Response to a federal Freedom of Information Request to the Office of Surface Mining concerning dangerous conditions of sludge dams in the coal fields of West Virginia. One of about 350 similar pages.
“Popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy.” — James Madison
“Sunlight is said to be the best of disinfectants.” — Justice Louis Brandeis
“For all who do evil hate the light, and do not come to the light, so that their deeds may not be exposed. But those who do what is true come to the light, so that it may be clearly seen that their deeds have been done in God.” — John 3:20-21.
The Freedom of Information Act is a federal law requiring federal agencies to respond to formal requests for information and to release documents if they do not fall under exemptions. Most states also have FOIA laws and nearly every agency at the state and federal level has a designated FOIA officer, which is usually someone in the agency’s public affairs office.
The federal FOIA law was passed unanimously in 1966, and no one in Congress spoke against the idea. One senator said it was a “historic victory for the public’s right to know what their government is doing.” In signing the legislation July 4, 1966, President Lyndon Johnson said the bill “springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the nation permits.” On the 5oth anniversary of the FOIA bill, the Nieman Center at Harvard issued this report on its history and changes in its use.
FOIA and its analogous state records laws have made possible stories revealing the inner workings of government through politicians’ correspondence, policy memos, internal reports and other texts compiled without the input of press secretaries and other handlers… But even as FOIA remains vital and relevant, cultural shifts in the past 50 years have exposed its shortcomings, sometimes in ironic ways.
State support for FOIA laws was also strong in the 1960s, when over half the states passed FOIA bills and companion legislation about open meetings, called “sunshine” laws. Since the 1960s, nearly all states have adopted some form of FOIA and sunshine law.
It was simply taken for granted that the American people have a right to know about government, and that was considered uniquely American, something that did not happen in London or Paris, much less Moscow or Beijing.
“The British government … is quite openly and without shame regarded by both civil servants and political ministers as a sacred mystery on not account to be explained to the uninitiated,” wrote one London Times reporter in 1966. And yet, in the United States, “all hearts are open, all desires known and no secrets are hidden (at least for long),” said Anthony Howard, The Bureaucratic Curtain, New York Times, Oct 23, 1966.
Since then, every administration has issued its own interpretations of the FOIA. President Bill Clinton’s attorney general, for example, said that documents should only be withheld “if disclosure would be harmful.” By the 21st century, especially in the wake of the World Trade Center attacks of 9-11, the US government moved to clamp down on openness in government, and Bush administration said documents should be withheld “if there is a sound legal basis for doing so.” The change in wording was considered to be a significant blow to openness in government, and the Bush administration became known for a secretive approach to government.
In contrast, President Barack Obama, on his first day in office, signed an executive memo opening government documents, saying that in the face of doubt, openness should prevail. Even so, there were many protests by news organizations and FOIA watchdog groups over the lack of accountability and responsiveness by federal agencies during the Obama administration as well as those before it. The fact that many news reporters and photographers have been turned away from cleanup areas surrounding the BP Gulf of Mexico oil spill in the summer of 2010 was cause for a good deal of protest from the media.
President Obama updated FOIA compliance with an executive order in 2016, telling agencies that all records are presumed open unless classified otherwise. This may reduce some of the backlog around FOIA requests. It’s an improvement, but not much of one, according to an article in The Atlantic, June 2016.
The Trump administration’s responsiveness to the press and public has been criticized for making it even harder to obtain information through the FOIA.
One ongoing problem is the lack of FOIA officers. A recent study in the American Review of Public Administration showed that government workers are inundated by Freedom of Information Act requests. The study analyzed data from 102 agencies from 2008 and 2016. See this First Amendment coalition March 2019 article.
There are many specific cases involving the FOIA that can be found through the Virginia FOIA Council, the Virginia Coalition for Open Government and the Reporters committee for Freedom of the Press –
Recently in Virginia, the FOIA has been used by environmental groups to explore links between county supervisors and gas pipeline companies; to require the release of police video records; and to verify a “megasite” industrial project in Augusta County.
The Virginia State Police have an informative web site that helps people access records under the FOIA. It says, in part:
A public record is any writing or recording regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format that is prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. All public records are presumed to be open, and may only be withheld if a specific, statutory exemption or other law applies to those records.
The policy of FOIA states that the purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.
Police Records requests and databases
Sarah Riley of The Trace filed requests with tw0 dozen police departments around the country for her story “Shoot someone in a major US city and odds are you’ll get away with it.”
First, she made it clear that she wanted data, not pdfs or printouts. She says she learned to not only request information but also to request manuals for the databases used for storing that information. And finally, she learned to anticipate objections to requests for data. Read more at The Trace.
Exemptions to FOIA
Initially the idea behind the federal FOIA was to open all records except in circumstances that were exempt:
- national security;
- internal personnel issues;
- trade secrets;
- drafts of interagency memos;
- records on individuals, eg medical, personnel;
- bank regulation;
- oil and gas exploration; and
- law enforcement
The law enforcement exemptions include anything that would deprive person of fair trial, unwarranted invasion personal privacy, disclose confidential sources, disclose investigative techniques, endanger life or safety of anyone.
At the state level, major exemptions are similar. Although there is no national security exemption, there are law enforcement, personnel, and pending litigation exemptions, as well as property purchase or sale discussions, information about toxic waste, and over 100 other loopholes in the law.
For example in Virginia, even after the law was overhauled in 2000, routine requests for records in all kinds of areas are denied. A state survey by SPJ and the Associated Press found that requests for information about incidents involving police were appropriately answered by only 14 percent of the state’s police jurisdictions.
Making an FOIA request
Sometimes a written FOIA request is necessary. Many state agencies require FOIA process for the simplest kinds of information in order to make it appear that the agency is not too willing to disclose information to the press and public. Other agencies have a relatively open attitude and find the FOIA process burdensome. The decision about when or how to file and FOIA request, then, depends on the situation.
The process is simple: you write a letter or email stating you wish to see certain records and have a right to do that under FOIA. A member of the press may also include a request for a waiver of costs because the information will be publicly disseminated. The state agency usually has 10 days to respond (a federal agency 20 days).
The response is usually just to say that they have received your FOIA request and will do their best to find the documents you asked for, but it will probably take a long time. They’ll call you when they find them.
Other problems include very long lead times for reporting and very heavy editing, such as in the example from the OSM above. In 1996, Congress passed Electronic FOIA Act, requiring agencies to make decision about documents before request and publish some on line: also detailed indexes to make it easier to know what is held; and established a stricter timetable.
More information about the FOIA is available from the Reporters Committee for Freedom of the Press web site. There is also an RCFP comparison of state by state FOIA laws.
An FOIA letter generator is also available through the Student Press Law Center to help walk you through the relatively simple process.
An incident that influenced Virginia state law
In 1999, an incident at Radford University showed how far the FOIA law had strayed from its original intended purpose.
In August of that year, a Radford city police officer rammed his police car through a crowd and injured a student who was trying to get out of the way. The officer claimed it was purely an accident, but witnesses said the officer had been reckless. The officer was attempting to stop a street party with his police car by charging it into the crowd. After the car ran over the student, the city policeman drove the car up onto a nearby lawn and pretended to be choking on a pork rind.
The state police investigated, but they turned down a Radford University student newspaper request for a copy of a report. They said that anyone involved in an automobile accident, and his or her attorney or insurance company is allowed to have a copy of the accident report. Apparently the pretense was that this was an exclusive list.
In turning down the request, the state police did not take note of the FOIA law section that said: “The affairs of government are not intended to be conducted in an atmosphere of secrecy …” and that the FOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”
The state legislature took a dim view of all this, along with similar incidents in other locations. A sweeping review of Va. FOIA law was undertaken in 2000, supported not only by the Virginia Press Association but also the Society of Professional Journalists and the Virginia Library Association. The legislation established a Virginia Freedom of Information Council which can judge appeals and requests concerning FOIA problems. The council has also pointed out that all state agencies have been required to post FOIA information on their web sites — a requirement that many agencies still seem not to have taken seriously.
SUNSHINE LAWS
Sunshine laws are similar to FOIA laws, but require that local, state or federal legislative or executive hearings take place in public buildings with adequate notification to the public. Executive sessions are possible under some circumstances (personnel, legal issues, for example) but all decisions must be made in public sessions.
Buckley Amendment 1974 — said colleges that dont keep records private may be ineligible for federal aid. This has been widely applied to crime and judicial boards on college campuses.
Bauer v. Kincaid, 1991, a federal appeals court said state laws requiring open records overrides federal law. Still, the debate over campus privacy versus freedom of information is not settled.
Recently in Virginia, the courts ruled against a Franklin County school board’s blanket prohibition against public comment at public meetings on “specific personnel or student concerns.”
Articles & Updates
State hits tiny paper with pricy lawsuit for seeking public records, March, 2017
War on the FOIA, The Atlantic, July 23, 2017
Can governments sue people who request documents under FOIA? Associated Press, Sept. 18, 2017