History of the Freedom of Information Act

The Freedom of Information Act has been in effect for over half a century after being signed into law by President Lyndon B. Johnson in 1966. Since that time, the Freedom of Information Act, or FOIA, has helped keep the United States government accountable and transparent. In the five-plus decades that the FOIA has existed, a wide range of misconduct by the government has been exposed, including threats to the safety and health of the American public. In this article, we will look at how the Freedom of Information Act came into existence, what it is, and how it has been used to reveal fraudulent and illegal activity within the government and industry.

What Is the Freedom of Information Act?

Before we get into exactly what the Freedom of Information Act is, let us first cover what it isn’t. The FOIA does not provide public access to all government documents. It applies only to agency records from federal executive branches. Because the Act only applies at the federal level, state and local governments are exempt. There are also exemptions created by Congress that would allow an agency to withhold certain information to protect national security, among other items.

The Freedom of Information Act set forth in 5 U.S.C. 552 gives any person the right, which is enforceable in court, to have access to government information in the records of executive branch agencies. At FOIA.gov, it says the following: “The basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society.”

Here is the important information contained within the Freedom of Information Act:

“Each agency, in accordance with published rules, shall make available for public inspection in an electronic format:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the public

(D) copies of all records, regardless of form or format—

(E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published, and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.

To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D).

However, in each case, the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made.

Each agency shall also maintain and make available for public inspection in an electronic format current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published.

Each agency shall promptly publish, quarterly or more frequently, and distribute copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication.

Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—

(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms thereof.

(A) Expect with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.

(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.

(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.

(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 shall not make any record available under this paragraph to—

(i) any government entity other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or

(ii) a representative of a government entity described in this clause.”

United States Executive Branch Agencies

The following agencies fall under the Freedom of Information Act:

• Central Intelligence Agency
• Treasury Department
• Justice Department
• Department of Homeland Security
• Department of Defense
• State Department
• Management and Budget Department
• Veterans Affairs Department
• Department of the Interior
• Commerce Department
• Energy Department
• Housing and Urban Development Department
• Labor Department
• Health and Human Services Department
• Department of Transportation
• Department of Agriculture
• Education Department
• Environmental Protection Agency

Origins of the Freedom of Information Act

In 1952, a Democrat from California named John Moss was elected to Congress. This period in U.S. history was one of increasing secrecy in the government as the Cold War was just starting to heat up. After the Eisenhower administration fired thousands of federal employees on the accusation of being communists, Moss began advocating for more government transparency.

In 1955, Moss became the chairman of a congressional subcommittee overseeing government information. During this time, Moss held hearings about government openness and directed investigations into cases where federal agencies withheld information. Moss, at the time, said, “the present trend toward government secrecy could end in a dictatorship. The more information that is made available, the greater will be the nation’s security.”

Freedom of Information Act Becomes Law

After 14 years of effort, Moss convinced enough Congress members to pass the Freedom of Information Act in 1966. President Lyndon Johnson was hesitant to sign the bill but eventually admitted, “I signed this measure with a deep sense of pride that the United States is an open society.”

John Moss would go on to be key in passing the Consumer Product Safety Act of 1972, as well as the Federal Privacy Act of 1974.

Freedom of Information Act Requests

Anyone can make an FOIA request, not just United States citizens. This includes foreign nationals and organizations. All executive branch agencies and departments must adhere to the FOIA, excluding the president, his immediate staff, and the vice president. To obtain presidential records, the easiest way is through the Federal Register.

You can also request immigration records through the Freedom of Information Act. This includes your own immigration record, another person’s immigration record, or Non-A-File information like communications, policies, or data.

Freedom of Information Act Exemptions

There are nine exemptions to the Freedom of Information Act:

• Exemption 1: Information that has been classified to protect national security.
• Exemption 2: Information related only to the internal employee rules and practice of an agency.
• Exemption 3: Information that is prohibited from disclosure by another federal law.
• Exemption 4: Trade secrets or financial or commercial information that is confidential or privileged.
• Exemption 5: Privileged communications between or within agencies, including those protected by:
  • The Deliberate Process Privilege (as long as the records were created less than 35 years before the date that they were requested)
  • Attorney-Work Product Privilege
  • Attorney-Client Privilege
• Exemption 6: Information that, if it were to be disclosed, would invade another individual’s personal privacy.
• Exemption 7: Information compiled for law enforcement purposes that could:
  • Reasonably be expected to impede with enforcement proceedings
  • Deprive someone of the right to a fair trial or an impartial adjudication
  • Reasonably be expected to be considered an unwarranted invasion of personal privacy
  • Reasonably be expected to reveal the identity of a confidential source
  • Reveal techniques and procedures from law enforcement investigations or prosecutions, or would reveal guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to jeopardize circumvention of the law
  • Reasonably be expected to jeopardize the life or physical safety of any person
• Exemption 8: Information that is related to the supervision of financial institutions.
• Exemption 9: Geological information on wells.

Congress has also provided three special exclusions concerning law enforcement and national security records. The first of these protects existing criminal law enforcement investigations when the subject is unaware that an investigation is pending, and its disclosure could be expected to interfere with enforcement. The second exclusion protects against requesting the informant’s records when the informant’s status has not been confirmed.

The third exclusion is set forth for the Federal Bureau of Investigation. This exclusion protects against classified records concerning foreign intelligence, counterintelligence, or internal terrorism records.

These exemptions and exclusions are mostly understandable but can also be easily abused. In 2017, the Boston Globe reported that government agencies were consistently citing terrorism concerns for FOIA requests from a variety of sources. Nonprofit groups, local lawyers, and journalists were constantly being denied access to information based on an easily abused exemption. The Globe promised to hold these agencies more accountable in the future and provide a better chance for requesters to receive records.

Freedom of Information Act Examples

The impact of the Freedom of Information Act has been significant in revealing injustices and wrongdoing inside government agencies. In 2016 alone, the government received 800,000 FOIA requests, a record for a single year. The departments that handled the majority of these requests were the Department of Justice, Department of Defense, and Homeland Security. The Records Administration and National Archives were among the other departments receiving the most requests.

Hydrogen Bomb Scare in North Carolina, 1961

Conclusion evidence of two potential hydrogen bomb explosions was revealed by investigative journalist Eric Schlosser using the Freedom of Information Act. Although the U.S. government repeatedly denied that its nuclear weapons have ever put American lives in danger, the FOIA request revealed that two hydrogen bombs were accidentally dropped over Goldsboro, North Carolina, in 1961.

Just days after John F. Kennedy’s inaugural address, a B-52 Stratofortress broke apart in midair and dropped its payload of two four-megaton hydrogen bombs. The information discovered by Schlosser came from a senior engineer responsible for the mechanical safety of nuclear weapons named Parker Jones. Eight years after the accident, Jones wrote his secret report titled, “Goldsboro Revisited or: How I Learned to Mistrust the H-Bomb.”

After the B-52 went into a tailspin, its two bombs were released, one falling into a meadow and the other with its parachute falling into tree branches. There were four safety mechanisms on the bombs designed to prevent unintended detonation. Of those four, three failed to operate correctly. As the bombs touched down, the firing signals were sent to the core of the bombs, and one last highly vulnerable switch prevented a catastrophe.

Paper Mills Discharging Toxins into Rivers

In the 1980s, it was revealed through a Freedom of Information Act request that the EPA was aware of paper mills that were discharging toxins into rivers and let them go unchecked.

Wasteful Government Spending During the Aftermath of Hurricane Katrina

Hurricane Katrina was both Americas’ most terrible natural disaster and its most disgusting display of fraud and misappropriated funds in Katrina relief efforts. When all was said and done, taxpayers were stuck with a $2 billion bill, all going towards fraudulent and illegal requests.

“The blatant fraud, the audacity of the schemes, the scale of the waste—it is just breathtaking.” – Senator Susan Collins, Republican of Maine and chairwoman of the Homeland Security and Governmental Affairs Committee

One example of misappropriation of funds was over $10 million that around 1,100 prison inmates received. Another was half a billion dollars’ worth of mobile homes ordered by a bureaucrat that still stand empty today. Of the $6.3 billion given to victims, as much as 21 percent of it was improperly distributed.

Parmesan Cheese Supplier Adds Saw Dust to Products

In late 2012, the Food and Drug Administration received a tip that Castle Cheese Inc was cutting its products with adulterated substances that were not noted on the product labels. In late summer 2013, the FDA sent a letter to Castle Cheese, and here is an excerpt:

“Your International Packing Parmesan Cheese, (b)(4) Romano 100% Grated Cheese, and (b)(4) 100% Grated Parmesan Cheese products are adulterated within the meaning of Section 402(b)(4) of the Act [21 U.S.C. § 342(b)(4)] in that a substance has been added to increase the products’ bulk and weight. Specifically, cellulose and/or starch were used to increase the weight of the cheese base used to manufacture your products.”

Cellulose is a byproduct of wood pulp, which is also known as sawdust. Castle Cheese was taking the sawdust and cutting it with their cheese to artificially inflate the weight. Parmesan cheese is a popular item in the United States that is sold at a premium, which makes each additional ounce of “cheese” even more valuable to a supplier.

In 2016, Michelle Myrter, the daughter of Castle Cheese co-CEO George Myrter, pleaded guilty to one count of criminal misdemeanor in the U.S. District Court in the Western District of Pennsylvania. Myrter admitted to “aiding and abetting the introducing of adulterated and misbranded cheese products into interstate commerce, in violation of provisions of the Federal Food, Drug, and Cosmetic Act.”

Myrter faced up to a year in jail or a $100,000 fine. She was sentenced to three years of probation, 200 hours of community service, and a $5,000 fine. Castle Cheese has since ceased operations and agreed to forfeit $500,000.

Further investigation revealed from a Freedom of Information Act request that many brands were using cheese that had no parmesan at all. Cheese sold under the Target Market Pantry brand, Best Choice 100% Grated Parmesan Cheese, and Always Save Grated Parmesan Cheese sold by Associated Wholesale Grocers Inc contained zero parmesan, according to the FDA. Instead, the cheese was made from a mixture of cellulose, white cheddar, mozzarella, and Swiss cheese.