Freedom of Information: A Comparative Legal Survey - Federation of ...

U nited States
Introduction
The Constitution of the United States includes strong protection for the right to freedom of expression,
albeit cast in negative terms by prohibiting Congress from passing any law restricting freedom of speech
or of the press. 307 The United States Supreme Court has held that this does not “[mandate] a right to access
government information or sources of information within government’s control.” 308
Despite the lack of constitutional protection, the United States was one of the fi rst countries to embrace
the right to information after Sweden 309 and Finland, 310 adopting legislation giving effect to this right in
1966 in the form of the Freedom of Information Act (RTI Law). 311 The Law has been amended a number
of times since it was adopted, 312 most recently on 18 December 2007, just as this is going to print, when
amendments to the Law were adopted in the form of the OPEN Government Act of 2007 (referred to herein
as the most recent amendments). 313 Since that time, despite ups and downs, it is fair to say that a signifi cant
culture of openness has developed in government, fuelled not only by the RTI Law but also by the activities
of whistleblowers, 314 as well as the Privacy Act, 315 which gives access to personal information held by
public authorities, the Government in the Sunshine Act, 316 which requires disclosure of the deliberations of
certain bodies, primarily those with governing boards, and the Federal Advisory Committee Act, 317 which
requires committees that advise federal bodies to be open. In addition, all 50 individual states now have
right to information laws of their own.
The United States RTI Law has a number of both strengths and weaknesses. It includes good provisions
on fees, strong rules on the electronic provision of information and a number of good promotional
measures, introduced recently. Weaknesses include rules on timely processing of information which may
be circumvented, permission to classify documents, which has expanded signifi cantly in recent years,
and the lack of an independent administrative oversight mechanism, including with the power to hear
complaints about failures by public bodies to apply the rules properly.
Implementation of the Law has also been undermined in recent years. An October 2001 Memorandum
by the Attorney General reversed a previous approach whereby public bodies had been asked to exercise
their discretion to disclose documents, and a Department of Justice Memorandum of March 2002 imposed
further restrictions in relation to documents on weapons of mass destruction or that could otherwise
threaten national security or public order. A recent report states baldly:
The Right of Access
In the past six years, the basic principle of openness as the underpinning of democracy has
been seriously undermined. 318
Subparagraph (a)(3)(A) of the Law sets out the basic right of any person to request and receive information
promptly from the bodies covered, as long as the request meets certain basic conditions and subject to the
provisions of the Law. The Law does not include an internal statement of purposes or general principles of
interpretation. However, section 2 of the Electronic Freedom of Information Act Amendments of 1996 sets
out a number of ‘fi ndings and purposes’ including “to establish and enable enforcement of the right of any
person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or
private purpose”, to “foster democracy by ensuring public access to agency records and information” and
to “maximize the usefulness of agency records and information collected, maintained, used, retained, and
disseminated by the Federal Government”.
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