How the Freedom of Information Act has evolved over five decades

The Freedom of Information Act is a federal freedom of information law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. This amendment was signed into law by President Lyndon B. Johnson, despite his misgivings, on July 4, 1966, and went into effect the following year.

As indicated by its title, FOIA was actually extracted from its original home in Section 3 of the Administrative Procedure Act (APA). Section 3 of the APA, as enacted in 1946, gave agencies broad discretion concerning the publication of governmental records. Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement “a general philosophy of full agency disclosure.”

The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U.S.C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not published in the Federal Register, § 552(a)(2). In addition, § 522(a)(3) requires every agency, “upon any request for records which … reasonably describes such records” to make such records “promptly available to any person.”

If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden “on the agency to sustain its action,” and directs the district courts to “determine the matter de novo.”

The Federal Government’s Freedom of Information Act should not be confused with the different and varying Freedom of Information Acts passed by the individual states. Many of those state acts may be similar but not identical to the federal act.

With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some, particularly representative John Moss, thought it was necessary for government information to be available to the public. This push built on existing principles and protocols of government administration already in place.

Others, though—most notably President Lyndon B. Johnson—believed that certain types of unclassified government information should nonetheless remain secret. Notwithstanding the White House’s opposition, Congress expanded Section 3 of the Administrative Procedure Act as a standalone measure in 1966 to further standardize the publication of government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974 was passed as a countervailing measure to ensure the security of government documents increasingly kept on private citizens.