United States
Name of law: Freedom of Information Act
First adopted: 1966
Last modified: 2016-06
RTI Rating last updated: 2016-08
First adopted: 1966
Last modified: 2016-06
RTI Rating last updated: 2016-08
Introduction
Overall, the USA is a good example of a country where practice outstrips the legislative framework and it is quite possible that the RTI Rating score undervalues the true openness of the United States government. Nonetheless, there are significant problems with the USA's access regime which negatively impact the right to information in that country. For instance, the exceptions are in many instances not harm tested and there is only a very limited public interest override. The United States also lacks a specialised administrative appeals body and, while American courts have been relatively robust in defending the right to information, they cannot do the job as effectively or expeditiously as an independent appeals body.| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 2 | 6 |
| 2 | Scope | 18 | 30 |
| 3 | Requesting Procedures | 15 | 30 |
| 4 | Exceptions & Refusal | 17 | 30 |
| 5 | Appeals | 14 | 30 |
| 6 | Sanctions & Protections | 4 | 8 |
| 7 | Promotional Measures | 12 | 16 |
| ∑ = 82 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | NO | 0 | Not mentioned. | Link to the Constitution of the United States (English version) <a href="https://www.archives.gov/founding-docs/constitution-transcript">here</a> |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | Yes - our expert tells us that the overwhelming body of jurisprudence supports this interpretation. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | NO | 0 | Not mentioned. | |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 3(a) says records to be provided to any person - no citizenship requirement, and American law recognizes corporations as persons. | |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | 7(f)(2) definition seems to encompass everything. | |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | Partially | 1 | There is no legal right (under FOIA or otherwise, outside of courtesy and customer service norms) to obtain answers to questions. | |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 7 | 7(f)(1) includes all executive departments, but not local or state governments (this does not cost them points because it's an issue with the USA's federal system). Includes "any other establishment" by the executive branch, including the archives. Minus 1 point because the central offices of the White house are exempted. | |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | NO | 0 | FOIA does not apply to Congress, or the Senate according to the Administrative Procedure Act. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | NO | 0 | FOIA does not apply to the judiciary | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | (f) For purposes of this section, the term- (f) For purposes of this section, the term- (1) "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | FOIA applies to all federal regulatory bodies - http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | NO | 0 | FOIA does not apply to any private corporations | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | Partially | 1 | See p. 3 of the GSA Federal Citizen Information Center guide "Your Right To Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act", https://www.gsa.gov/system/files/Your_Right_to_Federal_Records.pdf: "As a general rule, FOIA requesters are not required to state the reasons why they are making their requests" | Not stated in the law. A policy document suggests this is only a "general rule". |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | Procedure varies from agency to agency - generally agencies will ask for a name, address and phone number in order to ensure delivery and the ability to notify for clarification, but none of this information is required. | |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | Partially | 1 | Requests may be made just by writing to the agency and requesting the info, along with a contact address. Many agencies offer specialized request forms, and many accept requests electronically. However, the law also allows agencies to set their own procedures, some of which are more complicated than this, so it costs them a point. | |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | NO | 0 | Not mentioned | |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | Not spelled out in the law, but the Americans with Disabilities Act should cover the need to accommodate. | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | Partially | 1 | Art 7(a) - but only for requests that will take more than 10 days to process | |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | NO | 0 | This is not a legal requirement, and agencies are not required to transfer or refer requests | |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | YES | 2 | 3(b) | |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 6(a)(I) "Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall (i) determine within ten days twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and <...>" | 20 working days. |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | Partially | 1 | 6(b) - extensions are limited to 10 working days and require notice, but 6(b)(ii) allows longer extensions, with the requirement that they be limited to "unusual circumstances" as spelled out in the law and also must be explained in writing. | |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 4(a)(I) allows authorities to charge "processing fees" these are limited to search, duplication and review costs and our expert argues that the filing itself is free - despite the fact that it is called a processing fee, functionally it's structured like an access fee. | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | Fees are centrally set according to the the Office of Management and Budget's (OMB) Uniform Freedom of Information Act Fee Schedule and Guidelines - which includes charges for time spent searching, but no fees for 2 hours search time or first 100 pages of duplication. | |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | N/A | |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | No limitation may be imposed, and the U.S. government cannot hold a copyright on government information. If information held by an agency is subject to a privately held copyright, it still must be disclosed under FOIA. The copyright law may restrict re-publication, but the FOIA does not. | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | Partially | 1 | 7(b)(3) allows for other statutes to classify information, but places some restrictions on how this can be done. | |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 7 | 7(b)(2) - internal personnel records. 7(b)(9) - geological and geophysical information and data, including maps, concerning wells. 7(c)(3) - foreign intel records - overly broad since agency is allowed to deny their existence, also not harm tested. | |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | Partially | 1 | 7(b)(1)(a) - under executive order for national security reasons. 7(b)(8) - reports by agencies responsible for the regulation or supervision of financial institutions; 7(b)(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; | |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 1 | 7(c)(1) has a limited override for police records. | |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | Executive Order 13526 establishes the mechanisms for most declassifications, within the laws passed by Congress. The originating agency assigns a declassification date, by default 10 years. After 25 years declassification review is automatic, with nine narrow exceptions that allow information to continue to be classified. At 50 years there are two exceptions, and classifications beyond 75 years require special permission. | |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | YES | 2 | The mechanism of consultation, though not embodied in FOIA, is firmly part of the process by virtue of Executive Order 12600, in place for almost 25 years and incorporated in all agency regulations. | |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | Art 2 mentions severability | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | Art 6(a)(I) | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | 6(a)(ii) provides for an internal appeal with a relatively short timeframe. | |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | Partially | 1 | Sort of - the Office of Government Information Services acts as a mediator - but is not a formalized appeal process. I will give them a point here, but the weak nature of the appeal means I am not going to continue scoring this office as an oversight body for the remainder of this section, since the main appeals process under FOIA is meant to be judicial. | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | NO | 0 | N/A | |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | NO | 0 | N/A | |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | NO | 0 | N/A | |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | NO | 0 | N/A | |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | N/A | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | NO | 0 | N/A | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | Art 4(B) | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | Partially | 1 | Partial credit for this - technically no lawyer is required, as people can always self-rep and Court clerks generally help with this procedure - but it is nonetheless a difficult process for a layman to complete. The filing fee is $350, but can be waived if the party decides to proceed in forma pauperis. | |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | Yes - all these are complaints which the judge can evaluate on a de novo standard. | |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | Partially | 1 | There are clear procedures, particularly as these cases are generally decided on summary judgment, but no timelines. | |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | Yes - the burden is on the agency to sustain its action. | |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | Partially | 1 | Tricky one - ordinarily Courts do not make such orders, but they can be included as part of a settlement or within the Court's recommendations. Generally this type of action, if issued in a binding order to change practice, would lead to questions regarding whether the Court has overstepped its authority. Nonetheless, the weight of judicial decisions is heavy - and often leads to changes as a result of the strong role the judiciary plays in America's constitutional balance. So - partial credit for that. | |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | Partially | 1 | Clause (a)(4)(F): Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | Partially | 1 | N/A | Ordinarily Courts do not make such orders, but they can be included as part of a settlement or within the Court\'s recommendations. Generally this type of action, if issued in a binding order to change practice, would lead to questions regarding whether the Court has overstepped its authority. Nonetheless, the weight of judicial decisions is heavy - and often leads to changes as a result of the strong role the judiciary plays in America's constitutitional balance. So - partial credit for that. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | NO | 0 | Not listed in the law, or any surrounding regulation I could find. Plus - this isn't really applicable since the oversight bodies don't actually release information. | |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | Yes - through the Whistleblower Protection Act - http://www.fas.org/sgp/crs/natsec/RL33918.pdf | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | 7(j) | |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 7(H1)(2) - The Office of Government Information Services | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | YES | 2 | 7(g) | |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | Federal Records Act - http://www2.ed.gov/policy/gen/leg/fra.html | |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | Expert: The index in (a)(2)(E) is only of records already released under FOIA that are likely to be subject to subsequent requests. The suggestion has been made from time to time for the creation of a Register under the Federal Records Act or the Paperwork Reduction Act, but it has never been instituted. There simply is no place for the public to look to see what kind of records agencies might have (unless already released and subject ot required disclosure per above). | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | 7(e)(1) | |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | Art 4(f)(2) - the AG reports to congress on civil actions regardings FOIA. 7(6) requires the AG to further report on the implementation of FOIA. |
