Enacted in 1966, and taking effect on July 5, 1967, the Freedom of Information Act provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. The FOIA thus established a statutory right of public access to Executive Branch information in the federal government.
The United States Supreme Court has explained that the, "basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." The "FOIA is often explained as a means for citizens to know 'what their Government is up to.'" The Supreme Court stressed that "[t]his phrase should not be dismissed as a convenient formalism." Rather it, "defines a structural necessity in a real democracy." As President Obama has declared a, "democracy requires accountability, and accountability requires transparency." The FOIA "encourages accountability through transparency."
At the same time, the Supreme Court has also recognized that in enacting the FOIA "Congress sought 'to reach a workable balance between the right of the public to know and the need of the Government'" to protect certain information. The FOIA's "broad provisions favoring disclosure, coupled with the specific exemptions, reveal and present the 'balance' Congress has struck."
The Department of Justice has long carried a special responsibility in ensuring that FOIA’s demands are met. The Office of Information Policy (OIP) at the Department of Justice is responsible for encouraging agency compliance with the Freedom of Information Act (FOIA). OIP develops and provides guidance to agencies on questions relating to application of the FOIA. In addition, OIP oversees the Department of Justice’s responsibilities as they relate to the FOIA.
As the lead federal agency responsible for implementation of the FOIA across the government, the Department of Justice is especially committed to encouraging compliance with the Act by all agencies and to fulfilling President Obama's goal of making this Administration the most open and transparent in history. In his memorandum to the heads of all departments and agencies on the Freedom of Information Act, President Obama made clear that "agencies should take affirmative steps to make information public." At the same time, the President made clear that we need to take a new approach to FOIA. When administering the statute, "all decisions" should be made "with a clear presumption": "In the face of doubt, openness prevails." Information should not be withheld merely because "public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
With that memorandum, the President directed the Attorney General to issue new FOIA guidelines to the heads of all executive departments and agencies, giving further direction to how we can implement this commitment to accountability and transparency.
The Attorney General issued a new set of guidelines on March 19, 2009. These Guidelines contain three primary messages. First, the Guidelines implement a new approach to disclosures of information. Second, they emphasize new management practices that will better enable federal agencies to make government accessible and open. And third, the Guidelines direct the implementation of new metrics by which FOIA performance can be measured.
The President's Memorandum called not just for a change in policy, but a change in culture. The Department has thus worked hard to educate its agency partners on what the change requires and will continue to do so.