The Administrative Procedure Act of 1946

Forerunner to the Freedom of Information Act 1966

Aug 22, 2009

The Administrative Procedure Act of 1946 attempted to regulate federal administrative agencies, but its failure led to the Freedom of Information Act in 1966.

On June 11, 1946, U.S. President Harry S. Truman signed into law the Administrative Procedure Act (APA). More than 10 years in the drafting, the APA was intended to create a framework by which federal administrative agencies — created by the Federal Government outside the provisions of the U.S. Constitution — could be regulated and held accountable for actions that often encompassed executive, legislative, and judicial activities. Although the APA failed in its intent, it eventually led to the Freedom of Information Act (FOIA) in 1966.

The U.S. Constitution created an outline for the three branches of the Federal Government, but ignored the details of how the government should be run. Over time, the executive, legislative, and judicial branches established federal administrative agencies to help implement laws and policies, as well as coordinate the daily needs of citizens.

In the beginning, the number of federal administrative agencies needed to run the government was small. From 1789 to 1861, for example, the total number of agencies was 11. In the 35 years between the end of the Civil War and 1900, only 6 new agencies were created. By 1940, there were 52 agencies required to deal with the alphabet soup of New Deal programs formed to handle the complexities of the Great Depression. As of 2007, the number of federal administrative agencies had grown to 1,177, of which 834 were in the Executive branch, 79 in the Legislative branch, and 45 in the Judicial branch, with the balance belonging to independent, quasi-official, and miscellaneous commissions.

As the number of federal administrative agencies grew, so did concerns over how those agencies could be regulated and held accountable for their actions. According to U.S. Attorney General Tom C. Clark (1947), one main purpose of the APA was set forth in §3, which required certain “agencies to keep the public currently informed of their organization, procedures and rules.” Although §3 provided for the release of public records upon request, government agencies routinely blocked access for arbitrary reasons of confidentiality, secrecy, or self-interest.

Under the provisions of the APA, requesters had to demonstrate that they were “properly and directly concerned” with the information, which effectively blocked media access to government records. One memo from the Atomic Energy Committee (dated April 17, 1947) reflected the attitude of most agencies toward disclosure of sensitive information: “It is desired that no document be released which . . . might have an adverse effect on public opinion or resulting legal suits.”

Unfortunately, the statute provided no legal remedy when public records were wrongfully denied. During later congressional hearings, legislators came to the rueful conclusion that “information . . . [was] withheld only to cover up embarrassing mistakes or irregularities.” Thus, the APA was not only seen as having “little or no value to the public in gaining access to records of the Federal Government,” but also of being more of a “withholding statute” than a “disclosure statute.”

As a result, legislators struggled once more to create a legal framework that would allow public access to basic information. The result of these efforts was the FOIA, which was signed into law on July 4, 1966, by U.S. President Lyndon B. Johnson (LBJ).

The FOIA was intended to correct abuses of §3 of the APA. In a statement released at the time of enactment, LBJ declared that “democracy works best when the people have all the information that the security of the nation permits.” As such, the FOIA strived to balance “access to information [against] the need of government to protect certain categories of information.”

Even though nine exemptions to disclosure were authorized, the U.S. Supreme Court has consistently ruled that “disclosure requirements be construed broadly, the exemptions narrowly” [Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976)]. According to the U.S. Department of Justice, the United States was then nearly alone among developed nations in providing “an enforceable legal mechanism for public access to the official records of a national government.”

The FOIA has been amended several times — including in 1996, when amendments were introduced to cover electronic transmissions. In late 2005, U.S. President George W. Bush signed Executive Order 13,392 (“Improving Agency Disclosure of Information”), in which all 92 Federal agencies currently subject to the statute were reminded that “FOIA requesters are seeking a service from the Federal Government and should be treated as such.”

Nevertheless, freedom of information is not without its limits. In response to concerns about terrorism, the Intelligence Authorization Act of 2003 prohibited U.S. intelligence agencies from releasing FOIA information to any foreign government or international organization. Thus, for the first time in more than 40 years, the right of any person to make an FOIA request was abridged, thereby calling to mind the original limitations of the APA.

References

Administrative Procedure Act. 1946 (June 11). P.L. 79-404, 60 Stat. 237 (subsequently codified at 5 U.S.C. §551 et seq.).

Clark TC. 1947. Attorney General’s Manual on the Administrative Procedure Act. Washington, D.C.: U.S. Government Printing Office.

Shepherd GB. 1996. Fierce compromise: the Administrative Procedure Act emerges from New Deal politics. Northwestern Law Review. 90:1557–1683.

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