Written by: Nick Caleb
Researched by: Steve Glista
Edited by: Kimberly Brandt

Some documents are just too good to keep to yourself. Recently, the Department of Justice released sections of a second “torture memo” written in 2003 by John Yoo, formerly an attorney at the Department of Justice. This memo supplements the leaked 2002 memo written by Yoo and then-head of the Office of Legal Counsel for the President, Jay S. Bybee. The first memo argued that torture only occurs if an interrogator actually intends — and causes — organ failure or death during interrogation. Anything less may be cruel, inhuman, or degrading treatment or punishment (which are all flatly banned by international treaty and the Geneva Conventions), but not torture.

The second memo took it one step further, discussing possible defenses for those accused of torture, as well as the idea that “[their] Office recently concluded that the Fourth Amendment had no application to domestic military operations.” The authors of the memos undoubtedly intended to keep them private… how did they end up all over the media?

In fact, this memo would never have been publicly released if it weren’t for a law called the Freedom of Information Act, or “FOIA.” In this case, the American Civil Liberties Union (ACLU) utilized FOIA and fought a legal battle for almost four years to compel the Department of Justice to release the documents.

FOIA has been used to obtain government information on a wide range of issues, including everything from FBI information on pop culture icons (like Elvis and Frank Sinatra), to notorious criminals (such as Bonnie & Clyde and Al Capone), to famous scientists (like Einstein), and even paranormal activity (UFOs, Roswell, and ESP).

What exactly is this tool and how does it help the public acquire the necessary knowledge to participate effectively in democracy?

The Scope of FOIA

FOIA exists so that “any person” can retrieve information from all federal government agencies and departments by simply filing a request (and sometimes paying a nominal fee). Information subject to FOIA includes all “agency records” created or obtained by a federal agency or department that are in its possession and control at the time the request is filed. Agency records can be just about any documented information including: print documents, photographs, videos, maps, emails, and other electronic records.

“Any person” can’t just request anything from anywhere. FOIA applies only to the Executive branch of government and its agencies and departments. FOIA does not apply to Congress, the federal courts, and a few, select parts of the Executive Office that exist solely to advise and assist the President (such as the National Security Council). There are also a several categories of information that the courts won’t issue orders for. National security information, internal personnel rules and practices, certain law enforcement records, and personal privacy matters are off limits.

A Brief History of FOIA

Congress enacted FOIA in 1966 to address a growing concern over government secrecy. The Act has been amended twice, first in 1974 after Watergate, in order to force better agency compliance with the law, and again in 1996, when Congress amended FOIA further in order to provide access to electronic information. As a result, some agencies, including the FBI, maintain an electronic reading room which offers access to documents frequently subject to FOIA requests.

Agency compliance with FOIA recently underwent a major change in December of 2005 because of Executive Order 13,392, entitled “Improving Agency Disclosure of Information.” The effects were immediate: in 2005, The Department of Justice reported that federal agencies and departments received just under 20 million FOIA requests, processing only 7.4%. In 2006, after implementation of the order, agencies received over 21 million FOIA requests and processed 99.9%! (Further statistics on agency compliance with FOIA from years 2000 - 2005 are available here.)

Despite the incredible increase in processing FOIA requests, it remains unclear from the DOJ report how many requests were actually granted, as processing often leads to a rejection. Adverse responses may be appealed to the agency by letter (George Washington University hosts a guide to the FOIA basics, including sample templates for FOIA requests and appeals).

If the request is denied after an appeal letter, requesting parties can file a lawsuit in federal district court. According to statute, the court has the power to force the agency to release any records that are deemed improperly withheld from the requesting party. If the agency insists on withholding the documents, it bears the burden of proving the legality of its action.

Practical Considerations

It can take a long time to receive documents from a federal agency or department, despite the fact that the FOIA statute mandates that an initial decision be made by an agency within 20 business days of a request. This is especially true if the agency does not want to release the documents in question. The longest pending request for documents was last reported as 24 years old, despite numerous court orders to release the information. In addition, some agencies would rather destroy information than let it reach the public, as in the case of the CIA’s recent destruction of videotapes showing interrogations of Al Qaeda operatives.

There is also the possibility that an agency just doesn’t have the documents. In this case, the agency should send a reply indicating such a result. The requesting party can either try to make the request more specific, send an appeal letter, or give up on the search.

Access to this information comes with a price, though… FOIA isn’t free. Agencies can charge a fee for requests made on behalf of commercial interests, which includes information for use in litigation. This typically includes search, review, and duplication costs. Researchers making requests on behalf of educational institutions, non-commercial scientific institutions, or news media are required to pay duplication costs, but receive the first 100 pages for free. Any request that “is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester” may have fees waived completely.

Final Thoughts

John F. Kennedy once said, “the very word secrecy is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, secret oaths, and secret proceedings.” Kennedy’s words were aimed at the perceived threat of Communism in 1960. However, his sentiments are universal and are just as appropriate today in regards to keeping the American government transparent.

FOIA is a tool that any American can use to discover interesting, relevant, and possibly mind-blowing information that would otherwise escape public scrutiny. Although there are certainly speed bumps and administrative hang-ups, the overall process for obtaining information is simple enough that anyone can file a request. Indeed, FOIA is a tool that, if used properly, allows common citizens to readily access the information needed to be active and competent participants in 21st century American society - whether or not the creator is interested in revealing it.