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Wednesday, March 13, 2013

The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress

Wendy Ginsberg
Analyst in American National Government

The Freedom of Information Act (FOIA; 5 U.S.C. § 552) allows any person—individual or corporate, citizen or not—to request and obtain, without explanation or justification, existing, identifiable, and unpublished agency records on any topic. Pursuant to FOIA, the public has presumptive access to agency records unless the material falls within any of FOIA’s nine categories of exception. Disputes over the release of records requested pursuant to FOIA can be appealed administratively, resolved through mediation, or heard in court.

FOIA is a tool of inquiry and information gathering for various sectors—including the media, 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 to search for records and make duplicates, 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 legislative development in the House, and nearly six years of consideration in the Senate. The perception that agencies were not properly implementing FOIA 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 and its implementation, recommend ways to improve the statute and how agencies interpret it, and offer mediation services between requesters and agencies as an alternative to litigation.

In FY2011, the Department of Justice (DOJ) annual summary of agencies’ FOIA administrative statistics found the federal government received the highest volume of requests in FOIA’s history: 644,165 FOIA requests. Requests increased by 46,750 compared to FY2010 (a 7.8% increase). DHS received more requests than any other agency with 175,656 requests in FY2011 (27.3% of all FOIA requests). DHS requests increased by 45,558, making it largely responsible for the 7.8% increase. The U.S. Citizenship and Immigration Service within DHS received 24,042 more requests in FY2011 than in FY2010 (a 26.3% increase). U.S. Customs and Border Patrol, also within DHS, saw a 13,159 request increase in that same year (a 69.4% increase). It is not clear what prompted the increase in requests. In contrast, the Department of State saw a 15,908 (52.3%) reduction in the number of FOIA requests it received in FY2011.

The 113
th Congress may have an interest in ensuring that federal agencies are properly administering FOIA. Additionally, Congress may have an interest in determining whether the executive branch should be releasing certain controversial records, including photographs related to the death of Osama Bin Laden, or visitor logs at the White House.

This report provides background on FOIA, discusses the categories of records FOIA exempts from public release, and analyzes statistics on FOIA administration. The report also provides background on several legal and policy issues related to FOIA, including the release of controversial records, the growth in use of certain FOIA exemptions, and the adoption of new technologies to improve FOIA administration. The report concludes with an examination of potential FOIA-related policy options for Congress.

Date of Report: March 8, 2013
Number of Pages: 30
Order Number: R41933
Price: $29.95

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