The 1966 Freedom of Information Act “embodies the democratic-constitutional value of governmental transparency” (Piotrowski and Rosenbloom 2002, 649; Rosenbloom 2007). Often described as the law that keeps citizens in the know about their government (McDermott 2010), FOIA provides the public with the right to request access to records from any executive branch federal agency and requires agencies to fully or partially disclose requested records except to the extent that the records are protected by any of the nine exemptions or three law enforcement exclusions (Foerstel 1999). In addition to these requirements, federal agencies are expected to proactively publish certain categories of information, including frequently requested records, and can develop their own FOIA regulations in accordance with the Act and with guidance issued by the President or the Department of Justice (DOJ). Agencies can be penalized for noncompliance and requesters can appeal to the courts to ensure access (Halstuk and Chamberlin 2006; McDermott 2010).
Over the past five decades, FOIA has been subjected to several amendments by Congress, often in response to political or security crises (Feinberg 2002, 2004; Jaeger 2007). These legislative changes have acted as a pendulum, swinging back and forth between expanding and limiting the scope of FOIA, and reflect the ongoing tension between protecting government secrecy and enabling public access to information (for a more detailed history of FOIA, see Feinberg 2002; Halstuk and Chamberlin 2006; Pozen 2016). For example, the 1974 Privacy Act (Halstuk and Chamberlin 2006; Lopez 2004; Peterson 1980), the 1996 Electronic Freedom of Information Act, and the 2007 Openness Promotes Effectiveness in our National Government Act (McDermott 2010) expanded FOIA access and advanced the right to information. In contrast, the 1976 Government in the Sunshine Act, the 1986 Omnibus Anti-Drug Abuse Act, and the 2002 Intelligence Authorization constricted FOIA access and limited the right to information. More recently, the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act included several provisions that protected the Securities and Exchange Commission from FOIA requests. However, two months later, Congress passed S.3717, which repealed those revisions.
In addition to legislative action, several Presidential Executive Orders have impacted FOIA. For example, in 1982, President Reagan issued Executive Order 12356, which allowed agencies to withhold information for national security reasons. President Clinton issued several executive directives that expanded FOIA and allowed the release of previously classified documents more than 25 years old and of historical interest. In 2001, President Bush signed Executive Order 13233, limiting access to the records of former presidents.
In 2009, his first year in office, President Barack Obama took several actions that made freedom of information a centerpiece of his administration and ushered in what he called a “new era of openness” (Coglianese 2009; McDermott 2010). Specifically, he issued: (1) Executive Order 13489, which revoked President Bush’s directive to limit access to the records of former presidents; (2) Executive Order 13526, which allowed the government to classify certain national security information after it has been requested and set a timeline for automatic declassification of information not specifically identified as requiring continued secrecy; (3) the Presidential Memorandum on FOIA (Coglianese 2009; McDermott 2010), which directed agencies to use technology and other means to make information available and to respond to FOIA requests “promptly and in a spirit of cooperation”; and (4) the Presidential Memorandum on Transparency and Open Government, which declared that government should be more transparent, participatory, and collaborative (Coglianese 2009). Moreover, the Office of Management and Budget, as directed in the Open Government Memo, issued the Open Government Directive, which set deadlines for action and required agencies to publish and improve government information, build a culture of open government, and create an enabling policy framework. The Obama Administration also released three Open Government National Action Plans (in 2011, 2013, and 2015), each of which reaffirmed the role of FOIA and outlined goals for improvement and modernization. In addition to President Obama’s actions, Congress passed the FOIA Improvement Act of 2016, which amended FOIA in several ways pertaining to disclosure, procedural, and management issues (see https://www.congress.gov/bill/114th-congress/senate-bill/337/).
With all the changes to FOIA over its fifty-plus years, and particularly during the Obama administration (Coglianese 2009), it is a good time to step back and ask, what do we know about the administration of FOIA in the United States federal government, and what do we need to further investigate? To answer these questions, we use the available data on foia.gov to examine a snapshot of FOIA management, paying particular attention to issues involving caseloads and management capacity.