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Access to United States Government Records at the U.S. National Archives and Records Administration

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Access to United States Government Records at the U.S. National Archives and Records Administration Access to United States Government Records at the U.S. National Archives and Records Administration DAVID J. MENGEL Chief, Special Access and FOIA Staff National Archives and Records Administration “In the Rotunda of the National Archives Building in Washington, DC, the Declaration of Independence, Constitution and Bill of Rights are on display for anyone who wishes to see them. The words on these carefully preserved parchments have shaped our Government and our country for more than two centuries and they capture forever the hopes, dreams, and aspirations the founders of our democracy had for its citizens. But it is beyond the walls of the Rotunda that most of the stories of America can be found in records that document history, the business and actions of Government, and the rights and entitlements of individuals. It is in our offices, regional archives, records centers, Presidential Libraries, and research rooms where the work of our mission is planned and carried our every day across the country.” 1 —Allen Weinstein Archivist of the United States The United States National Archives and Records Administration (NARA) is the custodian for the permanently valuable records created by or for the Federal Government, that document the rights of American citizens, the actions of Federal officials, and the national experience. Our holdings include Federal records from the Legislative, Executive and Judicial branches; Presidential materials from presidential administrations dating back to President Herbert Hoover; and donated materials collected from a wide variety of individuals who worked for or interacted with the Federal government. These materials document some of the most important civil, military and diplomatic events that have occurred in the United States and around the world. Some of the oldest materials in NARA are on parchment and date back to the founding of the United States. The main Archives building, and the Archives II facility in College Park, Maryland alone preserve, protect and provide reference on “six billion pieces of paper and over eleven million still pictures; 112,469 reels of motion pictures and 236,557 sound and video recordings; 2,760,890 maps and charts; 3,639,571 architectural and engineering plans; and 20,687,173 aerial photographs.”2 1 A quote by Archivist of the United States Allen Weinstein from the “Preface from the Archivist” in the NARA strategic plan “ Preserving the Past to Protect the Future: The Strategic Plan of the National Archives and Records Administration 2006-2016.” The National Archives and Records Administration 2006. 2 “National Archives and Records Administration (NARA) Fact Sheet”, March 13, 2007. NARA Office of Public Affairs. Available on the internet at http://www.archives.gov/press/factsheet.html. Every day government agencies create new records that might be transferred to the National Archives. Of all the documents and materials created in the course of business conducted by the Federal government, only 1%-3% are so important for legal or historical reasons that they are legally transferred to NARA kept by us forever. The National Archives and Records Administration (NARA) is the Government agency that preserves and maintains these materials, and makes them available to the public. The primary goal of NARA is to provide the public with access to as much information as possible while preserving these records for future generations. Each year, our staff serves the public with billions of publicly available textual documents, photographs, video and audio recordings, drawings, maps, treaties, posters, and other items. These materials are available for researchers to use in-person at our facilities around the country. While the majority of our holdings are declassified and open to the public, an estimated 5 percent are closed to research due to classified national security concerns or other statutory restrictions. Access to historical materials is perhaps the most complex archival issues faced by NARA today. To provide access to historical records from all three branches of the Government and Presidential records, our staff reviews records under access regulations that can be very different depending on the collection. While the categories of records have some restrictions in common, like national security and privacy, they all have restrictions and access regulations that are unique. To understand all the intricacies of these laws requires extensive training and years of hands on experience. For example, it takes three days for the Department of Justice to train reviewers on the basics of the Freedom of Information Act. While some agencies are affected by a few of these regulations, NARA must review for access under all of them. One of the foundations of the U.S. democracy is the belief that government must answer to the people. The only way for the public to hold government officials accountable for their actions is for the government to be as open as possible. So how does the public gain access to information created and collected by the different branches of the Federal government? What option does the public have if the government says no to providing access to information? To answer these questions for NARA holdings we must look at the types of records in our custody and briefly describe how they are affected by access regulations. EXECUTIVE BRANCH RECORDS Executive branch records include all agencies of the Federal Government that fall organizationally under the President of the United States. This includes Federal records created in the Executive Office of the President, all Federal agencies, and many independent boards, commissions and investigative bodies. A large percentage of the closed Executive branch records contain information that has been designated as national security classified. In addition to national security classified information, these records can contain highly sensitive statutory, personal privacy information, business proprietary Japan-U.S. Archives Seminar, May 2007 Page 2 of 13 and investigative information. Protecting national security, statutory and personal information are the highest priorities for NARA access professionals. The public can request access to closed executive branch information in one of two ways, the Freedom of Information Act (FOIA) and the access provisions of Executive Order 12958, as amended (EO 12958). While these laws require agencies to review their records, they do not require agencies to disclose all sensitive information. Information that falls within the categories allowed by the law can be exempted from public release. The Freedom of Information Act (5 U.S.C. 552) The Freedom of Information Act (FOIA) was enacted by Congress in 1966 to provide U.S. citizens with a legal process by which they could request access to government information that is not publicly available. Until then the public had the right to challenge the workings of the government, but no effective legal authority to back up that right. Congress enacted the FOIA to ensure that the public has a legal avenue to challenge the government to release information it collects and creates. Two interesting things have occurred since the FOIA was enacted. First, it has become the basis for access laws throughout the U.S. and around the world. Second, it continues to evolve as new records access issues develop. The FOIA is constantly being amended, updated and refined. While innovative, the original FOIA law had little legal authority to back it up, and provided requestors with no method to appeal government decisions. Following the Watergate scandal of the early 1970s, Congress pushed through amendments to the FOIA in 1974 overriding President Ford’s veto. These amendments set up the current review and appeal processes that give the public the ability to challenge government denial decisions. In 1996, due to the increase in electronic records, the growth of the internet and a court decision stating that electronic records are subject to the FOIA, Congress passed the e- FOIA amendments. These amendments required agencies to review electronic records under the FOIA, provide researchers access to records electronically if they were available in that format, and create online FOIA reading rooms to post frequently requested records. In December 2005, President Bush issued E.O. 13392, mandating all agencies to review their FOIA programs and develop plans to improve customer service and the FOIA review process. Under the direction of the Department of Justice, agencies developed FOIA improvement plans to address inadequacies in their programs. This new mandate requires agencies not only to report their annual FOIA numbers, but to report annually on the progress of their improvement plans. Simply put, the FOIA gives members of the public the right to request access to any document collected or created by the Executive Branch. Under the FOIA, government agencies must search for, perform a page-by-page review of, and provide as much information as possible to the public unless it falls under the very specific restrictions Japan-U.S. Archives Seminar, May 2007 Page 3 of 13 outlined in the law. Should a government agency choose to withhold information from the public under the FOIA it must cite one of the nine exemptions 3 established by the law. If an agency denies the information the requestor then has the right to appeal the agency’s decision directly to the denying agency. Should the agency deny the appeal, the requestor may then take legal action against the government through the U.S. District Court system. The court collects information and makes a final ruling on whether or not the documents can be released. Since NARA is the legal custodian of agency records determined to be permanent, FOIA exemptions apply to the historical records at NARA as well as our administrative records. To request access to any closed historical or administrative records in NARA custody, researchers need only cite the FOIA when submitting their request. NARA staff will locate, review, and if possible release the requested documents.
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