The question is fairly straighforward: does a wholly owned government corporation in the United States fall underneath the Freedom of Information Act? Even if it does not receive any appropriations whatsoever from the federal government?
Extensive googling seems to suggest so, and I intend to contact FOIA officer of the department relevant to the particular corporation I’m interested in. Nonetheless, does anyone here have any experience with this sort of thing? I’m getting a lot of stonewalling and foot dragging from this group, with the excuse that since they receive no direct federal appropriations, FOIA doesn’t apply to them. Which is rather odd, since they post FOIA annual reports on their website…
What is this agency? I think you may have your facts wrong… the US government doesn’t generally “own” corporations. They are set up as independent bodies do distance them from the Federal government.
I used to work for the Corporation for Public Broadcasting. It received the lion’s share of its money from the Feds, but not all of it. It was set up as kind of a money laundering organization, so the feds could fund public TV and radio without exercising direct control over which programs were funded and which weren’t. Other similar institutions are the the National Endowments, for the Arts and Humanities. I couldn’t tell you why they are set up as different types of entities than CPB, but they are unctionally very similar.
I don;t believe the issue of FOIA came up when I was there, but I’m pretty sure they too would have insisted it didn’t apply to them. They did not consider themselves a federal agency.
‘‘agency’’ as defined in section 551(1) of this title includes 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;
To me, it seems very straightforward, but my question is if there is anyone here who has had direct experience in this matter… whether it be a lawyer or someone who has made FOIA requests of such corporations.
Yes, the Freedom of Information Act does cover a corporation owned by the government. The government (outside the constitutional officers, the legislative and judicial branches, and the territories and insular possessions) is organized into five species of entity: executive departments, military departments, government corporations, independent establishments, and executive agencies. 5 U.S.C. ch. 1. The Freedom of Information Act is codified in the United States Code to title 5, Goverment Organization and Employees, which provides that
Those definitions apply to the provision from the Freedom of Information Act that desdinova quoted, 5 U.S.C. § 552(f)(1), that “’‘agency’’ as defined in section 551(1) of this title includes 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 Corporation for Public Broadcating isn’t subject to FOIA because it isn’t chartered or controlled by the federal government, it just recieves federal funds. The legislative history of FOIA lists the Coprporation for Public Broadcasting as a prime example of the sort of corporation they didn’t intend the act to extend to. In order for a company like CPB to be considered an “agency” under section 551 of the act, it generally has to be subject to substantial federal control or supervision, and must have authority to make decisions.
The other section concerning agency under FOIA is the section you quoted, 552 (f). Despite the apparently clear language of the statute, not all government corporations are considered “agencies” for the puroses of FOIA. Some circuits have said that the language “other establishment in the executive branch of the Govenrnment” means that the corporation must also be one which is within the executive branch, so that an entity which is clearly outside the executive branch would not qualify even if it could be shoehorned into the concept of a “Government controlled corporation.” The Smithsonian was adjudged not subject to FOIA for this reason (although an earlier ruling had said that it was.) Neither are Conrail or Amtrak, because depsite significant Government ownership they don’t fulfill the specific Government functions reachable under FOIA.
Since corprorations and government entities don’t fit precise molds but rather take whatever form necessary to “get the job done,” each one generally have to be looked at anew by the courts every time a FOIA issue arises as to a new entity. So other than a general overview, it’s difficult to say whether a government corporation will be considered an “agency” under the act. However, if the entity has been around a while, there’s a good chance that there’s some case law saying whether it has been judged subject to the act in the past. To my admittedly limited knowledge, most government corporations are executive in nature, and the term “wholly owned government corporation” as you use it appears to apply to executive branch corporations. So here’s where I tell you to consult a lawyer in your jurisdiction to help you with this.
Disclaimer: I am a lawyer, but I am not licensed to practice in your jurisdiction. This is not to be construed as legal advice; I am not competent to give legal advice in this matter. I am not your lawyer, you are not my client. For sufficient legal representation you must contact a lawyer licensed in your jurisdiction.
Thanks folks, I think that cinches it (especially since a phone call to a FOIA officer in the Department of the Interior confirmed that the agency in question is in fact obligated under FOIA).