Federal Internet Law & Policy
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EGovt: eFOIA & Federal Records Dont be a FOOL; The Law is Not DIY
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A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy - or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives. - James Madison

The Freedom of Information Act (FOIA) is one of those fundamental democratic principles that is so solidly rooted in common sense that Joe Citizen would automatically presume that it was written by the wise Ben Franklin himself. Yet FOIA has only been around since 1966 - enacted as a part of the Administrative Procedures Act. FOIA is the rather sound principle that in a democracy, it is good for the government to live in a glass house. If the Feds scrawl something down on paper, then Joe Citizen has a right to see that piece of paper. Secrets are an anathema to a democratic government; Government records, documents, notes, and chicken scratch are all subject to disclosure to the people.

The other side of this of course is that in a tech world where Non Disclosure Agreements were exchanged as easily as business cards, individuals who seek to petition the government must come to realize that anything that they say to the government can and will be used against them -- produced in an editorial by some hot shot reporter who just FOIAed all their records. This has become of particular concern in the context of network security where the government has sought to promote information sharing among parties without having sensitive information disclosed to the public.

To give you a bit of a taste of FOIA, recall if you will a time where the computer revolution was in full swing but the Internet revolution had yet to reach the masses. Oliver North sought to implement the will of the President, or perhaps subvert the Constitution, depending on your perspective. Some questions were raised about the legality of Mr. North providing aid to the Contras in Honduras with what was apparently drug money in contravention of Congressional mandate. Mr. North was heard to testify before Congress "Mistakes were made." One of those mistakes was leaving an email trail that did not disappear into the ether when the delete key was hit. Ollie's email became a surprise witness against Oliver North.

An odd skirmish broke out in Washington with the departing Bush Sr. and the incoming Clinton Administrations finding themselves on the same side of the issue, while archivists, libraries, and reporters fought to keep the Bush Administration from jamming reams of electronic records through the shredder. The turmoil climaxed in 1996 with the enactment of the eFOIA Act. It was a simple clarification of FOIA: "Agency" means everybody, even the president, and "record" means everything, including stuff in electronic format. eFOIA Act also requires agencies to provide substantial quantities of information on agency websites (similar to the material found in a reading room), post repeatedly requested documents, and develop aids for locating records. This means that by law one should find on an agency's website such things as final opinions, concurring and dissenting opinions, orders, statements of policy, manuals, instructions to staff, and, of course, the agency's annual FOIA report.

In addition, the Federal Records Act, requires certain emails to be provided to the National Archives where they will be made available for public viewing.

In sum, FOIA clearly covers the electronic world. If it's a record, the public can get at it (subject to some specific exceptions, fortified with the passage of the Patriot Act). A great deal of what the public may want to find should already be posted up on an agencies website.

There are exceptions to FOIA. The first is that the government does not need to waste its resources responding to individual FOIA requests when it already makes the material available to the public, including through federal websites. Second, agencies need not respond positively to a FOIA request when it deals with a matter of national security, when the material concerns a business secret and the business is requesting confidentiality, when the matter is a subject of an ongoing investigation, and so on.

Note that FOIA responses may be only as good as a FOIA request. Make the request poorly and one risks missing the documents actually desired. Make the request too broad and the feds will simply bounce it back for narrowing.

Depending on who the requester is, the requester may have to pay for the FOIA response.

Finally, requesters who believe that an agency has failed to appropriately respond to a FOIA request can consider seeking judicial relief. If, for example, the requester feels that the agency has improperly refused to turn documents over, the requester can ask that a court order the documents turned over. Likewise, a failure to respond can be treated as a refusal to turn over documents and can be appealed to court.


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