Freedom of Information Act (FOIA): Background and Policy Options for the 112thCongress

Wendy Ginsberg
Analyst in American National Government

The Freedom of Information Act (FOIA; 5 U.S.C. §552) enables any person to access—without explanation or justification—certain existing, identifiable, unpublished, executive branch agency records. Pursuant to FOIA, the public has presumptive access to requested agency records unless the material falls within any of FOIA’s nine categories of exemption from disclosure. Disputes over the accessibility of requested records can be appealed administratively or ultimately settled in court.

FOIA is a widely used tool of inquiry and information gathering for various sectors of American society—including the press, businesses, scholars, attorneys, consumers, and activists. Agency responses to FOIA requests may involve a few sheets of paper, several linear feet of records, or information in an electronic format. Assembling responses requires staff time, search time, and duplication efforts, among other resource commitments. Agency information management professionals are responsible for efficiently and economically responding to, or denying, FOIA requests.

FOIA was enacted in 1966, after 11 years of investigation and legislative development in the House, and nearly six years of consideration in the Senate. The perception that FOIA implementation at agencies was not being implemented properly has resulted in amendments in 1974, 1976, 1986, 1996, 2007, and 2010. Among the requirements in the OPEN Government Act of 2007 (P.L. 110-175), was the creation of an Office of Government Information Services (OGIS) within the National Archives and Records Administration (NARA). The office was established to review FOIA design and implementation and recommend ways to improve the statute and offer mediation services between requesters and agencies as an alternative to litigation.

The Obama Administration issued a memorandum that requires agencies to reduce their backlog of FOIA requests by 10% per year. Additionally, the Department of Justice launched FOIA.gov, an online database that gives users access to interactive tools to examine agencies’ annual reports on FOIA implementation.

The 112th Congress has examined FOIA implementation at three hearings—two in the House and one in the Senate. Among the issues discussed at the hearings were concerns about a growing number of statutory exemptions to FOIA, the value of President Barack Obama’s decision to make public White House visitor logs, and concerns over whether political appointees were improperly vetting FOIA responses at a federal agency.

Companion bills, known as the Faster FOIA of 2011, have been introduced in the 112th Congress. The bills (H.R. 1564 and S. 627) seek to create a 12-member commission that would examine the implementation of FOIA and recommend ways to reduce processing delays and improve FOIA administration. The 112th Congress may choose to clarify whether photographs taken of Osama Bin Laden’s death should be exempted from public release or whether White House visitor logs should be released to the public. Moreover, the 112th Congress may decide to continue its oversight of agency implementation of FOIA, including whether each executive branch agency is responding properly to requests within appropriate amounts of time.

This report discusses FOIA’s history, examines its implementation, and provides potential policy approaches for Congress.


Date of Report: July 26, 2011
Number of Pages: 27
Order Number: R41933
Price: $29.95

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