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FOI Basics
— What is ‘Freedom of Information?’
— Is the right of public access to documents and meetings in the Constitution?
— If not in the Constitution, where is freedom of information guaranteed at the federal level?
— Is Congress subject to the FOIA?
— What about access to records kept in state and local governments?



What is ‘Freedom of Information?’

Put simply, Freedom of Information (FOI for short) is the right to know what your government is doing – how it spends your tax dollars, how it creates and implements policy, how it makes decisions that affect you.

It refers to your right to examine records and documents and to your right to observe – and participate in –your government’s decision-making processes.

Government processes, activities and decisions may affect you directly or indirectly. They determine the amount of taxes you pay and the kinds of government services you receive. Governments and their agencies regulate many activities in your home and business life. Your ability to participate in, monitor and, perhaps, protest government decisions relates directly to your ability to know what your government is doing.

FOI is the opposite of secrecy. It means the doors and files of government are open and available to the public, instead of being closed to all but a select few.

In some circles, “Freedom of Information” is called “Right to Know,” but the meaning is the same.

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Is the right of public access to documents and meetings in the Constitution?

It is not included in the Constitution of the United States, but some state constitutions include a right to examine records and attend meetings of public entities.

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If not in the Constitution, where is freedom of information guaranteed at the federal level?

The landmark piece of legislation is the Freedom of Information Act, or FOIA, which Congress passed, and President Lyndon Johnson signed in 1966. That law covers all departments, agencies and offices within the Executive Branch of the federal government. The FOIA does not cover Congress, the federal judiciary, or the President, but it does cover the Executive Office of the President.

It has been updated and expanded since then, most recently in 1996, when Congress extended the FOIA to cover records stored in electronic form. Those amendments, officially known as the “Electronic Amendments” but known informally as “E-FOIA,” also ordered executive agencies to construct Internet sites to make it easier for the public to gain access to their information. The law ordered agencies to follow a list of minimum requirements for those sites.

Ten years after Congress passed the FOIA, it passed the “Government in the Sunshine Act,” sometimes referred to as the “Sunshine Act” or by its initials, GITSA.

This law requires that any federal Executive Branch commission, committee or other “collegial” body make its decisions in public meetings. Among the agencies it covers are the Securities and Exchange Commission, the Federal Communications Commission and the Federal Trade Commission. The Sunshine Act provisions are found within the federal Administrative Procedure Act at 5 U.S.C. § 552b.

Still another federal law, the Federal Advisory Committee Act (FACA), mandates that meetings of special federal task forces be open to the public. (In July 2001, Congress’ General Accounting Office sued Vice-President Dick Cheney, alleging that Cheney’s energy task force met in secret in violation of the FACA.)

There also are federal laws that address particular kinds of records. For instance, the Presidential Records Act, passed in 1978, specifically addresses how and when presidential papers are made available under the FOIA. The provisions of that law were changed in 2001 by an Executive Order signed by President George W. Bush. That order requires the National Archives to inform a former president (or his estate) that records are eligible for release. It also gives the sitting president and the former president the power to block release of records covered by the Presidential Records Act.

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Is Congress subject to the FOIA?

No. Congress operates under its own rules, which allow reporters and the general public to observe its sessions. Most committee meetings and hearings are open. However, access to the House and Senate galleries is rationed among media, dignitaries, families of members of Congress, and people who obtain gallery passes from members.

Why is Congress not subject to the FOIA? The easy answer is that Congress did not want it that way. (Congress routinely exempts itself from many federal laws.) A more political answer is that, in the 1960s, Congress wanted to know more about the administration’s actions in Vietnam and was unable to get the information under existing laws. In general, Congress also considered the greatest threat of secrecy to be within the Executive Branch, not from Congress.

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What about access to records kept in state and local governments?

All states have their own versions of the FOIA, some of which have been on the books for almost 100 years. Records and meetings may be covered in a single statute or in separate ones. Some call it the “Freedom of Information Act,” the “Open Records Act,” or the “Right to Know Act,” and some give it a different name. Florida calls its open records and meetings laws, collectively, “The Sunshine Law.”

Records and/or meetings at the local level (city, municipality, county, township, school district or other subdivision of state government) are covered by state law, unless specifically exempted.

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