Access to Government Information in the United States
Access to Government Information
In the United States
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Analyst in American National Government
Government and Finance Division
The Constitution of the United States makes no specific allowance for any one of
the co-equal branches to have access to information held by the others and contains no
provision expressly establishing a procedure for, or a right of, public access to
government information. Nonetheless, Congress has legislated various public access
laws. These include two records access statutes — the Freedom of Information Act
(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). Moreover, due to the
American separation of powers model of government, interbranch conflicts over the
accessibility of information are neither unexpected nor necessarily destructive. The
federal courts, historically, have been reluctant to review and resolve “political
questions” involving information disputes between Congress and the executive branch.
Although there is considerable interbranch cooperation, such conflicts probably will
continue to occur on occasion.
History and Background
Throughout the first 150 years of the federal government, access to government
information does not appear to have been a major issue among the three branches or for
the citizenry. There were a few instances during this period when the President, for
reasons of maintaining the constitutional independence and equality of his branch,
vigorously resisted attempts by Congress and the courts to obtain executive records.
Furthermore, during this same era, an active federal public printing program was
established and effectively developed.
Following World War II, however, information came to be of limited availability
from federal departments and agencies. Conditioned by information restrictions prompted
by recent global hostilities, fearful of Cold War spies, intimidated by zealous loyalty
investigators within and outside of government, and anxious about various efforts at
reducing the executive workforce during the postwar reconversion, the federal
bureaucracy generally was not eager to have its activities and operations disclosed to the
public, the press, or other governmental entities. Prevailing law tolerated this state of
affairs, offering citizens no clear avenue of access to agency information. The public
availability of records held by the executive branch was limited by artful interpretation
of the housekeeping statute of 1789 (5 U.S.C. § 301) authorizing the heads of departments
to prescribe regulations regarding the custody, use, and preservation of the records,
papers, and property of their entity. Moreover, a provision of the Administrative
Procedure Act of 1946 (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.
Such conditions also contributed to the increasing difficulties of congressional
committees and subcommittees in gaining access to both records and officials of federal
departments and agencies during the 1950s. In response, some congressional panels
began examining these information access issues and seeking responsive legislative
solutions. Among the well known inquiries in this period was the work of the Special
Subcommittee on Government Information of the House Committee on Government
Operations. The subcommittee, established in 1955, was chaired by Representative John
E. Moss and produced many volumes of hearings and reports.
Public Access Laws. Apart from interbranch information access dilemmas,
Congress, in 1966, undertook fashioning various statutory arrangements for realizing
public access to executive branch information. This focus resulted because legislators felt
that Congress adequately made its deliberations and proceedings subject to public
observation, largely published its records, and otherwise was constitutionally authorized
to engage in information restriction in certain circumstances. For example, the
Constitution explicitly permitted each house of Congress a discretion to keep portions of
its journal of proceedings secret and disallowed the questioning of Members of Congress
“in any other Place” regarding official speech or debate. Legislators also were satisfied
with the openness of federal court files and hearing rooms. Thus, the departments and
agencies were the principal object of government information access reform laws.
Executive branch officials, however, were not supportive of these measures and, initially,
did not always promote or pursue their faithful administration. The current major federal
laws facilitating public access to government information are briefly described below; the
full text of each statute may be consulted by using the appropriate United States Code
!Freedom of Information Act (5 U.S.C. § 552)
Initially enacted in 1966 and subsequently amended, the Freedom of Information
(FOI) Act establishes for any person — corporate or individual, regardless of nationality
— presumptive access to existing, unpublished agency records on any topic. The law
specifies nine categories of information that may be permissibly exempted from the rule
of disclosure. Agencies within the federal intelligence community are prohibited from
making any record available to a foreign government or a representative of same pursuant
to a FOI Act request. Disputes over the accessibility of requested records may be settled,
according to the provisions of the act, in federal court. Fees for search, review, or copying
of materials may be imposed; also, for some types of requesters, fees may be reduced or
waived. The FOI Act was amended in 1996 to provide for public access to information
in an electronic form or format. These amendments are often referred to as e-FOIA (5
U.S.C. § 552 note). In the 110th Congress, legislation has been introduced (H.R. 1309,
H.R. 1326, S. 849 ) that would, among other things, impose tighter deadlines on agencies
to respond to FOIA requests.
!Federal Advisory Committee Act (5 U.S.C. App.)
A 1972 statute, the Federal Advisory Committee Act (FACA), in part, presumptively
requires that the meetings of all federal advisory committees serving executive branch
entities be open to public observation. The statute specifies nine categories of
information — similar to those of the FOI Act — that may be permissively relied upon
to close advisory committee deliberations when such matters are under discussion.
Disputes over the proper public notice for a committee meeting or the closing of a session
may be pursued in federal court.
!Privacy Act (5 U.S.C. § 552a)
Legislated in 1974, the Privacy Act, in part, establishes for individuals who are
United States citizens or permanent resident aliens, presumptive access to personally
identifiable files on themselves held by most federal agencies (generally, however, not
law enforcement and intelligence entities). The statute specifies seven types of
information that may permissively be exempted from the rule of access. Where a file
subject contends that a record contains inaccurate information about that individual, the
act allows correction through emendation. Disputes over the accessibility of personally
identifiable files may be pursued in federal court.
!Government in the Sunshine Act (5 U.S.C. § 552b)
Enacted in 1976, the Sunshine Act presumptively opens the policymaking
deliberations of collegially headed federal agencies — such as boards, commissions, or
councils — to public scrutiny unless closed in accordance with any of nine exemptions
to the rule of openness. Disputes over proper public notice of such meetings or the
propriety of closing a deliberation may be pursued in federal court.
Interbranch Access. No statutory arrangements have been created to facilitate
access by one branch of the federal government to records and information holdings of
the other two branches. Both Congress and the judiciary have subpoena powers which
can be exercised to compel the production of materials by another branch, but even these
demands have sometimes been resisted. Occasionally, but rarely, the courts have ruled
on these disputes. In 1974, for example, a Special Prosecutor sought certain tape
recordings that President Richard Nixon, on a claim of constitutional privilege, initially
refused to provide. The Supreme Court, in United States v. Nixon (418 U.S. 683),
disallowed the President’s claim of privilege, finding it too general and overbroad and the
needs of the Special Prosecutor to pursue criminal prosecutions more compelling. These
tape recordings would become known as the Watergate Tapes.
In general, interbranch disputes over access to information are political conflicts of
the highest order. The federal courts, historically, have been reluctant to review and
resolve such “political questions.” Resolution is often reached through negotiation —
reduction of the quantity of records initially sought, substitution of other information,
alternative delivery mechanisms, or limitation of the number of individuals who will
examine materials provided by another branch. Sometimes appeals to public opinion will
pressure an information access deadlock to settlement. Congress can use its “power of
the purse” to leverage its information access demands; federal courts rely upon a spirit of
justice and fair play to sustain their orders for the production of information by another
branch. In view of the American separation of powers model of government, such
conflicts are neither unexpected nor necessarily destructive. Furthermore, they probably
will continue to occur.
Using the Information Access Laws
Statistics on Usage. How frequently are the provisions of the access to
information acts invoked? The Freedom of Information Act 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.usdoj.gov/04foia/04_6.html]. In FY2006, 30 selected federal departments
and agencies with the largest volume of requests reported receiving more than 774,000
new requests for government records under the FOI Act. The Department of Veterans
Affairs includes first party requests for medical records in its tally and thus reported
receiving 1,938,206 requests.1 Similarly, the Social Security Administration includes all
requests for access to records in its report, regardless of which information access law is
cited by the requester. Using this criterion, the Social Security Administration reported2
18,691,031 requests in FY2006. Data from the individual annual reports, which are
posted on the Department of Justice website, are summarized in tables on the website of
Public Citizen, a public interest group. Data from selected department and agency reports
are provided above. Public Citizen’s tables for FY2000 through FY2005 can be found
Litigation. A certain number of requests for information under the 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, which is available on
the Internet at [http://www.uscourts.gov/judbus2006/appendices/c2a.pdf]. According to
that report, 312 cases were filed in U.S. District Courts in FY2006 compared with 404
cases in FY2005 and 315 cases in FY2004. Judicial Business tables also provide data
about FOI Act cases at the appellate level.
The Freedom of Information Case List produced by the Department of Justice Office
of Information and Privacy has compiled lists of cases decided under the Freedom of
Information Act, the Privacy Act, the Government in the Sunshine Act, and the Federal
1 See [http://www.va.gov/foia/report/FY2006/InitialRequests.html].
2 See [http://www.ssa.gov/foia/html/2006%20SSA%20Annual%20FOIA%20Report%20-%20
Advisory Committee Act. Its principal section, an alphabetical list of judicial decisions
addressing access issues under the Freedom of Information Act and the Privacy Act,
numbers nearly 5,000 entries. It was last updated in 2002 and is available on the Internet
at [http://www.usdoj.gov/04foia/cl-tofc.html]. Judicial Watch, a public interest group,
has posted information about its own activities under “Our Litigation” at
[ http://www.judicialwatch.org/litigation.shtml] .
Guides to Using the Information Acts. Individuals, groups, and organizations
all exercise the right to access 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 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 (H.Rept. 109-226). 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 report is available at [http://www.
access.gpo.gov/congress/house/house07cr109.html]. 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.
Like the Citizen’s Guide, this publication contains explanations, samples, and texts,
although in less detail than found in the Citizen’s Guide. Your Right to Federal Records
is available on the Internet at [http://www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.pdf].
The Justice Department is the agency responsible for overseeing and coordinating
administration of the Freedom of Information Act. Its website at [http://www.usdoj.gov/
guidelines for making requests, and freedom of information contacts at other federal
Among many non-governmental groups that publish information about freedom of
information are Public Citizen and National Security Archive. Public Citizen maintains
the “Freedom of Information Clearinghouse” on its website at [http://www.citizen.org/
litigation/free_info/]. The National Security Archive at [http://www.nsarchive.org/]
includes among the many freedom of information documents and reports on its website,
“40 Noteworthy Headlines Made Possible by FOIA, 2004-2006” at
[http://www.nsarchive.org/ nsa/ foia/stories .htm].
Selected CRS Reports
CRS Report RL32780, Freedom of Information Act (FOIA) Amendments: 110th Congress,
by Harold C. Relyea.
CRS Report RL30319, Presidential Claims of Executive Privilege: History, Law,
Practice and Recent Developments, by Morton Rosenberg.
Selected Additional Resources
Archibald, Sam. “The Early Years of the Freedom of Information Act — 1955 to 1974.”
PS: Political Science and Politics, Vol. 26, no. 4 (1993): 726-731.
Foerstel, Herbert N. Freedom of Information and the Right To Know: The Origins and
Applications of the Freedom of Information Act. Westport, CT: Greenwood Press,
Hoffman, Daniel N. Governmental Secrecy and the Founding Fathers: A Study in
Constitutional Controls. Westport, CT: Greenwood Press, 1981.
Public Information Provision in the Digital Age: Implementation and Effects of the U.S.
Freedom of Information Act. Santa Monica, CA: RAND, 2001.
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. 109th Congress, first session. H.Rept. 109-226. Washington: GPO, 2005.
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:
——. Government in the Sunshine Act: History and Recent Issues. Committee Print.
U.S. Department of Justice. Office of Information and Privacy. Freedom of Information
Act Guide, March 2007 Edition. Washington: GPO, 2007.
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, May 2006. Washington: GSA Federal Citizen Information Center,