Access to Government Information: The American Experience

Date01 March 1983
Published date01 March 1983
DOI10.1177/0067205X8301400105
Subject MatterArticle
ACCESS
TO
GOVERNMENT
INFORMATION:
THE
AMERICAN
EXPERIENCE
GLEN
0 ROBINSON*
INTRODUCTION
Enactment
of
the United States Freedom
of
Information Act
("FOI
Act") 1
in
1966 was a landmark event
in
the history
of
American administrative law.
Among the most important
of
American administrative law reforms, the FOI
Act has engendered a veritable cottage industry devoted to securing access to
government-held information.2 In the sixteen-plus years since the Act went
into effect3 Congress has twice amended the Act4 and
is
currently considering
yet another round
of
amendments. 5 Each occasion has engendered a new
round
of
studies and commentaries on the Act, its purposes and effects.
The attention given to the subject by Congress pales
in
comparison to the
attention given it
by
the courts. A September
1981
list6 shows more than 1300
decisions construing the FOI Act, and companion laws: 7 the Privacy Act, 8
Sunshine Act9 and Federal Advisory Committee Act.
10
These decisions
in
turn
have been responsible for an endless stream
of
commentaries and monographs;
AB(Harvard); JD(Stanford);
John
C Stennis Professor
of
Law, University
of
Virginia.
I 5 USC § 552.
2
On
the private FOI Act
"industry"
see '"Lifting the Curtain
From
Government Secrets", US
News & World Report, 5 February I 973, 50
("more
than I 5,000 lawyers
and
other repre-
sentatives
of
I ,600 business and professional associations are employed at digging
out
hard-to-
get information");
"Government
Business
and
the People's Right to
Know"
(1978) 3 Media
Law
Reporter 20-2 I (discussing the growth
of
FOI Act service bureaus).
On
the public sector
counterpart to this private sector "'industry" see,
eg,
"'Bureaucracy's Great Paper
Chase",
Time
(
19
December I 977). 23-24 (the FBI employs 379 full time FOI Act staffers, the Department
of
Defence
("DOD"),
90, the CIA, 65).
3
The
Act was passed into law in July I 966
but
implementation was delayed for a year
in
order to allow agencies time to promulgate regulations.
4 Amendments were made
in
I 974 and
in
I 976. See James T O'Reilly, Federal Information
Disclosure§ 3.08 (1977, updated through 1982).
("O'Reilly
Treatise")
5 See Hearings
on
Freedom
of
Information Act before
The
Subcommittee on the Constitution
of
the Senate Judiciary Committee, 97th Congress I st Session, vols I and 2 (
198
I)("
I 98 I FOI
Act Hearings"). While the 97th Congress adjourned without passing legislation, a
bill(§
774),
similar to the leading bill in that Congress 1730), has been introduced
in
the current
Congress.
6 See US Department
of
Justice, Freedom
of
Information Case
List
(I
981) I -89.
The
Case List,
published annually, cites all reported and unreported cases
and
indexes them by general topics.
7 I
do
not
deal with these laws
in
this paper, though they are all part
of
the same family
of
"open
government"
legislation.
8 5
USC§
552a. Essentially the Act mandates record keeping requirements for personal infor-
mation
of
a private character, including notice to the individual
about
whom records are main-
tained, a right
of
the individual
to
obtain such
records-
subject to certain
exemptions-·
and
a
right to challenge the contents
of
such records and have inaccuracies corrected.
The
Act also
limits disclosure
of
personal information without the consent
of
the individual except where
disclosure is required by the FOI Act
or
certain other conditions are met.
9 5 USC §662b.
The
Act requires that meetings
of
multi-membered agencies,
at
which agency
deliberations determine agency action. be open to the public, except to the extent the meeting
deals with matters exempt from disclosure under the FOI Act. (The same legislation also amen-
ded the FOI Act, as will be noted;
and
the APA provisions governing adjudicatory hearings for-
bidding
ex
parte contacts
in
such hearings.)
'0 5 USC -Appendix.
The
Act requires that meetings
of
officially established "federal
advisory committees" be conducted in public except to the extent the committee deals with mat-
ters exempt from disclosure under the FOI Act.
36
Federal Law Review
[VOLUME
14
as
of
September
1981
the number
of
law review articles alone exceeded 300.
11
To
these law review treatments must be added uncounted monographs and ar-
ticles on the FOI Act
in
non-legal publications.
Perhaps needless to say, the agencies' involvement has been greater still.
Current estimates put the total number
of
FOI Act requests at about one
million annually
Y
That
figure, however,
is
not very useful by itself. What one
wants
is
information about the character
of
the requests, and more particularly
the time and effort devoted to servicing them. Unfortunately, no one to my
knowledge has compiled reliable data on the aggregate amount
of
admini-
strative effort spent
in
FOI Act related activities, though
we
have some overall
estimates, and some scattered data for individual agencies.
That
data suggest
the administrative workload
is
not
trivial, even though
in
overall budgetary
terms the burden
is
not
large relative
to
other administrative costs.
13
With more than
15
years
of
active use and observation
of
the FOI Act one
might reasonably suppose the American experience would provide a wealth
of
reliable insights into the effects, good and bad,
of
open access to government
files. And so it does, I suppose,
if
one does not put too much emphasis on the
word "reliable". Unfortunately, as
is
often the case in such matters,
"hard"
evidence
is
hard to obtain. Most
of
the reports on effects tend to support the .
quip that
in
social science the plural for
"anecdote"
is
"data".
As
well, many
of
the reports are from advocates who have sifted the evidence for a purpose
other than neutral study. Given the intangible nature
of
objectives and in-
terests at stake, and given their value-laden character, it
is
understandable-
if
disappointing-
that
the ratio
of
rhetoric to evidence
is
high.
To
make mat-
ters more difficult the very structure
of
the Act makes some important
questions -who uses the Act and for what purpose -very difficult to
an-
swer.
14
Notwithstanding the above disclaimer I shall attempt
to
pull together in
very general fashion what I think
we
know about the American experience and
to offer some personal impressions about that experience. It will be useful to
11
See Freedom
of
Information Case List, supra n 6, I 07-127.
12
See Swallow.
''Has
the Freedom
of
Information Act Worked
-Or
Has
It
Worked
Too
Well", National Journal (15 August 1981) 1470.
13
There
is
a large number
of
reports
of
the burdens created for particular agencies. Much
of
this information consists
of
"horrible
case"
anecdotes. See,
eg,
1981 FOI Act Hearings, supra
n 5. Vol I at 106 (report
of
a single request to
DOD
requiring a search
of
24 million pages to
locate the requested documents, requiring some 350,000 man hours); ibid at 984 (report
of
single request to FBI. resulting
in
a court order to produce
40,000
documents a month).
However, some agencies have reported specific manpower
and
cost data. See, eg, ibid
at
I 05, 627
(estimated $6.8 million
in
annual costs for
DOD;
$11 million FBI).
Cost
to all agencies has
been estimated at
around
$57
million for 1980, a figure that does
not
include judicial enforce-
ment costs. See, ibid, vol 2
at
3.
14
One
of
the
key
features
of
the FOI Act was its elimination
of
the former limitation
on
disclosure to persons "properly
and
directly
concerned"
and
its exception for documents that
were deemed to be confidential
"for
good cause". Eliminating these limitations removed any
legal basis
on
which agencies could ask requesters
to
identify for whom and for what purposes
the information
is
sought
Of
course, since the agencies
cannot
refuse to disclose non -exempt
information regardless
of
how
or
by whom it will be used, requesters need
not
conceal their pur-
poses. Thus.
in
many cases it
is
possible to ascertain from the request itself who
is
seeking infor-
mation
and
for what use. However. it
is
not possible to ascertain the real parties interested
or
the
ultimate uses
of
the information with any statistical precision. Estimates
on
these matters are
necessarily rough,
and
may
not
be fully reliable.

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