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

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The new OPEN Government Act adds a number of important ‘fi ndings’, including that constitutional
democracy depends on the informed consent of the governed, that “disclosure, not secrecy, is the dominant
objective of the Act” and, signifi cantly, that Congress should regularly review the Law to determine whether
further changes are necessary to give effect not to the “need to know” but the “fundamental ‘right to
know’” (section 2). This effectively gives recognition to the idea of the right to information as recognised
under international law.
The Law defi nes “record” – the term used throughout to refer to the subject of a request – as “any information
that would be an agency record subject to the requirements of this section when maintained by an agency
in any format” (paragraph (f)(2)). This has been interpreted by the United States Supreme Court to include
any record created or obtained by the public body in question, which is under the control of that public body
when a request is lodged. 319 The most recent amendments to the Law also include within the defi nition of
record, information maintained for a public body under contract (section 9 of the OPEN Government Act).
The term “agency”, which refers to the public bodies under an obligation to disclose, includes, “any executive
department, military department, Government corporation, Government controlled corporation, or other
establishment in the executive branch of the Government (including the Executive Offi ce of the President),
or any independent regulatory agency” (paragraph (f)(1)). The Law is thus focused on the executive branch of
government, in all its manifestations, including where it controls private corporations. It does not, however,
cover either the legislative branch – Congress – or the courts. 320 Nor does it cover the Executive Offi ce of
President, including, for example, the National Security Council and White House Counsel. Finally, it does
not cover private bodies which are substantially publicly funded or which undertake public functions. This
is relatively limited in scope compared to some of the more recent right to information laws.
There are no limits to lodging requests for information based on citizenship or residence, and foreigners do
frequently use the RTI Law. This is somewhat limited by subparagraph (a)(3)(E), which states that no public
body which is “an element of the intelligence community”, as defi ned by the National Security Act of 1947 321
(section 3(4)), shall make information available to a foreign government entity or representative.
Procedural Guarantees
Anyone may make a request for information. If a request reasonably describes the information sought and
is in accordance with published rules relating to time, place, any fees and the procedures to be followed,
the public body must, subject to the exceptions, provide the information sought (subparagraph (a)(3)(A)).
In limited cases, public bodies may aggregate different requests which actually constitute a single request
(clause (a)(6)(B)(iv)). Applicants do not need to explain the reason for their request but this may assist them
if they want to overcome a discretionary exception, or apply for a fee waiver or for expedited processing
of their request. The most recent amendments to the Law noted above require public bodies to establish
tracking systems for requests and to provide applicants with the tracking number for their request within
ten days of it being lodged. 322
Jurisprudence under the Law requires a public body to undertake a search that is reasonably calculated to
uncover all documents. This now fi nds statutory form in relation to records in electronic format, for which
a reasonable search effort is required, except where this would signifi cantly interfere with the operations
of the public body (subparagraphs (a)(3)(C) and (D)).
The Law does not impose any obligation on public bodies to provide assistance to applicants. Executive
Order 13392, adopted in December 2005, 323 does seek to impose some obligation on public bodies to
respond appropriately to requests, providing, at section 1(b): “agencies shall provide FOIA requesters, and
the public in general, with citizen-centered ways to learn about the FOIA process, about agency records
that are publicly available (e.g., on the agency’s website), and about the status of a person’s FOIA request
and appropriate information about the agency’s response.”
The Law includes detailed rules on time limits. Requests shall be answered “promptly”, normally within 20
working days (subparagraph (a)(3)(A)). In “unusual circumstances”, the time limit may by notice be extended