Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

United States

Access to Information Regime

The Freedom of Information Act (FOIA) was enacted by the United States Congress in 1966 and went through a number of reforms in 1974, 1976 and 1986. In 1996, the Act was amended through passage of the Electronic Freedom of Information Act (EFOIA) to address electronic records. Under the electronic provisions, all federal agencies are required to make available in an electronic reading room certain documents published after November 1, 1996, including any final opinions rendered in the adjudication of administrative cases, agency policy statements, and administrative manuals that affect the public. The FOIA seems to run on a roughly ten-year cycle of review.

The right of access is subject to a number of exemptions including defence and foreign policy secrets, internal personnel rules and practices, where exempt by statute, trade and commercial secrets, information that would be an unwarranted invasion of privacy, cause harm to an individual or deprive an individual of other rights, law enforcement records where warranted, and geological and geophysical information concerning wells. Any draft document is considered to be covered by the ‘deliberations’ exemption.

The U.S. Freedom of Information regime does not have a separate body to adjudicate on complaints by requesters. When access requests are denied, there is first an administrative appeal, usually to the legal department of the agency, and then an appeal to the District Court, which can appoint a Special Counsel to investigate.

Under the FOIA, agencies are expected to disclose information within 20 working days of a request; however, the Courts have allowed a ‘reasonable time’ for processing a request. Some departments have requests that are several years old, and still being processed. Requesters see delay as a problem, and the internal review mechanism is of limited use in dealing with it.

There is some general administrative oversight of the legislation by several government agencies, including the Office of Management and Budget (OMB) and an Office of Information and Privacy established under the Department of Justice.

The Office of Information and Privacy (OIP) is responsible for government-wide FOI policy development and training, advice on litigation when access appeals go to court, as well as directly handling a high level of court cases annually (including numerous cases resulting from FOI requests by inmates of federal prisons).

The Attorney General provides direction to federal departments on the application of the Act. In 1993, Attorney General Reno issued a statement that encouraged disclosure by narrowing the basis upon which an agency’s decision not to disclose information would be defended in court. In October 2001, Attorney General Ashcroft issued a memorandum which assured agencies that their application of exemptions would be defended unless they lacked a sound legal basis.

Where cases do go to court, a Special Counsel has the right to assess attorney fees and other costs against government agencies for improper withholding of information, as well as to investigate whether agency personnel acted arbitrarily or capriciously, which can result in disciplinary action – although there is no criminal offence under the U.S. law for destruction of records. The law states only, that, “In the event of non-compliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.”

There is no perceptible move to alternate dispute resolution (ADR) to replace litigation where a denial of access is challenged, although courts are now building ADR into the litigation process itself.

The OMB provides guidance to federal agencies on fees for access requests. A general policy is to promote proactive dissemination of government information. The U.S. is in the forefront in the use of the Internet to make government information more available to the public. A good example is the Environmental Protection Agency’s zip code - based access to local environmental data. To further expand this movement to electronic records access, there is a bill before Congress to create a Chief Information Officer with overall responsibility for the development, application and management of information resources for the federal government.

The fee structure allows for different levels of fees. Public interest groups and the media pay only for copying, while the general public pay fees for search time over two hours and copying, and commercial requesters can be asked to pay fees for all search, direct costs of review and direct costs of copying. Each agency sets and collects its own fees, however many agencies collect very little. It should be noted, however, that U.S. government agencies do not directly track FOI costs as a distinct budget item.

EFOIA requires that "repeatedly requested records" be made available in on-line reading rooms, that is, records "the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records."

To reduce FOI response costs, government agencies also use computer technology such as CD ROMs to provide requested information. A Clinton administration initiative to declassify and release all documents more than 20 years old by 2002 could have lead to a massive increase in availability of information; however this initiative is no longer being pursued.

Some agencies have a centralized FOIA function, while others are de-centralized. Several agencies expressed pride in their tradition of openness, and their efforts to be helpful to requesters.

Critics of the U.S. law are concerned about a possible increase of access fees, a proposal to exempt consultants’ reports from access, and the lack of Congressional documents, including draft bills, voting records, issue briefs and testimony before committees available on the Internet. They also acknowledge the difficulty of FOI laws in keeping up with the information technology revolution and cite the $11 million cost to retrieve and re-construct e-mails under one access request.

A growing trend affecting the FOIA, is its use as a pre-discovery or discovery tool in court cases, especially in immigration and other administrative hearings, where there is no provision for pre-trial discovery. Lawyers can now be sued for malpractice for not using the Act in such cases, despite a Supreme Court decision that the FOIA was not meant to be used for pre-discovery purposes.
Another issue is the increasing use of the FOIA by companies in an attempt to access competitive business information about other companies, technology processes, etc. Agencies are being encouraged to tell information submitters up-front what information will be made available to third parties under an FOIA request.

Despite a massive influx of resources for FOIA, some U.S. agencies such as the Federal Bureau of Investigation and Central Intelligence Agency will likely always have a significant backlog of requests exceeding the time limits due to the nature of the information being sought and the volume of demand.

There is currently no ability to limit requests under the FOIA and some officials would like to see some limits imposed to prevent abuse of the system, possibly including limiting requesters to a certain number of requests per year, capping requests from prisoners, removing corporate business information from the scope of FOI legislation (with general regulations on how to disclose such data) and providing a sliding scale of time limits for agencies to respond to requests that recognizes not all agencies can perform to the same standards. There is no provision in the FOIA that deals with frivolous and vexatious requests, but they can be dealt with in specific court cases.

There has not been any problem identified with accepting requests from foreigners.