At the time this article was published
Harold C. Relyea was a Specialist in American National Government with the
Congressional Research Service, Library of Congress, Washington D.C. This is a
revised version of an address in March 1986 to the National Forum on Access to
Information and Privacy in Ottawa.
When the United States Congress enacted the
Freedom of Information Act in 1966, only two other nations had an equivalent
statute. Subsequently, a number of countries have adopted a national law
embodying the freedom of information policy formula: a presumptive right of
access to agency records, specific categories of information which may be
exempted from the rule of access, and a procedure for court or quasi-judicial
redress in the event of a dispute over the availability of requested materials.
Canada entered this policy field in 1982 with the Access to Information Act and
Parliament, in accordance with the requirements of this statute, is now engaged
in a comprehensive review of its provisions and operation.
In almost all of the countries where
so-called FOI laws now exist, they were championed by the legislators and
opposed by the bureaucracy. In many regards, this clash of wills has continued
beyond the enactment stage, through the implementation phase, and into everyday
administration. Certainly this has been the case in the United States. It is a
conflict of long standing, as sociologist Max Weber noted over a half century
ago: "Every bureaucracy seeks to increase the superiority of the
professionally informed by keeping their knowledge and intentions secret."
Active Oversight in the United States
The product of some eleven years of
committee investigation in the House of Representatives and half as many years
of Senate committee examination, the Freedom of Information Act was signed into
law in July, 1966. It became operative one year later. Major oversight hearings
the first such proceedings for the FOI Act were held in 1972. Consequently, the
statute was significantly strengthened by major amendments in 1974 and modified
a second time, but only slightly, in 1976. The law has endured and has been
improved in large part due to diligent and conscientious oversight by Congress.
For almost two decades, congressional overseers have experienced something less
than enthusiasm for the FOI Act on the part of the departments and agencies. As
a consequence of this history, they have become sensitive to, if not suspicious
of, Executive Branch attempts to modify the statute. Indeed, as one key House
Republican concluded in the face of a recently offered White House proposal for
amending the Act: "If it ain't broke, don't fix it."
Continuous and careful oversight of the
Freedom of Information Act has served three important purposes. First, it has
indicated to the departments and agencies that Congress is very serious about
the proper implementation of this law. Second, it has permitted quick
identification of administrative problems and has prompted corrective action to
address those difficulties. Third, it has built expertise and provided key
legislators with a knowledge base from which to assess and evaluate proposals
for modifying the statute.
It may be of interest to Canadian
legislators to know what have been some of the principal areas of the FOI Act
that have been of concern to congressional overseers. Certainly the adequacy of
the statute's exemptions has been an area of close attention. In addition to
accommodating information protection specifically afforded by other laws, there
must be basic coverage of information pertaining to commercial enterprise and
trade, domestic security and personal privacy, national defense and foreign
policy, and government advice. In this regard, the first (classified
information) and seventh (law enforcement investigatory records) exemptions of
the FOI Act were adjusted in 1974, and the third (intervening statutory
protection) exemption was modified in 1976. Currently, there is some question
as to the continued need for the second (internal agency personnel rules and
practices) and eighth (agency regulation of financial institutions) exemptions.
Another area of oversight consideration has
been fair information practice. For example, during the late 1970s, attempts
were made to institute socalled "reverseFreedom of Information AcC
lawsuits to prevent agency release of information submitted by third parties.
In April 1979, the Supreme Court ruled that neither the FOI Act nor the Trade
Secrets Act, which also had figured in the new litigation strategy, provides a
private right of action to prevent agency disclosure of information. The Court
did indicate, however, that judicial review of agency action in these matters
is available to third party submitters under another law, the Administrative
Procedure Act. Congressional overseers have been concerned about the adequacy
of this arrangement and the possible need to amend the FOI Act to create third
party intervention procedures similar to those in the Canadian Access to
Use of the FOI Act as an alternative or
supplement to the discovery process in litigation is another abiding fair
information practice issue. While some want to modify the statute to somehow
proscribe its use in this way, others suggest that the relaxation of the
discovery rules is an adequate solution.
A third area of oversight significance is
the scope of the FOI Act, that is the range of agencies to which it applies.
Considerable congressional attention was given to this question in 1974 and the
definition of agency for the statute was both expanded and clarified. An
important aspect of this adjustment was the inclusion of governmental bodies
other than traditional administrative entities. Thus, organizations resembling
crown corporations, such as the National Railroad Passenger Corporation
(Amtrak), were deemed to merit FOI Act coverage.
Fourth, there are a number of oversight
considerations in the area of administration. By way of introduction, it should
be remembered that Congress adopted the 1974 amendments largely to reduce
administrative discretion in FOI Act implementation. Further, the volume of
requests under the Act, which was slightly over 280,000 in 1984, is not at
issue. So, what are the concerns here? One is the question of resources: does
each agency have an adequate FOIA budget (the cost of administering the Act is
now $50 million annually), number of personnel, and available technology
(machine readable instruments)? Next, how adequate are the records management
systems of each principal department and agency? In brief, can they retrieve
their filed documents and records easily and in a cost-effective manner?
Then, there is the personnel management
system to consider. Within a given agency, what integrity and authority does
the information access staff have; how is it organized relative to effective
internal and interagency relations; is it functionally efficient (i.e. are file
clerks properly used to retrieve materials while senior program staff
appropriately conduct record reviews); and is adequate training available?
Finally, we come to the question of
accountability mechanisms. Few agencies have any internal accountability structure
such as inspector general responsibility for FOIA administration. Moreover,
neither the Department of justice nor the Office of Management and Budget have
provided, to date, any significant government-wide co-ordination and
supervision of FOIA operations. Thus, accountability in FOIA administration has
been insured by permanent congressional subcommittees, assisted by support
agencies such as the Congressional Research Service and the General Accounting
Office. Although similar oversight entities are available in the Canadian
context, there is also the added resource of the Information Commissioner. It
would appear, however, that Parliamentary overseers must be willing to enlist
the aid and views of the Information Commissioner in their examination of
agency administration of the Access to Information Act. Otherwise, this source,
though an agent of the Parliament, seemingly will not voluntarily offer many
insights regarding Access to Information Act operations.
And what of the future? Recent House of
Representatives' hearings indicate there is congressional concern about the
impact of new technology on FOIA policy and practice. The ongoing revolution in
computer and telecommunications technology has produced major changes in the
way the federal departments and agencies collect, maintain, and disseminate
information. The current trend toward increased use of electronic databases
will probably continue and accelerate. Despite the sometimes considerable
capital costs of electronic information systems, they offer the prospect of
greater efficiency and better implementation of statutory objectives. Indeed,
such new systems afford an opportunity to expand the availability of
information and make it more useful. For congressional overseers, they also
raise a number of important questions relative to the FOI Act and the
possibility that new policies are needed not only to eliminate rising
uncertainties, but also to assure that agency resort to electronic information
systems will not reduce existing public access in any significant way.
Congressional committees have begun exploring the implications of these
developments, and at least one committee report, providing significant guidance
to the Federal agencies on these matters, has already been issued.
A recently published office of Management
and Budget (OMB) circular on information resources management raises some other
new concerns about agency information collection, maintenance, and
dissemination practices. Circular A130 has a significant bearing upon the FOI
Act because it may be a means for determining the kinds of information that the
agencies can possess and also the medium in which it shall be collected,
maintained, and disseminated.
The concept of information resources
management arises from a 1977 report of the temporary Commission on Federal
Paperwork, and received expression in the Paperwork Reduction Act of 1980.
There, a section of the statute vested a number of pertinent duties and
responsibilities in the director of OMB. The new OMB circular is a broad,
general policy statement implementing this authority.
But the directive, indeed, may be too
generous in its expression of administrative discretion and sufficiently vague
at points to lend itself to political abuse. Congress amended the Freedom of
Information. Act in 1974 to limit administrative discretion. Available
managerial latitude had been abused, resulting in "5 years of
foot-dragging," according to the 1972 House oversight report. Moreover, as
noted previously, attempts of late to make major changes in the F01 Act have
been viewed by many Members of Congress, particularly those in the House, as
neither necessary nor appropriate.
In its implementation, the OMB circular will
have to demonstrate that it does not grant too much administrative discretion
and is not an unneeded and otherwise overly ambitious instrument of political
power. Congressional overseers will also have to be convinced that the
directive does not have an adverse effect upon the FOI Act by significantly
limiting agency information holdings. This could occur if agencies are forced
to comply strictly and stringently with the circular's requirement that they
generate or collect only that information that is necessary for the performance
of their functions and that has practical utility, and only after planning for
its total management.
Finally, in this time of fiscal austerity in
government, there is some concern, justifiably, that the FOI Act might be
undermined in the fashionable cause of efficiency, economy, and budget balance.
In brief, budget cuts may be used to justify reduced agency FOIA administration
and information holdings.
Undoubtedly, these same challenges the
electronic collection and dissemination of information, information resources
management, and budget constraints will confront the Access to Information Act
and its overseers. Diligence in legislative oversight, as the FOI Act
experience illustrates, is crucial for the preservation, refinement, and
effective operation of information access law.
1. See U.S. Congress, House Committee on
Government Operations. Electronic Collection and Dissemination of
Information Agencies: A Policy Overview, H. Rept. 99-560, 99th Congress,
2nd session. Washington, U.S. Government Printing Office, 1986.