Freedom of Information Act
The Freedom of Information Act (FOIA, 5 U.S.C. § 552) is the United States federal statute under which any person may request the records of executive-branch agencies and receive them unless a record falls within one of nine exemptions; Lyndon B. Johnson signed it on July 4, 1966, and it went into effect in 1967. The 1974 amendments, passed over President Gerald Ford's veto, let citizens petition courts to decide whether an agency must release a document, and the amended act became effective on February 19, 1975. It is the instrument through which most of the government's documentary record on UFOs reached the public: the CIA's report on the 1953 Robertson Panel, released to the researcher Ann Druffel for ten cents a page, about 900 pages of CIA files in December 1978 after suits by Ground Saucer Watch and Citizens Against UFO Secrecy, and the FBI, Air Force, Army and intelligence-agency files held in the private archive of The Black Vault. Richard Dolan holds that none of these documents, taken alone, is a "smoking gun" for the extraterrestrial hypothesis, that together they showed agencies taking UFO reports seriously while downplaying them in public, and that the most sensitive records were never released; David Jacobs argued in 1985 that nothing in the released documents showed the government had systematically investigated UFOs, much less retrieved one. A federal appeals court ruled in 1979 that the National Security Agency's records warranted "special dispensation" from FOIA suits, and David Fravor says the personnel of the Advanced Aerospace Threat Identification Program were "FOIA exempt."
Provisions
A request must reasonably describe the records sought, and the agency must make them promptly available to any person. The agency must determine within 20 days, excepting Saturdays, Sundays and legal public holidays, whether it will comply. Nine exemptions allow withholding, among them records "specifically authorized under criteria established by an Executive order to be kept secret" in the interest of national defense or foreign policy (b)(1), records "specifically exempted from disclosure by statute" (b)(3), and inter-agency or intra-agency memorandums that would not be available by law to a party in litigation with the agency (b)(5). Subsection (c)(3) allows an agency to treat certain records as not subject to the act where "the existence of the records is classified information." On judicial review the court determines the matter de novo, and the burden is on the agency to sustain its action. A reply that neither confirms nor denies that responsive records exist is called a Glomar response, after Phillippi v. CIA (D.C. Cir. 1976), which concerned the CIA's refusal to say whether it held records on the ship Hughes Glomar Explorer.
Enactment and amendment
The National Security Archive records Johnson's statement on signing the act on July 4, 1966, and President Ford's veto of the 1974 amendments on October 17, 1974; the House voted to override on November 20 and the Senate on November 21. Dolan places the amendments in the political turmoil of Watergate and Vietnam, says they told agencies to release documents promptly and at reasonable cost and to report their requests to Congress each year, and adds that the law was further strengthened during the Carter administration.
UFO requests and litigation
In late 1974 Druffel asked the CIA "on a whim" for a declassified copy of the Robertson Panel report, which James McDonald had found at Wright-Patterson Air Force Base in 1966, and was told she could have the 28 pages for ten cents each; Dolan writes that until 1975 there had been no proof that the CIA took an interest in UFOs. The panel had recommended that the government use various channels to debunk UFO reports and monitor domestic enthusiast organizations. In the summer of 1975 Ground Saucer Watch of Phoenix, led by William Spaulding and W. Todd Zechel, asked the CIA for UFO documents and was told that the agency's UFO connection began and ended with the Robertson Panel. Citizens Against UFO Secrecy (CAUS), formed in 1978, was in Dolan's words essentially a three-man show of Zechel, Brad Sparks and the attorney Peter Gersten, who took the same approach into court. Barry Greenwood, who later joined CAUS, said that "the only way to get documents released was to have them in the first place so that one could mail them back to the agency as proof that they existed." When the Defense Department answered Greenwood's request in 1978, several of the documents listed the CIA on their distribution while the agency was still insisting that its involvement had ended in 1953. Bruce Maccabee obtained about a thousand pages from the FBI, which Dolan says showed strong Bureau interest in many sightings and proved that the FBI had lied to the public about it.
In June 1978 Gersten filed a discovery motion on Ground Saucer Watch's behalf with 635 interrogatory questions and almost 300 document requests, and in August the CIA announced that it had found 1,000 pages of additional UFO material and then more than 10,000 documents. On December 15 about 900 pages were released, documents the CIA had previously denied and that attested to a thirty-year interest in UFOs; Gersten saw from references in them that 200 or more documents had not been disclosed. A 1979 New York Times report on records from the CIA, the FBI and other agencies obtained in 1978 said they showed much serious behind-the-scenes concern in the government about the roughly 10 percent of sightings that remained unexplained, and about whether they might be Soviet aircraft, the "risk of false alerts," and mass hysteria; in 1947 Brigadier General George F. Schulgen of Army Air Corps Intelligence had warned that the first reported sightings might have been by individuals of Communist sympathies seeking to cause hysteria and fear of a secret Russian weapon. Documents released under the act also indicate that the Defense Intelligence Agency, the FBI, the CIA, the NSA and the military intelligence agencies of the Army and Navy, in addition to the Air Force, collected information on UFOs; many are online at agency FOIA sites such as the FBI's, and the FBI's 1950 Hottel memo on a flying-saucer recovery claim became the Bureau's most viewed FOIA document.
When Gersten asked the NSA for 18 documents the agency replied that it was exempt from FOIA; CAUS widened the request to all NSA records on UFOs, which began a suit that ran for years. Garner relates that each agency denied holding documents while pointing to another that did, the CIA directing Gersten to 118 NSA documents and the NSA to 35 shared with the CIA, and that the case reached the Supreme Court. On October 29, 1979 a federal appeals court ruled that NSA records were so sensitive that the agency was afforded "special dispensation" from adversary FOIA actions, a ruling Dolan reads as effectively exempting the NSA and opening a loophole for other agencies. On November 18, 1980, after an in camera affidavit that was itself classified Top Secret, Judge Gerhard Gesell dismissed the suit, citing "the sensitive nature of the materials and the obvious effects on national security their release may well entail." By the summer of 1981 suits against the CIA, NSA, Defense Intelligence Agency and Federal Aviation Administration had all been decided for the defendants. Barry Goldwater had written in 1975 that the Air Force's UFO material at Wright-Patterson, to which he had been refused access, was "still classified above Top Secret."
Dolan dates the end of what he calls FOIA's glory era to President Ronald Reagan's April 2, 1982 executive order, which he writes eliminated response time limits to FOIA requests, after which searches could last two years or more and fees reached as high as $250,000 in one instance. He writes that the few Top Secret documents released had been almost entirely redacted and that FOIA became "nearly useless for most military UFO encounters after the mid-1980s." The first collection of FOIA-released UFO documents, Clear Intent by Barry Greenwood and Lawrence Fawcett, appeared in 1984. In April 1986 the NSA told a requester seeking Project Aquarius, the alleged document that refers to Majestic 12, that the information "has been found to be currently and properly classified" and that disclosure "could reasonably be expected to cause exceptionally grave damage to the national security"; in 1987 it wrote to Senator John Glenn that its own Aquarius did not deal with UFOs but that "apparently there is or was an Air Force project by that name which dealt with UFOs." The Cutler-Twining memo that William Moore, Stanton Friedman and Jaime Shandera revealed was found in the U.S. National Archives. Garner counts the Twining memo among the many thousands of authentic pages released through the act or by natural declassification.
Requesters since the 1990s
The Black Vault is the private archive of John Greenewald, whose collection of UFO records obtained through the act exceeds 6,000 pages, displayed as received, many blacked out; Luis Elizondo calls him "probably the World Authority on Freedom of Information Act" and cites a Defense Department intelligence report released through FOIA as "the document that our own government has no idea apparently exists." Fravor says the report he wrote after the 2004 USS Nimitz encounter "was never released in a FOIA request" and that, as he learned from Elizondo, the roughly 13 people of the program, the report's author among them, "were FOIA exempt," and that the program's work and findings are "not releasable through Freedom Information Act." David Grusch described to the House Oversight subcommittee in 2023 programmes whose reporting to Congress the Deputy Secretary of Defense may waive under Title 10. The proposed UAP Disclosure Act, introduced in July 2023 as an amendment to the fiscal year 2024 National Defense Authorization Act and titled by its sponsors as modeled after the JFK Assassination Records Collection Act, would have created a Review Board to review all government UAP records; most of it was excluded from the final act.
Open questions
References
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