VIETNAM NATIONAL UNIVERSITY, HANOIUNIVERSITY OF LANGUAGES AND INTERNATIONAL STUDIES

FACULTY OF ENGLISH LANGUAGUE TEACHER EDUCATION

TRẦN KIỀU HẠNH

AN ANALYSIS ON

THE US FREEDOM OF INFORMATION ACT

AND ITS NECESSITY IN THE TRANSPARENCY

OF THE US GOVERNMENT

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTSFOR THE DEGREE OF BACHELOR OF ARTS (TEFL)

Hanoi, May 2011

VIETNAM NATIONAL UNIVERSITY, HANOIUNIVERSITY OF LANGUAGES AND INTERNATIONAL STUDIES

FACULTY OF ENGLISH LANGUAGUE TEACHER EDUCATION

TRẦN KIỀU HẠNH

AN ANALYSIS ON

THE US FREEDOM OF INFORMATION ACT

AND ITS NECESSITY IN THE TRANSPARENCY

OF THE US GOVERNMENT

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTSFOR THE DEGREE OF BACHELOR OF ARTS (TEFL)

SUPERVISOR: ĐẶNG NGỌC SINH, MA.

Hanoi, May 2011

ACCEPTANCE

I hereby state that I: Tran Kieu Hanh, being a candidate for the degree of

Bachelor of Arts (TEFL) accept the requirements of the College relating to the

retention and use of Bachelor’s Graduation Paper deposited in the library.

In terms of these conditions, I agree that the origin of my paper deposited

in the library should be accessible for the purposes of study and research, in

accordance with the normal conditions established by the librarian for the care,

loan or reproduction of the paper.

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ACKNOWLEDGEMENTS

First and foremost, I would like to express my deepest gratitude to

Mr. Dang Ngoc Sinh, M.A, my supervisor, who has supported me in

choosing this topic and supervised my work carefully. His proper and

critical guides as well as valuable encouragements during the research

process were the solid support for the complete study.

Moreover, I am genuinely grateful to the professors of School of

Law, Vietnam National University. Without their invaluable help, I could

not get access to and obtain useful materials for the research.

Lastly, I want to sincerely say thanks to my beloved family and

friends with their warm and prompt encouragements and help to finish the

research on the right track.

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ABSTRACT

This research is a study of the United States Freedom of Information

Act (FOIA) and its necessity in the transparency of the US government. In

the global context of increasing human right awareness, Freedom of

Information legislation plays the role as the cornerstone to preserve and

foster the right to know of people and other rights including civil and

political rights. The situation of this Act in American society, which is said

to be a democratic one, is more noticeable because of its great significance

to the political participation of US citizens. The need of participation in the

government business means the demand for the transparency in the

government; therefore, the FOIA play a certain part in governmental

transparency. The study firstly came to review some basics of FOIA,

namely the history and the main content of the Act. Then, by investigating

in both people and government implementation of this statute, the study

showed the necessity of this tool to the executive branch’s transparency.

Specifically, the level of public participation by using FOIA and

government protection mechanism to FOIA were examined. To achieve

most reliable result, the study employed synthesis and analysis methods

throughout the process. Relevant materials were collected and then

analyzed and synthesized in order to extract the best information that

served the ideas. At the same time, some comparisons and contrast were

made when needed. With those methods utilized, the research finally gave

an overview of FOIA and pointed out the necessity it played in the

transparency of the US government.

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TABLE OF CONTENTS

PAGE

Acknowledgements

Abstract

List of tables and figures

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v

CHAPTER 1: INTRODUCTION

1.1. Rationale of the study

1.2. Aims and objectives of the study

1.3. Scope of the study

1.4. Significance of the study

1.5. Design of the study

1

2

3

3

3

CHAPTER 2: LITERATURE REVIEW

2.1. Definition of key terms

2.1.1. Freedom of Information Act

2.1.1.1. Freedom of Information – the Right to know

2.1.1.2. Freedom of Information Act (FOIA) – an overview

2.1.2. Governmental Transparency

2.2. The roles of the Freedom of Information Access in Governmental

Transparency

2.3. Summary

5

7

9

10

13

CHAPTER 3: METHODOLOGY 15

CHAPTER 4: THE FREEDOM OF INFORMATION ACCESS

IN THE UNITED STATES

4.1. The history of FOIA in the US

4.1.1. Period 1789 – 1958: Pre-FOIA

4.1.2. Period 1955 – 1966: FOIA Passage

4.1.3. Period 1974 – 2010: Amendments

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20

21

iv

4.2. The basic content of the US FOIA

4.2.1. Applicable entities

4.2.2. Subject

4.2.3. Scope of Obtainable information

4.2.4. Exemptions of Information Disclosure

4.2.5. Time limits to answer FOIA request

4.2.6. Request fee

4.2.7. Request procedure

4.2.8. Appeal mechanism

4.3. The necessity of US FOIA in Governmental Transparency

4.3.1. FOIA as an effective and feasible way to access

government information

4.3.2. Increasing public participation ability with FOIA requests

4.3.3. Increasing Government accountability by FOIA

implementation supervision

4.3.4. Some notable cases

4.4. Summary

23

23

23

23

31

32

33

36

36

39

42

43

45

CHAPTER 5: CONCLUSION AND IMPLICATIONS

5.1. Conclusion

5.2. Implications

5.3. Limitations of the study

5.4. Suggestions for further studies

47

48

49

50

REFERENCES 52

v

LIST OF TABLES AND FIGURES

LIST OF TABLES PAGE

Table 1. Summary of nine FOIA exemptions 31

Table 2. Categories of fee for FOIA request 32

Table 3. Comparison between FOIA and MDR 38

LIST OF FIGURES PAGE

Figure 1. Overview of Generic FOIA request 34

Figure 2. Full FOIA request process 35

Figure 3. Total FOIA request for 25 agencies 40

Figure 4. Total FOIA Requests with SSA Shown Separately,

Fiscal Years 2002–200541

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CHAPTER 1. INTRODUCTION

1.1. Rationale for the study

“Government even in its best state is but a necessary evil; in its

worst state, an intolerable one”. In 1776, Thomas Paine, the famous

revolutionary writer, did write about the government in his Common

Sense. In this time of American Revolution, the US revolutionist leaders

believed that the British government was determined to discourage the

freedom of opportunities of the American colonists by excessive taxes and

other measures. This is kept along the history, which means that the US

people has a deep suspicion of strong government. “Government is the

natural enemy of freedom, even if it is elected by the people.” (Paine,

1776) Therefore, the US people have tried to minimize the power of

government as well as stayed independent from the government welfare.

One of those attempts is increasing the transparency in government

actions and information. Once the citizens know about the business of

government, they are able to keep an eye on the power of the government

to ensure it does not interfere with their individual rights and freedom.

In 1966, the US Congress passed the Freedom of Information Act

(FOIA) to protect the public’s access to government information. The law

requires federal agencies to release information in their files to the public

and allows citizens to obtain governmental information and records unless

the material falls into the category of a special exception. In this point,

FOIA can be seen protecting the Freedom of Information Access or more

generally, the people's right to know.

“The people's right to know, usually associates with the notion of freedom of the press, however, can also have a different meaning “that is truly grounded in the people, and directed toward the right of the people to know about the actions of their own government. It is this variation of the phrase ‘people's

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right to know,’ focusing on what in modern times is often referred to as transparency in government.”

(Smolla, n.d.)

Hence, there is an obvious relationship between the governmental

transparency and FOIA. This relationship is shown most apparently in the

support of FOIA to transparency. FOIA is the tool for governmental

transparency and without FOIA, the government information will hardly

be accessed and served the benefits of citizens. In other words, FOIA is

vital in making the government business transparent. Therefore, the

researcher has conducted The Freedom of Information Act (FOIA) and

its necessity for Governmental Transparency in the USA, which will

provide a general view on the Information Act and its necessity on the

governmental transparency in some certain aspects.

1.2. Aims and Objectives of the study

The research aims to study the Freedom of Information Act (FOIA)

in its relationship with Governmental Transparency in the US. In details,

the necessity of FOIA is investigated in some different aspects of

governmental transparency. Briefly, the objectives of the research can be

understood with the answers of these following questions:

a. How does the Freedom of Information Act (FOIA) work in the

US?

b. Why necessary is the FOIA to Governmental Transparency ?

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1.3. Scope of the study

In the research, an overview of the history and procedures of the

Freedom Information Act are explored and also the importance of FOIA

to the transparency of American government is investigated. Besides, the

necessity of FOIA on the transparency of the US government are

researched on some aspects, namely, public participation/scrutiny ability

and Government accountability.

1.4. Significance of the study

The research is expected to provide an overall view on FOIA in the

US and also the role of this Act playing in the Governmental

Transparency. Some comparisons and contrasts on the different

viewpoints of scholars will be presented in order to foster an insightful

view on this topic. Particularly, the research can be used as a reference for

those who may concern about FOIA and related political issues.

1.5. Design of the study

Chapter 1 – Introduction presents the rationale, the aims and objectives,

the scope and the significance of the study.

Chapter 2 – Literature Review deals with theoretical background such as

the definitions of Freedom of Information, Governmental Transparency or

the roles of Freedom of Information Act in the transparency of

government.

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Chapter 3 – Methodology introduces the methods such as synthesis and

content analysis that are employed in the study.

Chapter 4 – The Freedom of Information Act in the United States

Governmental Transparency brings an overview of FOI legislation, its

basic content and most importantly, analyzes its importance to the

governmental transparency.

Chapter 5 – Conclusion ends the study by summarizing its main points as

well as gives some implications and finds out the limitations of the study

and suggestions for further studies.

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CHAPTER 2. LITERATURE REVIEW

2.1. Definition of key terms

2.1.1. Freedom of Information Act

2.1.1.1. Freedom of Information – the Right to know

Traditionally, Freedom of Information has been regarded as “the

touchstone of all the freedoms”(Tomasevaki, 1987: 1). It means that

Freedom of Information is the catalyst for other human rights because

information is the major source for development. When one has Right to

know his rights, he will be able to utilize and protect his freedom as well

as his demands for their development. Therefore, Freedom of Information

is the basis for protection against any violations and for all promotions of

human rights.

The relationship between Freedom of Information and other

freedoms is discussable. In this paper, this relationship will be touched

upon with the Freedom of Expression and Freedom of Speech for their

closeness to each other.

Originally, Freedom of Information was designed only as a

component of Freedom of Expression. “The study of travaux preparatoire

(preparatory work) reveals that the freedom to seek, receive and impart

information had been added to freedom of expression as an desired

aim.”( Tomasevaki, 1987).

Freedom of Speech basically can be understood as the Right to tell

and similarly, the Right to know can be simply considered as the Right to

access information. This right to access information denotes that people

have freedom “to seek, receive and impart information” (United Nations,

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the Universal Declaration of Human Rights, 1948) as long as it causes no

harm to others. In all aspects of this right, there is a great concern about

the freedom of citizens to access information of government in order to

supervise and protect their rights. And because only when having known,

will people be able to tell, Freedom of Information is an extension of

Freedom of Speech, a fundamental right recognized in international law.

Both the Universal Declaration of Human Rights and the First

Amendment to the United States Constitution (a part of the Bill of Rights)

protect Freedom of Speech and refer to Freedom of Information.

Article 19 of the Universal Declaration of Human Rights, adopted

in 1948, states that:

“Everyone has the right to freedom of opinion and expression; this

right includes freedom to hold opinions without interference and to

seek, receive and impart information and ideas through any media

and regardless of frontiers.”

The First Amendment, adopted on December 15, 1791, also guarantees

Freedom of Speech by stating that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Freedom of Information, therefore, should also be seen as a fundamental

right for every person. Not only does it allow individuals and groups to

protect their rights but also it guards against abuses, mismanagement and

corruption (Banisar, 2006: 6). Vice versa, it brings benefits to

governments themselves – openness and transparency in the decision-

making process can improve citizen trust in government actions.

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2.1.1.2. Freedom of Information Act (FOIA) – an overview

In many countries, there are constitutions that guarantee the right to

access information but it is not practical if there is no specific law. For

example, in Vietnamese Constitution, adopted in 1992, even though

Article 69 directly states that “The citizen shall enjoy freedom of opinion

and speech, freedom of the press, the right to be informed, and the right to

assemble, form associations and hold demonstrations in accordance with

the provisions of the law.”, it is not until the Freedom of Information Act

which is pending, will go to effect that the Right to be informed or the

Right to know is expected to be fully legally preserved.

According to a global survey, until 2006, there are nearly 70

countries adopting Freedom of Information Acts (Banisar, 2006:6). Most

FOI laws around the world are broadly similar. In part, this is because a

few countries’ laws, mostly those adopted early on, have been used as

models. The US FOIA has probably been the most influential law. Among

those countries, there are two kinds of Acts. The first kind that 19

countries belong to is that this Act applies to information held by

government and private bodies while in the second one the other countries

have this Act applied to information held by government only.

Government or executive and administrative bodies include

ministries or agencies that provide for health, the environment, law

enforcement, military, communications and transportation on the

national level and their related local bodies.

Private bodies is used for the statutory bodies that are not owned

by the state, and are operating mainly for profits such as businesses,

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companies, corporations, firms, banks, etc. They may or may not be

performing public functions.

The US FOIA belongs to the rest, which implies that the paper will deal

with the governmental issues and not focus on access to information of

private sectors.

The Freedom of Information Act was enacted in 1966 and went into

effect in 1967. It has been substantially amended several times, most

recently by the 2007 OPEN Government Act. The law allows any US

citizen, to ask for records held by federal government agencies. Agencies

include executive and military departments, government corporations and

other entities which perform government functions except for Congress,

the courts or the President’s immediate staff at the White House,

including the National Security Council. According to the law,

government agencies must respond in 20 working days.

The United States Freedom of Information was “born” under the

constant pressure of constitutional and inherent rights preservation of

American citizens. It was essential for government to be accessed by the

public. However, not all information should be revealed due to the

sensitivity and privacy of content. Consequently, information held by

government has been classified and some types are not allowed to be

disclosed under the FOIA. “There are nine exemptions: national security,

internal agency rules, information protected by other statutes, business

information, inter and intra agency memos, personal privacy, law

enforcement records, financial institutions and oil wells data.” (Hammitt,

2002). These exemptions will be discussed more specifically in Chapter 4.

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In all fifty states of the US, there are also laws legalizing access to

governmental information but in this paper only federal FOIA will be

discussed.

Regarding the birth of this Act, US President Lyndon Johnson said

“I signed this measure with a deep sense of pride that the United States is

an open society in which the people’s right to know is cherished and

guarded.” when he signed to pass the Freedom of Information Bill into

law on the US Independence Day. This FOIA marked the crucial attempt

of American to the transparency and openness of the government in which

the people’s rights are protected effectively.

2.1.2. Governmental Transparency

There are several different interpretations when it comes to the

definition of Transparency. To begin with, Oxford Advance Learner’s

Dictionary simply puts transparency as the quality of something, such as

a situation or an argument, that makes it easy to understand. When used in

social context, specifically in politics, subsequently, governmental

transparency should be understood as the quality of the governmental

businesses that people can see through.

As being defined in politicsdictionary.com, “transparency is an

open and honest way of acting when making decisions, e.g. being open to

the public about the actions of government or the European Union.” And

in book Transparency in Government: How American citizens influence

public policy by Paul Malamud as editor, “Known as ‘transparency,’ this

essential democratic process takes many forms, but all allow concerned

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citizens to see openly into the activities of their government, rather than

permitting these processes to be cloaked in secrecy.”

Though different in some certain aspects, those definitions share the

common understanding about transparency of government, which is the

public scrutiny or participation into government agencies. Whether an

ordinary can attend and receive enough information as they wish about

executive branch business or not is the factor to estimate the transparency.

Accordingly, transparency is where individuals can influence of the

process of policy-making of executive branch. Since being tracked in

what they do, government agencies are well aware of avoiding

wrongdoings or are unable to take any irresponsible actions or if let them

happen, they are surely detected by the public. At this point, transparency

helps to foster accountability of administrative offices.

Transparency is a core democratic value; however, its value comes

not from its existence but from the results it brings to bear. Transparency

fosters officers’ accountability, holding public officials and administrators

responsible for their actions. We rely on transparency to examine the

inner workings of an agency and to assess its performance.

2.2. The roles of the Freedom of Information Access in Governmental

Transparency

Information Access, in other word, can be understood as the public

participation in what the government is doing hence, the Freedom of

Information Act is the tool to protect the public participation in the

government business.

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According to Toby Mendel, one of the prestigious experts in

Freedom of Information Act research of United Nation Organization, the

FOI is increasingly recognized with reasonable justification. The surprise

is that it has been taken a long time to achieve such a spreading

recognition to a human right which is the basis for democracy. The recent

popular viewpoint is that the authorities hold information not for

themselves but for the public benefit, which has been printed in people’s

minds all over the world. ARTICLE 19, an international human right

NGO who has been making an attempt to conducting global campaigns

for the freedom of speech, described information as oxygen for

democracy. Information plays the role as the essential basis of democracy

in all levels. Generally speaking, democracy is where individuals have

ability to effectively participate in the process of making decisions which

have effects on their living both directly and indirectly. Democratic

societies are often built with many systems for citizen to involve in such

as the election system in public agencies like in education and medical

administration or the referendum mechanism to draft policies and bills or

development programs. In Mendel’s opinion, the effectiveness of public

participation in all levels depends on assessing the information held by

authorities. Let’s take an example in election. “Election is not as simple

as a beauty contest in politics, its aim is to fulfill its true role, described in

the eyes of international law, that is the ensure of people’s will, which

forms the foundation of the government.” (Thai, Ph.D, 2011) Therefore, to

guarantee the accountability of an election, all voters must have enough

information about the voting process and candidates as well. Thereof,

voters have adequate conditions to make their best choice.

Public participation is the center in making rational and right

decisions. Report on Human development of UNDP (United Nations

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Development Program) in 2002, points out the benefits of public

participation in making public policies, and it is the essence of human

rights that people need to advocate because it protects people from politic

and economic calamities.

Freedom of information access is also a shield for a more fair-play

ground. Stiglitz, a Nobel prize winner for his famous work about the

unfair interference of information to the economy, stated that the unequal

information access allowed public servants to pursue to policies that serve

their interests rather than public’s (2002). The improvement in

information and information propagandizing management would limit this

abuse.

In accordance with Mendel, democracy is closely related to

accountability, effective management, and public people have right to

investigate and assess the officers’ actions and participate in open debates

on their actions as well. Besides, citizens must be enabled to hold

information about social and politic affair of their country. Mendel,

therefore, affirmed that right to information also a key tool in combating

corruption and wrong actions in government, journalists who investigate

and non-government organizations playing their roles in supervising task

can use this right to expose and eliminate those wrongdoings.

Nowadays, most of the nations and international organizations

share the same idea that freedom of information is one basic human right.

Putting this right into practice would is the vital condition for individuals

to protect their other legal rights and benefits, to prevent and fight again

power abuses and to promote democracy and transparency in policy-

making, law-making, law-implementing, hence it will reinforce public

trust and support to government.

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Freedom of information or Freedom of Information Access in

contemporary context is an prominent human right. In a country of people,

by people and for people, government agencies keeping information is not

for themselves but for the public benefits. In this sense, government

information can be accessed by members of society if desire, except that

there is a more important public interest required information to be kept

secret. Freedom of Information legislation in contemporary nations

reflects a legitimate demand of society that it is Governments’

responsibility that serves their citizens by providing adequate and genuine

information instead of suppressing them.

The progress to democratic mechanism in many countries together

with the technology advance makes this right more important in

governmental transparency. Technology equips and encourages people to

supervise thus limits corruption because it would be easier to access

information in digital world. The more information is revealed, the more

transparent governmental business is. Rhetorically speaking, information

is the sunlight and “Sunlight is said to be the best of disinfectants,” said

Louis Brandeir, an Associate Justice on the Supreme Court of the United

States.

2.3 Summary

In this chapter, an overview of definition key terms, such as two

most significantly, Freedom of Information and Governmental

Transparency and the theoretical background on the roles Freedom of

Information Access and Governmental Transparency are laid.

Understanding these basic points, when put them into context of the

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United States of American society, researcher will have more advantage

to investigate the FOI Act and be able to see through the necessity of this

legislation in the Transparency of US Government.

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CHAPTER 3. METHODOLOGY

This research concerns the concept of Freedom of Information Act

in the United States and its importance to the governmental transparency.

The history of the United States and this legislation, the content of the

legal documents and also the studies and reports related to the relationship

between this right and Governmental Transparency are mostly the

materials to be investigated in. In order to make the issue comprehensible,

researcher utilized some methods to deal with those materials and then to

answer research questions. They are content analysis and synthesis.

However, the very first phrase is information collecting. Needed

documents about the Freedom of Information Act and Governmental

Transparency in the US were gathered from books, journals, websites.

Then those two mentioned methods are applied to process collected

documents. The main task when dealing with those documents is get to

know its content thoroughly, thereof, make some comparisons, contrasts

and also discuss on the details of data. In this context, documents almost

related to legal and politic fields so beyond the background knowledge,

using suitable methods was required.

The main phase is processing documents. The combination of these

two methods helps in carrying on the research more smoothly and

logically since “analysis and synthesis, as scientific methods, always go

hand in hand; they complement one another.” (Ritchey, 1991)

In general, analysis is defined as the procedure by which we break

down an intellectual or substantial whole into parts or components.

Synthesis is defined as the opposite procedure: to combine separate

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elements or components in order to form a coherent whole. “Every

synthesis is built upon the results of a preceding analysis, and every

analysis requires a subsequent synthesis in order to verify and correct its

results.” (Ritchey, 1991). So in first step of this phase, analysis method

was used to “break down” documents into details and to extract needed

information. By this step, it is possible to perceive the picture of research

problem. When analyzing the content of the FOIA paper, researcher had

to “break down” the document into parts such as applicable entities, scope

of the law, time limits to have a deep understanding about the Act. Next

comes the synthesis step. Synthetic method is said to “create a holistic

perspective” (Ackoff, 1974). Normally, the analyzed data would be

synthesized, which means that researcher would find common or

relationship among the data, create a link for them to contribute to a new

point in the study; however, once the data could not fill up the skeleton of

ideas, the process of analysis and synthesis started over again. For

example, while working on the history of FOIA, the synthesis step helped

to shape the period of years but the needed events lacked so automatically,

researcher used analysis method to extract those information from the text.

Besides, some comparisons and contrasts were made when needed.

For instance, in Chapter 4, to prove the convenience of FOIA procedure, it

was brought out to compare with another way to assess information.

To sum up, this research employed different methods and followed

the below order:

Phase 1: Collecting related documents

Phase 2: Processing data

Step 1: Analyzing data

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Step 2: Synthesizing data

Step 3: Comparing and contrasting information

Phase 3: Summarizing and concluding

Note that the first two steps in phase 2 are alternatively and continuously

used while the data is processing.

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CHAPTER 4. THE FREEDOM OF INFORMATION ACCESS IN

THE UNITED STATES

4.1. The history of FOIA in the US

In 1910, former US President James Madison wrote “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.” The concept

of “popular government” that the fourth President mentioned had already

appeared long time ago in the General Court of Election held in March,

1641, to declare Rhode Island a democracy and to adopt new constitution.

It was stated that “the Government which this Bodie Politick doth attend

unto in this Island, and the Jurisdiction thereof, in favour of our Prince is

a DEMOCRACIE, or Popular Government.” (Colony of Rhode Island

and Providence Plantations in New Ellglalld, 1641: 111-115)

In a “popular government”, citizens are able to “hold government

officials accountable for their actions […] this essential democratic

process takes many forms, but all allow concerned citizens to see openly

into the activities of their government, rather than permitting these

processes to be cloaked in secrecy.” (Katz, 1999)

Spirited from early time, the legislation of public right to access

government records was realized in various levels from general to

concrete laws. To make this right to know of public or the freedom to

information more comprehensive, it is worthwhile to review the different

periods of time in which the contexts contributed significantly.

4.1.1. Period 1789 – 1958: Pre-FOIA

From 1789 until 1958 the legal authority for the right to withhold

information was known as the “Housekeeping Statute”. This statute was

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passed in 1789, giving government agencies the right to organize their

offices by authorizing department heads “to prescribe regulations, not

inconsistent with law, for … the custody, use and preservation of the

records, papers and property appertaining to it.” (Amending Section 161:

p1) Many agencies interpreted “custody” as they could deny government

information access to anybody, including Congress. From 1955 to 1958,

according to this Statute, the governing subject is the departments

including Commerce, Defense, Interior, Justice, Labor, the Post Office,

the Department of State, Civil Service, Housing & Home Finance, the

Interstate Commerce Commission and the Smithsonian Institution.

However, because the Congress also could be denied from requesting

records of Departments, Congress felt the Housekeeping Statute “through

misuse … has become twisted into a claim of authority to withhold

information”. (pp12-13) As the result, in 1958, Congress amended the

Statute by adding the sentence “This section does not authorize

withholding information from the public or limiting the availability of

records to the public.” (pp12-13)

The most noteworthy period was between 1945 and 1955 when the

World War II (1939 – 1945) took place and ended. The US, thank to its

geographical advantage, far from the battles, had almost no physical

damage. However, a series of incidents occurred had great influences on

the world as well as on the US people. 1946 was the beginning of the

Cold War, in 1948 the Soviets blockaded Berlin, in 1949 Russia exploded

their first nuclear bomb. The public anxiety and fear were serious

increasingly. The announcement of the secret Communist existence in the

State Department which meant the public also were alerted with the

Second Red Scare (strong anti-communism) more. In this stance, US

people initiated the idea that government information should be

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safeguarded from all visible and potential enemies. Accordingly, the

House Special Government Information Subcommittee (as known as the

Moss Subcommittee) was established. This agency contributed a great

deal of effort in the passage of the Freedom of Information Act.

4.1.2. Period 1955 – 1966: FOIA Passage

Within eleven years, the Freedom of Information Act became more

and more concrete and finally, was passed in 1966. To reach this

achievement, many decisions had been made along three Administrations.

Firstly, in his Administration, the US President Eisenhower made

Executive Order No. 10501 “Safeguarding Official Information in the

Interests of the Defense of the United States.” This Order would keep the

three top classifications, i.e. Top Secret, Secret and Confidential and limit

the agencies with authority to classify information. Therefore, fewer

agencies could arbitrarily deny the request to access information from the

Congress as well as other officials. Eisenhower’s Order was an important

step toward FOIA.

In the next Administration of President Kennedy, an advance had

been made with the amendment of Eisenhower’s Order No. 10501.

Executive Order No. 10964, Amendment of Executive Order No. 10501:

“Safeguarding Official Information in the Interests of the Defense of the

United States” allowed the information that was no longer required to be

protected to be declassified, in other word, be “request-able”. By the

Amendment, the scope of information was broadened, which trod the path

to the full FOIA.

A Democratic congressman from Sacramento, California, John

Moss, supported by extensive press coverage and active lobbying by

21

newspaper editors, led hearings beginning in 1955 that documented and

denounced excessive government secrecy. Before 1966, Freedom of

Information Act legislation had been passed by the Senate but the House

of Representatives did not concur. In 1965 – 1966, John Moss, now was a

member of the Democratic House leadership still worked on the bill to be

passed until it was approved by the House of Representatives on June 20th,

1966. On July 4th, 1966 President Johnson signed the legislation. The bill

officially became the Freedom of Information Act and went into effect

one year later.

4.1.3. Period 1974 – 2010: Amendments

1974 Amendment – In the wake of the Watergate scandal and

several court decisions, Congress sought to amend the FOIA. After

negotiations between Congress and the Ford Administration broke

down, Congress passed significant amendments to the FOIA.

President Ford vetoed the amendments and Congress swiftly voted

to override the veto.

1976 Amendment –In 1976, as part of the Government in Sunshine

Act, Exemption 3 of the FOIA was amended.

1986 Amendment – In 1986 Congress amended FOIA to address the

fees charged by different categories of requesters and the scope of

access to law enforcement and national security records. The FOIA

amendments were a small part of the bipartisan Anti-Drug Abuse

Act of 1986. The amendments were not referenced in the

congressional reports on the Act, so the floor statements provided

an indication of Congressional intent.

22

1996 Amendment – The FOIA was significantly amended in 1996

with the Electronic Freedom of Information Act Amendments of

1996. There were separate Senate and House bills that were

reconciled by their sponsors.

2002 Amendment – In 2002, in the wake of the 9/11 attacks, the

FOIA was amended to limit the ability of foreign agents to request

records from U.S. intelligence agencies.

2007 Amendment – President Bush signed the “Openness Promotes

Effectiveness in our National Government Act” which amended the

federal FOIA statute in several ways.

2009 Amendment – President Barack Obama made Executive Order

No. 13526, which allowed the government to classify certain

specific types of information relevant to national security after it

had been requested.

2010 Amendment – In 2010, the Congress passed an act repealing

FOIA provisions in which the FOIA would hinder SEC (Securities

and Exchange Commission) investigations. It was also called repeal

of FOIA amendments in Wall Street reform act.

4.2. The basic content of the US FOIA

In the US National Security Achieve, the most basic content of the

FOIA is thoroughly introduced. Based on the content from National

Security Achieve and adopted legal approach, this content can be divided

and examined into aspects, that are: Applicable entities, Subject, Scope of

23

Obtainable information, Information of Exemptions, Time limits to answer

FOIA request, Request fee, Request procedure, Appeal mechanism.

4.2.1. Applicable entities

The FOIA applies to Executive Branch departments, agencies, and

offices; federal regulatory agencies; and federal corporations. Congress,

the federal courts, and parts of the Executive Office of the President that

function solely to advise and assist the President, are NOT subject to the

FOIA.

4.2.2. Subject

The FOIA permits “any US person” to request access to agency

records. In practice, this includes U.S. citizens, permanent resident aliens,

and foreign nationals, as well as corporations, unincorporated associations,

universities, and even state and local governments and members of

Congress.

4.2.3. Scope of Obtainable information

Records obtainable under the FOIA include all “agency records” -

such as print documents, photographs, videos, maps, e-mail and electronic

records - that were created or obtained by a Federal agency and are, at the

time the request is filed, in that agency's possession and control. Agencies

are required by FOIA to maintain information about how to make a FOIA

request, including a handbook, reference guide, indexes, and descriptions

of information locator systems.

4.2.4. Exemptions of Information Disclosure

An agency may refuse to disclose an agency record that falls within

any of the FOIA's nine statutory exemptions. The exemptions protect

24

against the disclosure of information that would harm national defense or

foreign policy, privacy of individuals, proprietary interests of business,

functioning of the government, and other important interests. A document

that does not qualify as an “agency record” may be denied because only

agency records are available under the FOIA. Personal notes of agency

employees may be denied on this basis. However, most records in the

possession of an agency are “agency records” within the meaning of the

FOIA.

An agency may withhold exempt information, but it is not always

required to do so. For example, an agency may disclose an exempt

internal memorandum because no harm would result from its disclosure.

However, an agency is not likely to agree to disclose an exempt document

that is classified or that contains a trade secret.

When a record contains some information that qualifies as exempt,

the entire record is not necessarily exempt. Instead, the FOIA specifically

provides that any reasonably segregable portions of a record must be

provided to a requester after the deletion of the portions that are exempt.

This is a very important requirement because it prevents an agency from

withholding an entire document simply because one line or one page is

exempt.

Exemption 1: Classified Documents

The first FOIA exemption permits the withholding of properly

classified documents. Information may be classified in the interest of

national defense or foreign policy.

The rules for classification are established by the President and not

the FOIA or other law. The FOIA provides that, if a document has been

25

properly classified under a presidential Executive Order, the document

can be withheld from disclosure.

Classified documents may be requested under the FOIA. An agency

can review the document to determine if it still requires protection. In

addition, the Executive Order on Security Classification establishes a

special procedure for requesting the declassification of documents. If a

requested document is declassified, it can be released in response to an

FOIA request. However, a document that is declassified may be still be

exempt under other FOIA exemptions.

Exemption 2: Internal Personnel Rules and Practices

The second FOIA exemption covers matters that are related solely

to an agency's internal personnel rules and practices. As interpreted by the

courts, there are two separate classes of documents that are generally held

to fall within exemption two.

First, information relating to personnel rules or internal agency

practices is exempt if it is trivial administrative matter of no genuine

public interest. A rule governing lunch hours for agency employees

is an example.

Second, an internal administrative manual can be exempt if

disclosure would risk circumvention of law or agency regulations. In

order to fall into this category, the material will normally have to

regulate internal agency conduct rather than public behavior.

Exemption 3: Information Exempt Under Other Laws

The third exemption incorporates into the FOIA other laws that

restrict the availability of information. To qualify under this exemption, a

26

statute must require that matters be withheld from the public in such a

manner as to leave no discretion to the agency. Alternatively, the statute

must establish particular criteria for withholding or refer to particular

types of matters to be withheld.

One example of a qualifying statute is the provision of the Tax

Code prohibiting the public disclosure of tax returns and tax return

information.

Exemption 4: Confidential Business Information

The fourth exemption protects from public disclosure two types of

information: trade secrets and confidential business information. A trade

secret is a commercially valuable plan, formula, process, or device. This is

a narrow category of information. An example of a trade secret is the

recipe for a commercial food product.

The second type of protected data is commercial or financial

information obtained from a person and privileged or confidential. The

courts have held that data qualifies for withholding if disclosure by the

government would be likely to harm the competitive position of the

person who submitted the information. Detailed information on a

company's marketing plans, profits, or costs can qualify as confidential

business information. Information may also be withheld if disclosure

would be likely to impair the government's ability to obtain similar

information in the future.

Only information obtained from a person other than a government

agency qualifies under the fourth exemption. A person is an individual, a

partnership, or a corporation. Information that an agency created on its

own cannot normally be withheld under exemption four.

27

Although there is no formal requirement under the FOIA, many

agencies will notify a submitter of business information that disclosure of

the information is being considered. The submitter then has an

opportunity to convince the agency that the information qualifies for

withholding. A submitter can also file suit to block disclosure under the

FOIA. Such lawsuits are generally referred to as "reverse" FOIA lawsuits

because the FOIA is being used in an attempt to prevent rather than to

require the disclosure of information. A reverse FOIA lawsuit may be

filed when the submitter of documents and the government disagree

whether the information is confidential.

Exemption 5: Internal Government Communications

The FOIA's fifth exemption applies to internal government

documents. An example is a letter from one government department to

another about a joint decision that has not yet been made. Another

example is a memorandum from an agency employee to his supervisor

describing options for conducting the agency's business.

The purpose of the fifth exemption is to safeguard the deliberative

policy making process of government. The exemption encourages frank

discussion of policy matters between agency officials by allowing

supporting documents to be withheld from public disclosure. The

exemption also protects against premature disclosure of policies before

final adoption.

While the policy behind the fifth exemption is well- accepted, the

application of the exemption is complicated. The fifth exemption may be

the most difficult FOIA exemption to understand and apply. For example,

the exemption protects the policy making process, but it does not protect

28

purely factual information related to the policy process. Factual

information must be disclosed unless it is inextricably intertwined with

protected information about an agency decision.

Protection for the decision making process is appropriate only for

the period while decisions are being made. Thus, the fifth exemption has

been held to distinguish between documents that are pre-decisional and

therefore may be protected, and those which are post-decisional and

therefore not subject to protection. Once a policy is adopted, the public

has a greater interest in knowing the basis for the decision.

The exemption also incorporates some of the privileges that apply

in litigation involving the government. For example, papers prepared by

the government's lawyers can be withheld in the same way that papers

prepared by private lawyers for clients are not available through discovery

in civil litigation.

Exemption 6: Personal Privacy

The sixth exemption covers personnel, medical, and similar files

the disclosure of which would constitute a clearly unwarranted invasion of

personal privacy. This exemption protects the privacy interests of

individuals by allowing an agency to withhold intimate personal data kept

in government files. Only individuals have privacy interests. Corporations

and other legal persons have no privacy rights under the sixth exemption.

The exemption requires agencies to strike a balance between an

individual's privacy interest and the public's right to know. However,

since only a clearly unwarranted invasion of privacy is a basis for

withholding, there is a invisible trend in favor of disclosure in the

exemption. Nevertheless, the sixth exemption makes it harder to obtain

29

information about another individual without the consent of that

individual.

Exemption 7: Law Enforcement

The seventh exemption allows agencies to withhold law

enforcement records in order to protect the law enforcement process from

interference. The exemption was amended slightly in 1986, but it still

retains six specific sub-exemptions.

Exemption 7-A allows the withholding of a law enforcement record

that could reasonably be expected to interfere with enforcement

proceedings. This exemption protects an active law enforcement

investigation from interference through premature disclosure.

Exemption 7-B allows the withholding of information that would

deprive a person of a right to a fair trial or an impartial adjudication.

This exemption is rarely used.

Exemption 7-C recognizes that individuals have a privacy interest

in information maintained in law enforcement files. If the

disclosure of information could reasonably be expected to

constitute an unwarranted invasion of personal privacy, the

information is exempt from disclosure. The standards for privacy

protection in Exemption 6 and Exemption 7-C differ

slightly. Exemption 7-C allows the withholding of information that

"could reasonably be expected to" invade someone's privacy.

Under Exemption 6, information can be withheld only if disclosure

"would" invade someone's privacy.

Exemption 7-D protects the identity of confidential sources.

Information that could reasonably be expected to reveal the identity

30

of a confidential source is exempt. A confidential source can

include a state, local, or foreign agency or authority, or a private

institution that furnished information on a confidential basis. In

addition, the exemption protects information furnished by a

confidential source if the data was compiled by a criminal law

enforcement authority during a criminal investigation or by an

agency conducting a lawful national security intelligence

investigation.

Exemption 7-E protects from disclosure information that would

reveal techniques and procedures for law enforcement

investigations or prosecutions or that would disclose guidelines for

law enforcement investigations or prosecutions if disclosure of the

information could reasonably be expected to risk circumvention of

the law.

Exemption 7-E protects law enforcement information that could

reasonably be expected to endanger the life or physical safety of

any individual.

Exemption 8: Financial Institutions

The eighth exemption protects information that is contained in or

related to examination, operating, or condition reports prepared by or for a

bank supervisory agency such as the Federal Deposit Insurance

Corporation, the Federal Reserve, or similar agencies.

Exemption 9: Geological Information

The ninth FOIA exemption covers geological and geophysical

information, data, and maps about wells. This exemption is rarely used.

31

In summary, there are nine exemptions under the FOIA disclosure,

listed in the table below:

Exemption 1 – Classified or National Security Information

Exemption 2 - Internal Personnel Rules and Practices

Exemption 3 - Information exempt under other laws

Exemption 4 - Confidential Business Information

Exemption 5 - Inter or intra agency communication that is subject

to deliberative process, litigation, and other privileges

Exemption 6 - Personal Privacy

Exemption 7 - Law Enforcement Records that implicate one of 6

enumerated concerns

Exemption 8 - Financial Institutions

Exemption 9 - Geological Information

Table 1: Summary of nine FOIA exemptions

4.2.5. Time limits to answer FOIA request

“Each agency, upon any request for records under the scope of

obtainable information shall determine within twenty days, excepting

Saturdays, Sundays, and legal public holidays, after the receipt of any

such request.” (5 U.S.C. Section 552 (a)(6)(A)(i))

32

4.2.6. Request fee

Agencies are authorized to charge certain fees associated with the

processing of requests. Some categories of requesters cannot be charged

these fees and in some cases fees can be reduced or waived.

Under the FOIA, solely for fee purposes, an agency is required to

determine the projected use of the records sought by the FOIA request and

the type of requester asking for the documents. As the FOIA was intended

to promote the public's access to information, news media organizations

and educational institutions are excused from certain fees.

Fee categories for FOIA:

Categories

1 Commercial - Using purposes: commercial, trade, or profit

interests, including for use in litigation

- Costs to pay: search, review and duplication

costs.

2 Educational

Institution

- Using purposes: operating a program(s) of

scholarly research.

- Costs to pay: duplication cost (but the first 100

pages without charge)

3 Non-

Commercial

Scientific

Institution

- Using purposes: conducting scientific research

not intended to promote any particular product

or industry.

- Costs to pay: duplication costs (but the first

33

100 pages without charge)

4 Representative

of the News

Media

- Using purposes: gathering news for entities

organized and operated to publish or broadcast

news to the public.

- Costs to pay: duplication cost (but the first 100

pages without charge)

5 Other

Requesters

- Using purposes: none of any categories above

- Costs to pay: search costs for more than 2

hours and duplication costs for more than 100

pages.

Table 2: Categories of fee for FOIA request

Fee waivers

Under the FOIA it is possible to have all fees, including copying,

waived by the agency if the material requested “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.”

4.2.7. Request procedure

Government Accountability Organization (GAO) illustrated the

FOIA procedure with the map below:

34

Figure 1: Overview of Generic FOIA request

Source: GAO analysis of agency information

In order to make the process clearer, the figure below shows all

possible responses to a FOIA request:

Figure 2: Full FOIA request process

35

FOIA request sent to an agency

Request for fee waiver

Agency acknowledges receiving the request

Agency releases document

If document in full Case closes

Agency asks for clarification

Agency responds to the appeal

Requester amends request

If document in part

requester may appeal

Positively:Documents released

Negatively:Agency denies appeal no

new document released

Requester may sue

Still not satisfied

36

4.2.8. Appeal mechanism

When the response from the agency is not satisfactory, requester

may make an administrative appeal to higher agency officials. An appeal

letter stating the reason for appeal will be sent to senior officials. If the

appeal is ignored or conclusively denied, requester may ask U.S.

Representative or Senators to obtain the attention and cooperation of

agency officials before making a lawsuit.

4.3. The necessity of FOIA in Governmental Transparency

To comprehend the necessity of FOIA in Governmental

Transparency, it had better to break down this issue into details and come

to analyze each one. The following parts will demonstrate this necessity

by proving FOIA as an effective and feasible way to practice the right to

information, showing the increasing public participation ability in

government business with FOIA requests and lastly, affirming the

improving Government accountability by FOIA implementation

supervision.

4.3.1. FOIA as an effective and feasible way to access

government information

Originally, the American society require a desire for the

Transparency of Government. This desire is an impetus for the legislation

of making the government business as transparent as possible hence the

ability to access government information of citizens accordingly increases.

Along the history of the US, there are a number of legislations that

provide access.

37

The Government in the Sunshine Act requires the government to

open the deliberations of multi-agency bodies such as the Federal

Communications Commission. (Government in the Sunshine Act, 5

U.S.C. 552b)

The Federal Advisory Committee Act requires the openness of

committees that advise federal agencies or the President. (Federal

Advisory Committee Act, 1972, 5 U.S.C. App II.)

The Privacy Act of 1974 works in conjunction with the FOIA to

allow individuals to access their personal records held by federal

agencies. (Privacy Act of 1974, 5 U.S.C. 552a.)

The Freedom of Information Act is considered as “a somewhat

revolutionary law” (Ginsberg, 2009). The reason is visible. Before this

Act, if an individual wanted to access to federal records, he/she had to

prove a right to examine them, which was such a burden. On the contrary,

FOIA established a “right to know” standard for access, instead of a “need

to know”; therefore, helped shift the burden of proof from the individual

to the government agencies. They had to give reason why they denied the

request.

The FOIA is also regarded to offer requesters a chance to access a

pretty large scope of government records in exceedingly convenient way.

Making a comparison with another way of assessing government

information may help to clarify this statement.

The way chosen to compare is Mandatory Declassification

Review (MDR). Through the MDR process, any individual

may ask an agency to review a classified record for

declassification and release, regardless of its age or origin.

38

The process of making a MDR request is similar in many

ways to the FOIA process. First a requester writes to an

agency requesting to review certain documents. The time

limit for the agency to determine whether those documents

may be released to the public or not is one year. If the agency

does not release the documents, or if the result is

unsatisfactory, the requester may appeal to the agency. If still

unsatisfied with the results of the second agency review, or if

the agency misses certain deadlines in responding to an

initial request or an administrative appeal, the requester may

appeal to the Interagency Security Classification Appeals

Panel (ISCAP). While deciding MDR appeals, ISCAP hears

classification challenges from government officials and

approves automatic declassification exemptions.

Comparison between the two way is presented in the table

below:

FOIA MDR

Types of

assessable

information

Classified and

unclassified

information

Security classified

information only

Information

detail level

conditions

Specific

documents

Documents related

to more general

subjects

Specific documents

Documents of a narrow

range that the agency

can locate with minimal

effort

39

Appeal

mechanism

Request Appeal

Litigation

Request Appeal

ISCAP Appeal

Time limit

Twenty business

days to respond

(request and appeal)

One year to respond to

request (180 days for

agency appeal)

Table 3: Comparison between FOIA and MDR

From the table, the advantages of FOIA is salient hence it once

again proves its importance to the information assessing process.

4.3.2. Increasing public participation ability with FOIA

requests

Public participation ability, as stated in the Literature Review, is

one of the factor of Governmental Transparency. The greater public

participation can be, the more transparent government business can

become. Once again, to achieve high level of public participation, citizens

need governmental information, which means need FOIA, an information

accessing tool.

The fact is that when the public “interest” in the government

business, they will use all tools that are statutorily available to access the

records. Subsequently, the quantity of using times for one tool will reflect

the level of “interest” and participation as well. FOIA request, as a tool, if

shows its rising popularity, can be said to increase the public participation.

The general trend observed in Figure 3 is increase. Over the period

of 4 years from1998, number of FOIA requests folds up to more than 2

times. As commented in GAO report, “the number of FOIA requests

received and processed continue to rise.”

40

Figure 3: Total FOIA request for 25 agencies

Source: FOIA annual reports for fiscal years 1998-2001

(self-reported data).

In a closer look, let take one agency for example, SSA

(Social Security Administration), which is reported as the most reliable

agency in FOIA data reporting according to GAO audit. Illustrated by

Figure 4, increase is the obvious tendency from 2002 to 2005. While the

number of requests from other 23 agencies rises slightly, the SSA’s FOIA

requests soars up extremely. From this observation, it is possible to

conclude that public concern on social security is the greatest over the

period 2002 to 2005. This figure shows the magnitude of SSA’s

aYear 2001

includes data for

only 24 agencies.

41

contribution to the whole FOIA picture, as well as the scale of the jump

from 2004 to 2005. According to SSA, the increases that the agency

reported in fiscal year 2005 can be attributed to an improvement in its

method of counting a category of requests it calls “simple requests

handled by non-FOIA staff.”

Figure 4: Total FOIA

Requests with SSA Shown

Separately, Fiscal Years

2002–2005

Source: GAO

analysis, FOIA annual

reports for fiscal years

2002-2005 (self-reported

data).

42

Overall, the greater FOIA request quantity year by year is the more

perceptible manifestation of the FOIA operation in public participation

into government business.

4.3.3. Increasing Government accountability by FOIA

implementation supervision

Apart from the side of citizens, government itself is run with the

real awareness of the vitality FOIA in Transparency. It is best shown in

the supervision mechanism to improve the FOIA request practice. Firstly,

25 agencies of executive branch are under the implementation FOIA

procedure review of 29 federal government inspectors general. If there are

any questions on the implementation of an agency, the letter will be sent

to those inspectors general, then a investigation is conducted and checking

result is released in response. For example, Republican Darrell Issa of

California and Senetor Grassley of Iowa, the ranking Republicans on the

House Oversight Committee and the Senate Finance Committee,

respectively, asked all federal inspectors general to review FOIA request

process for any signs of politicization and they think that the Homeland

Security Department stopped the practice of FOIA. After an investigation,

obtained emails showed how political appointees slowed the FOIA

process and sought information about the individuals and organizations

requesting access to records. (Adams, 2010)

In addition, the legislative branch, the Congress, places the

supervision on the Executive branch by many ways including assigning an

office to take this task. Most recently, to help ensure proper

implementation of FOIA, the act requires that agencies report annually to

43

the Attorney General, giving specific information about their FOIA

operations, such as numbers of requests received and processed and

median processing times. For this study, Government Accountability

Office (GAO) was asked to examine the status and trends of FOIA

processing at 25 major agencies as reflected in annual reports, as well as

the extent to which improvement plans contain the elements emphasized.

The Government Accountability Office (GAO) is an arm of

Congress serving as a “fiscal watchdog” that seeks to improve the

financial performance of the federal government and ensure its

accountability to Congress and the American people. It is an independent,

nonpartisan agency that works for Congress and often called the

“Congressional watchdog.” Its staff includes economists, social scientists,

accountants, public policy analysts, attorneys and computer experts as

well as specialists in fields ranging from foreign policy to health care. By

the operation of this agency, it is logically to expect an objective auditing

in the implementation of FOIA procedure data.

From the two examples, the conclusion drawn is that the close

checks of power braches to the operation of FOIA in executive agencies

are carried out, which proves the necessity of FOIA to the fostering of

government accountability.

4.3.4. Some notable FOIA cases

The aim of bringing some notable cases into this research is to

contribute the clarification to the necessity of FOIA in the US

governmental transparency. Through these cases, the practice of FOIA is

made tangible and applicable, by which the close of each case influenced

the government agency system in certain aspects. The cases below are

44

briefly reviewed and only the most prominent and relevant details are

included.

The reveal of unlawful FBI

University of California is the nation’s largest public university.

After 17 years of legal battle, FOIA documents was obtained, which

showed the FBI had conducted unlawful intelligence activities at the

University of California in the 1950s and 1960s, including covert support

for movie star Ronald Reagan’s first successful campaign for state

governor pledging to suppress student protests. Regarding this case on

San Francisco Chronicle in 9th and 23rd June 2002, Rosenfeld reported

that the FBI also secretly campaigned to get UC President Clark Kerr

fired, conspired with the director of the CIA to pressure the university’s

Board of Regents to “eliminate” liberal professors, and mounted a covert

operation to manipulate public opinion and infiltrate agents provocateurs

into non-violent student dissent groups. California’s senior U.S. Senator

followed up the story with Congressional queries about the current state of

FBI political surveillance activities.

Financial aid budget misuse

Related to financial transparency, there is another case as federal

investigators looked into whether or not Morris Brown College illegally

used $8 million in student financial aid to pay overdue bills. The Atlantic

Journal and Constitution used U.S. Department of Education records

obtained through the Freedom of Information Act to see how Morris

Brown administrators obtained grants and loans on behalf of students who

were ineligible for the money. Many of the students had dropped out or

never even attended the school. School officials may have knowingly kept

45

money they received for students who were no longer enrolled. Federal

authorities asked Morris Brown to repay $5.4 million of the aid because

the school had not been able to prove that the money went to qualified

students. (Simmons, 2002)

The questionable degree of a governmental officer

In The Baltimore Sun 9th October 2002, Shane Scott reported that

Dr. Steven J. Hatfill, a former Army bioweapons scientist had been

claiming to have a Ph.D. he never received, Dr. Hatfill defended himself

by claiming he had completed the work for the degree at Rhodes

University in South Africa and assumed the degree had been granted.

When applying for a research job in 1995, Hatfill provided the National

Institutes of Health with a handsome Rhodes University Ph.D. certificate

in molecular cell biology with his name on it, signed by the university

vice chancellor and other officials. A copy of the Ph.D. certificate was

obtained by The Baltimore Sun from the NIH under the Freedom of

Information Act. Rhodes University officials say the certificate is a

forgery. The university seal is not in the right place, the vice chancellor's

signature has the wrong middle initial and other names are made up.

Through three cases above, it can be concluded that FOIA request

partook in detecting the weakness in government officers, the misuse of

public budget and wrongdoings of executive agencies.

4.4. Summary

In this chapter, researcher has finished with briefing the most basics

of the Act and clarifying the necessity of FOIA in the Transparency of

Government. Firstly, the strong points of FOIA and its procedure make it

46

outstanding among other ways of assessing information from government.

Regarding the public scrutiny, increase tendency of public using FOIA

requests to assess government records proves the widening of this ability,

which accounts in the Governmental Transparency. Besides, the

accountability of executive branch thanks to the FOIA implementation

supervision has been improved. The mechanism of checking and reporting

works sufficiently to protect the rightful practices of FOIA procedures,

consequently, each agency can be more alerted of their responsibility.

Also, better FOIA service will gain more trust and participation from

public as a result.

47

CHAPTER 5. CONCLUSION

5.1. Conclusion

Being the third country to enact the Freedom of Information Act,

after Sweden and Finland, the United States of America is one of the

models for other countries in the freedom of information legislation.

The freedom of Information spirited long time ago, but the marked

event of FOIA is the signing of President Johnson in 1966 to take the Act

into effect. This resulted from many hearings and efforts of advocators

such as Senator Moss. Since 1966, the Act has been amending many times

such as 1996 Amendment or 2007 Amendment.

In general, the US Freedom of Information Act is the embodiment

of people’s right to know about the business of government. This law

allows any US person, individual or cooperate, to request the disclosure of

government records without any justifications as long as the information

does not fall into nine exemptions. In brief, they are Classified or National

Security Information, Internal Personnel Rules and Practices, Information

exempt under other laws, Confidential Business Information, Inter or intra

agency communication that is subject to deliberative process, litigation,

and other privileges, Personal Privacy, Law Enforcement Records that

implicate one of 6 enumerated concerns, Financial Institutions and

Geological Information. In addition, agencies are required to meet certain

time frames for making key determinations: whether to comply with

requests (20 working days). Requester may have to charge for information

depend on categories of information but there has fee waiving with certain

conditions. A person denied access to requested information, in whole or

in part, may make an administrative appeal to the head of the agency for

48

reconsideration. After this step, an appeal for further consideration of

access to denied information may be made in federal district court.

The necessity of the FOIA in the transparency of government can

be seen clearly in the considerable advantages of FOIA procedure to

others’. By using FOIA request, the ability to approach government

information then to participate in government increases, which indicates

through annual report data from government agencies. The other point to

prove the necessity of FOIA to the US government transparency is the

mechanism to supervise the implementation of FOIA request.

In conclusion, the Freedom of Information Act not only fosters the

basic human right but also plays an crucial part for the Americans to make

their government transparent.

5.2. Implications

The study on the Freedom of Information Act and its necessity to

maintain the transparency in the United States Government provides us a

partial view on the legal and politic environment of the US. Thereby, it is

possible to verify the idea that the US is one of the democracies existing

on the Earth. This fact is undeniable when the Freedom or human rights of

US citizens are preserved from the pedestal - the right to know. The

people from there, can utilize the other rights more effectively. For

example, akin to freedom of information, freedom of press are well-

backed up and fostered. Besides, it is not surprised that Freedom of

information is the chance for the US people to show their desire for a

good government, in other word, in a less power executive branch. As the

reputation remains, the US people have been scared of a strong

49

government so the more they use this freedom to scrutinize the public

agencies, the more power they win over the government.

Above all, freedom of information is the intensive manifestation of

American values, which put individual freedom as the center. “By

freedom, Americans mean the desire and the ability of all individuals to

control their own destiny without outside interference from the

government, a ruling noble class, the church, or any other organized

authority.” The government, therefore, cannot hold the upper hand on

Americans and vice versa, people inspect and influence the agencies’

activities. As De Tocqueville observed and wrote in his Democracy in

American, in 1930s:

“They owe nothing from any man, they expect nothing from

any man; they acquire the habit of always considering themselves

as standing alone, and they are apt to imagine that their whole

destiny is in their own hands.”

Thinking themselves as their own master of destiny, the US people

undoubtedly have tendency to partake in the government business, which

has impact on their lives, and strive for the utmost goal - protect and

achieve the freedom and independence that they desire.

“Passing the Freedom of Information Act is one third of the journey only. Another third is its implementation into the public administration, practice and minds of officials and politicians. The last third is to teach public to use possibilities of the Act.”

(O. Kužilek: Author of the Czech Freedom of Information Act)

The Americans achieved two thirds of “the journey”, that are the passage

and the use of the Act and they are trying to improve the implementation

of FOIA into the public agencies. With the core value of individual

50

freedom and the determination to make government transparent, the

Americans will surely put more effort into the implementation of FOIA.

Turning to Vietnam situation, we can learn something the passage

and practice of FOIA of the US. Different as the core values and

characteristics, Vietnamese and the Americans share the same desire for

the utilization of human rights including right to information. However,

until now Vietnamese Congress still haven’t passed the FOIA legislation.

Even though the FOIA bill is drafted, it is pending such a long time.

Putting aside the drafting techniques, the main problems of the bill is the

ambiguity of provisions, the narrow scope of obtainable information and

weak protection mechanism. (Nguyen, Ph.D & Vu, MA., 2011) In

contrast, the most distinguish strong point of the US FOIA is the clear and

detailed provisions and effective protection mechanism. So it may be a

good idea for Vietnamese legislators to take the US FOIA as a reference.

5.3. Limitations of the study and suggestions for further research

Being carried out in a short time, the study definitely cannot avoid

some shortcomings. First of all, finding genuine materials is such an

obstacle then leads to some limitations. Even though the history of the US

FOIA was examined carefully, it still could not cover all the most

prominent events, that were the long and complex hearings and lawsuits

around the Act. If it was given more time, the more understanding of the

FOIA passage would be presented much more thoroughly. Moreover, due

to the limitations in the materials and level of researcher, the practice of

FOIA could not be made clear as desired because the cases collected were

not enough. Besides, the largest barrier for researcher is the high level of

51

difficulty of legal documents to analyze. Though trying to prepare herself

with certain amount of legal knowledge, it is still not enough to dig deeper

into the cases and touch the core of the law so the study somehow reach

the surface level of a legal research.

The history of FOIA is an interesting topic for those whom concern

about this Act. A study on the context of the passage, the events and key

figures that had impacts on it, as well as the amendments through the

history could be practical and suitable for a language student.

52

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