Part 2: US Government – Freedom of Information

Co-authored by Gianrico DePasquale and Roseanna Dat.

In Part 1, we discussed access to information requests in Canada.

In the United States, businesses that interact with the federal agencies as defined in the Freedom of Information Act[1] may be similarly subject to a freedom of information (FOIA) request. A FOIA request compels the federal agency to disclose records in its possession should any person make a formal request. As such, a FOIA request may be used in the United States to gain information about competitors.

Legislative Overview

The goal of the Act is to encourage accountability through transparency. Under the Act, any person, regardless of citizenship or residency, has the right to request access to federal agency records. The Act defines “agency” as any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. The Act defines “records” as any information that would be an agency record maintained by an agency in any format, including an electronic format; and any information maintained for an agency by an entity under Government contract, for the purposes of records management. Any record that a federal agency creates or receives in relation to a business may be subject to a FOIA request, regardless of whether the records contain sensitive, confidential, or proprietary information.

Each state has its own FOIA legislation that applies to state agencies. State agency obligations and exemptions can vary and may be more onerous than the federal Act, as such, different considerations and safeguards may apply.

Protecting Information

FOIA applies to only records that are in the possession of federal agencies, not information. Therefore, images viewed, but not copied or downloaded, are not subject to FOIA disclosure (emails are considered records subject to FOIA disclosure). An information sharing systems that does not allow for copying or downloading of information, may be used to protect information, however, any notes related thereto may be subject to disclosure.Continue Reading Government Access to Information – Part 2