Freedom of Information Act: An Incremental Approach

This paper outlines the history of FOIA’s enactment, explores its operational foundations and concludes with an analysis of the future implications for transparency in government. The Freedom of Information Act signed into law 50 years ago is one of the most powerful information tools for the American citizen. FOIA grants American citizens the right to see the contents of files maintained by federal executive branch agencies. The policy has been molded over several iterations into what it is today using an incremental approach to policy making. This paper attempts to analyze the progression of the policy over the years according to the incremental model and the advancement of transparency in government brought about by the policy.

Keywords: incrementalism, amendments, freedom of information, transparency and accountability

• Incrementalism

The incremental model was first introduced by political scientist Charles Lindblom during an analysis of the rational model of decision making. The incremental model identifies the impractical nature of rational comprehensive policy making and suggests a more conservative process wherein existing programs and policies are considered as base and attention is concentrated on their incremental modification and improvement.

Incrementalism is a politically sensible and convenient approach for everyone involved as the bureaucratic processes required for turning a bill into law have reduced timeframes and quick agreement among the members of the House and Senate, when only minor modifications to a policy are proposed as opposed to major policy changes. This model is an essential tool for policymaking because completely ‘rational’ policies may turn out to be inefficient if the cost of development turns out to be excessive.

The incremental model is designed, implemented and tested incrementally i.e. small additions and modifications over time. It involves development, maintenance and regular evaluation. It takes a long period of time, often decades, for a public policy to be incrementally modified into its perfect version. It uses a set number of steps and its development follows a linear path of progression. The Waterfall model is an incremental development approach that has been used traditionally. One of the disadvantages of this model is that every modification must be verified against the previous iterations of the law and gradually integrated into the law already in place.

Incrementalism is an essential approach for avoiding ideological conflicts, maintaining stability and protecting the political system itself. This model of policy development effectively avoids the traumatic effect on the public, that goes with implementation of an entirely new system. Throughout the political history of the United States, the incremental model has been utilized predominantly for policy creation and budget setting. The focus has always been on modest reforms or changes, increases and decreases rather than on complete overhauls. But there have been instances where the incremental model was abandoned in the face of national emergencies. The terrorist attacks of 2001, the economic crisis of 2008 are some examples.

• Freedom of Information Act

One of the most significant legal tools that citizens and reporters have for the improvement of government transparency is the Freedom of Information Act (FOIA).

The Freedom of Information Act generally provides that any person has the right to request access to federal agency records or information except to the extent the records are protected from disclosure by any of nine exemptions contained in the law or by one of three special law enforcement record exclusions. (The Freedom of Information Act, 2018)

• Exemptions

The nine exemption categories that authorize government agencies to withhold information are:

1. Classified information for national defense or foreign policy
2. Internal personnel rules and practices
3. Information that is exempt under other laws
4. Trade secrets and confidential business information
5. Inter-agency memos or letters protected by legal privileges
6. Personnel and medical files
7. Law enforcement records or information
8. Information concerning bank supervision
9. Geological and geophysical information (The Freedom of Information Act, 2018)

• Exclusions:

Congress provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions”.

• The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending, and disclosure could reasonably be expected to interfere with enforcement proceedings.
• The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.
• The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. (The Freedom of Information Act, 2018)

FOIA is important to public health practitioners for at least three reasons: its power to aid public health advocacy, its impact on government accountability and transparency, and its ability to aid public health practice and policy-making. Over the years, FOIA has played a central role in advancing public health policy by enabling investigations and research on wide-ranging topics. (Berger M., 2011)

FOI laws are necessary, but not sufficient mechanisms for producing more accountable governments. They are unlikely to accomplish government reform on their own, but they can help expose and reform democratic deficits and push governments toward broader democratic reforms. (Stein, L. & Camaj L., 2018)

Informed citizens can collectively determine the greater public good when they possess the knowledge essential to choose leaders who represent their views and interests. It is a duty of all American citizens to be vigilant in protecting their hard-earned right to information.

• Legislative History of FOIA

Earliest conceptualization of freedom of information was a part of universal principles seeking to protect the fundamental, civil, economic and political rights of all human beings.

The FOI provisions included in early human rights treaties were designed to tackle the inherent information asymmetry between those that govern and the governed and mend potentially problematic relationships between citizens and their governments (Snell R. & Sebina P., 2007).

All three branches of the Government, the Legislative, the Executive and the Judicial branch have been significantly involved in the improvement of the policy over the last five decades. Before the FOIA, the Administrative Procedure Act of 1946 was employed to force federal agencies to provide information about their activities on a regular basis. However, the wording and language of the law afforded federal agencies the privilege to choose which information to disseminate and which to withhold.

Democratic Congressman from California, John Moss was the first figure of authority who proposed the Freedom of Information Act in 1955. His aim behind the proposal was to make all information freely available to everyone. Moss began advocating for more openness after the Eisenhower administration fired thousands of federal employees accusing them of being communists and the records documenting these dismissals were withheld from the public. In the era of the cold war, government secrecy was rising in all executive branches and Moss feared that the country was heading towards a dictatorship. Moss received support from newspaper editors and journalists but due to lack of a Republican co-sponsor the bill, it died down.

John Moss conducted investigations about federal agencies that were withholding information as the chairman of a congressional subcommittee in 1955. After six sessions of Congress, the Freedom of Information Act was passed, and President Lyndon B. Johnson reluctantly signed the bill into law on July 4, 1966. The FOIA went into effect one year later. The bill specified nine exemptions for national security through which Congress endeavored to balance the need for government disclosure and accountability with a desire to protect equally the right of privacy with respect to certain government files.

The 1966 bill was a massive step towards transparency in all levels of government, it lacked provisions for appeals and sanctions or enforcement measures to force government agencies to comply. It wasn’t until 1974, after the Watergate scandal that the Congress amended FOIA to be the bill it is today. The Senate and the house introduced new requirements, timeframes, sanctions for withheld information and necessary terminology waiving fees for public interest groups and journalists. After the resignation of President Nixon, President Gerald Ford vetoed the FOIA amendments, calling the bill unconstitutional and dangerous to national security. The veto was overridden by the House and the Senate and the FOIA amendments came into effect from February 19, 1975.

To address issues of non-compliance to FOIA by federal agencies, a wide range of revisions to the law were included in the 1974 amendments, including:

• Potential sanctions for “arbitrary or capricious” denials of FOIA requests
• Uniform agency fees for search and duplication
• Time limits in responding to requests
• Narrowing of exemptions related to national defense, foreign policy, and law enforcement (Byellin J., 2014)

The next amendment to the bill occurred in 1976 when the Government in the Sunshine Act was implemented. This amendment stipulated that most government meetings were to be open to the public. Exemption 3 of the FOIA, exemption for withholding information specifically exempted from disclosure by another statute, was amended through clarification of its terms.

In 1982, President Ronald Reagan issued an executive order to improve on the classification rules for information. The intent here was to simplify and facilitate withholding potentially sensitive government information subject to FOIA enquiries.

In 1986, through the bipartisan Anti-Drug Abuse Act, Congress amended FOIA to modify the fees charged for different types of petitioners and the scope of access to national security records and law enforcement records.

The Electronic Freedom of Information Act Amendments of 1996 was a landmark decision which changed the face of FOIA forever. In his statement, President Clinton acknowledged how new technologies and the internet would allow for greater transparency. Clinton said that the act, for the first time “brings FOIA into the information and electronic age by clarifying that it applies to records maintained in electronic format”. These amendments required the agencies to index records in their information system and make documents available in electronic formats and proactively release frequently requested records online. The response timeframe was

extended from 10 to 20 days. The purpose of E-FOIA was to foster democracy, improve public access, ensure timely response times and maximize the usefulness of information and records collected and maintained by the federal government. (Stein, L. & Camaj L., 2018)

In September 2001, USA braved the most horrific terrorist attacks in history. Following this, the FOIA was amended in 2002, limiting the ability of foreign nationals to request records from US intelligence agencies. An executive order issued by President George Bush decreed limited access to former presidential records and government records from foreign governments. These amendments were applied through the Intelligence Authorization Act of 2002.

In 2007, President George Bush signed the Open Government Act that was passed unanimously by both the House and the Senate in December. FOIA was amended again and the new law aimed to fix some of the most persistent problems in the FOIA system, including excessive delay, lack of responsiveness, and litigation gamesmanship by federal agencies. (FOIA Legislative History, 2016). It also extended critical facilities to journalists and bloggers, identifying them as members of the news media. Along with this it established the Office of Government Information Services, to oversee government agencies’ compliance with FOIA.

In 2016, 50 years after FOIA first became a law, the FOIA Improvement Act was signed by President Barack Obama. The act included minor FOIA reforms, including codification of the administration’s ‘presumption of disclosure’ which required a reduction in the discretion of government agencies to withhold records under FOIA. The act also specified that federal agencies were to create a central online portal that would allow citizens to file requests with the agency. The law also required agencies to update their FOIA regulations. The law also put a 25

year limit on the ability for any federal agency to withhold documents under the deliberative process privilege, preventing agencies from withholding records that describe historic agency decision-making. (History of FOIA, 2016)

• Conclusion

By appreciating FOIA’s purpose and its key provisions, journalists, researchers and public health workers can help ensure that important information is disclosed to the public and that citizens of all backgrounds and ideologies are involved in government decision making. Journalists file FOIA requests everyday in search of the truth and the information amassed becomes more valuable when used in conjunction with information obtained by other reporters and non-profit organizations.

FOIA’s effectiveness depends ultimately upon both attitude and commitment with which it is approached by government agencies. Government agencies have always been withholding information technically covered by the specified exemptions and there have been numerous lawsuits filed by citizens against various agencies. Over five decades of litigation between the agencies and the public has led to a gradual increase in the scope and efficacy of FOIA. Persistent journalists and public interest groups have successfully uncovered millions of documents relating to government operation and performance. Problems of compliance with FOIA still do exist and the full potential of the FOIA has not been realized yet but it will be some day.

Despite the seemingly brilliant promise of technology and E-FOIA, the future holds many challenges for FOIA. Intense conflicts about access and privacy concerns and issues regarding the electronic dissemination of information, the appalling state of paper-based government records that are yet to be converted to electronic formats etc are some of the challenges being faced by FOIA. Through the incremental approach, the government will keep updating and modifying the policy to reflect political and global developments.

References

• US Department of State (2018). The Freedom of Information Act. Retrieved from https://foia.state.gov/Learn/FOIA.aspx
• Berger M. (2011). The Freedom of Information Act: implications for public health policy and practice. Public health reports (Washington DC: 1974), 126(3), 428-32.
• Stein, L., & Camaj, L. (2018, February 26). Freedom of Information. Oxford Research Encyclopedia of Communication. Retrieved from http://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.0001/acrefore-9780190228613-e-97.
• Snell, R., & Sebina, P. (2007). Information flows: The real art of information management and freedom of information. The Journal of the Australian Society of Archivists , 35(1), 54–82.
• Byellin Jeremy (2014). Today in 1974: Congress enacts amendments to the Freedom of Information Act over President Ford’s veto. Retrieved from http://blog.legalsolutions.thomsonreuters.com/legal-research/today-1974-congress-enacts-amendments-freedom-information-act-president-fords-veto/
• History of FOIA (2016). Electronic Frontier Foundation. Retrieved from https://www.eff.org/issues/transparency/history-of-foia