"Providing an informed, reasoned and dispassionate

voice to the global public debate..."

​ITSSD Programs - Theme #4 (2014-2016)

International Regulatory Transparency

​Freedom of Information Act​ ("FOIA")

Theme #4 of ITSSD's Programs focuses, in part, on the Obama Administration's apparent and reported regulatory science (rule)-based non-transparency (here), (here), (here), (here), (here), (here), because of the political influence U.S. government FOIA practices have historically had abroad. 

Theme #4:  Protection of the 'public interest' (constitutional protection of individuals' inherent right to 'due process of law') in an era of expanding international regulatory cooperation depends on the establishment, maintenance and oversight of mutually transparent risk-based best available science ("BAS") and economic cost-benefit-analysis-driven government regulatory and technical standards regimes that assure meaningful public participation and input.  These regimes must provide public notice and comment mechanisms of sufficient duration prior to agency adoption of final rulemakings, and must offer adequate data/information quality review mechanisms to ensure the validity and reliability of agency and third-party-generated science & technical data/information prior to government dissemination and use of it as the bases for agency decision-making, including economically significant rulemakings and administrative enforcement actions. 


The Freedom of Information Act ("FOIA") (5 U.S.C. Sec. 552) was enacted in 1966 as an amendment to the Administrative Procedure Act.  According to the 1998 version of the 1998 U.S. Department of Justice ("DOJ") Freedom of Information Act Guide, FOIA "generally provides that any person has a right, enforceable in court, of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions or by one of three special law enforcement records exclusions."  In other words, FOIA ​"established for the first time an effective statutory right of access to government information", which is presumed to be accessible to the public unless they are specifically exempted from disclosure or another statute.  "The principles of openness and accountability underlying FOIA, however, are inherent in the democratic ideal." 

The Supreme Court of the United States clarified over a generation ago 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."
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)

Several years later, the U.S. Supreme Court emphasized that,

"Official information that sheds light on an agency's performance of its statutory duties fall squarely within that statutory purpose."
United States Dep't. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)

The 1998 DOJ FOIA Guide, furthermore, noted how FOIA

"has played a unique role in strengthening our democratic form of government.  The statute was enacted abased upon the principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed.  Openness in government is essential to accountability and the Act has become an integral part of that process."

​Regrettably, the current administration has been shown not to have lived up to eitherthe promise of FOIA or the President's promise of unparalleled transparency (here), (here), (here), (here).

​Similarly, while a number of nations have enacted Freedom of Information Act ("FOIA")-like laws and procedures in the name of greater government transparency, it has been reported that their record of implementation has been rather questionable.  In addition, it has been shown in a growing number of countries that use of FOIA laws  alone to secure government transparency is insufficient to address government-related corruption. 

The following preliminary list of sources provides background information about FOIA, comparative analyses of FOIA statutes enacted and implemented around the world, and indices measuring government corruption where FOIA statutes have not been properly implemented: