Freedom of Information policies

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Freedom of Information policies also known as open record laws, let individuals request and gain access to data and information held by governments and other large institutions. Many of these current policies and laws arose out of human rights treaties formed after World War II and exist in some capacity in a majority of countries. [1] These policies and laws spell out who can request public information and who must provide information, as well as restrictions and exemptions that can cause a request to be rejected. Lastly, they tend to also spell out the legal process used to contest a rejection.

Introduction

The concept of freedom of information originates from enlightenment beliefs regarding the rule of law. This movement believed that science could make everything "knowable" and that access to that knowledge was a human right. These ideas lead to the first freedom of information policy from Sweden in 1766, as well as giving freedom of information policies directly mentioned in France's The Declarations of Rights of Man. However, it was incentives provided by international organizations after World War II that lead to many of the current policies we see today.[1] As of 2016, 111 different countries had some form of Freedom of Information policy.[2] These policies govern the data held by national governments and other public sector actors. These policies do not apply to any private companies or entities, meaning any data held by government contractors, or other groups that work with the government, are not subject to requests from the public, unless specifically mentioned by the laws of the jurisdiction. Freedom of information policy is more than just a focus on making records accessible after the fact. These policies often encourage open meetings and hearings that are announced far in advance of the creation of these records so that the public may attend throughout the process. Such actions raise faith in the governing processes and help fight against complaints of secrecy and back-room dealing.

Legislative History

Administrative Procedure Act (APA)

The Administrative Procedure Act (5 USC §551) was passed in 1946 during the Franklin Roosevelt Administration. The legislation addressed concerns that the government was expanding too rapidly under the New Deal, and that better procedures and processes should be put in place in order to disclose crucial information to the public. The APA required federal agencies to disclose information about their administrative activities on a consistent basis, but often gave them discretion to choose what kind and how much information they wanted to provide.

Freedom of Information Act (FOIA)

Freedom of Information Act Logo

The Freedom of Information Act (5 U.S.C. § 552), commonly abbreviated to FOIA, is the main Freedom of Information policy in the United States of America. It was signed into law on July 4, 1966, by President Lyndon Johnson. The law only applies to the United States Federal Government, and explicitly only refers to documents and data controlled by the executive branch. It mandates these executive branch agencies to respond to all public requests for information. FOIA was amended in 1974, in the wake of the Nixon Watergate Investigation, to increase availability of materials, shorten agency response times, and broaden FOIA applicability to all Executive offices and departments. [3] It was further amended in 1986 to change fee structures and waiver requests, and in 1996, to push agencies to publish information online, given the growth of the World Wide Web.

FOIA Exemptions

FOIA has 9 exemptions that an agency must cite in order to reject a request: [4]

  1. The requested information cannot be shared due to national security.[4]
    • For example: requesting a list of all active Central Intelligence Agency (CIA) agents and their missions.
  2. The requested information is only about personnel rules and practices.[4]
  3. Another federal law prevents the requested information from being disclosed.[4]
    • For example: requesting a photo of a military prisoner. The Protected National Security Documents Act (PNSDA) would block this request. [5]
  4. The requested information contains trade secrets or other confidential or privileged information.[4]
    • For example: requesting the antenna design information of the latest iPhone from the Federal Communications Commission (FCC).
  5. Privileged communications within or between agencies, such as communication protected by Attorney-Client Priviledge[4]
    • For example: requesting information about the Department of Justice (DOJ) defending a Health and Human Services (HHS) policy.
  6. The requested information invades another private individual's privacy if disclosed.[4]
    • For example: requesting the tax returns for a specific individual from the Internal Revenue Service (IRS).
  7. The requested information could interfere with an investigation, law enforcement proceeding, right to fair trial or similar situation.[4]
    • For example: requesting information on a case currently being prosecuted in court.
  8. The requested information is regarding the supervision of financial institutions.[4]
    • For example: requesting the financial information of a specific bank from the Securities and Exchange Commission (SEC).
  9. The requested information is regarding geological information on wells.[4]
    • For example: requesting a map of all wells and aquifers in Ann Arbor from Bureau of Land Management (BLM).

While numbers vary depending on the presiding administration, the vast majority of FOIA requests are typically rejected, at times up to 77% of all requests.[6]

Open Ethical Questions

The biggest ethical conflict regarding FOIA requests and Freedom of Information Policy is determining the necessary circumstances for rejecting a request. While at the surface there may appear to be clear cut reasons for exempting certain information, any exempting circumstance has the potential for abuse. Using the nine exemptions the United States federal government uses above, we can see that some of the exemptions appear to be more understandable than others. Exemption six, which deals with revealing another individual private information, is a very reasonable reason to reject. Many citizens would be concerned if anyone could file an FOIA request to the IRS for your personal income information or other private data. However, even this exemption is full of ambiguity. What information rises to the standard of violating an individual's privacy? Especially when that individual is not consulted throughout the process. Certain Information that a federal agency might view as innocuous, could be very damaging in someone else's eyes.

National Security Exemption

A controversial and widely debated exemption that is present almost every freedom of information policy applying to a federal government is the ability to deny a request due to national security concerns. Traditionally, judicial bodies have given wide deference to an executive's ability to determine what is considered a threat to national security. Therefore, these denials are the most difficult to overturn if a method of appeal is available. While in general information must be classified in order to be exempted under this reasoning, the ability for a government to classify any information, whether truly related to national security or not, remains essentially unchecked.

Failure to Redact Personal Information

The United States government on several occasions has come under fire for failing to properly remove personally identifying information such as Social Security Numbers (SSN) , dates of birth, addresses, and contact information in information releases[7]. Some of these failures may be attributed to the individual employee responsible for sharing information, not believing certain information is deemed "identifiable" enough to be redacted. However, many of these cases are due to problems in request processes and software that requires individuals to provide a large amount of information in order to make an FOIA request. There is a need for the government to have identifiable information on its citizens for a variety of reasons.

The ethical question at hand is how to balance our desire as a society for transparency, with the risk that some of this personally-identifiable information may fall into the wrong hands. Floridi has two definitions of transparency. The first, visibility of information, is relevant in this case. [8]Floridi proposes that transparency itself is not inherently ethical and can have a positive, negative, or even neutral ethical impact. Transparency can have a positive ethical effect, if an ethical cause is dependent on the hidden information or negative in the case of privacy. In reference to the freedom of information, this transparency can also have positive ethical implications, as long as the infrastructure upholding these policies is carefully created with issues of privacy and security in mind.

Informational Friction and Privacy

The balance of transparency and the risk of exposing personally-identifiable information is related to the complicated balance of informational friction and informational privacy. Ideally, users would want little informational friction (i.e. transparency) whilst maintaining a high level of privacy. As Floridi suggests, a balance may be possible if the personally-identifiable information that could be revealed in information releases was thought of as either “arbitrary” or “constitutive”. Arbitrary information would most likely include logistical data such as a name, whereas constitutive information would encompass personal data associated with one's self-identity[9]. If a basis such as this was used when thinking about freedom of information policies, the task of balancing privacy with informational friction/transparency might not be as impossible. However, there is still a task in deciding what information is arbitrary and what is constitutive, as this could vary from user to user.

See Also

References

  1. ↑ 1.0 1.1 "Freedom of Information by Laura L. Stein and Lindita Camaj from Oxford Research Encyclopedias"[1]
  2. ↑ "Statement by European RTI Community on the world’s First Official Access to Information Day!"[2]
  3. ↑ Martin, Shannon. "Freedom of Information Act," Encyclopedia Britannica, https://www.britannica.com/topic/Freedom-of-Information-Act
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 FOIA.gov FAQ [3]
  5. ↑ Am. Civil Liberties Union v. United States Dep't of Def., 901 F.3d 125, 128 (2d Cir. 2018), as amended (Aug. 22, 2018).
  6. ↑ "Obama denied a record 77% of FOIA Requests by the Washington Examiner (Data claimed to be sourced from AP, however, the link is now dead). [4]
  7. ↑ Exclusive: Government transparency site revealed Social Security numbers, other personal info [5]
  8. ↑ Matteo Turilli & Luciano Floridi (2009) Ethics Information Technology "The Ethics of Information Transparency"
  9. ↑ Floridi, L., The Fourth Revolution: How the Infosphere is Reshaping Human Reality, Privacy, Oxford University Press, 2014, 101-128.
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