Freedom of Information Act: An Incremental Approach

This paper outlines
the history of FOIA’s enactment, explores its operational foundations and concludes
with an analysis of the future implications for transparency in government. The
Freedom of Information Act signed into law 50 years ago is one of the most
powerful information tools for the American citizen. FOIA grants American
citizens the right to see the contents of files maintained by federal executive
branch agencies. The policy has been molded over several iterations into what
it is today using an incremental approach to policy making. This paper attempts
to analyze the progression of the policy over the years according to the
incremental model and the advancement of transparency in government brought
about by the policy.

Keywords: incrementalism, amendments, freedom of
information, transparency and accountability

• Incrementalism

The incremental
model was first introduced by political scientist Charles Lindblom during an
analysis of the rational model of decision making. The incremental model identifies
the impractical nature of rational comprehensive policy making and suggests a
more conservative process wherein existing programs and policies are considered
as base and attention is concentrated on their incremental modification and
improvement.

Incrementalism is
a politically sensible and convenient approach for everyone involved as the
bureaucratic processes required for turning a bill into law have reduced
timeframes and quick agreement among the members of the House and Senate, when
only minor modifications to a policy are proposed as opposed to major policy
changes. This model is an essential tool for policymaking because completely
‘rational’ policies may turn out to be inefficient if the cost of development turns
out to be excessive.

The incremental
model is designed, implemented and tested incrementally i.e. small additions
and modifications over time. It involves development, maintenance and regular
evaluation. It takes a long period of time, often decades, for a public policy
to be incrementally modified into its perfect version. It uses a set number of
steps and its development follows a linear path of progression. The Waterfall
model is an incremental development approach that has been used traditionally. One
of the disadvantages of this model is that every modification must be verified
against the previous iterations of the law and gradually integrated into the
law already in place.

Incrementalism is
an essential approach for avoiding ideological conflicts, maintaining stability
and protecting the political system itself. This model of policy development
effectively avoids the traumatic effect on the public, that goes with
implementation of an entirely new system. Throughout the political history of
the United States, the incremental model has been utilized predominantly for
policy creation and budget setting. The focus has always been on modest reforms
or changes, increases and decreases rather than on complete overhauls. But
there have been instances where the incremental model was abandoned in the face
of national emergencies. The terrorist attacks of 2001, the economic crisis of
2008 are some examples.

• Freedom of Information
  Act

One of the most
significant legal tools that citizens and reporters have for the improvement of
government transparency is the Freedom of Information Act (FOIA).

The Freedom of Information Act
generally provides that any person has the right to request access to federal
agency records or information except to the extent the records are protected
from disclosure by any of nine exemptions contained in the law or by one of three
special law enforcement record exclusions. (The Freedom of Information Act,
2018)

• Exemptions

The nine exemption
categories that authorize government agencies to withhold information are:

1. Classified information for national defense or foreign policy
2. Internal personnel rules and practices
3. Information that is exempt under other laws
4. Trade secrets and confidential business information
5. Inter-agency memos or letters protected by legal privileges
6. Personnel and medical files
7. Law enforcement records or information
8. Information concerning bank supervision
9. Geological and geophysical information (The Freedom of Information Act, 2018)

• Exclusions:

Congress provided
special protection in the FOIA for three narrow categories of law enforcement
and national security records. The provisions protecting those records are
known as “exclusions”.

• The first exclusion
  protects the existence of an ongoing criminal law enforcement investigation
  when the subject of the investigation is unaware that it is pending, and
  disclosure could reasonably be expected to interfere with enforcement
  proceedings.
• The second exclusion is
  limited to criminal law enforcement agencies and protects the existence of
  informant records when the informant’s status has not been officially
  confirmed.
• The third exclusion is
  limited to the FBI and protects the existence of foreign intelligence or
  counterintelligence, or international terrorism records when the existence of
  such records is classified. (The Freedom of Information Act, 2018)

FOIA is important
to public health practitioners for at least three reasons: its power to aid
public health advocacy, its impact on government accountability and
transparency, and its ability to aid public health practice and policy-making.
Over the years, FOIA has played a central role in advancing public health
policy by enabling investigations and research on wide-ranging topics. (Berger
M., 2011)

FOI laws are
necessary, but not sufficient mechanisms for producing more accountable
governments. They are unlikely to accomplish government reform on their own,
but they can help expose and reform democratic deficits and push governments
toward broader democratic reforms. (Stein, L. & Camaj L., 2018)

Informed citizens
can collectively determine the greater public good when they possess the
knowledge essential to choose leaders who represent their views and interests.
It is a duty of all American citizens to be vigilant in protecting their
hard-earned right to information.

• Legislative History of
  FOIA

Earliest
conceptualization of freedom of information was a part of universal principles
seeking to protect the fundamental, civil, economic and political rights of all
human beings.

The FOI provisions
included in early human rights treaties were designed to tackle the inherent
information asymmetry between those that govern and the governed and mend
potentially problematic relationships between citizens and their governments
(Snell R. & Sebina P., 2007).

All three branches
of the Government, the Legislative, the Executive and the Judicial branch have
been significantly involved in the improvement of the policy over the last five
decades. Before the FOIA, the Administrative
Procedure Act of 1946 was employed to force federal agencies to provide
information about their activities on a regular basis. However, the wording and
language of the law afforded federal agencies the privilege to choose which
information to disseminate and which to withhold.

Democratic
Congressman from California, John Moss
was the first figure of authority who proposed the Freedom of Information Act
in 1955. His aim behind the proposal was to make all information freely
available to everyone. Moss began advocating for more openness after the
Eisenhower administration fired thousands of federal employees accusing them of
being communists and the records documenting these dismissals were withheld
from the public. In the era of the cold war, government secrecy was rising in
all executive branches and Moss feared that the country was heading towards a
dictatorship. Moss received support from newspaper editors and journalists but
due to lack of a Republican co-sponsor the bill, it died down.

John Moss
conducted investigations about federal agencies that were withholding information
as the chairman of a congressional subcommittee in 1955. After six sessions of
Congress, the Freedom of Information Act was passed, and President Lyndon B.
Johnson reluctantly signed the bill into law on July 4, 1966. The FOIA went into effect one year later. The bill
specified nine exemptions for national security through which Congress
endeavored to balance the need for government disclosure and accountability
with a desire to protect equally the right of privacy with respect to certain
government files.

The 1966 bill was
a massive step towards transparency in all levels of government, it lacked
provisions for appeals and sanctions or enforcement measures to force
government agencies to comply. It wasn’t until 1974, after the Watergate scandal that the Congress amended FOIA to
be the bill it is today. The Senate and the house introduced new requirements,
timeframes, sanctions for withheld information and necessary terminology
waiving fees for public interest groups and journalists. After the resignation
of President Nixon, President Gerald Ford vetoed the FOIA amendments, calling
the bill unconstitutional and dangerous to national security. The veto was
overridden by the House and the Senate and the FOIA amendments came into effect
from February 19, 1975.

To address issues
of non-compliance to FOIA by federal agencies, a wide range of revisions to the
law were included in the 1974 amendments, including:

• Potential sanctions for
  “arbitrary or capricious” denials of FOIA requests
• Uniform agency fees for
  search and duplication
• Time limits in responding
  to requests
• Narrowing of exemptions
  related to national defense, foreign policy, and law enforcement (Byellin J.,
  2014)

The next amendment
to the bill occurred in 1976 when
the Government in the Sunshine Act was
implemented. This amendment stipulated that most government meetings were to be
open to the public. Exemption 3 of the FOIA, exemption for withholding
information specifically exempted from disclosure by another statute, was
amended through clarification of its terms.

In 1982, President Ronald Reagan issued an
executive order to improve on the classification rules for information. The
intent here was to simplify and facilitate withholding potentially sensitive
government information subject to FOIA enquiries.

In 1986, through the bipartisan Anti-Drug Abuse Act, Congress amended
FOIA to modify the fees charged for different types of petitioners and the
scope of access to national security records and law enforcement records.

The Electronic Freedom of Information Act
Amendments of 1996 was a
landmark decision which changed the face of FOIA forever. In his statement, President
Clinton acknowledged how new technologies and the internet would allow for
greater transparency. Clinton said that the act, for the first time
“brings FOIA into the information and electronic age by clarifying that it
applies to records maintained in electronic format”. These amendments required
the agencies to index records in their information system and make documents
available in electronic formats and proactively release frequently requested
records online. The response timeframe was

extended from 10
to 20 days. The purpose of E-FOIA was to foster democracy, improve public
access, ensure timely response times and maximize the usefulness of information
and records collected and maintained by the federal government. (Stein, L.
& Camaj L., 2018)

In September 2001,
USA braved the most horrific terrorist attacks in history. Following this, the
FOIA was amended in 2002, limiting
the ability of foreign nationals to request records from US intelligence
agencies. An executive order issued by President George Bush decreed limited
access to former presidential records and government records from foreign
governments. These amendments were applied through the Intelligence Authorization Act of 2002.

In 2007, President George Bush signed the Open Government Act that was passed
unanimously by both the House and the Senate in December. FOIA was amended
again and the new law aimed to fix some of the most persistent problems in the
FOIA system, including excessive delay, lack of responsiveness, and litigation
gamesmanship by federal agencies. (FOIA Legislative History, 2016). It also
extended critical facilities to journalists and bloggers, identifying them as
members of the news media. Along with this it established the Office of
Government Information Services, to oversee government agencies’ compliance
with FOIA.

In 2016, 50 years after FOIA first became
a law, the FOIA Improvement Act was
signed by President Barack Obama. The act included minor FOIA reforms,
including codification of the administration’s ‘presumption of disclosure’ which
required a reduction in the discretion of government agencies to withhold
records under FOIA. The act also specified that federal agencies were to create
a central online portal that would allow citizens to file requests with the agency.
The law also required agencies to update their FOIA regulations. The law also
put a 25

year limit on the
ability for any federal agency to withhold documents under the deliberative
process privilege, preventing agencies from withholding records that describe
historic agency decision-making. (History of FOIA, 2016)

• Conclusion

By appreciating
FOIA’s purpose and its key provisions, journalists, researchers and public
health workers can help ensure that important information is disclosed to the
public and that citizens of all backgrounds and ideologies are involved in
government decision making. Journalists file FOIA requests everyday in search
of the truth and the information amassed becomes more valuable when used in
conjunction with information obtained by other reporters and non-profit organizations.

FOIA’s
effectiveness depends ultimately upon both attitude and commitment with which
it is approached by government agencies. Government agencies have always been
withholding information technically covered by the specified exemptions and
there have been numerous lawsuits filed by citizens against various agencies.
Over five decades of litigation between the agencies and the public has led to
a gradual increase in the scope and efficacy of FOIA. Persistent journalists
and public interest groups have successfully uncovered millions of documents
relating to government operation and performance. Problems of compliance with
FOIA still do exist and the full potential of the FOIA has not been realized
yet but it will be some day.

Despite the
seemingly brilliant promise of technology and E-FOIA, the future holds many
challenges for FOIA. Intense conflicts about access and privacy concerns and
issues regarding the electronic dissemination of information, the appalling
state of paper-based government records that are yet to be converted to
electronic formats etc are some of the challenges being faced by FOIA. Through
the incremental approach, the government will keep updating and modifying the
policy to reflect political and global developments.

References

• US Department of State (2018). The Freedom of Information Act. Retrieved from https://foia.state.gov/Learn/FOIA.aspx
• Berger M. (2011). The Freedom of Information Act: implications for public health policy and practice. Public health reports (Washington DC: 1974), 126(3), 428-32.
• Stein, L., & Camaj, L. (2018, February 26). Freedom of Information. Oxford Research Encyclopedia of Communication. Retrieved from http://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.0001/acrefore-9780190228613-e-97.
• Snell, R., & Sebina, P. (2007). Information flows: The real art of information management and freedom of information. The Journal of the Australian Society of Archivists , 35(1), 54–82.
• Byellin Jeremy (2014). Today in 1974: Congress enacts amendments to the Freedom of Information Act over President Ford’s veto. Retrieved from http://blog.legalsolutions.thomsonreuters.com/legal-research/today-1974-congress-enacts-amendments-freedom-information-act-president-fords-veto/
• History of FOIA (2016). Electronic Frontier Foundation. Retrieved from https://www.eff.org/issues/transparency/history-of-foia