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Public Health Rep. 2011 May-Jun; 126(3): 428–432.
PMCID: PMC3072867

The Freedom of Information Act: Implications for Public Health Policy and Practice

This installment of Law and the Public's Health provides an overview of the federal Freedom of Information Act (FOIA).1 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. All states also have enacted laws governing open access to governmental information, many with provisions similar to the federal FOIA.2

Over the years, FOIA has played a central role in advancing public health policy by enabling investigations and research on topics as wide-ranging as human radiation experiments conducted during the Cold War,35 federal farm subsidies,68 reports about ill airline passengers,9 implementation of the President's Emergency Plan for AIDS Relief,10 and distracted driving due to cell phone use.11

This column explains the history of FOIA's enactment, explores its operational elements, and discusses other relevant laws that may overlap with FOIA or prove useful when FOIA is inapplicable, including the Privacy Act and state freedom-of-information and open-public-meeting laws. The article concludes with a discussion of the implications of FOIA for public health practice.

BACKGROUND

FOIA, enacted in 1966, is part of the Administrative Procedure Act, which includes provisions governing rulemaking, administrative hearings, recordkeeping, and public information. FOIA's enactment came amid concern that the then-in-effect law was “used more as an excuse for withholding than as a disclosure statute.”1214 One contemporaneous legislative report noted the “vastness” of the government and the need to promote trust and accountability.

In enacting FOIA, Congress strived to balance the encouragement of government disclosure and the need for accountability with a desire also to “protect certain equally important rights of privacy with respect to certain information in Government files, such as medical and personnel records.”14 This attempt to balance government accountability and transparency with protection of sensitive information has characterized FOIA debates since its enactment. For example, enhanced security concerns following 9/11 prompted then-Attorney General John Ashcroft to issue a memorandum to federal agencies in October 2001 recognizing FOIA's importance in promoting accountability and reducing fraud and government waste, but also emphasizing “other fundamental values held by our society” including “safeguarding our national security,” “protecting sensitive business information,” and promoting “functional and efficient” government.15 In a January 2009 memorandum to federal agency leaders, President Barack Obama set a different tone for his incoming administration, writing that FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”16 Two months later, Attorney General Eric Holder issued a memorandum expressly rescinding the Ashcroft memorandum and advising that “[a]n agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of an FOIA exemption.”17

The Holder and Presidential FOIA memorandums were well-received by journalists and open-government advocates who had regarded the Ashcroft memorandum's change in emphasis from previous FOIA policy with skepticism and concern.1820 Nonetheless, despite the current administration's pronounced public commitment to FOIA, some reports suggest that it has, similar to previous administrations, faced challenges in actual FOIA execution.2127 In addition to the concerns about security, protecting confidential corporate and personal information, and ensuring government efficiency, the large number of FOIA requests—612,000 in fiscal year (FY) 2009, according to the Department of Justice (DOJ),28 some of which can produce thousands of responsive documents that must be reviewed by staff—can pose a challenge to FOIA implementation.

Backlogs of FOIA requests from previous years may slow agency response to new requests.25,2931 Staffing also may be an issue. DOJ estimates that in FY 2009, roughly 4,000 full-time FOIA staff were employed by the federal government.28 In a recent survey, government FOIA professionals identified as key FOIA implementation obstacles both the lack of staff and shortage of funding for FOIA activities and agency staff awareness and training.25

HOW FOIA WORKS

FOIA's public disclosure provisions are codified at 5 U.S.C. §552(a);32 these rules require the proactive disclosure of records such as final opinions, policy statements, and staff manuals. The provisions also require public access to certain frequently requested records, publication of regulations in the Federal Register, and prompt disclosure of records upon request (subject to certain exemptions).

FOIA applies to all “records” in the control or possession of a “federal agency”33 subject to nine exemptions and certain exclusions. Records within an agency's possession and control include those stored in databases as well as those that have been archived. Records include papers, videos, e-mails, audio recordings, maps, and computer documents.34,35 However, physical objects, such as old computers or tape recorders, are not considered records.

An “agency” for FOIA purposes “includes any executive department, military department, government corporation, government-controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President), or any independent regulatory agency.”3335 FOIA's definition of “agency” has been subject to litigation and debate but clearly does not encompass Congress; the federal courts; private individuals and corporations; and local, state, and foreign governments.3436

Likewise, FOIA does not apply to nongovernmental or private organizations (e.g., contractors, associations, or other organizations) simply because they may receive federal funds or support.34,35,37,38 However, FOIA may become applicable to these entities and others indirectly if relevant documents from or about these entities are in the control or possession of a federal agency and are released under FOIA. For instance, organizations have used FOIA along with other records to create a database of federal corporate contractor misconduct and to investigate state spending of federal homeland security grants.39,40

Any “person” may make an FOIA request for a record to a federal agency, even those who are not citizens or residents of the United States.34,35 This includes state agencies, organizations, and corporations. On occasion, citizens of other countries have used FOIA to obtain U.S. government records about their governments' activities.41

To facilitate FOIA implementation, agencies are required to publish procedures and fees for FOIA requests, including contact information for FOIA requests.34,35,38,42 Agency FOIA websites may be a good starting point in obtaining information about FOIA procedures, including applicable fees. In addition to agency FOIA procedures (available at http://www.justice.gov/oip/other_age.htm), various nonprofit organizations have published useful guides about FOIA.34,36

Once an agency receives an FOIA request, the request will be logged. As the request is processed, agency FOIA staff may contact the requestor to obtain further information as to the scope and nature of the request. A search43 for responsive records will be conducted. FOIA staff may themselves conduct a search for responsive documents and/or ask others in their agency to do so, including public health and regulatory program staff. Agency staff may be asked as part of a search to review their files and e-mails, and agency archives also may be searched.

Once identified, any responsive records will be reviewed by agency FOIA staff to determine if the record should be exempted from disclosure. Records may be redacted, or staff may determine that an entire record is not subject to disclosure. The agency will then respond to the request, denying the request in entirety or in part, releasing responsive records (with portions redacted if the agency has determined exemptions should apply), or stating that records will be released upon payment of an applicable fee.29,30,34,36,38,44 FOIA fees may be charged for both searching/locating responsive documents and for copying/duplicating documents. Fees are detailed in each agency's FOIA policy.34,36,45

FOIA provides that agencies should respond to FOIA requests within 20 working days, but in practice most requests are not processed in this time frame.29,30,3436,46 An agency's partial or complete denial of a request or its application of a particular exemption to all or part of a particular record may be appealed within the agency and litigated in court.

FOIA exemptions

In reviewing a record, agency FOIA staff will determine whether one of nine exemptions applies.47 These exemptions include:

  1. Records that are formally classified pursuant to an Executive Order (e.g., classified information)
  2. Records “related solely to the internal personnel rules and practices of an agency”
  3. Records exempted from disclosure by statute
  4. “[T]rade secrets and commercial or financial information obtained from a person and privileged or confidential”
  5. “[I]nter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”
  6. “[P]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”
  7. Law enforcement records
  8. Federal financial institution reports
  9. “[G]eological and geophysical information and data, including maps, concerning wells”

It is important to note that more than one exemption may apply to all or part of a record. With the exception of Exemption 3, which applies to records for which disclosure is prohibited by another statute, even should an exemption be applicable, an agency still may have the discretion to disclose a record in its entirety or in part if it determines such disclosure to be in the public interest.3436,4850 Agencies will determine whether the benefit of releasing information will contribute to citizens' knowledge of government information and activities such that it outweighs any potential harm of disclosure to private individuals, organizations, or the federal government.34,44,48,49

Although the exemptions have many valid purposes and uses, they can also frustrate attempts by journalists, researchers, and others to further FOIA's purpose of promoting government transparency and accountability. For instance, the deliberative process privilege (Exemption 5) allows pre-decisional government documents (e.g., draft agency memorandums and reports) to remain exempt from disclosure. Some commentators have questioned agency application of this privilege.50,51

Exemptions 3 and 4 also play an important role in the public health context. Commercial confidential or trade-secret information may include information about pesticide, food, drug, or cosmetic ingredients and drug safety information. In some cases, statutes such as the Federal Insecticide, Pesticide and Rodenticide Act and the Census Act expressly prohibit agency disclosure of certain information. Information about public health regulatory agency enforcement matters or enforcement techniques may be exempt from disclosure under Exemption 7.3436,49,5257

Other related information and disclosure laws

It is important to be aware of other laws related to FOIA, government transparency, and release of information because some of these laws may overlap with FOIA or prove useful for situations in which FOIA is not applicable. Relevant laws include, but are not limited to the following:

  • The Privacy Act,58 enacted in 1974, which allows individuals to request certain records that federal agencies have compiled on them subject to certain exemptions, such as law enforcement investigations. The law also restricts federal agencies from disclosing records they have compiled about an individual without that individual's consent (again subject to certain exemptions [e.g., for law enforcement investigations]).35,5961
  • The Federal Advisory Committee Act (FACA),62 which governs the role and functioning of federal advisory committees and includes disclosure and open-meeting provisions.35,6366
  • The Federal Records Act67 and other federal records laws, which establish procedures for managing, maintaining, and disposing of federal records. The National Archives and Records Administration oversees federal agency recordkeeping and archiving.68
  • The Government in the Sunshine Act,35,69 which requires most government meetings to be open to the public, subject to certain exceptions, such as for privacy/personnel issues, law enforcement, trade secrets, and internal agency meetings.

States also have enacted laws allowing the public to access and copy records with exemptions similar to those for the federal FOIA. States have enacted “sunshine” laws that permit the promotion of public participation in government meetings at which policy and budget decisions are made, subject to certain exemptions such as public safety and personnel matters. The Reporters Committee for the Freedom of the Press Open Government Guide includes information about freedom-of-information and public-access laws in the 50 states.35

CONCLUSIONS

By understanding FOIA's purpose and key provisions, public health workers, journalists, and researchers can make use of this powerful tool to obtain information about important public health issues. With other relevant laws such as the FACA, FOIA can help ensure that important information is disclosed to the public and help advocates of all backgrounds and ideologies participate in government decision-making. Public health workers in government agencies who understand the purpose of FOIA and similar state laws can help promote transparency and accountability in government by being responsive to FOIA requests when received and by properly understanding the relevant exemptions, and when and how they should apply. FOIA's effectiveness ultimately depends upon both the attitude and commitment with which it is approached by government agencies and their staff members and the public's insistence that the statute be implemented in a way that fulfills its vital purpose.

REFERENCES

1. 5 U.S.C. §552 (2009), as amended by Public Law No. 110-175, 121 Stat. 2524 and Public Law No. 111-83, §564, 123 Stat. 2142, 2184.
2. The Reporters Committee for Freedom of the Press. Open government guide. [cited 2011 Jan 3]. Available from: URL: http://www.rcfp.org/ogg.
3. Department of Energy, Office of Health, Safety and Security (US). DOE openness: human radiation experiments. [cited 2011 Jan 3]. Available from: URL: http://hss.energy.gov/healthsafety/ohre.
4. Public Broadcasting System. Transcript: secret government: now with Bill Moyers. 2002. Apr 5, [cited 2011 Jan 3]. Available from: URL: http://www.pbs.org/now/transcript/transcript_secretgov.html.
5. Alterman E. The plutonium files. The Nation 2000 Feb 10. [cited 2011 Jan 3]. Also available from: URL: http://www.thenation.com/article/plutonium-files.
6. Environmental Working Group. Farm subsidies database. [cited 2011 Jan 3]. Available from: URL: http://farm.ewg.org.
7. Morris J. Farm subsidies still missing from USDA's data-rich website. Sunlight Foundation Reporting Group. 2010 Mar 5;
8. Jiménez C. USDA pulls plug on some farm subsidy data. The Data Mine. 2010 May 21;
9. Young A. Review: many sick airline passengers aren't reported. USA Today. 2010 Apr 22;
10. Guevara MW. Behind the scenes: questions, lawsuits and, eventually, some answers: state department resisted handing over PEPFAR spending documents. Center for Public Integrity. 2006. Nov 28, [cited 2011 Jan 1]. Also available from: URL: http://projects.publicintegrity.org/aids/default.aspx?act=methodology.
11. Richtel M. U.S. withheld data on risks of distracted driving. New York Times. 2009 Jul 20;
12. National Security Archive. FOIA legislative history. [cited 2011 Jan 3]. Available from: URL: http://www.gwu.edu/~nsarchiv/nsa/foialeghistory/legistfoia.htm.
13. National Security Archive. Freedom of Information at 40: LBJ refused ceremony, undercut bill with signing statement. 2006. [cited 2011 Jan 3]. Available from: URL: http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB194/index.htm.
14. Clarifying and protecting the right of the public to information and for other purposes. [cited 2011 Jan 3]. Senate Report No. 1219, 88th Cong., 2nd session. July 22, 1964 Also available from: URL: http://www.gwu.edu/~nsarchiv/nsa/foialeghistory/S.%20Rep.%20No.%2088-1219%20%281966%20Source%20Book%29.pdf.
15. Department of Justice (US). Memorandum for heads of all federal departments and agencies. From: Attorney General John Ashcroft. Subject: The Freedom of Information Act. 2001. Oct 12, [cited 2011 Jan 3]. Also available from: URL: http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB84/Ashcroft%20Memorandum.pdf.
16. Department of Justice (US) Memorandum for the heads of executive departments and agencies: Freedom of Information Act. [cited 2011 Jan 1]. President Barack Obama. Federal Register 2009;74:4683-4. Also available from: URL: http://www.justice.gov/oip/foia_guide09/presidential-foia.pdf.
17. Office of the Attorney General (US) Memorandum for heads of executive departments and agencies. From: Attorney General Eric Holder. Subject: The Freedom of Information Act. 2009. Mar 19, [cited 2011 Jan 1]. Also available from: URL: http://www.justice.gov/ag/foia-memo-march2009.pdf.
18. The Reporters Committee for Freedom of the Press. Holder's FOIA memo is a “refreshing change;” [press release] 2009. Mar 19, [cited 2011 Jan 3]. Available from: URL: http://www.rcfp.org/newsitems/index.php?i=10050.
19. Bergman H. Putting flesh on the FOIA bones. The News Media & the Law. RCFP Spring. 2009;33:13.
20. Daugherty R. Ashcroft's FOI Act memo prompts concerns. The News Media & the Law. RCFP. 2002;26:25.
21. Leonnig CD. More than 300 public-records lawsuits filed in Obama's first year. The Washington Post. 2010 Jan 27;
22. Eisen N. Response: transparency: the tale of the tape. The White House, Open Government Initiative. 2010. Jan 27, [cited 2011 Jan 3]. Also available from: URL: http://www.whitehouse.gov/blog/2010/01/27/transparency-tale-tape.
23. Pustay MA. Director, Office of Information Policy, Department of Justice. Administration of the Freedom of Information Act: current trends. Hearing. House Committee on Oversight and Government Reform. 2010. Mar 18, [cited 2011 Jan 3]. Available from: URL: http://oversight.house.gov/index.php?option=com_content&task=view&id=4845&Itemid=29.
24. National Security Archive. Sunshine and shadows: the clear Obama message for Freedom of Information meets mixed results. 2010. Mar 15, [cited 2011 Jan 3]. Available from: URL: http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB308/index.htm.
25. Citizens for Responsibility and Ethics in Washington. FOIA at the mid-term: obstacles to transparency remain. Washington: CREW; 2010. [cited 2011 Jan 1.]. Also available from: URL: http://www.citizensforethics.org/files/Complete%20FOIA%20Report%209-29-10.pdf.
26. Theimer S. Promises, promises: is gov't more open with Obama? Business Week. 2010 Mar 16;
27. O'Keefe E. FOIA-request audit shows response to Obama transparency pledge is uneven. The Washington Post. 2010 Mar 15;
28. Department of Justice, Office of Information Policy (US) Summary of annual FOIA reports for fiscal year 2009. [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/oip/foiapost/2010foiapost18.htm.
29. Government Accountability Office (US) Freedom of Information Act: processing trends show importance of improvement plans. 2007. Mar, [cited 2011 Jan 3]. Available from: URL: http://www.gao.gov/new.items/d07441.pdf.
30. Government Accountability Office (US) Freedom of Information Act: agencies are making progress in reducing backlog, but additional guidance is needed. 2008. Mar, [cited 2011 Jan 3]. Available from: URL: http://www.gao.gov/new.items/d08344.pdf.
31. The Sunshine in Government Initiative. FOIA in 2008: fewer requests, fewer responses, more denials. 2009. Apr 4, [cited 2011 Jan 3]. Available from: URL: http://www.sunshineingovernment.org/index.php?cat=213.
32. 5 U.S.C. §552(a)(1-3)
33. 5 U.S.C. §552(f)(1-2)
34. Department of Justice (US) The Department of Justice guide to the Freedom of Information Act (2009 edition) [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/oip/foia_guide09.htm.
35. The Reporters Committee for Freedom of the Press. Federal open government guide. [cited 2011 Jan 3]. Available from: URL: http://www.rcfp.org/fogg/index.php?index.html.
36. Public Citizen. How to file a FOIA request: a guide. 2010. [cited 2011 Jan 3]. Available from: URL: http://www.citizen.org/Page.aspx?pid=458.
37. Department of Justice, Office of Information and Privacy (US) Treatment of agency records maintained for an agency by a government contractor for purposes of records management. [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/oip/foiapost/agencyrecords.htm.
38. Department of Health and Human Services (US) FOIA (Freedom of Information Act) Regulations (45 C.F.R. 5) [cited 2011 Jan 3]. Available from: URL: http://www.hhs.gov/foia/index.html.
39. Project on Government Oversight. Federal contractor misconduct database. [cited 2011 Jan 3]. Available from: URL: http://www.contractormisconduct.org/index.cfm/1,72,217,html.
40. Center for Investigative Reporting. Homeland security: boom and bust. 2010. Feb, [cited 2011 Jan 3]. Available from: URL: http://centerforinvestigativereporting.org/articles/homelandsecurityboomandbust.
41. Campaign for Freedom of Information. U.S. Freedom of Information Act reveals British safety problems; [press release] 1991. Jul 22, [cited 2011 Jan 3]. Available from: URL: http://www.cfoi.org.uk/usfoiapr.html.
42. 5 U.S.C. §552(a)(4)(A)(i-ii)
43. 5 U.S.C. §552(a)(3)(D)
44. Miriam Nisbet, Director, OGIS. Hearing on Administration of the Freedom of Information Act: Current Trends, Information Policy, Census, and National Archives Subcommittee Of The Oversight and Government Reform Committee. 2010 Mar 18;
45. Department of Justice (US) Department of Justice Guide to the Freedom of Information Act, 2009: fees and fee waivers. [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/oip/foia_guide09.htm.
46. The Sunshine in Government Initiative. Waiting for freedom of information: some progress. [cited 2011 Jan 3]. Available from: URL: http://www.sunshineingovernment.org/index.php?cat=224.
47. 5 U.S.C. §552(b)(1)-(9)
48. Larson v Department of State. U.S. Court of Appeals, D.C. Circuit. May 2009, No. 06-5112.
49. Department of Justice (US) Department of Justice Guide to the Freedom of Information Act (2009 edition): discretionary disclosure and waiver. [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/oip/foia_guide09.htm.
50. Adina Rosenbaum, Staff Attorney, Public Citizen. Administration of the Freedom of Information Act: current trends. Hearing. House Committee on Oversight and Government Reform. 2010. Mar 18, [cited 2011 Jan 3]. Available from: URL: http://www.citizen.org/documents/AdinaTestimony.pdf.
51. Hammitt H. Hiding the deliberative process. Government Technology. 1996. Sep 30, [cited 2011 Jan 3]. Available from: URL: http://www.govtech.com/magazines/gt/Hiding-the-Deliberative-Process.html.
52. Public Citizen. Testimony of Peter Lurie, M.D., M.P.H., and Hillary Peabody, M.P.H., before the FDA Transparency Task Force. 2009. Jun 24, [cited 2011 Jan 3]. Available from: URL: http://www.citizen.org/Page.aspx?pid=573.
53. Lingas EO, Bero L. Ingredients added to consumer products: disclosure requirements, trade secrets, and the public's health. Poster presentation at the 138th American Public Health Association Annual Meeting; 2010 Nov 6–10; Denver.
54. Steinzor R, Shudtz M. Sequestered science: secrets threatening public health. Center for Progressive Reform white paper. 2007. Apr, [cited 2011 Jan 3]. Available from: URL: http://www.progressivereform.org/articles/Secrecy_703.pdf.
55. Government Accountability Project v HHS. U.S. District Court for the District of Columbia, Civil Action No. 07-1702. Memorandum Opinion 2010 Mar 9.
56. Lurie P, Zieve A. Sometimes the silence can be like the thunder: access to pharmaceutical data at the FDA. Law & Contemporary Problems. 2006;69:85–97.
57. Department of Justice, Office of Information Policy (US) Statutes found to qualify under exemption 3 of the FOIA. 2010. Apr, [cited 2011 Jan 1]. Available from: URL: http://www.justice.gov/oip/foiapost/2009foiapost24.htm.
58. 5 U.S.C. §552a.
59. Department of Health and Human Services (US) The Privacy Act. [cited 2011 Jan 3]. Available from: URL: http://www.hhs.gov/foia/privacy/index.html.
60. Department of Justice, Office of Management and Budget, General Services Administration (US) Your right to federal records. 2009. Nov, [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/oip/right_to_federal_records09.htm.
61. Department of Justice (US) Overview of the Privacy Act of 1974, 2010 edition. [cited 2011 Jan 3]. Available from: URL: http://www.justice.gov/opcl/1974privacyact-overview.htm.
62. 5 U.S.C. Appendix 2.
63. General Services Administration (US) Federal Advisory Committee Act (FACA) management overview. [cited 2011 Jan 3]. Available from: URL: http://www.gsa.gov/portal/content/104514.
64. General Services Administration (US) When is Federal Advisory Committee Act (FACA) applicable? [cited 2011 Jan 3]. Available from: URL: http://www.gsa.gov/portal/content/100794.
65. General Services Administration (US) Advice and guidance cited 2011 Jan 3. Available from: URL: http://www.gsa.gov/portal/category/21243.
66. McDermott P, Bennett A. 2010 secrecy report card. Washington: Open the Government; 2010.
67. 44 U.S.C. §§3301 et seq.
68. National Archives. Frequently asked questions about records management. [cited 2011 Jan 3]. Available from: URL: http://www.archives.gov/records-mgmt/faqs/
69. 5 U.S.C. §552(b)

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