Access to information in the United States through Open Government Laws

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Access to information in the United States
through Open Government Laws
2
Open Government Laws are founded on the
proposition that the government should conduct
the publics business in public.

• Senate Report to 1976 Amendments to FOIA

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The Freedom of Information Act (FOIA)The
Government-in-the-Sunshine Act (Sunshine
Act)The Federal Advisory Committee Act (FACA)
4
The Freedom of Information Act provides a
statutory right of access by any person to
records of agencies of the federal government.
5
The Sunshine Act requires certain federal
agencies headed by groups to open their meetings
to the public.
6
The Federal Advisory Committee Act
provides access to the meetings and records of
groups, which include someone outside the
government, and which provide advice to the
President or a federal agency.
7
Four fundamentals give the Open Government Laws
strength

• Disclosure is their main objective.
• The discretion of the government to withhold
  information is restricted.
• The courts are authorized to independently review
  an agencys refusal to provide access. No
  deference to agency judgment and the court may
  review the requested information to determine
  whether any exemption applies. Attorney fees and
  costs may be recoverable in an enforcement
  action.
• They are easy to use.

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A request should

• Reasonably describe the records sought or meeting
  to be attended
• Be addressed to the appropriate government
  office
• Should reflect that the agency has 20 working
  days to respond to a record request, or demand
  confirmation that access will be provided to an
  upcoming meeting by a time certain
• May request justification for any denial of
  access
• Request a fee waiver or notification of costs if
  the agency expects costs to exceed a certain
  level
• The address to which a response should be
  delivered.

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Two types of public access under the Freedom of
Information Act

• Affirmative disclosure provisions that require an
  agency to publish information about its
  organization and functions and procedural and
  substantive rules. They also require access to
  agency formal opinions, staff manuals, and policy
  statements.
• FOIA also requires agencies to promptly make
  available any record to any person that does not
  fall within one of nine exemptions to disclosure.
  Usually an agency has discretion to disclose a
  record publicly even if it falls within an
  exemption. This right of access extends to
  anyone, regardless of nationality.

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There are nine exemptions to the FOIA of which
the most popular are

• Exemption 5, which protects the candor of
  government decision-making (the deliberative
  process),and which protects privileged
  information, but which does not exempt final
  decisions
• Exemption 4, which protects trade secrets and
  commercial information obtains from persons
  outside the government
• Exemption 7, which protects law enforcement
  records under certain circumstances
• Exemption 6, which protects individual privacy
• Exemption 1, which protects information
  classified for national security reasons, and
• Exemption 3, which protects records exempted by
  other federal statutes other than the FOIA.

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All portions of a record that are
segregable from exempt portions must be disclosed.
12
The Government-in-the-Sunshine Act
provides the public with a right of access to
meetings of agencies administered by a board,
commission or other collegial body.
13
The Sunshine Act is limited to those
bodies for which the President with the advice
and consent of the Senate appoints a majority of
the members, but includes any subdivision
authorized to act for the agency.
14
A meeting means the deliberations of
at least the number of individual agency members
required to take action on behalf of the agency
when such deliberations determine or result in
the joint conduct or disposition of official
agency business. A meeting includes a conference
call.
15
Notice ordinarily must be published by
the agency of a meeting at least one week in
advance and the notice must provide the basis
under the Sunshine Act for closing any portion of
such meeting.
16
There are ten exemptions to the open meeting
requirement of the Sunshine Act. Seven are
identical to FOIA exemptions. The three
exemptions especially created for meetings
protect information

• that is likely to involve accusing a person of a
  crime, or formally censuring a person
• the premature disclosure of which would in the
  case of financial agencies lead to speculation or
  endanger the stability of any financial
  institution or, as to any agency, be likely to
  significantly frustrate implementation of a
  proposed agency action and
• that concerns the agencys issuance of subpoena
  or participation in litigation, arbitration or an
  administrative hearing.
• The Sunshine Act exemptions apply to the
  meeting itself and any record thereof.

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Unlike the FOIA, there is no deliberative
process exemption to the Sunshine Act. Meeting
transcripts or minutes must be kept. No meeting
may be closed, or minutes of it withheld, on the
ground that the agency is engaged in
decision-making.
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Exemptions to the Sunshine Act must be
narrowly construed.
19
Agencies normally must keep a
transcript or electronic recording of any closed
agency meeting. For some meetings devoted to
financial markets or institutions, special
proposed agency action, or agency litigation, an
agency may keep full and accurate minutes that
include a description of each view expressed and
the record of each roll call vote. All documents
considered in connection with any agency action
shall be identified in such minutes.
20
All non-exempt portions of the
transcript, recording or minutes of any closed
agency meeting shall promptly be made public by
the agency. The agency shall keep this
information available to the public for a period
of at least two years after such meeting unless
the proceeding to which the meeting relates is
not concluded in which case the information shall
be kept until a year after the proceeding is
concluded.
21
Public has right to go to court to enforce
agency compliance with the Sunshine Act. But the
Sunshine Act does not require meetings to be held
or public participation in any meeting.
22
In a lawsuit to enforce the open
meetings requirement of the Sunshine Act, the
burden is on the agency to sustain its action.
The Court may review withheld transcripts,
recordings and minutes and make non-exempt
portions public. The Court may also cancel a
meeting improperly noticed or order it to be
opened if the reason for its closure is not
lawful. Plaintiffs may recover attorneys fees
and costs.
23
FACA was enacted to cure specific ills,
above all the wasteful expenditures of public
funds for worthless committee meetings and biased
proposals.Public Citizen v. Department of
Justice, 491 U.S. 440, 453 (1989)
24
The Federal Advisory Committee Act
applies to both the records and the meetings of
committees that advise the President or almost
any federal government agency.FACA is intended
to open the advisory committee process to public
scrutiny and to protect against undue influence
by special interest groups over government
decision-making.
25
The membership of an advisory committee
must be balanced in terms of points of view
represented and the functions to be performed by
the committee.
26
Advisory committee is almost any group
established by statute or reorganization plan, or
established or utilized by the President or one
or more agencies, which has at least one
committee member who is not a government
employee, and which provides consensus advice
rather than the advice of individual members.
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FACA does not apply to committees that
advise the legislative or judicial branches. Nor
does it apply to committees that are primarily
operational such as the Bicentennial Commission.
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There are usually about 1,000 advisory
committees, with some 40,000 members, in
existence at the federal government level at any
given time.
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Advisory committees must be chartered. A
charter tells the public the committees
objectives and duties and the agency responsible
for seeing that the committee complies with the
law.
30
Like agencies subject to the
Sunshine Act, advisory committees must provide
advance notice of, and public access to, their
meetings, but are not required to meet.
31
Meetings of advisory committees must be
noticed in the Federal Register 15 days in
advance.
32
Like the Sunshine Act, FACA has no
deliberative process privilege. This is true for
FACA meetings and records.
33
FACA provides for advisory committee
records to be made available for public
inspection before or at the time of the advisory
committee meeting to which they apply.
34
Interested persons shall be permitted
to attend, appear before, or file statements with
any advisory committee, subject to such
reasonable rules or regulations as the
Administrator shall prescribe.
FACA
35
FACA provides for court challenge to the
composition of an advisory committee as too
heavily dominated by a particular interest, as
well as to the denial of adequate notice or
access to any record or meeting.
36
A FACA violation may be addressed by a
complaint brought under the Administrative
Procedure Act. Relief may include a request to
enjoin the agency from relying upon any advise of
the committee operating in violation of FACA.
37
The General Services Administration is
the federal agency responsible for all matters
relating to advisory committees. Access
http//fido.gov/facadatabase.
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Devices to avoid access under the Sunshine Act

• Exemption 3 statute
• Do not meet or meet only to confirm
  decision-making
• Have agency body vote in writing seriatim
• Have agency administrator visit each member of
  the head body for views and votes
• Have aides to members of the agencys head body
  attend meetings to avoid quorum until final vote
• Delegate decision-making to administrator
• Deny access on thin grounds
• Ignore Sunshine Act requirements

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Devices to avoid access under FACA

• Exemption 3 statute
• Do not meet
• Direct advice to the Vice-President
• Present advice as from each member of the
  advisory committee
• Make membership appear fluid
• Have subcommittee provide advice to committee
• Give members some governmental status
• Deny access on thin grounds
• Ignore FACA requirements

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Open government also is undermined by the
cost and time involved in enforcing access.