Freedom of Information Act

1
Freedom of Information Act
2
Key Documents

• President Johnsons Proclamation on the signing
  of the original act in 1967
• The Congressional Guide to FOIA
• Sec. 552 FOIA

3
President Johnsons Statement

• This legislation springs from one of our most
  essential principles a democracy works best when
  the people have all the information that the
  security of the Nation permits. No one should be
  able to pull curtains of secrecy around decisions
  which can be revealed without injury to the
  public interest.

4
Countervailing Interest in Privacy

• At the same time, the welfare of the Nation or
  the rights of individuals may require that some
  documents not be made available.

5
National Security

• As long as threats to peace exist, for example,
  there must be military secrets.

6
Citizen Complaints and Information

• A citizen must be able in confidence to complain
  to his Government and to provide information,
  just as he is -- and should be -- free to confide
  in the press without fear of reprisal or of being
  required to reveal or discuss his sources.

7
Personnel Information

• Fairness to individuals also requires that
  information accumulated in personnel files be
  protected from disclosure.

8
Government Operations

• Officials within Government must be able to
  communicate with one another fully and frankly
  without publicity. They cannot operate
  effectively if required to disclose information
  prematurely or to make public investigative files
  and internal instructions that guide them in
  arriving at their decisions

9
Who Uses FOIA and Why?

• Reporters
• Businesses
• Lawyers
• NGOs
• Citizens

10
Burden of Proof

• How did the passage of the FOIA change the burden
  of proof for persons seeking information from the
  government?

11
Need to Know

• What are allowable purposes for requesting
  information under FOIA?
• What are disallowed purposes?

12
Interpreting the Law

• The DOJ issued an opinion on 12 Oct 2001 saying
  that agencies could withhold information if there
  was a sound legal basis for doing so
• Why do you think this was issued?
• What did Congress say about this interpretation?

13
Court Ordered Discovery

• Usually only in litigation
• Must lead to admissible evidence
• Limited ability to get info from non-parties
• Puts other side on notice of what you are looking
• Constrained by limits in the rules of civil
  procedure and in local court rules
• How is FOIA different from discovery in
  litigation?

14
The Scope of the FOIA

• The Federal Freedom of Information Act applies to
  documents held by agencies of the executive
  branch of the Federal Government. The executive
  branch includes cabinet departments, military
  departments, government corporations, government
  controlled corporations, independent regulatory
  agencies, and other establishments in the
  executive branch.

15
Who is Exempted?

• The FOIA does not apply to elected officials of
  the Federal Government, including the President,
  Vice President, Senators, and Representatives.
• Papers of ex-presidents are covered to some
  extent
• The FOIA does not apply to the Federal judiciary.

16
Private Persons

• The FOIA does not apply to private companies
  persons who receive Federal contracts or grants
  private organizations or State or local
  governments.
• The Shelby Amendments allow FOIA access to data
  produced by universities on federal grants

17
Information or Records?

• The FOIA provides that a requester may ask for
  records rather than information.
• An agency is only required to look for an
  existing record or document
• An agency is not obliged to create a new record
  to comply with a request.
• An agency is neither required to collect
  information it does not have, nor must an agency
  do research or analyze data for a requester.

18
Computer Records

• When records are maintained in a computer, an
  agency is required to retrieve information in
  response to a FOIA request.
• The process of retrieving the information may
  result in the creation of a new document when the
  data is printed out on paper or written on
  computer tape or disk.
• Since this may be the only way computerized data
  can be disclosed, agencies are required to
  provide the data even if it means a new document
  must be created.

19
Specificity

• The law requires that each request must
  reasonably describe the records being sought.
  This means that a request must be specific enough
  to permit a professional employee of the agency
  who is familiar with the subject matter to locate
  the record in a reasonable period of time.

20
Agency Organization of Records

• What if you ask for all the records about toxic
  wastes 3 miles from a specific school and the
  agency only has the data by state and political
  subdivision?
• How should you frame requests when you do not
  know the specific records you need?

21
Making a Request

• Is there a central clearinghouse?
• The US Government Manual
• The request letter should be addressed to the
  agency's FOIA officer or to the head of the
  agency.
• The envelope containing the written request
  should be marked Freedom of Information Act
  Request'' in the lower left-hand corner.

22
Basic Elements of a Request

• First, the letter should state that the request
  is being made under the Freedom of Information
  Act.
• Second, the request should identify the records
  that are being sought as specifically as
  possible.
• Third, the name and address of the requester must
  be included.

23
Optional Items

• Your phone number email?
• How much you are willing to pay
• Why you should get a discount
• The format you want
• Reasons for expedited processing

24
Fees

• First, fees can be imposed to recover the cost of
  copying documents.
• Second, fees can also be imposed to recover the
  costs of searching for documents.
• Third, fees can be charged to recover review
  costs. Review is the process of examining
  documents to determine whether any portion is
  exempt from disclosure.

25
Categories of Requestors
26
News and Educational

• A requester in this category who is not seeking
  records for commercial use can only be billed for
  reasonable standard document duplication charges.
  
• A request for information from a representative
  of the news media is not considered to be for
  commercial use if the request is in support of a
  news gathering or dissemination function.

27
Commercial

• The second category includes FOIA requesters
  seeking records for commercial use.
• Commercial use is not defined in the law, but it
  generally includes profitmaking activities.
• A commercial user can be charged reasonable
  standard charges for document duplication,
  search, and review.

28
Everybody Else

• People seeking information for personal use,
  public interest groups, and nonprofit
  organizations are examples of requesters who fall
  into the third group.
• Charges for these requesters are limited to
  reasonable standard charges for document
  duplication and search. Review costs may not be
  charged.

29
Small Requests

• Small requests are free for a requester in the
  first and third categories. This includes all
  requesters except commercial users.
• There is no charge for the first 2 hours of
  search time and for the first 100 pages of
  documents.
• A noncommercial requester who limits a request to
  a small number of easily found records will not
  pay any fees at all.

30
Fee Waivers

• Fees now must be waived or reduced if disclosure
  of the information is in the public interest
  because it is likely to contribute significantly
  to public understanding of the operations or
  activities of the government and is not primarily
  in the commercial interest of the requester.

31
How Long Does the Agency Have?

• Under the 1996 amendments to the FOIA, each
  agency is required to determine within 20 days
  (excluding Saturdays, Sundays, and legal
  holidays) after the receipt of a request whether
  to comply with the request.
• The FOIA permits an agency to extend the time
  limits up to 10 days in unusual circumstances.

32
What if They Ignore You?

• However, as a practical matter, there is little
  that a requester can do about it. The courts have
  been reluctant to provide relief solely because
  the FOIA's time limits have not been met.

33
Administrative Appeals of Denials of Documents or
Fee Waivers

• A requester may appeal the denial of a request
  for a document or for a fee waiver.
• A requester may contest the type or amount of
  fees that were charged.
• A requester may appeal any other type of adverse
  determination.
• A requester can also appeal because the agency
  failed to conduct an adequate search for the
  documents that were requested.

34
Filing the Administrative Appeal

• An appeal is filed by sending a letter to the
  head of the agency.
• The letter must identify the FOIA request that is
  being appealed.
• The envelope containing the letter of appeal
  should be marked in the lower left-hand corner
  with the words Freedom of Information Act
  Appeal.

35
Form of the Appeal

• An appeal will normally include the requester's
  arguments supporting disclosure of the documents.
  
• A requester may include any facts or any
  arguments supporting the case for reversing the
  initial decision.
• However, an appeal letter does not have to
  contain any arguments at all.
• It is sufficient to state that the agency's
  initial decision is being appealed.

36
Judicial Appeal

• When an administrative appeal is denied, a
  requester has the right to appeal the denial in
  court.
• A FOIA appeal lawsuit can be filed in the U.S.
  District Court in the district where the
  requester lives.
• The requester can also file suit in the district
  where the documents are located or in the
  District of Columbia.

37
What is the Standard for Review?

• In such a case the court shall determine the
  matter de novo, and may examine the contents of
  such agency records in camera to determine
  whether such records or any part thereof shall be
  withheld under any of the exemptions set forth in
  subsection (b) of this section, and the burden is
  on the agency to sustain its action.

38
When does the Court Defer to the Agency?

• In addition to any other matters to which a court
  accords substantial weight, a court shall accord
  substantial weight to an affidavit of an agency
  concerning the agency's determination as to
  technical feasibility under paragraph (2)(C) and
  subsection (b) and reproducibility under
  paragraph (3)(B).

39
How Does the Court Decide if the Document is
Exempt?

• In camera review
• This prevents the plaintiff from being able to
  attack the claim because he has no information
  about the documents being withheld
• Vaughn list (Vaughn v. Rosen, 484 F2d 820 (1974)
• Agency must list and describe the documents and
  explain why it is claiming an exemption

40
The Burden Of Justifying The Withholding Of
Documents Is On The Government

• How does this combine with de novo review to make
  this proceedings complicated and expensive for
  the government?
• How does this lead to the Taj Mahal of unintended
  consequences?

41
FOIA Exemptions

• There are 9 classes of documents that the agency
  may refuse to produce
• This is a discretionary decision unless other law
  further restricts disclosure
• For example, there are additional law protecting
  trade secrets and classified materials

42
FOIA Exclusions - What if the Agency Does Not
Want to Admit the Document Exists?

• Ordinarily, any proper request must receive an
  answer stating whether there is any responsive
  information, even if the requested information is
  exempt from disclosure.
• In some narrow circumstances, acknowledgement of
  the existence of a record can produce
  consequences similar to those resulting from
  disclosure of the record itself.
• Admitting you have a record about a confidential
  informant would give away the identity

43
What if You Ask for an Excluded Record?

• The exclusions allow an agency to treat certain
  exempt records as if the records were not subject
  to the FOIA.
• An agency is not required to confirm the
  existence of three specific categories of
  records.
• If these records are requested, the agency may
  respond that there are no disclosable records
  responsive to the request.

44
Glomar Response

• As you may know, a "Glomar" response is an
  agency's express refusal even to confirm or deny
  the existence of any records responsive to a FOIA
  request. This type of response was first
  judicially recognized in the national security
  context. Phillippi v. CIA, 546 F.2d 1009, 1013
  (D.C. Cir. 1976) (raising issue of whether CIA
  could refuse to confirm or deny its ties to
  Howard Hughes' submarine retrieval ship, the
  Glomar Explorer). Although the "Glomarization"
  principle originated in a FOIA exemption (1)
  case, it can be applied in cases involving other
  FOIA exemptions as well, in particular privacy
  exemptions (6) and (7)(C).
• A "Glomar" response can be justified only when
  the confirmation or denial of the existence of
  responsive records would, in and of itself,
  reveal exempt information. (DOJ memo)

45
Exemption 1.--Classified Documents

• The first FOIA exemption permits the withholding
  of properly classified documents. Information may
  be classified in the interest of national defense
  or foreign policy.
• The government will often refuse to confirm or
  deny if the record even exists.

46
Exemption 2.--Internal Personnel Rules and
Practices

• The second FOIA exemption covers matters that are
  related solely to an agency's internal personnel
  rules and practices.

47
2 Types of Documents Exempted

• First, information relating to personnel rules or
  internal agency practices is exempt if it is a
  trivial administrative matter of no genuine
  public interest.
• Second, an internal administrative manual can be
  exempt if disclosure would risk circumvention of
  law or agency regulations.
• In order to fall into this category, the material
  will normally have to regulate internal agency
  conduct rather than public behavior.

48
Exemption 3.--Information Exempt Under Other Laws

• The third exemption incorporates into the FOIA
  other laws that restrict the availability of
  information. To qualify under this exemption, a
  statute must require that matters be withheld
  from the public in such a manner as to leave no
  discretion to the agency.
• IRS records are one example

49
Exemption 4.--Confidential Business Information

• Trade secrets
• Confidential business information
• The courts have held that data qualifies for
  withholding if disclosure by the government would
  be likely to harm the competitive position of the
  person who submitted the information.
• Information may also be withheld if disclosure
  would be likely to impair the government's
  ability to obtain similar information in the
  future.
• (Do not worry about the Trade Secret/Critical
  Mass distinction)

50
Confidential Private Information - Chrysler Corp.
v. Brown

• Chrysler wanted to enjoin the release of info by
  government
• Does the APA create a direct right to enjoin such
  disclosures?
• How could the APA be used to support the
  injunction?
• Sec 10 of the APA which prohibits agency actions
  contrary to law

51
Are trade secret protections absolute?

• Court also said that the protection of the trade
  secret act is not absolute, but the agency must
  show some legal basis for releasing otherwise
  protected info
• When might the agency release trade secret
  information?
• Congress does this for toxics in some cases

52
Releasing Proprietary Corporate Data

• What is the key to deciding whether the data will
  be released?
• Was the data is provided voluntarily or under
  compulsion?
• When is voluntary info covered?
• If it would not ordinarily be available to the
  public

53
When is compelled info covered?

• If it would cause significant harm if not
  released
• What are examples where Congress has compelled
  disclosure?
• MSD and community notification act under EPA
• Do the companies have to be notified first?
• By executive order, companies must be notified
  when the agency wants to divulge their info.

54
Clinical Trial Data

• The FDA is under pressure to release clinical
  trial data submitted for new drug approvals
• There are concerns that drug companies are
  overstating the benefits and understating the
  risks of drugs
• What are the FOIA issues?
• How could the agency solve these?

55
Exemption 5.--Internal Government Communications

• The FOIA's fifth exemption applies to internal
  government documents.
• An example is a letter from one government
  department to another about a joint decision that
  has not yet been made.
• Another example is a memorandum from an agency
  employee to his supervisor describing options for
  conducting the agency's business.
• Include lawyer client privilege

56
Protecting Deliberation- NLRB v. Sears, Roebuck
Co.

• What does the regional office do when there is an
  unfair labor practices complaint it does not want
  to adjudicate?
• The office of counsel makes the final decision in
  an appeal memorandum
• Who does it ask for advice and what does it get?
• When the regional office is considering such a
  request it gets an advice memorandum from counsel

57
What did Sears want?

• Sears wanted documents exchanged between the NLRB
  counsel and the regional offices
• What privilege did the NLRB claim?
• Agency claimed (b)(5) agency memorandum privilege

58
Why did Sears say it did not apply?

• Sears says these reflect policies already adopted
  by the agency and thus are not subject to this
  exception because they do not further agency
  consultation.
• What presidential privilege does this resemble?
• Exemption 5 mirrors the executive privilege to
  not disclose certain documents in litigation

59
When does this Exemption Apply?

• To fall into the exemption, the documents must be
  part of the agency decisionmaking process
• What does the court want to protect?
• The courts want to protect the "frank discussion
  of legal and policy matters" so that agencies
  will not be completely swayed by public opinion
• What else does Exemption 5 cover?
• Exemption 5 also covers attorney work product

60
What is the key test?

• Are the they pre-decisional documents or
  documents that implement or explain the decision?

61
Why do advice and appeals memos not fall under 5?

• They are not sent until Counsel makes its
  decision on not filing a complaint, and thus do
  not fall under 5
• What about memos which direct the filing of a
  claim?
• They just initiate the process and are clearly
  part of an ongoing transaction which includes
  further decisionmaking and legal advice, thus
  they are subject to 5

62
What if exempt materials are used as part of a
record for a ruling?

• Materials that might be sec 5 exempt lose their
  exemption if the agency relies on them as part of
  the record for a ruling
• If the agency then finds it cannot release them,
  the record for the rule would fail

63
Exemption 6.--Personal Privacy

• The sixth exemption covers personnel, medical,
  and similar files the disclosure of which would
  constitute a clearly unwarranted invasion of
  personal privacy.

64
Interpretation

• This exemption protects the privacy interests of
  individuals by allowing an agency to withhold
  personal data kept in government files.
• "which would constitute a clearly unwarranted
  invasion of personal privacy"
• Allows release of info which is not so intrusive
• Only individuals have privacy interests.
  Corporations and other legal persons have no
  privacy rights under the sixth exemption.

65
Problem

• What about personnel files of supreme court
  nominees?
• Can the government withhold them even if the
  person says it is OK to release them?
• Tape of the last minutes of the space shuttle?
• Why would the paper want the tape when they had
  the transcript?

66
Exemption 7.--Law Enforcement

• The seventh exemption allows agencies to withhold
  law enforcement records in order to protect the
  law enforcement process from interference.

67
Types of Interference I

• A) could reasonably be expected to interfere with
  enforcement proceedings,
• (B) would deprive a person of a right to a fair
  trial or an impartial adjudication,
• (C) could reasonably be expected to constitute an
  unwarranted invasion of personal privacy,
• (D) could reasonably be expected to disclose the
  identity of a confidential source, including a
  State, local, or foreign agency or authority or
  any private institution which furnished
  information on a confidential basis, and, in the
  case of a record or information compiled by a
  criminal law enforcement authority in the course
  of a criminal investigation or by an agency
  conducting a lawful national security
  intelligence investigation, information furnished
  by a confidential source,

68
Types of Interference II

• (E) would disclose techniques and procedures for
  law enforcement investigations or prosecutions,
  or would disclose guidelines for law enforcement
  investigations or prosecutions if such disclosure
  could reasonably be expected to risk
  circumvention of the law, or
• (F) could reasonably be expected to endanger the
  life or physical safety of any individual

69
Why Have This List?

• This was added in 1974
• Why 1974?
• The previous provision was short, but gave the
  government very broad discretion to withhold
  anything that touched on law enforcement
• This list was meant to limit discretion and
  encourage the release of information

70
What is a Law Enforcement Purpose?

• Remember that law enforcement agencies are also
  big employers with extensive non-law enforcement
  activities

71
What are the Privacy Interests?

• The FBI collects lots of raw info on people
• Why not release it to the newspapers?
• What about "rap" sheets?

72
Exemption 8.--Financial Institutions

• The eighth exemption protects information that is
  contained in or related to examination,
  operating, or condition reports prepared by or
  for a bank supervisory agency such as the Federal
  Deposit Insurance Corporation, the Federal
  Reserve, or similar agencies.

73
Exemption 9.--Geological Information

• The ninth FOIA exemption covers geological and
  geophysical information, data, and maps about
  wells.
• This exemption is rarely used - but LA and Texas
  would be good places to find it used, if
  anywhere.

74
The Privacy Act - Access to Your Own Records

• The Privacy Act of 1974 provides safeguards
  against an invasion of privacy through the misuse
  of records by Federal agencies.
• In general, the act allows a citizen to learn how
  records are collected, maintained, used, and
  disseminated by the Federal Government.
• The act also permits an individual to gain access
  to most personal information maintained by
  Federal agencies and to seek amendment of any
  inaccurate, incomplete, untimely, or irrelevant
  information.

75
The Privacy Act Policy

• Why is it important for you to get access to the
  information the government keeps about you?
• Why might you want to challenge the accuracy of
  information in government files?
• Why is it important that the Privacy Act requires
  agencies to publish descriptions of the systems
  they use to keep records?

76
The Computer Matching and Privacy Protection Act
of 1988

• The Computer Matching and Privacy Protection Act
  of 1988 amended the Privacy Act by adding new
  provisions regulating the use of computer
  matching.
• If the government already has the information,
  why is computer matching a big issue?

77
Can You Just Ask for All of Records the
Government Has?

• There is no central index of Federal Government
  records about individuals.
• An individual who wants to inspect records about
  himself or herself must first identify which
  agency has the records.

78
Getting Other Peoples Records

• A request for access under the Privacy Act can
  only be made by the subject of the record.
• An individual cannot make a request under the
  Privacy Act for a record about another person.
• The only exception is for a parent or legal
  guardian who may request records on behalf of a
  minor or a person who has been declared
  incompetent.
• It is a crime to knowingly and willfully request
  or obtain records under the Privacy Act under
  false pretenses.

79
Privacy Act Process

• This mirrors FOIA Process
• We will not cover this in any more detail

80
Sunshine/Open Meeting Acts

• Why have these laws?
• What are the benefits?
• What are the costs?
• What does a Baton Rouge School Board meeting look
  like?

81
State vs. Federal Law

• How broad are the state laws as compared to the
  federal law?
• Federal law has 10 exemptions
• Federal law and exemptions
• Most of the states are broader

82
How do agencies try to get around Sunshine acts?

• Work off written documents - remember the
  exemption for intra-agency memos?
• Meet in groups of two
• Have staff do the meetings and then rubber stamp
  the results

83
What is a meeting?

• Why is this a critical definition?
• What did the Moberg case find?
• The Moberg case found that the critical
  definition was whether there was a quorum present
  of either the governing body or its committees,
  unless it was a social or chance gathering
• Could you set the quorum very high, assuming you
  could ever get them together when you needed to
  act?

84
FCC v. ITT?

• The United States Supreme Court used a narrower
  definition under the federal law in FCC v. ITT
• They are only meeting when they are deciding.
• They can get together privately when they are
  receiving information and having informal
  background discussions

85
What do you tell your clients?

• Comply with notice
• Do not make the decisions at the background
  sessions
• Clearly separate them, at least in time.

86
Sanctions

• What sanctions can you get if prevail on a claim
  that a meeting should have been open?
• You can get attorney's fees if you prevail on a
  claim that a meeting should have been open

87
Can the federal court overturn actions because of
improperly closed meetings?

• Federal law does not allow the court to overturn
  an agency action because a meeting was improperly
  closed
• Some states do allow this, plus providing other
  penalties