infographic IG10019, The Freedom of Information Act (FOIA), by Daniel J. Sheffner.
17 5 U.S.C. §552(a)(1).
18 5 U.S.C. §552(a)(2).
19 See also CRS Report R46238, The Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner.
Depending on the type of information requested and purpose of the requester, fees may be assessed by agencies to help
cover the costs of providing information. See CRS In Focus IF11272, Freedom of Information Act Fees for
Government Information, by Meghan M. Stuessy for more information.
20 Currently, Executive Order 13526 establishes this criterion. Executive Order 13526, “Classified National Security
Information,” 75 Federal Register 1013, December 29, 2009.
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7. Certain records compiled for law enforcement purposes—for example,
information whose release could reasonably be expected to interfere with law
enforcement proceedings or would deprive a person of a right to a fair trial;
8. Information contained in or related to certain agency financial institution reports;
and
9. Geological and geophysical information and data concerning wells.21
FOIA provides requesters with the right to file an appeal of the agency’s denial of a request.22
Disputes over the accessibility of requested records may also be resolved by consulting NARA’s
Office of Government Information Services through mediation.23 A requester dissatisfied with the
agency’s ultimate decision may be able to seek review of the decision in federal court.24
Use of Exemptions
Agencies invoke certain exemptions to withhold requested information more than others.25 The
five most commonly invoked exemptions in FY2022, in order, are Exemption 6, Exemption 7(C),
Exemption 7(E), Exemption 3, and Exemption 5.26 Table 1 provides totals for each exemption in
FY2022. Some Members of Congress have recently noted the rise in the use of exemptions to
withhold information, supported by findings from a 2021 Government Accountability Office
(GAO) report27 that found that “[w]hile the number of FOIA requests processed increased by 32
percent from approximately 666,000 in 2012 to 878,000 in 2019, the use of [Exemption 3] more
than doubled during this time period from approximately 31,000 uses in 2012 to 72,000 in 2019
(a 135 percent increase).”28
Table 1. FOIA Request Exemptions by Number of Times Invoked
FY2022
Number of Times
Request Exemption
Invoked
Exemption 1
2,740

21 For more information, see CRS Report R46238, The Freedom of Information Act (FOIA): A Legal Overview, by
Daniel J. Sheffner.
22 5 U.S.C. §552(a)(6)(A)(i).
23 NARA, Office of Government Information Services, Mediation Program, https://www.archives.gov/ogis/mediation-
program.
24 5 U.S.C. §552(a)(4)(B). For information on requester’s ability to seek judicial review of agency withholding
decisions and related issues, see CRS Report R46238, The Freedom of Information Act (FOIA): A Legal Overview, by
Daniel J. Sheffner.
25 CRS analysis of FOIA data located at https://www.foia.gov/data.html.
26 Exemption 7 covers records or information compiled for law enforcement purposes. Exemption 7(C) covers
information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” and 7(E)
covers information that “would disclose techniques and procedures for law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law.”
27 House Committee on Oversight and Reform, “GAO Reports Find Agencies Withheld More Information from the
Public in Recent Years,” press release, March 16, 2021, at https://oversight.house.gov/news/press-releases/gao-reports-
find-agencies-withheld-more-information-from-the-public-in-recent.
28 U.S. Government Accountability Office (GAO), Freedom of Information Act: Update on Federal Agencies’ Use of
Exemption Statutes, GAO-21-148, January 2021, p. 12, https://www.gao.gov/assets/gao-21-148.pdf. FOIA exemptions
are often referred to by their U.S. Code subsection number, as in the cited GAO report where Exemption 3 is referred to
as the “(b)(3) exemption.”
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Number of Times
Request Exemption
Invoked
Exemption 2
1,250
Exemption 3
79,768
Exemption 4
11,276
Exemption 5
65,807
Exemption 6
287,501
Exemption 7(A)
8,041
Exemption 7(B)
311
Exemption 7(C)
256,159
Exemption 7(D)
6,154
Exemption 7(E)
242,546
Exemption 7(F)
2,143
Exemption 8
208
Exemption 9
54
Source: CRS analysis of Freedom of Information Act data, located at https://www.foia.gov/data.html.
Notes: Multiple exemptions may be invoked on a single request. The numbers provided are not equivalent to
the total number of requests received in a given fiscal year.
Request Backlog
DOJ provides information through FOIA.gov and annual reports on whether requests for
information are fully granted or partly granted due to the applicability of one of FOIA’s
exemptions as well as information on the ability of agencies to process requests in a timely way.
In FY2022, 878,420 requests were processed, and in FY2021, 838,668 were processed.
Comparing across years, fewer requests were fully granted in FY2022 than in FY2021 (17.4%
versus 19.8%), and fewer requests received partial grants of information in FY2022 (39.1%
versus 40.1%).29
The backlog of requests not completed by agencies continues to persist, indicating that agencies
are not keeping pace with the number of requests received. Table 2 presents the number of
backlogged requests, FY2018-FY2022.

29 DOJ, Office of Information Policy, Summary of Annual FOIA Reports for Fiscal Year 2019, p. 6,
https://www.justice.gov/oip/page/file/1282001/download; and DOJ, Office of Information Policy, Summary of Annual
FOIA Reports for Fiscal Year 2020, p. 7, https://www.justice.gov/oip/page/file/1436261/download. See also GAO,
Freedom of Information Act: Federal Agencies’ Recent Implementation Efforts, GAO-20-406R, March 11, 2020, p. 2,
https://www.gao.gov/assets/gao-20-406r.pdf.
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Table 2. Number of Backlogged FOIA Requests
Fiscal Year
Number of Requests
FY2018
130,718
FY2019
120,436
FY2020
141,762
FY2021
153,227
FY2022
206,720
Source: CRS analysis of Freedom of Information Act data, located at https://www.foia.gov/data.html.
In 2014, NARA established a FOIA Advisory Committee to develop consensus recommendations
for improving the administration of FOIA.30 The FOIA Advisory Committee has made a number
of proposals to address backlog issues, such as including FOIA performance standards in
employee appraisals, centralizing FOIA request processing, and adding support staff to assist with
request surges.31 In light of these recommendations, assessing the adequacy of agency resources
may prove challenging, because many staff and agency components can be involved in the
processing of a request, making it difficult to pinpoint where agency resources should be
leveraged.
Agency FOIA Office Structures and Leadership
FOIA request backlogs may be related to the positioning of FOIA offices within agencies and the
ability of chief FOIA officers to devote adequate attention to their duties. By statute, an agency’s
chief FOIA officer is responsible for ensuring efficient and appropriate agency-wide
compliance.32 The statute specifies that the chief FOIA officer shall be an assistant secretary or
equivalent within an agency, but it is common for the person serving in the role to split his or her
duties with another assistant secretary role.33 For example, the chief FOIA officer may also serve
as the agency’s chief privacy or management officer, assistant secretary for public affairs, or
general counsel.
Issues for Congress
Congress has amended and revised FOIA, most recently through the FOIA Improvement Act of
2016 (P.L. 114-185), and may contemplate further evaluations of the design and implementation
of the law. Congress might consider options for improving the administration of FOIA in light of
the use of FOIA’s exemptions, reducing a persistent backlog of requests from previous years, and
decreasing the number and variety of offices managing FOIA requests. Some Members of
Congress have called attention to a backlog in processing FOIA requests across the government
and a “continued culture of reflexive secrecy” in agencies resulting in the withholding of

30 NARA, “Freedom of Information Act Federal Advisory Committee,” https://www.archives.gov/ogis/foia-advisory-
committee.
31 NARA, Freedom of Information Act Federal Advisory Committee, Report to the Archivist of the United States: Final
Report and Recommendations, April 17, 2018, https://www.archives.gov/files/final-report-and-recommendations-of-
2016-2018-foia-advisory-committee.pdf.
32 5 U.S.C. §552(j). See also NARA, Chief Freedom of Information Act (FOIA) Officers Council,
https://www.archives.gov/ogis/about-ogis/chief-foia-officers-council.
33 5 U.S.C. §552(f)(1).
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responsive information.34 Congress may wish to conduct oversight of the proper application of all
exemptions, including content-specific exemptions written into statute under Exemption 3.
Regarding the FOIA backlog, Congress may consider policies that would target FOIA backlogs at
particular agencies or take a broader multiagency approach.
Lastly, the variety of duties and organizational placements of agency chief FOIA officers may
pose obstacles to centralizing FOIA request processing. In some agencies, the chief FOIA officer
might report directly to the agency head, while in others, the officer might be several steps
removed from the agency head. Congress may wish to investigate whether these varying
leadership structures are contributing to the size of FOIA request backlogs.
The Privacy Act
The Privacy Act of 1974 concerns the use and disclosure of government information collected on
individuals.35 While the other three statutes discussed in this report focus on the broad release of
government information to the public, the Privacy Act instead balances the government’s need to
maintain and share information on individuals with the rights of individuals to be protected
against invasion of their privacy.36
Generally, the Privacy Act prescribes how records with individually identifying information are to
be stored, who may access such information, and when the government may use or share an
individual’s information.37 The statute provides for 12 exceptions when information may be
shared without the prior written consent of an individual.38
The Privacy Act allows citizens of the United States or aliens lawfully admitted for permanent
residence to access and correct information collected on them and, in addition, restricts how and
when these records may be shared.39 Under the act, record means “any item, collection, or
grouping of information about an individual that is maintained by an agency” that includes the
person’s name or another identifier.40 The Privacy Act also implemented what are known as the

34 Letter from Sens. Charles Grassley et al. to Melanie Pustay, Director, Office of Information Policy, DOJ, March 14,
2019, https://www.feinstein.senate.gov/public/_cache/files/5/f/5fdc0259-a56c-4b44-b4c5-964cd0a0cf4c/
07273BBD4FF7BB01289B5E1BD329E9E2.2019-03-14-ceg-leahy-cornyn-feinstein-to-doj—foia-compliance.pdf.
35 For more information on the Privacy Act, see CRS Report R47863, The Privacy Act of 1974: Overview and Issues
for Congress, by Meghan M. Stuessy.
36 For an elaboration of Congress’s findings and purposes, see the Privacy Act of 1974, §2 (P.L. 93-579, December 31,
1974; 88 Stat. 1896).
37 The Privacy Act at 5 U.S.C. §552a(4) defines record as “any item, collection, or grouping of information about an
individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical
history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or voice print or a photograph.” DOJ in its Overview
of the Privacy Act of 1974, 2020 edition, refers to this as individually identifiable information. The Privacy Act notably
does not use the term personally identifiable information (PII). OMB, however, has specifically defined PII as
“information which can be used to distinguish or trace an individual’s identity, such as their name, social security
number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked
or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.” OMB, M-07-16:
Safeguarding Against and Responding to the Breach of Personally Identifiable Information, May 22, 2007,
https://georgewbush-whitehouse.archives.gov/omb/memoranda/fy2007/m07-16.pdf.
38 DOJ, Overview of the Privacy Act of 1974, 2020, p. 80, https://www.justice.gov/opcl/overview-privacy-act-1974-
2020-edition. In addition to the 12 exceptions, the act also stipulates 10 categories of information that are exempted
from its purview (see page 338). However, these are omitted from discussion in this overview report.
39 DOJ, Overview of the Privacy Act of 1974, pp. 421-422.
40 5 U.S.C. §552a(4). Other statutory definitions of record exist outside of the Privacy Act, such as the Federal Records
Act definition, located at Title 44, Section 3301, of the U.S. Code.
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Fair Information Practice Principles (FIPPs) in order for individuals to understand the information
agencies may share pertaining to them.41 DOJ explains that these principles
allow individuals to determine what records pertaining to them are collected, maintained,
used, or disseminated by an agency; require agencies to procure consent before records
pertaining to an individual collected for one purpose could be used for other incompatible
purposes; afford individuals a right of access to records pertaining to them and to have
them corrected if inaccurate; and require agencies to collect such records only for lawful
and authorized purposes and safeguard them appropriately. Exceptions from some of these
principles are permitted only for important reasons of public policy.
In processing requests for information under the Privacy Act, agencies are also to consider the
applicability of FOIA to the request. As DOJ describes, “The Privacy Act and the FOIA are often
read in tandem,” although the scope of each differs.42 While FOIA allows any person to access
government information, the Privacy Act allows individuals to access records about themselves.
In practice, agencies treat Privacy Act requests the same as FOIA requests when preparing
responses. DOJ recommends that agencies process individuals’ access requests for their own
records “under both the Privacy Act and the FOIA, regardless of the statute(s) cited.”43
“System of Records”
For purposes of the Privacy Act, an agency may control a group of records where information is
retrievable by an individual’s name or other unique identifier. This group of records is referred to
as a “system of records.”44 The act requires an agency to submit a proposal to OMB and Congress
for review on the establishment of or significant changes to a system of records.45 After review
and potential comments from OMB, the agency publishes a system of records notice (SORN) in
the Federal Register and provides 30 days for the public to submit written views on the proposed
use of the system.46 A typical SORN must include information such as
• the name and location of the system;
• the categories of records and individuals on whom records are maintained;
• each routine use of the records contained in the system, including the categories
of users and the purpose of such use; and
• the policies and practices of the agency regarding storage, retrievability, access
controls, retention, and disposal of the records.47

41 DOJ elaborates, “Judicial redress is afforded to individuals when an agency fails to comply with access and
amendment rights, but only after an internal appeals process fails to correct the problem. Otherwise, liability for
damages is afforded in the event of a willful or intentional violation of these rights.” DOJ, Overview of the Privacy Act
of 1974, p. 1.
42 DOJ, Overview of the Privacy Act of 1974, p. 138. For an example of this process, see pages 141-147 of the cited
document.
43 DOJ, Overview of the Privacy Act of 1974, p. 139.
44 5 U.S.C. §552a(a)(5).
45 OMB, Circular No. A-108, Federal Agency Responsibilities for Review, Reporting, and Publication under the
Privacy Act, December 23, 2016, p. 14, https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/
circulars/A108/omb_circular_a-108.pdf.
46 5 U.S.C. §552a(e)(11). OMB guidance indicates that this requirement refers to “any new or significantly modified
routine use.” OMB, Circular No. A-108, p. 7.
47 5 U.S.C. §552a(e)(4).
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Certain systems of records may be exempted from selected Privacy Act requirements by an
agency head based on the system’s contents and subject to notice in the Federal Register.48 For
example, systems containing national security information, investigatory material compiled for
law enforcement purposes, or information required by statute to be maintained and used solely as
statistical records may be exempted in certain circumstances.49
Access to Information on Individuals
U.S. citizens and permanent residents may request to gain access to their information from
agencies under the same guidelines as requests under FOIA.50 An individual may request an
agency to perform a search for information in a system of records based on identifiers such as a
name or Social Security number. An individual might do this, for example, to ensure records
pertaining to the individual are accurate and to request corrections.
The Privacy Act generally prohibits disclosure of individually identified information to third
parties without written consent. Specifically, an agency may not disclose a record to a third party
without the individual’s prior written consent unless a disclosure meets an exception under Title
5, Section 552a(b), of the U.S. Code.51 Congress has enacted legislation to digitize the collection
of written consent under the Privacy Act, but the verification of an individual’s identity may vary
based on whether the consent is granted via digital or paper means.52 For example, while
implementation of digital consent collection is ongoing and subject to OMB guidance, paper
consent may involve document notarization or a signature offered under penalty of perjury.53
Two of the exceptions allowed by the statute have raised congressional concern. An agency may
share information if the purpose of the sharing is a “routine use” of the information. A routine
use, under the Privacy Act, is “use of such record for a purpose which is compatible with the
purpose for which it was collected” and may include the sharing of information across agencies.54
Determining a qualifying routine use is often left to the discretion of agencies and OMB, although
routine uses must be noted and defined in publicly available SORNs.55
The “routine use” disclosure exception was designed to allow disclosures other than intra-agency
disclosures.56 As described by DOJ, “The routine use exception, because of its potential breadth,
is one of the most controversial provisions in the Act.”57 This exception allows for agencies to

48 5 U.S.C. §§552a(j) and 552a(k). For discussion of statutory provisions that explicitly exempt or allow agencies to
exempt certain categories of records (or information within a record) from certain Privacy Act provisions, see DOJ,
Overview of the Privacy Act of 1974, “Ten Exemptions,” https://www.justice.gov/opcl/overview-privacy-act-1974-
2020-edition/exemptions; and OMB, Circular No. A-108, p. 25.
49 5 U.S.C. §552a(k).
50 5 U.S.C. §552a(d).
51 5 U.S.C. §552a(b). For discussion of these exceptions, see DOJ, Overview of the Privacy Act of 1974, “Conditions of
Disclosure to Third Parties,” https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-
parties.
52 P.L. 116-50.
53 OMB, M-21-04: Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act,
November 12, 2020, https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf; and NARA, “Guide to
Making a Privacy Act Request: What Is a Privacy Act Certification of Identity?,” https://www.archives.gov/privacy/
guide.html.
54 5 U.S.C. §552a(a)(7).
55 OMB, Circular No. A-108, p. 11.
56 DOJ, Overview of the Privacy Act of 1974, p. 95.
57 DOJ, Overview of the Privacy Act of 1974, p. 95.
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make certain disclosures of information under its provisions that may not otherwise be captured
through the Privacy Act’s other exceptions.58
An agency may also disclose information for use in statistical research. The Privacy Act states
that the recipient of this information must provide the agency with “advance adequate written
assurance that the record will be used solely as a statistical research or reporting record” and that
the information is to be “transferred in a form that is not individually identifiable.”59 The OMB
stated in its initial 1975 guidelines on the Privacy Act’s implementation:
One may infer from the legislative history and other portions of the Act that an objective
of this provision is to reduce the possibility of matching and analysis of statistical records
with other records to reconstruct individually identifiable records. An accounting of
disclosures is not required when agencies publish aggregate data so long as no individual
member of the population can be identified.60
Issues for Congress
In the Privacy Act’s 1974 enumeration of findings and purposes, Congress found that “the
increasing use of computers and sophisticated information technology, while essential to the
efficient operations of the Government, has greatly magnified the harm to individual privacy that
can occur from any collection, maintenance, use, or dissemination of personal information.”61
As technology advances, opportunities for use and misuse of systems of records may be present
in ways not considered during the original design and implementation of the Privacy Act.
Congress has passed legislation providing further direction on the sharing and storage of
information maintained on individuals. Examples of legislation that interact with the Privacy Act
include provisions associated with the Computer Matching and Privacy Protection Act of 1988
and subsequent amendments62 and the Confidential Information Protection and Statistical
Efficiency Act of 2018 (CIPSEA 2018), which was included in Title III of the Foundations for
Evidence-Based Policymaking Act of 2018 (FEBPA).63
Privacy Act and the Mosaic Effect
Given existing and emerging computer technologies at the time of its consideration, the Privacy
Act included numerous safeguards to avoid privacy-related harms to the public. Data access and
sharing may still involve significant risks even with seemingly de-identified data. OMB has
warned of the mosaic effect, a problem that could occur as multiple versions of public and private

58 For example, the National Endowment for the Arts announced eight routine uses for a new system of records
regarding medical and/or religious accommodations of its employees. The routine uses include disclosures to courts,
contractors, and designated officers of other agencies for certain purposes, among other uses. National Endowment for
the Arts, “Privacy Act of 1974; System of Records,” 87 Federal Register 14298, March 14, 2022. See also DOJ,
Overview of the Privacy Act of 1974, pp. 105-107.
59 5 U.S.C. §552a(b)(5).
60 OMB, “Privacy Act Implementation: Guidelines and Responsibilities,” 40 Federal Register 28954, July 9, 1975,
https://www.justice.gov/archives/paoverview_omb-75/download. Modern privacy guidance from OMB can be located
at Office of Information and Regulatory Affairs, “Privacy,” https://www.whitehouse.gov/omb/information-regulatory-
affairs/privacy/.
61 Privacy Act of 1974, §2 (P.L. 93-579, December 31, 1974; 88 Stat. 1896).
62 P.L. 100-503 (1988) and subsequent amendments to its provisions. This law inserted many new requirements in
provisions associated with the Privacy Act (5 U.S.C. §522a). See also CRS In Focus IF12053, Federal Data
Integration and Individual Rights: The Computer Matching and Privacy Protection Act, by Natalie R. Ortiz.
63 P.L. 115-435 (2019). FEBPA’s Title III codified CIPSEA 2018 at Title 44, Chapter 35, of the U.S. Code and
replaced an earlier, 2002 version of CIPSEA.
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information on individuals become accessible on the internet or through other channels. In a 2013
memorandum to agencies, OMB explained:
The mosaic effect occurs when the information in an individual dataset, in isolation, may
not pose a risk of identifying an individual (or threatening some other important interest
such as security), but when combined with other available information, could pose such
risk. Before disclosing potential [personally identifiable information] or other potentially
sensitive information, agencies must consider other publicly available data—in any
medium and from any source—to determine whether some combination of existing data
and the data intended to be publicly released could allow for the identification of an
individual or pose another security concern.64
The ubiquity of digital information has created increased privacy risks, and there is no consensus
whether the shared or combined information can be destroyed in the same manner as paper
records. In considering the role of the Privacy Act, Congress may wish to consider whether the
current SORN process sufficiently identifies and communicates privacy risks associated with the
linking and dissemination of de-identified information inside and outside the federal government.
Oversight of Information Access and Sharing Under the Privacy Act’s
Exceptions65
The Privacy Act’s process for SORNs is intended to establish a baseline for transparency and
accountability for agencies. Nevertheless, changes in OMB’s implementation guidance could
affect whether and how agencies notify Congress and the public of certain uses and changes.66
Congress might consider oversight or legislation to assess whether or not agencies accurately
characterize information uses and consistently implement the SORN process government-wide or
across programmatic areas.
In response to the Privacy Act, OMB guidance to agencies provides for a largely decentralized
approach for making SORNs available to Congress and the public. Agencies are directed to post
SORNs and other information on their websites.67 In addition, agencies are directed to give notice
to certain congressional committees about some actions.68 Given the potential range and volume
of information use, access, and sharing under the Privacy Act’s exceptions, Congress might
evaluate the effectiveness of available options for oversight. Revised approaches may be more

64 OMB, Open Data Policy-Managing Information as an Asset, M-13-13, May 9, 2013, pp. 4-5,
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2013/m-13-13.pdf. OMB defines personally
identifiable information, or PII, as
information that can be used to distinguish or trace an individual’s identity, either alone or when
combined with other personal or identifying information that is linked or linkable to a specific
individual. The definition of PII is not anchored to any single category of information or
technology. Rather, it requires a case-by-case assessment of the specific risk that an individual can
be identified. In performing this assessment, it is important for an agency to recognize that non-PII
can become PII whenever additional information is made publicly available (in any medium and
from any source) that, when combined with other available information, could be used to identify
an individual.
OMB, Guidance for Agency Use of Third-Party Websites and Applications, M-10-23, June 25, 2010, p. 8,
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2010/m10-23.pdf.
65 Clint Brass, Specialist in Government Organization and Management, contributed to this section of the report.
66 OMB, Circular No. A-108, pp. 5-13, referring to a requirement for a SORN when “making significant changes to an
existing system of records” (p. 5) or proposing “significantly modified routine uses” (p. 7).
67 OMB, Circular No. A-108, p. 25.
68 OMB, Circular No. A-108, p. 13.
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informative or less labor intensive (e.g., mandating a database to track agency ownership, flows,
and uses of systems of records) to assist Congress in its oversight responsibilities.
Some have expressed concern that Title III of FEBPA effectively created a new exception to the
Privacy Act without amending the Privacy Act. Specifically, Title III requires agencies to make
data identifying individuals available upon request to any designated statistical agency or unit,
and it allows OMB to designate statistical agencies or units at any executive agency.69 While Title
III contemplates the sharing and use of identified data “for purposes of developing evidence” to
support policymaking, the law does not specify how long the shared data may exist. Congress has
historically raised concerns about aggregating information into “data warehouses,” which may
raise issues about the design and implementation of Title III.70
The Government in the Sunshine Act
The Government in the Sunshine Act opens the policymaking deliberations of “collegially
headed” federal agencies, boards, commissions, and councils to public scrutiny unless those
deliberations are closed in accordance with any of the act’s 10 exemptions. The Sunshine Act
does not directly define what entities are considered collegially headed, but it does define agency
and meeting for the purposes of its disclosure requirements.
• Agency is defined as any agency, as defined by FOIA, “headed by a collegial
body composed of two or more individual members, a majority of whom are
appointed by the President with the advice and consent of the Senate, and any
subdivision thereof.”71
• Meeting is defined as “the deliberations of at least the number of individual
agency members required to take action on behalf of the agency where such
deliberations determine or result in the joint conduct or disposition of official
agency business.”72
The Sunshine Act includes 10 exemptions that allow deliberations to be closed to the public. The
exemptions bear many similarities to the nine exemptions of FOIA.73 Under the Sunshine Act,
agencies are required to publicly announce meetings, typically in the Federal Register, at least
one week beforehand and include information on the meeting’s time, place, and subject matter;
whether it is open or closed to the public; and the name and phone number of the agency official
to respond to additional requests for information.74 Disputes over proper public notice of such
meetings or the propriety of closing a deliberation may be pursued in federal court.75
Issues for Congress
Agencies subject to the Sunshine Act may make use of what are known as “safe harbor” options,
which are not specifically authorized in statute, to circumvent the act’s requirements by holding
activities that do not fall within the statute’s “meeting” definition. An Administrative Conference

69 44 U.S.C. Chapter 35, Subchapter III, Part D, including 44 U.S.C. §3581.
70 For additional discussion, see CRS Insight IN11717, Proposals for a National Secure Data Service, in Context, by
Meghan M. Stuessy and Clinton T. Brass.
71 5 U.S.C §552b(a)(1).
72 5 U.S.C §552b(a)(2).
73 5 U.S.C §552b(c).
74 5 U.S.C §552b(h).
75 5 U.S.C §552b(h).
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of the United States report noted, “As a general matter, these ‘safe harbors’ take advantage of the
quorum requirement under the Act: so long as any given interaction involves less than a quorum
of members engaging in group consideration of a substantive issue, the Sunshine Act is not
triggered.”76 The “safe harbors” utilized by these agencies include
• Notational voting, where members receive written materials, review the same
independently, and then provide their votes in writing;
• Staff meetings, where matters are discussed at the staff or representative level and
reported back to agency decisionmakers; and
• Seriatim meetings, a series of meetings between small groups of commissioners
or board members, none of which involves a sufficiently large number of
participants to comprise a quorum.77
Although these safe harbors may allow for more candid and free-flowing discussion, overuse or
misuse of these options could inhibit the original transparency motivations behind the
implementation of the Sunshine Act. While open and closed meetings are subject to Federal
Register requirements, there are no mechanisms to reveal the use of safe harbors that do not meet
the statutory criteria of a meeting. Accordingly, Congress might examine the frequency of use of
these safe harbors and what bodies or contexts make the most use of them. Congress may wish to
conduct oversight to determine if these safe harbors undermine the transparency called for in the
Sunshine Act and consider further legislation to limit them.
The Federal Advisory Committee Act
Congress and the executive branch have created or used advisory entities within the executive
branch to incorporate different perspectives in the federal policymaking process. These entities
can appear as a formal federal advisory committee, an ad hoc working group, or a group of
industry experts an agency must consult with. Certain characteristics of these entities or groups
may trigger the requirements of the Federal Advisory Committee Act, which governs the
operation and oversight of federal advisory entities.78
While other statutes in this report rely on request-based or proactive disclosure approaches to
access to information, FACA not only allows for the opening of certain policy debates to the
public; it also permits nonfederal officials to participate in the federal decisionmaking process in
an advisory capacity. Generally, FACA applies to entities established to assist executive branch
policymaking and grantmaking, which are typically housed within executive branch agencies and

76 Reeve T. Bull, The Government in the Sunshine Act in the 21st Century, Administrative Conference of the United
States, March 10, 2014, p. 9, https://www.acus.gov/sites/default/files/documents/
Government%20in%20the%20Sunshine%20Act%20Draft%20Report%20REVISED%205-7-14.pdf.
77 Bull, The Government in the Sunshine Act in the 21st Century, pp. 9-11.
78 For more information on committees subject to FACA, see CRS Report R44232, Creating a Federal Advisory
Committee in the Executive Branch, by Meghan M. Stuessy.
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have a membership not wholly composed of federal officials.79 Congress may also specifically
dictate in statute whether or not FACA applies to a particular entity.80
Entities subject to FACA are required to meet formal reporting and oversight procedures,
including
• meetings must be open and materials be available to the public;81
• members of the committee must be “fairly balanced” in terms of the points of
view represented and the functions to be performed by the advisory committee;82
and
• the function of advisory committees should be advisory only.83
The General Services Administration (GSA) maintains and administers management guidelines
for federal advisory entities subject to FACA.84 GSA’s regulation for FACA, which is known as
the FACA Final Rule, addresses many advisory committee meeting procedures. FACA requires an
entity to file a public charter with GSA, which must include, among other information, the
advisory committee’s mandate and duties, frequency of meetings, and membership requirements.
The entity’s meetings must also be open to the public unless certain requirements are met.85 The
entity’s records are also generally required to be accessible to the public.86
Entities that are subject to FACA are listed in GSA’s online, publicly accessible FACA database.
In a given fiscal year, approximately 1,000 such committees are active.87
Issues for Congress
Some federal advisory committees have embraced the use of virtual meetings, especially in
response to coronavirus exposure concerns.88 GSA’s regulation for FACA clarifies that any
advisory committee that plans a meeting “conducted in whole or in part by a teleconference,
videoconference, the Internet, or other electronic medium” must announce the meeting at least 15

79 5 U.S.C. §1001(2). Specifically, this section reads, “The term ‘advisory committee’ means a committee, board,
commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup
thereof (hereafter in this paragraph referred to as ‘committee’) that is established or utilized to obtain advice or
recommendations for the President or one or more agencies or officers of the Federal Government and that is—(i)
established by statute or reorganization plan; (ii) established or utilized by the President; or (iii) established or utilized
by one or more agencies.
(B) Exclusions.—The term ‘advisory committee’ excludes—(i) a committee that is composed wholly of full-time, or
permanent part-time, officers or employees of the Federal Government; and (ii) a committee that is created by the
National Academy of Sciences or the National Academy of Public Administration.”
80 For example, Section 60602 of P.L. 117-58, the Infrastructure Investment and Jobs Act, states, “The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to the telecommunications interagency working group.”
81 5 U.S.C. §1009(a)(1). Meetings may be closed under the provisions of the Sunshine Act (5 U.S.C. §552b).
82 5 U.S.C. §1004(b)(2).
83 5 U.S.C. §1002(b)(6).
84 GSA, “Federal Advisory Committee Management,” 66 Federal Register 139, July 19, 2001, https://www.gsa.gov/
cdnstatic/FACAFinalRule_R2E-cNZ_0Z5RDZ-i34K-pR.pdf.
85 5 U.S.C. §1009.
86 5 U.S.C. §1010.
87 CRS search of the GSA FACA Database, located at http://www.facadatabase.gov.
88 For example, see Environmental Protection Agency, “Great Lakes Advisory Board Notice for Virtual Meeting,” 86
Federal Register 68251-68252, December 1, 2021.
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calendar days in advance in the Federal Register, provide an agenda of the meeting, and comply
with the requirements of the Sunshine Act.89
Questions may remain, however, about what virtual access to meetings could mean. For example,
must meetings be conducted with a particularly accessible or free software application? In
addition, must the software allow for written or verbal public comment? At present, the FACA
Final Rule directs agencies to plan for a designated public call-in line for a teleconference but is
otherwise silent on videoconference capacities to be considered.90 Congress might consider
options to clarify or expand the requirements for digital meetings in keeping with the statute’s
goal of providing for public policy debate within committees.
Policy Considerations and Balancing Values
Access over Time
As methods of information storage and technologies continuously evolve, the span of time from
information creation to retrieval can impact the ways in which information is accessed.
Government information may also have a fuller or different meaning if the information is
disclosed during contemporaneous events rather than as a historical matter later on. In some
instances, relevant statutes prohibit disclosure of particular categories of information for specified
periods of time. One example is the Presidential Records Act (44 U.S.C. §§2201-2207), which
embargoes certain presidential records from access by the public for specific periods of time after
the conclusion of a presidency.91 Additional questions considering the impact of time on
information access could be categorized as follows:
• Effects on agency decisionmaking. For example, might the timing of
information release bring additional urgency to the matters being decided by an
agency? Conversely, might a delay in the release skew the context in which the
information was created?
• Effects on individual privacy or confidentiality. How does the passage of time
alter the impact of information released about individuals, and how might it
affect individual privacy? Are privacy concerns, for example, the same for those
seeking federal benefits or judicial relief as they are for the deceased?
• Effects on information stewardship. Depending on the length of the delay, the
information and the media on which it was recorded—analog or digital—may be
degraded and no longer readable.
Scholar Jean-François Blanchette notes that digital information is often considered by the public
to be devoid of the physical limitations and degradation considerations that typify traditional
media:
In this characterization, the digital derives its power from its nature as a mere collection of
0s and 1s wholly independent from the particular media on which it is stored—hard drive,
network wires, optical disk, etc.—and the particular signal carrier which encodes bits—
variations of magnetic field, voltages, or pulses of light. This purported immateriality
endows bits with considerable advantages: they are immune from the economics and

89 GSA, “Federal Advisory Committee Management,” 66 Federal Register 37745.
90 GSA, “Federal Advisory Committee Management,” 66 Federal Register 37731.
91 For more discussion of this process, see CRS Report R46129, The Presidential Records Act: An Overview, by
Meghan M. Stuessy.
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logistics of analog media, and from the corruption, degradation, and decay that necessarily
result from the handling of material carriers of information, resulting in a worldwide shift
“from atom to bits” as captured by Negroponte. This is problematic: however immaterial
it might appear, information cannot exist outside of given instantiations in material forms.92
Congress may consider strategies and methods for managing digital media in similar ways to the
management of analog media. The timing of when information is released, therefore, may often
matter as much as what information is released.
Mitigating Factors of Transparency
Government agencies contend that expecting perfect transparency is unrealistic and may hinder
agencies’ ability to work efficiently or speak candidly internally about policy matters.93 Studies
have identified other consequences of scrutiny, including delays in the completion of tasks,
increases in time that personnel spend responding to scrutiny rather than performing regular
duties, and reduced creativity in addressing challenges. These may be balanced to some extent by
a greater diligence to completing announced activities.94
Congress has asserted the need to balance these concerns with the public’s right to know through
consideration of exceptions to transparency requirements and the ability to close meetings in
limited instances. The Senate Committee on Governmental Affairs in 1989 reported:
Congress concluded that for the most part the fears advanced by the agencies were
unfounded…. Second, Congress determined that the values inherent in open government
vastly outweighed any concerns, whatever their validity, about “chilling” agency
deliberations.95
Policymakers may wish to continue to evaluate whether these exceptions strike the correct mix to
provide transparency and allow for unfiltered discussion.96
For Additional Reading
Reeve T. Bull, The Government in the Sunshine Act in the 21st Century, Administrative
Conference of the United States, March 10, 2014, https://www.acus.gov/sites/default/files/
documents/
Government%20in%20the%20Sunshine%20Act%20Draft%20Report%20REVISED%205-7-
14.pdf.

92 For further discussion, see Jean-François Blanchette, “A Material History of Bits,” Journal of the Association for
Information Science and Technology, vol. 62, no. 6 (April 19, 2011), pp. 1042-1057.
93 Bull, The Government in the Sunshine Act in the 21st Century, p. 3.
94 For discussion, see Robert I. Sutton and D. Charles Galunic, “Consequences of Public Scrutiny for Leaders and Their
Organizations,” in Barry M. Staw and Larry L. Cummings, eds., Research in Organizational Behavior, vol. 18
(Greenwich, CT: JAI Press, 1996), pp. 201-250.
95 U.S. Congress, Senate Committee on Governmental Affairs, Government in the Sunshine Act: History and Recent
Issues, committee print, 101st Cong., 1st sess., November 1, 1989, S.Prt. 101-54 (Washington: GPO, 1989), p. 33.
96 In regard to the Sunshine Act, discussed earlier in this report, Senator Lowell Weicker explained, “We have heard all
the arguments against the bill from the commissions and agencies whose operations this bill would bring to light. The
points they raise run the gamut from: the bill would unnecessarily inhibit the efficient conduct of an agency business to
beliefs that this bill would not allow a free and open exchange of ideas and candid opinions. What they seem to forget
is the overriding responsibility to allow the public, in order for them to participate in the decision-making process, to
have an unfettered access to information on how their government operates.” U.S. Congress, Senate Committee on
Governmental Affairs, Government in the Sunshine Act: History and Recent Issues, committee print, 101st Cong., 1st
sess., November 1, 1989, S.Prt. 101-54 (Washington: GPO, 1989), p. 33.
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U.S. Congress, House Committee on Oversight and Government Reform, A Citizen’s Guide to
Using the Freedom of Information Act and the Privacy Act to Request Government Records,
committee print, 112th Cong., 2nd sess., September 21, 2012, H.Rept. 112-689,
https://www.congress.gov/112/crpt/hrpt689/CRPT-112hrpt689.pdf.
DOJ, FOIA.gov, http://www.foia.gov/about.html.
DOJ, Office of Privacy and Civil Liberties, Overview of The Privacy Act of 1974, 2020,
https://www.justice.gov/Overview_2020/download.
DOJ, United States Department of Justice Guide to the Freedom of Information Act,
https://www.justice.gov/oip/doj-guide-freedom-information-act-0.
GSA, “Federal Advisory Committee Management,” 66 Federal Register 139, July 19, 2001,
https://www.gsa.gov/cdnstatic/FACAFinalRule_R2E-cNZ_0Z5RDZ-i34K-pR.pdf.
GSA, Federal Advisory Committee Act (FACA) Management Overview, https://www.gsa.gov/
policy-regulations/policy/federal-advisory-committee-act-faca-management-overview.
GSA, GSA Federal Advisory Committee Act (FACA) Database, https://www.facadatabase.gov/
FACA/FACAPublicPage.
OMB, Circular No. A-108, Federal Agency Responsibilities for Review, Reporting, and
Publication under the Privacy Act, December 23, 2016, https://www.whitehouse.gov/sites/
whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf.

Author Information

Meghan M. Stuessy

Analyst in Government Organization and
Management

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Congressional Research Service
R47058 · VERSION 3 · UPDATED
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Dec. 18, 2023

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American Law

Report Type: CRS Report

Source: CRSReports.Congress.gov

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