Some Provisions of Law Relating to Access to Public Information

FOIA | PRA | FRA | ITMRA | GPRA

Freedom of Information and Right to Privacy

The right of the public to obtain information held by the Federal Government is summarized in a report published by the U.S. House of Representatives, entitled "A Citizens Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records" (H.Rpt. 102-146), as follows:
The Freedom of Information Act (FOIA) establishes a presumption that records in the possession of agencies and departments of the Executive Branch of the United States government are accessible to the people. This was not always the approach to federal information disclosure policy. Before enactment of the FOIA in 1966, the burden was on the individual to establish a right to examine these government records. There were no statutory guidelines or procedures to help a person seeking information. There were no judicial remedies for those denied access. With the passage of the FOIA, the burden of proof shifted from the individual to the government. Those seeking information are no longer required to show a need for information. Instead, the "need to know" standard has been replaced by a "right to know" doctrine. The government now has to justify the need for secrecy.
The FOIA sets standards for determining which records must be disclosed and which records can be withheld. The law also provides administrative and judicial remedies for those denied access to records. Above all, the statute requires federal agencies to provide the fullest possible disclosure of information to the public.

The Privacy Act of 1974 is a companion to the FOIA. The Privacy Act regulates federal government agency record keeping and disclosure practices. The Act allows most individuals to seek access to federal agency records about themselves. The Act requires that personal information in agency files be accurate, complete, relevant, and timely... [It] also restricts the disclosure of personally identifiable information by federal agencies. Together with the FOIA, the Privacy Act permits disclosure of most personal files to the individual who is the subject of the files. The two laws restrict disclosure of personal information to others when disclosure would violate privacy interests.

The essential feature of both laws is that they make federal agencies accountable for information disclosure policies and practices. While neither law grants an absolute right to examine government documents, both laws establish the right to request records and to receive a response to the request. If a record cannot be released, the requester is entitled to be told the reason for the denial. The requester also has a right to appeal the denial and, if necessary, to challenge it in court. These procedural rights granted by the FOIA and the Privacy Act make the laws valuable and workable. As a result, the disclosure of federal government information cannot be controlled by arbitrary or unreviewable actions.

When Congress passed the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA, P.L. 104-231), Representative Maloney (Congressional Record, September 17, 1996, page H10451) asserted:
... the bill ... forces agencies to exercise foresight when installing computer systems which must help expedite agency FOIA requests and operations, rather than impeding them... it would encourage agencies to offer online access to Government information, effectively transforming an individual's home computer into a Government agency's reading room.
Among the findings set forth in the E-FOIA is the assertion that "Government agencies should use new technology to enhance public access to agency records and information." Included among the purposes set forth in the bill are:
... ensuring public access to agency records and information;
improv[ing] public access to agency records and information; and
maximiz[ing] the usefulness of agency records and information collected, maintained, used retained, and disseminated by the Federal Government.
The E-FOIA mandates that agencies make certain records available by electronic means no later than November 1, 1997. Records that must be made available by that date include those created on or after November 1, 1996, that are not "promptly published" and "offered for sale" and which fall into the following categories: With respect to the latter category, by the end of the century, December 31, 1999, E-FOIA also requires agencies to make available an on-line index -- a mandate that relates closely to the Government Information Locator Service (GILS) and the Green Pages of the X.500 directory.(1)

Paperwork Reduction Act

Statutory authority for the establishment of GILS is provided in section 3511 of the Paperwork Reduction Act of 1995 (PRA, P.L. 104-13). Initially, the goal was to establish a "...distributed agency-based electronic [service to] identify the major information systems, holdings, and dissemination products of each agency." However, the House committee report (H.Rpt. 104-37, p. 28) accompanying the bill asserted: "Ultimately, this system should become a path to the holdings themselves." The Senate committee report (S.Rpt. 104-8, pp. 25-26) contained identical wording and went on to say:
As better standards for organizing and accessing databases are developed, agencies need to work toward common protocols that will make direct public access a practical reality. The goal of creating a means for agencies and the public to obtain, not merely locate, government-held information should guide the development of GILS. (emphasis added)
The committee's reference to the ability of agencies to "obtain" government-held information is insightful, for if they cannot retrieve it efficiently themselves, they cannot possibly make it readily available to the public. The wording of the law itself [Sec. 3506(b)(1)(C)] is equally explicit in requiring agencies to:
... manage information resources to ... improve the integrity, quality, and utility of information to all users within and outside the agency ... (emphasis added)
This wording debunks the notion that agencies can somehow uphold their obligation to the public without first effectively managing information internally. Information has utility only if it can be retrieved when and where needed. It cannot be managed effectively if agencies cannot even determine without great effort what information resources they hold. Under paragraph 3506(b)(4), agencies are required:
... in consultation with [GSA and NARA to] maintain a current and complete inventory of the agency's information resources, including [GILS] directories ... (emphases added)
Subparagraph 3506(d)(1)(B) requires agencies to:
... ensure that the public has timely and equitable access to the agency's public information [including] information maintained in electronic format ...
Enactment of the E-FOIA came little more than a year after the PRA became law. Both were passed by the 104th Congress. In the committee report (S.Rpt. 104-272) accompanying the bill, Senator Leahy explained why Congress saw the need for further action:
The efficient operation of the Freedom of Information Act has been hindered by 5 years of foot-dragging by the Federal bureaucracy... Curiously, it was often argued that the FOIA was not a primary program of the departments and agencies, a contention that sadly ignored the importance of Government information accessibility for the citizens of a democracy.
In remarks on the Senate floor (Congressional Record, September 17, 1996, p. S10715), Leahy added:
... failure to comply with the statutory time limits [for FOIA responses] ... breeds contempt by citizens who expect government officials to abide by, not routinely break, the law.
On the other hand, in the Senate report, Leahy approvingly noted the Committee's reference to GILS, calling it a "helpful tool" and noting its relationship to the Internet:
Significantly, many Federal agencies are also establishing sites on the World Wide Web to educate the public about their mission and facilitate access to information about the agency. Agencies should be encouraged to establish a FOIA requester section on the Web site homepage to facilitate on-line access ...
Agency Web sites are just one of many potential sources of Government information. In a memorandum dated September 29, 1995, Director Rivlin of the Office of Management and Budget set forth guidance for implementation of the information dissemination provisions of the PRA, including the following:
... the PRA makes agencies responsible for carrying out sound information dissemination practices ... One of the major goals of the Act is to encourage a diversity of sources for information based on government public information. It recognizes that State and local governmental entities, the information industry, libraries and educational institutions, and other entities are partners in promoting the use of government information for the maximum benefit of society.
Paragraph 3506(d)(4) of the PRA prohibits agencies from establishing any "... exclusive, restricted, or other distribution arrangement that interferes with the timely and equitable availability of public information." The use of paper as the only medium of distribution is explicitly prohibited, as follows [subparagraph 3506(d)(1)(B)]:
... in cases in which the agency provides public information maintained in electronic format, [it shall provide] timely and equitable access to the underlying data...
Subsection 3506(f) specifies:
With respect to records management, each agency shall implement ... procedures ... for archiving information maintained in electronic format ...
And to capitalize on the positive potentials offered by electronic representations of information, paragraph 3506(h)(3) of the law requires each agency to:
... promote the use of information technology ... to improve the productivity, efficiency, and effectiveness of agency programs ...

Federal Records Act

The Federal Records Act (FRA) governs the creation, management and disposal of Federal agency records. Among other things, the FRA requires each agency to:
make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.
The FRA also prescribes the only manner in which Federal records can be disposed, including "machine readable" records:
made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.
Records which fall under the province of this statute may only be removed from the agency's computers with the approval of the National Archivist. (Loundy, 1995)

Information Technology Management Reform Act

Several provisions of the Information Technology Management Reform Act (ITMRA, P.L. 104-106, Titles 50-57) are pertinent to the storage and accessibility of public information.(2) For example, ITMRA requires (emphases added): For any system from which information is disseminated to the public, ITMRA [Sec. 5403] states that an index should be included in the on-line directory maintained by the Government Printing Office (GPO) pursuant to 44 USC 4101. That section of the "public printing and documents" title of the U.S. Code of Statutes requires GPO to: To the extent practicable, GPO is required by 44 USC 4101 to accommodate any request by heads of departments and agencies to include information in the system.(3)

Government Performance and Results Act

As summarized by Alliance for Redesigning Government (ARG), the intent of the Government Performance and Results Act (GPRA) is to shift the focus of Government officials and managers from program inputs toward program execution. Officials are expected to attend to the results (outcomes and outputs) being achieved, and to assess how well programs are meeting intended objectives. ARG suggests that implementation of GPRA will be characterized, among other things, by: To use the phrase so oft repeated by Vice President Gore, each of these actions should contribute toward realization of a Government that "costs less and works better." However, it should be noted that all of them depend upon the efficient and effective documentation and management of information. Explicit documentation of Government inputs and outputs clearly constitutes the kind of records to which the public is entitled. Providing quick and easy access to such records in readily comprehensible form is key to demonstrating what the taxpayers are getting for their money. As Senator Leahy says (S.Rpt. 104-272):
The American taxpayer has paid for the collection and maintenance of ... records and should get prompt access ... upon request. That is what the law requires and that is the standard of service Government agencies should meet. Long delays in access can mean no access at all.
In the cyber age, what constitutes reasonable delay may be measured in seconds or minutes, rather than hours, days, weeks, months, or years.
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End Notes

1. GSA is responsible for Federal coordination of the X.500 directory. The directory is to be implemented on a distributed basis by all Federal agencies. In addition to the Green Pages for document metadata, the plan for the directory envisions White Pages for employee information, Yellow Pages for services, and Blue Pages for offices. (A press release on the Blue Pages is available here and more information on the X.500 directory is available here, here and here.)

2. A summary of guidance from OMB for Federal information systems investments under ITMRA (also known as the Clinger-Cohen Act) is available at: http://users.erols.com/ambur/itmra.htm.

3. Some additional provisions of Title 44 with interesting implications for electronic access to public information are available at: http://users.erols.com/ambur/title44.htm.

4. The Chief Financial Officers (CFO) Act of 1990 requires each agency to: "... develop and maintain an integrated agency accounting and financial management system including financial control, which ... provides for the ... systematic measurement of performance." The Government Management Reform Act (GRMA) of 1994 requires each agency to: a) submit to OMB a single, audited financial statement for the preceding fiscal year, which includes performance measures of outputs and outcomes; b) give a clear and concise description of accomplishments, financial results, and conditions; and c) disclose whether and how the mission of the agency is being accomplished and what, if anything, needs to be done to improve either program or financial performance. (Lawrence Livermore Lab)