The Freedom of Information Act was enacted twice, and the one that we know and celebrate is, technically, not the one that became law. This early history of FOIA provides an interesting case study in the complexities of the codification of our federal statutes.
What we commonly consider the Freedom of Information Act, S. 1160 in the 89th Congress, was signed by President Johnson on July 4, 1966. It became Pub.L. 89–487 / 80 Stat. 250. Its effective date was one year later on July 4, 1967, and in fact it never became law: it was repealed before its effective date. More on that below.
What came before?
During the period between the enactment of the act and its effective date, Title 5 of the United States Code happened to be enacted into positive law. This means that while Title 5 existed before, it was essentially an official compilation of laws but importantly not the law itself. The enactment of a title of the U.S. Code into positive law reorganizes existing laws to make them easier to follow.
The enactment of Title 5 created the section of the code that would soon be the home of FOIA (5 USC 552). The statute that would actually become FOIA would replace the text of 5 USC 552 with similar provisions plus modern FOIA as we know it.
Pub.L. 89–554 enacted on September 6, 1966 was the law that enacted Title 5 into positive law. The new Title 5′s 5 USC 552 contained a brief public records law: (see 80 Stat. 383)
§552. Publication of information, rules, opinions, orders, and public records
(a) This section applies, according to the provisions thereof, except to the extent that there is involved—
(1) a function of the United States requiring secrecy in the public interest; or
(2) a matter relating solely to the internal management of an agency.
(b) Each agency shall separately state and currently publish in the Federal Register—
(1) descriptions of its central and field organizations, including delegations of final authority by the agency, and the established places at which, and methods whereby, the public may obtain information or make submittals or requests;
(2) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of the formal or informal procedures available and forms and instructions as to the scope and contents of all papers, reports, or examinations; and
(3) substantive rules adopted as authorized by law and statements of general policy or interpretations adopted by the agency for public guidance, except rules addressed to and served on named persons in accordance with law.
A person may not be required to resort to organization or procedure not so published.
(c) Each agency shall publish or, in accordance with published rule, make available to public inspection all final opinions or orders in the adjudication of cases (except those required for good cause to be held confidential and not cited as precedents) and all rules.
(d) Except as otherwise required by statute, matters of official record shall be made available, in accordance with published rule, to persons properly and directly concerned, except information held confidential for good cause found.
You can see in there some of the ideas that were precursors to the actual Freedom of Information Act. In (a) you’ll see what became the national security and personnel records exemptions.
Now, 5 USC 552 was actually not new when it was enacted in September 1966. But I’ve got to unpack that. “5 USC 552″ existed before the enactment of Title 5, but it was about an unrelated subject and the enactment of Title 5 in 1966 moved that to another part of the US Code. But, that’s not what I mean by it not being new.
The text of 5 USC 552 predated the enactment of Title 5 as well. Acts enacting titles into positive law aren’t supposed to create new law. They just rearrange existing law in previous statutes. The text of 5 USC 552 dates back at least to 60 Stat 238 (which Jon Roland of the Constitution Society had the foresight to digitize). That’s the original Administrative Procedure Act, Public Law 79-404 (60 Stat 237, originally S. 7 in the 79th Congress, in 1946).
The enactment of FOIA
The enactment at Title 5 was actually not relevant to the creation of the substance of FOIA, but it did create a conflict with the form of FOIA. At this point Congress’s lawyers were probably not happy. S. 1160 in the 89th Congress — the FOIA we celebrate — was written to amend the Administrative Procedures Act, which by September of the year FOIA was enacted no longer existed. The enactment of Title 5 had repealed it.
When a title is enacted into positive law, the title repeals the previously existing laws that it is consolidating into a new title. Section 8 of Pub.L. 89–554 explicitly repealed the original Administrative Procedure Act:
SEC. 7. (a) The legislative purpose in enacting sections 1-6 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act. Laws effective after June 30, 1965, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency.
…
SEC. 8. (a) The laws specified in the following schedule are repealed except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act and except as provided by section 7 of this Act.
The Administrative Procedure Act — 60 Stat. 237 — is included in a long list of repealed laws following the text above. (You may notice I switched from “60 Stat. 238″ to “60 Stat. 237″. These “Stat” citations indicate the volume and page number in the United States Statutes at Large on which something appears. The origin of 5 USC 552 was on page 238 of the 60th volume of the Statutes at Large, the second page of the Administrative Procedure Act, which began on page 237, and so has the citation 60 Stat. 237.)
To fix this problem, S. 1160 was scuttled before its effective date ever arrived.
On June 5 of the next year — now we’re in 1967 — Pub.L. 90–23 / 81 Stat. 54 (originally H.R. 5357 in the 90th Congress) was enacted. This was “An Act to amend section 552 of title 5, United States Code, to codify the provisions of Public Law 89-187.” This law literally repealed the original Freedom of Information Act before that act became effective and enacted a new one. And this time, rather than it amending the Administrative Procedure Act, it replaced 5 USC 522.
Here is a comparison between the two FOIA statutes. Strike-out indicates text only in the 1966 statute and underline indicates text only in the 1967 statute. The most important difference is in the first line of each right at the top.
AN ACT To amend section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), to clarify and protect the right of the public to information, and for other purposes.
AN ACT To amend section 552 of title 5, United States Code, to codify the provisions of Public Law 89-487.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That section3, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), 552 of title 5, United States Code, is amended to read as follows:
§552. Public information; agency rules, opinions, orders, records, and proceedings
“SEC. 3. Every (a) Each agency shall make available to the public the following information information as follows:
Every “(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public —
(A) descriptions of its central and field organization and the established places at which, the officers employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may secureobtain information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability formulated and adopted by the agency; and
(E) every each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, no person shall a person may not in any manner be required to resort to, or be adversely affected by any a matter required to be published in the Federal Register and not so published. For purposes of this subsectionparagraph, matter which is reasonably available to the class of persons affected thereby shall be is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.
“(b) (2) AGENCY OPINIONS AND ORDERS.—Every agency shall Each agency, in accordance with published rules, shall make available for public inspection and copying (A) final opinions(, including concurrening and dissenting opinions ), and all as well as orders made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affectany a member of the public, unless such thematerials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instructionProvided that in every However, in each case the justification for the deletion must be fully explained shall be explained fully in writing.Every Each agency also shall maintain and make available for public inspection and copying a current index providing identifying information for the public as to any matter which is issued, adopted, or promulgated after the effective date of this Act and which is July 4, 1967, and required by this subsectionparagraph to be made available or published.No A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects any a member of the public may be relied upon on, used, or cited as precedent by an agency against any private party unless a party other than an agency only if—
(i) it has been indexed and either made available or published as provided by thissubsection or unless that private party shall have paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(c)(3) AGENCY RECORDS. Except with respect to the records made available pursuant to subsections (a) and ( b ) , every agency shall, upon under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute and procedure to be followed, make such shall make therecords promptly available to any person.UponOn complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has shall have jurisdiction to enjoin the agency from the withholding of agency records and to order the production of any agency records improperly withheld from the complainant. In such cases a case the court shall determine the matter de novo and the burden shall be upon is on the agency to sustain its action. In the event of noncompliance with the court’s order, order of the court, the district court may punish the responsible officers for contempt the responsible employee, and in the case of a uniformed service, the responsible member. Except as to those causes which the courtdeems considers of greater importance, proceedings before the district court as authorized by this subsectionparagraphshall take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way.
(d)(4) AGENCY PROCEEDINGS.—Every Eachagency having more than one member shallkeep maintain and make available for public inspection a record of the final votes of each member in every agency proceeding and such record shall be available for public inspection.
(e) EXEMPTIONS.—The provisions of this section shall not be applicable
(b) This section does not apply to matters that are(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;
(2) related solely to the internal personnel rules and practices of any an agency;
(3) specifically exempted from disclosure by statute;
(4) trade secrets and commercial or financial information obtained from any a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a private party party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a private party party other than an agency;
(8) contained in or related to examination,operating, or condition reports prepared by, on behalf of, or for the use of any an agency responsible for the regulation or supervision of financial institutions; and or
(9) geological or geophysical information and data (, including maps ), concerning wells.
(f) LIMITATION or EXEMPTIONS.—Nothing in this section authorizes (c) This section does not authorize withholding of information or limitinglimit the availability of records to the public,except as specifically stated in this section, nor shall this section be This section is notauthority to withhold information from Congress.
(g) PRIVATE PARTY. As used in this section, ‘private party’ means any party other than an agency.
(h) EFFECTIVE DATE. This amendment shall become effective one year following the enactment of this Act.
Approved July 4 , 1966.
SEC. 2. The analysis of chapter 5 of title 5, United States Code, is amended by striking out:
”552. Publication of information, rules, opinions, orders, and public records.”
and inserting in place thereof:
”552. Public information; agency rules, opinions, orders, records, and proceedings.”
SEC. 3. The Act of July 4,1966 (Public Law 89-487, 80 Stat. 250), is repealed.
SEC. 4. This Act shall be effective July 4, 1967, or on the date of enactment, whichever is later.
Approved June 5, 1967,
There were differences between the FOIA we celebrate and the one that was enacted, but only minor ones. There usually are differences between bills that are drafted against non-codified laws (i.e. the Administrative Procedure Act) and bills that are drafted against positive law titles of the U.S. Code. This case exemplifies some of those differences.
Though there were no substantive differences, let us remember that our FOIA law that we actually have on the books was signed by President Johnson on June 5, 1967, not July 4, 1966.
A version of this post was originally published on my personal blog.
