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Policy Background on Access to Government Information |
FOIA
The Freedom of Information Act (FOIA) was signed into law in 1966. Through this Act, every citizen of the United States gained the right to access information held by the government — the right to obtain reproductions of records created and maintained by and for federal government agencies. The Act was created to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." FOIA affirmed the public's right-to-know about the business of government as a central principle of our democratic government and open society.
Since 1966, the Freedom of Information Act has been amended six times: in 1974, with minor amendments in 1976, 1978, and 1984, in 1986, and, most recently, in 1996. In each instance, the original Act was broadened to cover more information deemed necessary to ensure the public’s right to know about the activities of the federal government.
The Freedom of Information Act covers records created within federal departments, agencies, and offices, federal regulatory agencies, and federal corporations. As defined by the Act, records include paper documents, films, tapes, and other materials created or obtained by an agency as part of its official duties. The 1996 amendments made clear that "records" also include electronically-created information such as databases, word processing, and e-mail.
Under the FOIA, federal entities are required to disclose records upon the written request of a citizen, unless the records fall within one of the nine exemptions to the Act. Records may be withheld from the public if they are:
The Freedom of Information Act is viewed by journalists, public interest organizations, and citizens as an important tool in opening federal agency policies and practices to public scrutiny. The congressional finding accompanying the 1996 amendments to the Act state that the FOIA has "led to the disclosure of waste, fraud, abuse and wrongdoing in the Federal Government," and has "led to the identification of unsafe consumer products, harmful drugs, and serious health hazards."
Electronic FOIA
In general, the 1996 amendments to FOIA were intended to simplify and expedite access to federal government records through the use of electronic communications media. The 1996 amendments received widespread bipartisan support, passing on a vote of 402-0 in the House, and by voice vote in the Senate. President Clinton signed the E-FOIA amendments into law on October 2, 1996. As noted in the floor debate, members of the public request more than 600,000 records a year from federal agencies, a volume that threatens to overwhelm some agencies. For example, a citizen requesting information from the Federal Bureau of Investigation is likely to wait four years for the information. By requiring information to be made available electronically, Congress sought to lessen the burden on federal agencies created by paper-processing and ensure the public timely and meaningful access to information.
Requirements of the Electronic Freedom of Information Act Amendments
Electronic Reading Rooms
The 1996 amendments require agencies to make any of the following "reading room" records created on or after November 1, 1996 available online by November 1, 1997:
If these records cannot be accessed online by November 1, 1997, they must be made available through other electronic means, such as disk or CD-ROM, by the November 1, 1997 deadline.
FOIA-processed, "repeatedly requested" records created prior to November 1, 1996 are to be made available in the conventional (non-electronic) agency reading room.
Reference Guides
The 1996 amendments created a new set of agency requirements to aid the public in accessing federal government information.
By March 31, 1997, each agency must provide, in its reading room and through an electronic site, reference material or a guide on how to request records from the agency. This reference guide must include:
Electronic Records
In addition, the 1996 Amendments explicitly state that, under FOIA, the public has a right to gain access to records maintained by the agency in electronic form as well as paper records. For example, if an agency maintains an electronic database of information, a citizen may request the agency to search that database for requested information and produce an electronic copy of the entries that are responsive to the citizen’s request. An agency is required, moreover, to "make reasonable efforts to maintain its records in forms or formats that are reproducible for the purposes of the [FOIA]."
GILS
The U.S federal Government Information Locator Service (GILS) is a standard format used to identify, locate, and describe publicly available Federal information resources, including electronic information resources. It is essentially a cataloging format that uses international standards for information search and retrieval so that information about information — metadata — and, if the creator of the record so decides, the information itself can be retrieved in a variety of ways.
The origin of GILS can be traced back to the Paperwork Reduction Act of 1980, which first mandated the establishment of a system to assist in locating government information. After many delays and false starts, and after further congressional direction in 1986, OMB formally announced the Government Information Locator Service (GILS) in December 1994. OMB Bulletin 95-01, implementing the GILS, required each agency head to "compile an inventory of its 1) Automated information systems, 2) Privacy Act systems of records, and, 3) locators that together cover all of its information dissemination products." It also established a GILS Board "to evaluate the development and operation of the GILS." The Board was tasked with "preparing and disseminating publicly an annual report that evaluates and recommends enhancements to GILS to meet user information needs, including factors such as accessibility, ease of use, suitability of descriptive language, as well as the accuracy, consistency, timeliness and completeness of coverage." The Board met once and failed to issue a formal report. Bulletin 95-01 expired on December 7, 1997, and was not reissued.
In its place, OMB issued a Memorandum (M-98-05) on February 6, 1998 to the heads of the executive agencies, affirming the ongoing responsibility of agency heads to meet the requirements of Bulletin 95-01through annual reporting under the Paperwork Reduction Act of 1995. Agencies were also directed to "routinely solicit feedback on their GILS performance, results, and plans from significant public stakeholders and user communities." OMB's responsibilities are not mentioned. The GILS Board disappeared — replaced by a request from OMB that the Chief Information Officer (CIO) Council work with the Government Information Technology Services Board (GITSB) to train agencies in GILS best practices, further develop the U.S. Federal GILS guidelines, search standards and subject keywords, and coordinate "one stop" access to multi-agency government services. The CIO Council and GITSB have no mechanism for public participation or even input — nor do most agencies — and the concerns for "user information needs, including factors such as accessibility, ease of use, suitability of descriptive language, as well as the accuracy, consistency, timeliness and completeness of coverage" have vanished. OMB personnel have publicly commented that they would like to change the meaning of the acronym GILS from Government Information Locator Service to Government Information Locator Standard; it looks like they may have accomplished that goal de facto.
Failures in E-FOIA and GILS Implementation
The legislative history of the 1996 Amendments to the FOIA make it clear that Congress expected OMB to give guidance on the reference guides. Under the Paperwork Reduction Act, OMB is required to provide formal guidance to agencies regarding the implementation of laws, including the FOIA. OMB’s guidance on E-FOIA has not met Congress' expectations nor has it fulfilled its statutory obligations under the Paperwork Reduction Act. The result has been a failure to meet the important public access goals of FOIA, as agency upon agency fails to comply with the law.
On April 7, 1997, OMB distributed a memorandum to agencies describing how to fulfill the requirements for a paper and online Freedom of Information index and guide. Not only was the memo distributed a full week after the March 31, 1997 deadline for completion of this task, guidance from OMB on these significant new amendments was minimal. To fulfill the index requirements, OMB recommended "establishing a Government Information Locator Service (GILS) presence," in accordance with a 1994 OMB Bulletin. While we agree with OMB that all agencies should have a well maintained GILS, this alone does not fulfill the more substantial E-FOIA amendment requirements. The 1994 OMB Bulletin on GILS instructed agencies to "compile an inventory" of their "automated information systems," "Privacy Act systems of records," and "locators that together cover all...information dissemination products," and describe each of these three by a "GILS Core locator records...made available online." The E-FOIA, however, does not limit agency reference guides to "automated information systems," but rather, requires an index of "all major information systems," a much broader category of information.
In addition, OMB instructed agencies that GILS must include locators for "information dissemination products" which, in their guidelines, include only locators for catalogs of information disseminated to the public. E-FOIA, on the other hand, does not use this strict definition, but broadens the definition to include locators for records that are not currently disseminated to the public.
Finally, entire classes of information — automated electronic mail and word processing systems — that were specifically included in the E-FOIA legislation are exempted from GILS. Therefore, agencies who follow OMB’s advice fall far short of meeting the E-FOIA amendments. Moreover, as noted in OMB Watch’s report (Potholes on the Information Bridge to the 21st Century), there is uneven and inadequate agency compliance with the GILS requirements— and no OMB enforcement.
Guides
OMB also suggested that agencies create a guide for obtaining FOIA information. OMB explained that this guide should include:
These suggestions also fall far short of what is required by E-FOIA. With this memo, OMB seems to have overlooked the intent of the E-FOIA legislation — to provide easier access to government information electronically. And, unfortunately, these minimal guidelines are what most of the Departments that OMB Watch looked at, in preparation for this report, are using as their guide. Most of them are not in compliance with the law. The following chart indicates whether agencies have complied with central E-FOIA requirements: (1) Does the agency have an Index of Major Information Systems? (2) Does the agency have record locators? and (3) Does the agency identify repeatedly requested documents?
* Exists, but not easily identified. ** Points to GILS search engine. The requirement is an inventory, not the opportunity to guess. *** Department of State has a section called "special interest" which may be the frequently requested documents. |
OMB's inadequate guidance has had significant consequences for OMB and for a number of other agencies. On December 4, 1997, Public Citizen, a nonprofit public interest organization, filed a federal lawsuit to enforce the EFOIA. Seven federal agencies — the Office of Management and Budget, the Office of Administration in the Executive Office of the President, the Office of the U.S. Trade Representative, the Department of Education, the Department of Energy, the Department of Justice, and the Department of State — were sued for failure to comply with the EFOIA requirements. The outcome of this litigation has yet to be decided in federal court.
Permanent Public Access
Policy makers, historians and librarians have often used the term "permanent public access" to explain the concept of making sure that public records — whether paper or electronic — remain available and accessible to the public permanently. In the paper world, while many documents are not available to the public, those that are published by the government find permanent public homes in those depository libraries that have comprehensive collections. This is increasingly not the case in the online world. Often, old Web documents are deleted or pushed aside as new officials come in and revamp an agency Web site.
The only provisions for permanent public access to the public’s information exist in legislation having to do with the Government Printing Office — specifically, the Superintendent of Documents, the Federal Depository Library Program, and GPO Access. Title 44, Chapter 19, Sec. 1902 requires that government publications, "except those determined by their issuing components to be required for official use only or for strictly administrative or operational purposes which have no public interest or educational value and publications classified for reasons of national security," be made available to depository libraries through the Superintendent of Documents for public information. Each component of the Government is, moreover, required to furnish the Superintendent of Documents with a list of such publications, issued during the previous month, that were obtained from sources other than the Government Printing Office.
Title 44, Chapter 41, Sec. 4101 authorizes and mandates that the Superintendent of Documents, under the direction of the Public Printer, (1) maintain an electronic directory of Federal electronic information; (2) provide a system of online access to the Congressional Record, the Federal Register, and, as determined by the Superintendent of Documents, other appropriate publications distributed by the Superintendent of Documents; and (3) operate an electronic storage facility for Federal electronic information to which online access is made available under paragraph (2). The Superintendent of Documents is also authorized, to the extent practicable, to accommodate any request by the head of a department or agency to include in the system of access referred to above information that is under the control of the department or agency involved.
Currently, no other statutes, regulations, or policies require permanent public access to the public’s information government-wide.