UNDERSTANDING FREEDOM OF INFORMATION Act 2011
Freedom of Information Act 2011, makes almost every record possessed by federal, state and local government, private businesses or international institutions with government support disclosable to the public unless it is specifically exempted from disclosure.
The law provides that any person has a right which is enforceable in court, to maintain access to records except for those documents which are exempt from disclosure by one of nine specific exemptions.
Whenever you write a letter for information make sure the agency endorses a copy for you which must be scanned or sent to us for litigation. These surprisingly elementary points are fundamental to establishing the groundwork of a successful FOIA request but are often surprisingly overlooked by otherwise savvy activists. The result being that documents which should be disclosed are not, cases which should be won, are lost.
The FOIA creates the presumption that records in the possession of the government, international agencies or some big businesses are accessible. Before the FOIA became law in 2011, the burden was on the requester to establish a right to examine government records. Moreover, there were no statutory guidelines or procedures in place to help a person seeking the information as was there no provision for judicial review for those denied access. When FOIA was signed into law, the burden of proof shifted from the individual to the government. Those seeking information were no longer required to show a need for information. Instead, the “need to know’” standard was replaced by a “right to know’” doctrine. The government now has the burden to justify a need for secrecy in order to withhold requested information. The FOIA sets standards for determining which records must be disclosed and which records may be withheld. The law also provides administrative and judicial remedies for those denied access to records.
The crux of FOIA is to make agencies accountable for information disclosure policies and practices. While the Act does not grant an absolute right to examine government documents, it does establish the right to request records and to receive a response to the request. If a record cannot be released, the requester is entitled to be formally advised of the reason for the denial. The requester also has a right to challenge it in court. Consequently, access to information of the Government can no longer be controlled by arbitrary or unreviewable actions of a hidden bureaucracy.
It will serve you well to remember that should you be confronted by an obstructionist bureaucrat who is clearly not going to provide you with materials to which you feel you are lawfully entitled, do not argue or quarrel. Forward the receipt letter of the request to FoI Counsel
FOIA allows “any person” to request materials. Section 1 (1) of FOIA 2011. “Person” includes any “individual, partnership, corporation, association, or public or private organization other than an agency.” See section 31 of the FOIA 2011. The FOIA allows access to soft and hard copy but seems to exclude internal documents and database. The legislative design for the FOIA is to consider the public right to disclosure of a file without analyzing the specific need for the file. See section 24 of the Act. FOIA explicitly indicate that the term “record” and any other term used in FOIA in reference to information, should “include any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.” Section 31 of FOIA 2011
USES OF FOIA
One of the goals implemented by the passage of the FOIA 2011 was to ensure transparency in the governance of our country. The only mechanism by which we can assure governmental integrity is to have a clear understanding of what the government is doing. Getting documents and other valuable information from the government is usually a crucial component in the resolution of any problem involving the operations or activities of the federal bureaucracy or those it does business with. The FOIA is the best manner of access to significant resources of information which would not otherwise be available to the public
- You can use the Act to activate individual or collective participation in government
- You can use the Act to express the citizen’s sovereignty even after elections
- You can use the Act to illuminate and to subject to public scrutiny, those records which concern controversial political and policy issues.
- You can use the Act to ensure agency performance of statutory responsibilities or expose governmental wrongdoing.
- You can use the Act to invalidate agency action.