Accountability through Accessibility

Federal disclosure statute requiring that information held by the government be made available for public review unless one of nine statutory exceptions applies.

The promotion of democracy by having an informed citizenry to check governmental abuse and corruption. To keep the governors accountable to the governed.

Documents should be available to the public.

publication, inspection and copying, and production upon request.

The Federal Register.

1. A description of its central and field organizations and a statement of from whom, and the method whereby, the public may obtain information or make submittals or requests.

2. A statement of the general course and method by which its functions are channeled and determined, including requirements of formal and informal procedures.

3. Its rules of procedure, descriptions of forms available to the public, where to get those forms, and instructions as to the scope of all papers, reports, or examinations.

4. Its substantive rules and regulations of general applicability, including statements of general policy and interpretations of law.

5. All amendments, revisions, or repeals of any of the above.

the party receives actual and timely notice of the information or rule.


For example, assume that the Department of State adopted a rule concerning the process for obtaining a passport. Immediately upon application for her passport, Shirley is given notice of the rules by the agency. Because she has been provided with actual notice, the rules may be used against her, regardless of the lack of publication. Note, however, that some courts may order publication to satisfy the purpose of informing the public while applying the rule against Shirley in her particular case.

1. All orders and final opinions (including concurring and dissenting) made during adjudication.

2. Those statements of policy and interpretation adopted by the agency but not published in the Federal Register.

3. Administrative staff manuals and instructions to staff that affect a member of the public.


This provision is sometimes referred to as the reading room requirement because it is satisfied by providing a location for people to inspect and copy documents. As an alternative to providing a reading room, an agency may promptly publish the information and provide copies for sale.

In addition to making documents available to the public, the FOIA requires that all agencies "maintain and make available for public inspection and copying a current index" of materials required to be made available or published.

If an agency fails to make information available or fails to index documents, the FOIA provides that such order, opinion, statement of policy, or the like may not be used against a party, unless the party has been given actual and timely notice of the terms thereof.

An agency employee who is familiar with the subject matter of the requested records can identify the records sought.

Not only must the request reasonably identify the record sought, but it must also permit location of the records without an unreasonable amount of effort.

First, a request for information must reasonably describe the records desired

Second, the request must comply with the agency's procedures concerning time, place, and fees.

10 days. Excepting Saturdays, Sundays, and Holidays.

It must immediately notify the requester of its decision, its reasons, and the right to appeal the decision to the head of the agency.

The FOIA does not require agencies to deliver documents to requesters; making them available is adequate.

20 days, excepting Saturdays, Sundays, and legal holidays.

If the decision on appeal affirms the initial decision denying disclosure, the agency shall inform the requester of the right to judicial review.

A district court of the United States in any of the 4 choices of forums:

The appeal may be filed in the district where the requester resides; where the requester has its principal place of business; where the requested documents are located; or in the U.S. District Court for the District of Columbia.

only privacy is protected, not other confidential information.

are not included even if the organization receives public funding or is in another manner associated with the government.

If an agency does not have possession of a record, it has no duty to find it to satisfy a FOIA request.

the FOIA does not require agencies to create records. The FOIA applies only to records in the possession or control of agencies.

"an agency may delete identifying details when it" fulfills a request.

Such a decision must be justified in writing.

First, when records are requested for COMMERCIAL use, the requester may be charged for document search, copying, and review expenses incurred by the responding agency.

Second, When a request is made by an educational, noncommercial, scientific, or news media organization, only copying fees may be recovered.

Third, for all other requests, search and copying expenses may be charged. (this doesnt include review expenses)

civil OR criminal litigation as a discovery tool.

commercial requesters

exclusive; that is, none others exist.

The nine expressly provided are narrowly construed by the courts. This is consistent with the fundamental policy underlying the FOIA: disclosure in government, not secrecy in government.

in the "public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government" and is not primarily in the commercial interest of the requester.

the agency has the discretion to decide whether to produce such records.

For this exemption to apply, the president must issue an executive order requiring that the documents sought be kept classified.

Rules concerning vacation leave and lunch breaks are examples of the rules exempted under this provision.

are exempt from disclosure so that these parties are more comfortable working with the gov. to prevent and respond to attacks on their systems.

For example, the Internal Revenue Code has provisions authorizing nondisclosure of tax information. Census information may not be released or used for any purpose other than compiling statistics.

• interfere with enforcement proceedings

• deprive a person of a right to a fair trial or an impartial adjudication

• constitute an unwarranted invasion of personal privacy

• disclose the identity of a confidential source

• disclose investigative techniques and procedures

• endanger the life or physical safety of law enforcement personnel.

could result in competitive harm to the company, impair the government's ability to obtain like information in the future, or to protect government's interest in program effectiveness.

Predecisional deliberative information is exempted, but not factual or legal information. This allows employees of agencies to freely discuss and consider ideas without the risk that such information will later be used to attack a decision. What should be attacked is an agency's final decision, not any thoughts it had in reaching the decision.

In the course of administering agencies, applications for employment, medical records of employees, and the like are acquired.

Similarly, records of nonemployees that contain personal information are acquired.

A file may be withheld only if disclosure will result in a clearly unwarranted invasion of privacy.

Criminal proceedings

Investigatory records are not protected forever.

Once an enforcement proceeding is completed, the records become available, unless some other exemption applies.

Financial Institutions

It is believed that public access to financial institution information may unnecessarily result in decreasing public confidence in financial institutions or even cause a panic.

Is the 9th exemption

where the complainant resides, where the complainant has its principal place of business, where the documents are located, or the District of Columbia.

For a federal court to act, it must be shown that an agency is improperly withholding documents. Exhaustion of administrative remedies is a prerequisite to obtaining a judicial remedy. The primary remedy is an injunction ordering the agency to produce improperly withheld documents.

De novo

An in camera inspection is conducted by the presiding judge, usually in chambers outside the presence of the public.

An in camera inspection is used to preserve the confidentiality of documents while giving the judge the opportunity to review the records and make an informed decision.

of proving that a document falls within an exception is upon the agency.

Reviewing courts may order agencies to disclose documents deemed improperly withheld. Failure to comply with a court order is punishable as contempt of court.

promptly initiate a proceeding to determine if the employee should be disciplined.

to withhold sensitive documents from public disclosure.

a yearly report to the Speaker of the House of Representatives and President of the Senate; the report is then referred to the appropriate committees.


In this report, the agency must report: the number of times the agency refused to produce records and the reasons for those refusals; the number of appeals of agency refusals and the results of these appeals; the name and title of each person denying a request and the number of denials each issued; the results of each disciplinary proceeding against agency employees for noncompliance with the FOIA; a copy of each rule promulgated concerning the FOIA; a copy of each agency's fee schedule and total fees collected; and other information concerning administration of the FOIA.

"Records maintained on individuals"

personal information be collected directly from the individual if the information might adversely affect the individual.

"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 and employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as finger or voice print or a photograph."

authority to collect information.

The act limits the collection of information about individuals by agencies maintaining a "system of records" to that information "necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order of the President."

the use of a record for a purpose compatible with the purpose for which it was collected.

a group of records under the control of an agency from which information may be retrieved by the name of an individual or by some other number or symbol assigned to an individual.

fairness to the individual

are being made available to another under compulsory legal process, whenever such action will result in the record becoming public.

publish in the Federal Register notice of its system of records, including the name and location of the system; the categories of individuals included in the system; each routine use of records; its policies and practices regarding the storage, retrievability, access controls, retention, and disposal of records; who is responsible for maintaining the system; the procedures whereby individuals can be provided with copies of their files and contest their contents; and the categories of sources of the records.

to keep a record of each disclosure made, including the date, nature, and purpose of each disclosure, and the name and address of the person or agency to whom the disclosure was made. This record shall be kept for five years or the life of the record, whichever is longer.

to any person or other agency unless the agency obtains the consent of the individual to whom the information pertains or unless one of the act's 12 (13 including consent of the individual who is the subject of the record) other exemptions applies.

1. The individual to whom the records pertain may consent to disclosure.

2. To agency employees who need the information to perform their duties is permitted.

3. When required by the FOIA. Therefore, unless one of the nine FOIA exceptions applies, the Privacy Act does not prohibit disclosure of records that fall within the FOIA. (The relationship between the FOIA and the Privacy Act is discussed more fully later.)

4. For routine use.

5. To the Bureau of the Census is allowed for purposes of planning or carrying out a census or related activity.

6. To individuals who ensure that the records will be used solely for statistical research or a reporting record, and the agency must first redact any information that identifies individuals.

7. To the National Archives is permitted in some circumstances.

8. To another agency is permitted if the agency head makes a written request explaining a law enforcement activity for which the record is sought.

9. To a person who has made a showing of compelling circumstances, when disclosure will affect the health and safety of an individual.

10. To either body of Congress. 11. To the Comptroller General or his or her representatives as necessary to the performance of their duties.

12. To satisfy court orders.

13. To consumer reporting agencies in accordance with other law.

the records contain inaccurate, irrelevant, untimely, or incomplete information.

and the individual's need for personal, intimate, and confidential spheres of privacy."

Individuals must be given the opportunity to review and copy these records.

Individuals may file a civil action against an agency if

• a request for amendment of a record is denied;

• an individual is not permitted access to his or her own records;

• the agency fails to maintain a record with the required accuracy, relevance, timeliness, or completeness, and a determination adverse to the individual is made; or

• an agency fails otherwise to comply with the Privacy Act in such a way as to adversely affect the individual.


Two criminal provisions apply to governmental employees and one to all people:

1. Any governmental employee who discloses a record that the employee knows is required to be withheld under the Privacy Act is guilty of a misdemeanor and may be fined as much as $5,000.

2. Any governmental employee who willfully maintains records without satisfying the notice requirements of the act is guilty of a misdemeanor and may be fined as much as $5,000.

3. Any person who knowingly and willfully requests or obtains any record concerning an individual under false pretenses is guilty of a misdemeanor and may be fined as much as $5,000.

First, each agency must provide notice to Congress and the Office of Management and Budget of any proposal to establish or alter any system of records.

Second, the president is required to submit annually to the Speaker of the House of Representatives and the President of the Senate a report on all agency systems of records. This report is to include an explanation of exemptions.

identical

generally requires that agency meetings be open to public observation: "[E]very portion of every meeting of an agency shall be open to public observation."

The act applies only to "collegial" agencies, that is, agencies that are headed by more than one person. There is no requirement that a single agency head make his or her deliberations public.

the agency meeting is held, in the district where the agency has its headquarters, or in the District of Columbia.

Federal Advisory Committee Act

An advisory committee is not charged with the administration of law. It has no authority to enforce laws, make rules, conduct investigations for violations of law, or adjudicate cases. Advisory committees are created solely to give advice to administrative agencies. Final decisions must be made by the appropriate agency officials.

An advisory committee is to be created only when necessary and is to be disbanded upon completion of its work.

unless disclosure is required by another law. An unlawful disclosure of information covered by the Trade Secrets Act is a crime punishable by up to one year of imprisonment, a fine, and termination of employment.

Thus, the drafters did not make it clear whether the FOIA is to be applied to the myriad of private parties that provide services to, and receive funding from, the federal government.

The extent to which the government manages the daily operations of the agency

• The extent to which the government regulates the agency

• The extent to which the government funds the agency

• The amount of authority delegated to the agency by the government (e.g., rulemaking, taxing, and adjudicatory authorities)

• Whether the agency is performing a core government function, especially those involving civil liberties