RTI Rules for Other Countries

USA

The United States enacted a Freedom of Information Act (FOIA) in 1966 and introduced amendments in 1974 and 1986. This Act is applicable to government agencies. ‘Agencies’ include the whole executive arm of the state as well as military department, government corporations and government controlled corporations and any independent regulatory agency.

The Act begins with the obligation on the government agencies to publish (in the Federal Register) information about the organization of the agency; functions; procedure; the persons/officials from whom information can be collected; the availability of forms; the scope of information available; the substantive rules and statements of general policy or interpretations of general applicability adopted by the agency and amendments thereof. A person will be affected by information which must be published but is not done so, only to the extent of the actual and timely notice of the terms of the information. Reasonably available information to the class of persons affected is deemed to be published in the Register when it is incorporated by reference in the same with the approval of the Director of Register.

There is a duty on the agencies to provide certain documents for public inspection and copying. This includes final opinions (concurring and dissenting); any other statements of policy or interpretation not published in the Register; staff manuals and instructions that affect public and indexes. Provision is there to safeguard the unwarranted invasion of privacy. All identifying details can be wiped out, with proper written explanations for such omission. No information can be used as a precedent by an agency against anyone else, unless it has been indexed and either made available or published and the party had actual and timely notice of the terms.

The agencies are obligated to provide records not included in the above categories, upon request which reasonably describes the record. The right to make a request lies with ‘ any person’, i.e., any legal entity like an individual, private corporation etc. The request has to be in accordance with the rules in place regarding time, place, fees and procedure to be followed. The regulations have to be made by each agency and framed pursuant to notice and receipt of public comments thereon. It must include a schedule of the fees and the guidelines to determine the waiver or reduction of the fees. These also have to be in conformity to the guidelines framed (through the process of notice and receipt of public comments) by the Director of the Office of Management and Budget.

The Act contains minimum tests for fees. Fees have to be limited to reasonable standard charged for search, duplication and review when requested for commercial use. This is limited to reasonable charges for duplication only when request is by educational or scientific institution, for scholarly or scientific research; or by representative of the news media. For any other kind of request, reasonable standard charges for document search and duplication is the norm. Fees can be wavered or reduced where it can contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

Time period for compliance with a request is ten (10) days from receipt of the request. Decision will be notified immediately to the requestor with reasons. In case of refusal, it must mention the right to the requester to appeal to the head of the agency and the names and titles/positions of the person responsible for the denial. The time limit is extendable with notice and reason but only for a maximum of 10 more days. Such extension is allowed for search and consultation time.

The first appeal lies to the head of the agency and have to be determined within twenty (20) days from the date of receipt of the appeal. From this departmental appeal lies the right of judicial review by the District Court. The court can be approached directly, in case of no response on the request within twenty days or if the decision of the departmental appeal is not given within twenty days. Additional time for review of request by the court after retaining jurisdiction if the government can show existence of exceptional circumstance and due diligence of the agency in responding to the request.

Narrowly defined exempted information relate to national defense or foreign policy; solely internal personnel rules and practices; information exempted by a statute; privileged trade secrets and commercial or financial information obtained from a person; privileged inter-agency or intra-agency memorandums or letters; personnel and medical files whose disclosure would constitute unwarranted invasion of privacy; law enforcement when disclosure can reasonably be expected to interfere with enforcement proceedings, denial of right to fair trail, endanger safety of an individual or disclose confidential source of information etc.; agencies responsible for the regulation of financial institutions and geological and geophysical data including maps concerning oil wells. Segregable part/s within defined exemptions may be deleted. Nothing can be withheld from the Congress because of the Act. By an amendment in 1983, CIA and other intelligence files of an ‘operational’ nature were exempted from disclosure. Defense authorities were also empowered to ‘protect technical data having space or military application’.

The Act provides for individual accountability through the means of departmental disciplinary action against the erring official or employee. When the court issues a written finding raising questions regarding the arbitrariness or capricious nature of the withholding, the Special Counsel must start proceedings determine if disciplinary action is called for. Findings from this go to the administrative authority of the agency concerned along with copies to the officer or employee or his representative. The administrative authority shall take the corrective action according to the findings.

Agencies must submit an annual report to the Speaker of the House of Representatives and President of the Senate, detailing number of refusals with reasons thereof; the number of appeals and their results with reasons where disclosure confirmed; the names and titles of person/s responsible for denial of request and the instances of participation for each person; report of disciplinary action taken against an officer or employee primarily responsible for improperly withholding records; copy of every rule and fees schedule made by the agency; fees collected and any other efforts to administer the Act fully. The Attorney general has to make an annual report on the cases arising under the Act, the matter of each case, the deposition of such case, the cost, fees, and penalties assessed under the concerned sections.

The Sunshine and Advisory Committee Acts in the US add to the laws that augment the legal regime in favor of openness. The Sunshine Act requires agencies such as the Nuclear Regulatory Commission and the Equal Employment Opportunity Commission to announce their meetings early and open them to the public unless the specific exemptions apply to particular discussions. In similar terms, the Advisory Act requires meetings of outside groups advising Federal agencies to be open to public and subjects advisory committee records to the Freedom of Information Act.

For full text of the US FOI Act, please click on the following link.

http://www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page2.htm