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Freedom of
Information ActFederal, State, International
Gail Zwirner
October 2, 2012
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Recent FOIA Headlines
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E-mails give look at Washington's inside gameBYLINE: Robert Schmidt;and Jesse HamiltonWashington Post, September 9, 2012
It had been two days since U.S. lawmakers negotiated all night to finish rules that would reshape the
business of Wall Street. That 20-hour session left legislators, aides, lobbyists and regulators exhausted.Almost no one had a grip on all the details. Then Annette Nazareth stepped in. That Sunday morning, shee-mailed a dozen Securities and Exchange Commission officials about the bill that would become the2,300-page Dodd-Frank Act.
Nazareth, herself a former SEC commissioner, represents the biggest banks and securities firms as apartner in the Washington office of Davis Polk & Wardwell. She attached an annotated copy of themeasure to her June 27, 2010, e-mail, marking changes made during the wee hours. It could be aninvaluable tool for an agency hard-pressed to analyze the bill on a tight deadline.
"In case you would find it helpful," Nazareth wrote to the group, many of them former colleagues.Two hours later, SEC Chairman Mary L. Schapiro responded: "Thanks. We have our work cut out for us."
Dodd-Frank, which took effect in July 2010, would shape the SEC's agenda for the next two years as itlabored to write 100 regulations the law required. It also opened opportunities for Nazareth. With herconnections and SEC experience, she emerged as the preeminent legal advocate for financial servicesfirms as they sought to scale back the new rules.
With Nazareth on board, Davis Polk was hired as outside counsel on Dodd-Frank by the six largest U.S.banks and the Securities Industry and Financial Markets Association, the Wall Street trade group,according to the law firm's Web site. The firm also performed work for foreign lenders, including CreditSuisse Group and Deutsche Bank.
Nazareth's e-mails to Schapiro and then-SEC general counsel and senior policy director David Becker,obtained through a Freedom of Information Act request, show how lobbyists and lawyers draw on bondsthey formed in government service to gain access for clients - and how they maintain those ties.
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The admiral and the DukeBYLINE: Al KamenWashington Post, August 29, 2012
We caught the headlines about that recent memo by Adm. William McRaven taking Special Forces troops to
task for writing books about their on-the-job exploits. The chiding missive from the head of the SpecialOperations Command was clearly aimed at the Navy SEAL who's penning a book about the raid in whichOsama bin Laden was killed. . . . .
And speaking of dramatizing the bin Laden raid, more back story (that's a Hollywood-script term) isemerging about the access the Obama administration gave to the filmmakers working on the action film"Zero Dark Thirty. E-mails between CIA officials, White House aides, the filmmakers and others - whichJudicial Watch obtained through a Freedom of Information Act request and just released - are light on jaw-dropping revelations. But the trip-over-their-feet eagerness with which the administration helped director
Kathryn Bigelow and screenwriter Mark Boal might be a tad embarrassing in the cold light of day.
One e-mail shows former CIA spokeswoman Marie Harf talking up the project, apparently to colleagues,citing the Oscar winners involved. "I know we don't pick favorites but it makes sense to get behind awinning horse," she wrote. Another reveals George Little, who was then the CIA director of public affairs,gushing to Boal. "I can't tell you how excited we all are (at DOD and CIA) about the project," he wrote,adding: "PS - I want you to know how good I've been not mentioning the premiere tickets. :-) At least hedidn't ask for an autograph.
The most serious breach revealed in the new batch of documents, though, didn't come from theadministration. In one string of correspondence between Harf and New York Times reporter Mark Mazzetti,the scribe gave the flack an advance copy of a column by Maureen Dowd slated to be published Aug. 7,2011, in which Dowd took a dim view of the administration's courting of the filmmakers. "This didn't comefrom me . . . and please delete after you read," Mazzetti wrote, apparently attempting to reassure the CIApeople the column wasn't as critical as they'd feared it would be. "See, nothing to worry about!"
A New York Times spokeswoman called the incident "a mistake that is not consistent with New York Timesstandards, and said in an e-mailed statement that Dowd had given the column to Mazzetti for help withfact-checking and didn't know he shared the whole piece with CIA. Earlier, NYT editor Dean Baquetdescribed the apparent lapse a bit differently to Politico, saying it was "an intelligence matter."
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Unpredictable Danger Looms Close to the HeartBYLINE: By KATIE THOMASNew York Times, September 8, 2012
Monsters attacked Avery de Groh when she was 4. That is how she remembers the day in
2007 when the defibrillator in her chest misfired, sending nine electric shocks through herbody in less than 30 minutes.
Today, Avery is a chatty 9-year-old who just learned to roller-skate. . . .The culprit was abroken wire from the defibrillator that keeps her heart beating normally. Like her motherand two brothers, she has an inherited condition that makes her prone to a fatal heartrhythm. After Avery's episode, doctors removed the faulty wire, made by Medtronic, andreplaced it with a new one made by St. Jude Medical.
Now it is possible that one is damaged, too. The wire, or lead, known as the Riata, wasrecalled in December after St. Jude warned doctors that internal cables were pokingthrough the outer casing, causing unwanted shocks or failing to work when needed. Nearly20 percent of the 128,000 people worldwide who have the Riata may be affected, accordingto the company. . . .
In one example of the conflicting information about the devices, St. Jude reported lastNovember that the problem with the Riata leads was affecting less than 1 percent ofpatients. But an internal report by an F.D.A. employee that month challenged thatassessment, arguing that the company was underestimating the problem. The agency didnot publicize the report, which was obtained through a Freedom of Information Act requestand provided to The New York Times by a lawyer whose client is suing St. Jude.
The F.D.A. analysis proved to be correct: in July, a new St. Jude study found that the Riata
showed signs of failing in 19 percent of patients.
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U-M rejected Colorado shooting suspectBYLINE: By, David Jesse and Tony LeysDetroit Free Press, September 1, 2012
The University of Michigan confirmed Friday that it, too, rejected James Holmes -- thetroubled graduate student who police say shot and killed a dozen people at a Coloradomovie theater -- when he applied last year.
"I can now tell you that he did apply here, for the neuroscience graduate program, and hewas not admitted," U-M spokesman Richard Fitzgerald said Friday in an e-mail to the FreePress. He gave no further details on Holmes' application or why he was turned down.
The neuroscience program, formed in 1971 and the longest-standing neurosciencegraduate program in the U.S., is part of the Rackham Graduate School. It has 75 studentspursuing their doctorates. There are 115 faculty with ties to the neuroscience program, itswebsite says.
U-M wasn't the only school that rejected Holmes last year. The University of Iowa releaseddocuments Thursday under the Freedom of Information Act about Holmes' application.
"Do NOT offer admission under any circumstances," one professor wrote about Holmes inan e-mail to the selection committee for the neuroscience program. The professor, DanielTranel, did not explain why he felt this way, but Tranel wrote much more negatively aboutHolmes than the other six applicants he interviewed, the e-mail shows. Another professor,Mark Blumberg, echoed those thoughts about Holmes. "I agree with Dan. Don't admit,"Blumberg wrote.
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How Not to Fire a PresidentBYLINE: By ANDREW RICENew York Times, September 16, 2012
On a languorous Sunday in June, low season on the campus of the University of Virginia,Prof. Larry Sabato opened a perplexing e-mail. ''My instant reaction,'' he said, ''was thatI thought we'd been hacked.'' The message, sent to the entire university, announced theresignation of the university's president, Teresa Sullivan, obliquely citing a''philosophical difference of opinion'' with the institution's governing board. Sullivan hadheld the job for just two years, without any scandal, and Sabato couldn't believe shehad been pushed aside with so little evident justification. ''I said that if this was true,''
he recalled, ''this was going to be a P.R. disaster of national proportions.'' . . . .
For months, news organizations -- from The Washington Post to the student-runCavalier Daily -- have been poring over records obtained through the state's Freedom ofInformation Act, including thousands of pages of internal e-mail correspondence. Thedocuments reveal something of the university's state of mind in the months leading upto the crisis, as administrators feuded over budgets and discontent spread among board
members. But they are, by nature, a fragmentary record: the actors were loath to puttheir true feelings in writing then, nor were they eager to discuss them with reportersnow. Few of those directly involved were eager to talk to me, but many did speak,allowing me to piece together a fuller account of the puzzling affair. As it turns out, a''philosophical difference'' wasn't just a euphemism: it was an apt description of a clashbetween two fundamentally different theories of leadership.
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Secrecy deepening under Freedom of Information, warns watchdogBYLINE: SCOTT MACNABThe Scotsman, September 19, 2012
TheScottish Government has presided over an "unacceptable" erosion of the public's right toinformation, with complaints about secrecy among SNP ministers almost trebling, the official watchdoghas said.
Scots now have fewer rights to know about the way public bodies operate than they did when theFreedom of Information (FoI) Act was passed ten years ago, the report added.
The warning comes as Alex Salmond undertakes a court battle against a ruling by InformationCommissioner Rosemary Agnew to reveal whether his government has received legal advice about thestatus of an independent Scotland's EU membership.
Ms Agnew hit out at the growing number of quangos and PFI (public finance initiatives) that are fundedthrough public cash, but exempt from FoI, as she launched her annual report yesterday. It promptedopposition claims that the SNP is treating Freedom of Information with "utter contempt".
Ms Agnew said: "An ever-growing concern is the loss of rights occurring through the delivery of publicservices by arm's-length organisations and third parties. "FoI was introduced for a reason: to ensure that
the delivery of public services and the spending of public money is transparent, open and accountable."It is simply not acceptable that citizens' rights continue to be eroded through complex changes in thedelivery of services. This must be looked at as an immediate priority."
Appeals against FoI decisions by public bodies have risen 24 per cent in the past year to 524. The numberof appeals against Scottish ministers jumped 40 to 110 in 2011-12. Most of these were settled withoutinvestigation. In those cases where Ms Angew was forced to issue a ruling, 23 cases went against theScottish Government. A further six were partially upheld, while 15 went in favour of ministers.
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Federal FOIA
5 U.S.C. 552, 100 Stat. 3207 (1966)
Enacted in 1966 to establish the publics right to
obtain information from federal government
agencies
Amended in 1974 to force greater agency
compliance
Amended in 1996 to allow for greater access to
electronic information
Amended in 2007 to improve agency response time
to requests and allow attorney fees
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Legislative Intent
Congress envisioned three roles of the
electorate for which the Act was designed
to guarantee access to government
information To give the public access to the government information
necessary to ensure that government officials act in the public
interestthe watchdog function.
To ensure the publics access to government informationconcerning public policy.
To ensure that the government would not secretly create or
enforce laws or administrative regulations
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Legislative History 1966 Act
Congressional Reports
S. Rep. No. 813, 89th Cong., 1st Sess. (1965) (S. 1160)
H. Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in 1966
U.S.C.C.A.N. 2418 (S. 1160)
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Legislative History, cont.
Debates on S. 1160
Considered and passed Senate, Oct. 13, 1965, 111 Cong. Rec.
26820
Considered and passed House, June 20, 1966, 112 Cong. Rec.
13007 Presidential Signing Statement, Pub. L. 89-487
July 4, 1966
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From the Presidential Signing
Statement This legislation springs from one of our most essential
principles: a democracy works best when people have all the
information that the security of the nation will permit. --
Lyndon Baines Johnson, Presidential Signing Statement of S.
1160, July 4, 1966 (Johnson opposed the legislation but signedit anyway.)
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Legislative History 1974 Amendment
(Privacy Act)
Placed limitations on agencies collection, disclosure, and
use of personal information.
Both FOIA and Privacy Act allow individuals to seek
access to records about themselves, known as first-
party access.
Congressional Reports
H. Rep. No. 93-876, 93rd Cong., 2d Sess. (1974), reprinted in 1974
U.S.C.C.A.N. 6267 (H.R. 12471)
S. Rep. No. 93-854 (S. 2543) S. Rep. No. 93-1200, 93rd Cong., 2d Sess. (1974), reprinted in 1974
U.S.C.C.A.N. 6285 (Conference Committee)
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Legislative History 1974 Amendment
Debates
House considered and passed, 120 Cong. Rec. H1787-H1803
(March 14, 1974)
Senate considered and passed, amendment in lieu of S. 2543, 120
Cong. Rec. S9310-S9343 (May 30, 1974) Senate agreed to conference report, 120 Cong. Rec. S17828-
S17830, S17971-S17972 (Oct. 1, 1974)
House agreed to conference report, 120 Cong. Rec. H10001-
H10009 (Oct. 7, 1974)
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Legislative History 1974 Amendments
President Fords Veto Message
H. Doc. 93-383 (Nov. 18, 1974)
Debate on Veto
Preliminary House Action, 120 Cong. Rec. H10705-H10706 (Nov.
18, 1974) House Action and Vote on Ford Veto, 120 Cong. Rec. H10864-
H10875 (Nov. 20, 1974)
Senate Action and Vote on Ford Veto, 120 Cong. Rec. S19806-
S19823 (Nov. 21, 1974) (veto overridden) (became Pub. L. No. 93-
502)
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Legislative History 1976 Amendments
As part of the Government in Sunshine Act, Exemption 3of the FOIA was amended.
Congressional Reports:
H. Rep. No. 94-880, Part I, 94th Cong., 2d Sess. (1976), reprinted in
1976 U.S.C.C.A.N. 2183. H. Rep. No. 94-880, Part II , 94th Cong., 2d Sess. (1976), reprinted
in 1976 U.S.C.C.A.N. 2212.
H. Rep. No. 94-1441, 94th Cong., 2d Sess. (1976), reprinted in 1976U.S.C.C.A.N. 2244 (Conference Committee)
Presidential Signing Statement, Pub. L. No. 94-409 Sept. 13, 1976
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Legislative History 1986 Amendment
Addressed the fees charged; part of the Anti-Drug Abuse Act of 1986.
Debates
Senate Bill introduced, 132 Cong. Rec. S13648, 13660-61 (Sept.
25,1986) Sen. Leahy amendment and statement, 132 Cong. Rec. S14033
(Sept. 27, 1986)
Sen. Hatch statement, 132 Cong. Rec. S14038-40 (Sept. 27, 1986)
Sen. Denton statement, 132 Cong. Rec. S14252 (Sept. 30, 1986)
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Legislative History, 1986 Amendments
Senator Leahy statement, 132 Cong. Rec. S14295-300 (Sept.30, 1986)
Senate Technical Amendments, 132 Cong. Rec. S14277-78(Sept. 30, 1986)
Reps. English and Kindness statements, 132 Cong. Rec. H9462-68 (Oct. 8, 1986)
House approves amendments, 132 Cong. Rec. H9462-68 (Oct.8, 1986)
Senate amendment to House, 132 Cong. Rec. S15956 (Oct. 10,
1986)
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Legislative History, 1986 Amendment
Sen. Leahy-Kerry Colloquy, 132 Cong. Rec. S16496-97(Oct. 10, 1986)
Sen. Hatch statement, 132 Cong. Rec. A16504-05 (Oct.15, 1986)
House amendment to Senate amendment, 132 Cong.Rec. H11233-34 (Oct. 17, 1986)
House approves amendments, 132 Cong. Rec. H10787(Oct. 17, 1986)
Senate concurs, 132 Cong. Rec. S16921 (Oct. 17, 1986) Became Pub. L. No. 99-570, Title I, 1802, 1803 (Oct. 27,
1986)
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Legislative History 1996 Amendment
Amended with the Electronic Freedom of Information
Act. (E-FOIA)
Requires that agencies submit a report to the Attorney
General on or before Feb. 1 of each year that covers the
preceding fiscal year and includes information about FOIAoperations.
Congressional Reports:
H. Rep. No. 104-175 (H.R. 3802) (Committee on Government
Report and Oversight)
S. Rep. No. 104-272 (S. 1090) (Committee on the Judiciary)
Presidential Signing Statement (Clinton), became Pub. L. No.
104-231, 3-11 (Oct. 2, 1996)
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Legislative History 1996,
cont. E-FOIA provided for expedited processing in cases where the
requestor could show compelling need failure to obtain
could pose an imminent threat to the life or safety of an
individual
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Legislative History 2002 Amendment
In the wake of the 9/11 attacks, the FOIA was amended
to limit the ability of foreign agents to request records
from U.S. intelligence agencies.
Congressional reports:
H. Rep. No. 107-592, 107th Cong., 2d Sess. (2002), reprinted in
2002 U.S.C.C.A.N. 1500.
Became Pub. L. No. 107-306, Title III, 312 (Nov. 27, 2002)
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2005 Executive Order
Exec. Order 13392 in December 2005 aimed at improving
agencies response time of disclosure of information
consistent with FOIA.
GAOs subsequent survey of 16 agencies:
9 achieved decreases in backlog 5 showed increases in backlog
2 showed no material change
Dept of Homeland Security, for example, decreased backlog by
29%
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Legislative History 2007 Amendments
OPEN Government Act of 2007:
to improve the agency response time for requests
allows attorney fees when forced to file a lawsuit to releaserecords
Designated Chief FOIA Office at each agency
Established tracking numbers for requests
Congressional reports:
H. Rep. No. 110-45, 110th Cong., 1st Sess. (2007)
S. Rep. No. 110-59, 110th Cong., 1st Sess. (2007)
Became Pub. L. No. 110-175 (Dec. 31, 2007)
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Current 112th Congress
H.R. 484, Personal Privacy Clarification Act
To clarify the intent of Congress to limit the privacy exemption to
individuals, not to corporations in section 552(b)(7)(C)
Section 552(b)(7)(C) of title 5, United States Code, is amended by
striking `personal privacy' and inserting `the privacy of anyindividual'.
Still pending
AT&T Inc. v. F.C.C., 582 F.3d 490 (2009), revd, F.C.C. v. AT&T, 131 S.
Ct. 1177 (2011)
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DOJ Activity
Proposed rules affecting 28 C.F.R. Part 16
76 Fed. Reg. 15236-15244
Critics say, if adopted, the rules will be a step back for
transparency.
One provision would allow DOJ officials to deny the existenceof a certain type of record, even if the record exists, a policy
said to be in use since 1987 to protect the integrity of certain
undercover investigative activities. Only applies to DOJ.
76 Fed. Reg. 57940 extended the comment period; stillpending
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Supreme Court Interpretation
U.S. Dept of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 772 (1989)(unanimous)(Justice Stevens)
The broad purpose of the Act is to open agency action to the
light of public scrutiny.
The Act indeed focuses on the citizens right to be informedabout what their government is up to.
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Key Documents Attorney
General Memoranda Reno (. . .in determining whether or not to defend a
nondisclosure decision, we will apply a presumption of
disclosure.)
http://www.justice.gov/oip/foia_updates/Vol_XIV_3/page3.htm
Ashcroft (Oct. 12, 2001) (DOJ will defend an agency as long asthe decision rests on a sound legal basis.)
http://www.justice.gov/archive/oip/foiapost/2001foiapost19.htm
http://www.justice.gov/oip/foia_updates/Vol_XIV_3/page3.htmhttp://www.justice.gov/archive/oip/foiapost/2001foiapost19.htmhttp://www.justice.gov/archive/oip/foiapost/2001foiapost19.htmhttp://www.justice.gov/oip/foia_updates/Vol_XIV_3/page3.htm -
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2005 Executive Order
Exec. Order 13392 (70 Fed. Reg. 75373) in Dec. 2005 aimed at
improving agencies response time of disclosure of
information consistent with FOIA
Required the AG (Gonzales) to review agency FOIA Improvement
Plans http://www.justice.gov/archive/oip/ag_report_to_president_133
92.pdf
Criticized by the National Security Archive for ignoring issues such
as staffing and funding for agencies to bring their FOIA programs
into compliance with the law. Mixed Signals, Missed Results: How President Bushs Executive
Order on FOIA Failed to Deliver (2008), available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/eo_audit.pdf
http://www.justice.gov/archive/oip/ag_report_to_president_13392.pdfhttp://www.justice.gov/archive/oip/ag_report_to_president_13392.pdfhttp://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/eo_audit.pdfhttp://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/eo_audit.pdfhttp://www.justice.gov/archive/oip/ag_report_to_president_13392.pdfhttp://www.justice.gov/archive/oip/ag_report_to_president_13392.pdf -
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Obama Administration View of
FOIA http://www.whitehouse.gov/the_press_office/Freedom_of_In
formation_Act/
President Obama declared FOIA a profound national
commitment to ensuring an open Government.
http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/ -
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Obama Administration View of
FOIA Reversed the Bush administration on the issue of disclosure
and instructed the AG to issue new guidelines
http://www.whitehouse.gov/the_press_office/Freedom_of_Infor
mation_Act/
AG Holder issued on March 19, 2009, a Memorandum forHeads of Executive Departments and Agencies rescinding the
2001 Ashcroft memo and described an expectation of a
presumption of disclosure.
http://www.justice.gov/ag/foia-memo-march2009.pdf
http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/http://www.justice.gov/ag/foia-memo-march2009.pdfhttp://www.justice.gov/ag/foia-memo-march2009.pdfhttp://www.justice.gov/ag/foia-memo-march2009.pdfhttp://www.justice.gov/ag/foia-memo-march2009.pdfhttp://www.justice.gov/ag/foia-memo-march2009.pdfhttp://www.justice.gov/ag/foia-memo-march2009.pdfhttp://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/ -
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Application of FOIA
FOIA applies to Executive Branch departments, agenciesand offices, and federal corporations.
Each agency must release identifiable records to anyperson (individual, partnership, corporation,
association, or public or private organization other thanan agency) who requests them unless the informationrequested falls within one of the acts exemptions.
Requestors need not divulge the reason(s) why they seekthe records. However, agencies are allowed to inquire
whether the requested record will be used for acommercial purpose to determine the fees.
DOJ v. Rptrs. Comm. For Freedom of the Press, 489 U.S. 749, 771(1989)
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Application of FOIA
Records sought must be reasonably described.
Too specific, other pertinent records might not be retrieved
Too broad, agency may deny the request as overly broad and
therefore too burdensome to fulfill.
Congress, the federal courts, and parts of the Executive Officeof the President that function solely to advise the President,
are not subject to FOIA.
DOJ oversees agencies compliance and is the primary source
of policy guidance
OMB issues guidelines on the uniform schedule of fees
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Application of FOIA
Veterans Affairs accounts for half of all requests (first-party
medical requests)
Other agencies with large numbers of requests:
FEMA (now under Homeland Security)
CIA Social Security Administration
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What kinds of records?
All agency records print documents, photographs, videos,
maps, e-mail that were created or obtained by a Federal
agency.
Since the 1996 amendments, the best place to get the
information about how to make a request, or to make theactual request, is at the agency website.
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What are the exemptions?
552(b)(1): National Security Information
552(b)(2): Internal Personnel Rules and Practices
552(b)(3): Information exempt under other laws
http://www.usdoj.gov/oip/annual_report/2006/06foiapg4.htm
http://www.usdoj.gov/oip/annual_report/2006/06foiapg4.htmhttp://www.usdoj.gov/oip/annual_report/2006/06foiapg4.htm -
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Exemptions, cont.
552(b)(4): Trade secrets or Confidential business
information (CBI)
Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C.
Cir. 1983) defined trade secret as a secret, commercially
valuable plan, formula, process, or device that is used for themaking, preparing, compounding, or processing of trade
commodities and that can be said to be the end product of either
innovation or substantial effort.
GC Micro Corp. v. Defense Logistics Agency, 33 F.2d 1109, 1112
(9th
Cir. 1994) qualified CBI as (1) commercial or financialinformation; (2) obtained from a person, and (3) confidential.
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Exemptions, cont.
552(b)(5): Inter or intra agency memoranda or letters which
would not be available by law to a party other than an agency
in litigation with the agency.
A document must satisfy two conditions: its source must be a
Government agency, and it must fall within the ambit of aprivilege against discovery under judicial standards that would
govern litigation against the agency that holds it. Dept of the
Interior v. Klamath Water Users, 532 U.S. 1, 8 (2001)
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Exemptions, cont.
552(b)(6): Personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.
An agency cannot invoke Exemption 6 to withhold so-called first-
person information that is, information about the requester.U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 771 (1989).
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Exemptions, cont.
Associated Press v. U.S. Dept. of Defense, 395 F. Supp. 2d 17 (S.D.N.Y.
2005), held that alien detainees held outside the U.S. may have a
right to privacy. Press sought the names of the Guantanamo
detainees who were involved in the proceedings before the military
Tribunals created for the purpose of determining whether a given
detainee is an enemy combatant. DOD denied the request, not onnational security grounds, but in the interests of protecting the
detainees privacy. The DOD was ordered to submit a questionnaire
to the detainees whether or not they wanted their identifying
information released. DODs motion for reconsideration was denied.
Only 17 of 317 detainees, when questioned about potentialdisclosure, wanted to have their identifying information kept
confidential.
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Exemptions, cont.
552(b)(7): Records or information compiled for lawenforcement purposes, but only if the records or informationalso satisfy one of six additional requirements thatproduction:
Could reasonably be expected to interfere with enforcement
proceedings; Would deprive a person of a right to a fair trial or an impartial
adjudication;
Could reasonably be expected to constitute an unwarrantedinvasion of personal privacy;
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Exemptions, cont.
Could reasonably be expected to disclose the identity of aconfidential source;
Would disclose techniques and procedures for law enforcementinvestigations or prosecutions, or would disclose guidelines forlaw enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law; or Could reasonably be expected to endanger the life or physical
safety of any individual.
Ferguson v. FBI, 957 F.2d 1059, 1065 (2d Cir. 1992)(reviewing the two-step analysis).
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Exemptions, cont.
552(b)(8): Financial Institutions
Applies to information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for
the use of an agency responsible for the regulation or supervision
of financial institutions.
Interpreted broadly to include brokers and dealers of securities.
Feshbach v. SEC, 5 F. Supp. 2d 774, 781 (N.D. Cal. 1997).
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Exemptions, cont.
552(b)(9): Geological and geophysical information and data,
including maps
Used rarely by the EPA and the Department of the Interior for
information regarding water sources
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What does it cost?
Fees said to be the number one problem to FOIAOperations. There is no direct line item for agency FOIAoperations. Few agencies adequately staff for FOIAneeds.
Five categories of fees: Commercial : Companies that or people who seek information for
a use or purpose that furthers commercial, trade, or profitinterests, including for use in litigation. $$$ for search, reviewand duplication costs.
Educational Institution: Preschools, public or private elementary
or secondary schools, and institutions of graduate highereducation, undergraduate higher education, professionaleducation, or vocational education that operate a program ofscholarly research. $$$; first 100 pages free.
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Fee categories
Other requesters: Requesters who are not commercial,
news media, scientific or educational requesters and are
required to pay search costs for more than 2 hours and
duplication costs for more than 100 pages.
Fee waiver possible if the material is likely to contributesignificantly to public understanding of the operations or
activities of government and is not primarily in the
commercial interest of the requester.
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FOIA Federal Process
http://www.gwu.edu/~nsarchiv/nsa/foia/foia_flowchart.pdf
Write a request
Fax, mail or e-mail your request to the agency contact
Receive an agency acknowledgement (within 20 days)
Receive possible inquiry from the agency to clarify the scope
of your request or resolve issues such as fees
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Process, cont.
Receive within no guaranteed time frame
Documents in full
Documents in part
Notice of withholding documents
Notice of finding no responsive documents Appeal the process within 30-90 days
Appeal accepted and material released or appeal denied
Seek judicial review of an appeal
E l f A FOIA
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Examples of Agency FOIA
Pages Justice Department
www.usdoj.gov/oip
Department of the Navy
http://Foia.navy.mil
Department of State www.foia.state.gov/foiareq/foialetter.asp
Centers for Disease Control
http://www.cdc.gov/
http://www.usdoj.gov/oiphttp://foia.navy.mil/http://www.foia.state.gov/foiareq/foialetter.asphttp://www.cdc.gov/http://www.cdc.gov/http://www.foia.state.gov/foiareq/foialetter.asphttp://foia.navy.mil/http://www.usdoj.gov/oip -
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What you can expect
A response saying the scope of the request is too large; expect
to have to narrow your request you will already have lost
months of time.
Phone calls to answer questions about the search.
Need for patience. Redactions
D t f FOIA
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Do we generate more or fewer FOIA
requests? What are the trends? Each agency collects FOIA request data and submits it to the
Attorney General for its Annual Report
According to OpentheGovernment.org, the number of FOIArequests submitted annually has increased by more than 65thousand requests since 2004.
Federal agencies have not kept up with the demand. Thusmore and more pending requests are being carried over fromyear to year (up to 14%).
90% of requests are provided in full.
http://www.foia.gov/glossary.html
Website to create data reports by agency
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Appeals
Appeals can be effective to challenge successfully excessive
processing delays, fee waiver denials, and the improper full or
partial withholdings of responsive documents.
Agency regulations vary; make sure your appeal is timely.
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Appeals
Letter should state the grounds for appeal and reasons why
the agencys response was improper
Request a more precise explanation of the agencys decision
Say that you expect a final ruling on the appeal within the 20-
day statutory time limit Sample letter
http://www.gwu.edu/~nsarchiv/nsa/foia_requestsB.html
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GAO Reports
http://www.gao.gov
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National Security Archive Blog
http://www.gwu.edu/~nsarchiv/nsa/foia.html
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A States FOIA
Virginia
Va. Code Ann. 2.2-3700-2.2-3714
Recodified in 2001
Amended in 2004 to categorize the exclusions
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000 -
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2012 Amendments
A member of a public body may attend a closed meeting heldby any of the committees or subcommittees, provided such
member does not participate; minutes must reflect the
identity of such member
Amends an existing exemption to include certain informationfurnished to the AG under the Virginia Fraud Against
Taxpayers Act
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General principles
All public records should be open to citizen inspection
All meetings of public bodies should be open to the public
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Who is covered?
Public bodies include:
City and town councils
County boards of supervisors
Planning commissions and boards of zoning appeals
School boards and student government entities created orfunded by school boards
Special purpose authorities (water and sewer, industrial
development, housing and redevelopment, regional jails,
airports)
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Who is covered?
Committees or subcommittees of any of the above entities
Other agencies of local government, including elected
constitutional officers
Any corporation or organization supported wholly or
principally by public funds
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Who is guaranteed/not guaranteed
access under the act?
Any Virginia citizen and any non-resident media representative
who circulates or broadcasts in Virginia; incarcerated persons
are not entitled to assert rights under the act.
Non-Virginians (other than a reporter above) are not entitledto enforce the acts requirements in court.
What gatherings constitute meetings
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What gatherings constitute meetings
that must be open?
Any gathering of two or more members of a public body is ameeting, if the members are discussing the public bodysbusiness.
Includes work sessions, retreats; may including hangingaround after a meeting
Meetings may be recorded
Minutes required for every public meeting
Act doesnt guarantee the right to speak, just be present
Virginia Records Exempt from
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Virginia Records Exempt from
Disclosure Most common types of records exempt from mandatory
disclosure include:
Individual tax returns
Medical records
Scholastic records Personnel records
Architectural plans, specifications, and tactical security plans for
government buildings
Public libraries records of patrons and the items they borrow
Personal information in constituent correspondence, unless thecorrespondence relates to the transaction of public business
(new 2012)
Fire/EMS cell phone numbers (new 2012)
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FOI Advisory Council
Created in 2000 as an advisory agency in the legislative branchto encourage compliance with FOIA
Working Groups propose amendments
It has issued 216 opinions through July 2012
http://dls.state.va.us/foiacouncil.htm
The Advisory Councils director and Staff Attorneys are URgrads
Governor McDonnells Government Reform Commissionproposed eliminating or consolidating several different state
boards and commissions, including the FOI Advisory Council
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Collection of data?
There is no central repository for FOIA data in Virginia.
Example of Virginia
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Example of Virginia
Department Virginia Department of Transportation
FY05-06 = 351 requests
FY06-07 = 363 requests
FY07-08 = 553 requests
FY08-09 = 498 requests
FY09-10 = 380 requests
FY10-11 = 525 requests
FY11-12 = 666 requests
http://www.virginiadot.org/info/foia.asp
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Virginia Coalition for Open Government
http://www.opengovva.org/
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International
http://freedominfo.org
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Creating FOIA Letters
Reporters Committee for Freedom of the Press
http://www.rcfp.org/foi_letter/generate.php
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Sources
James T. OReilly, Federal InformationDisclosure(3d ed. 2000& Supp. 2010)
U.S. Dept. of Justice, Freedom of Information Act Guide (2009)
http://www.justice.gov/oip/foia_guide09.htm
U.S. Dept. of Justice, Freedom of Information Act AnnualReport, available at http://www.usdoj.gov/oip/foia-ar.htm
A Citizens Guide on Using the Freedom of Information Act and
the Privacy Act of 1974 to Request Government Records, H.
Rep. 109-226, 109th Cong., 1st Sess. (2005), available at
http://www.fas.org/sgp/foia/citizen.pdf
http://www.justice.gov/oip/foia_guide09.htmhttp://www.usdoj.gov/oip/foia-ar.htmhttp://www.fas.org/sgp/foia/citizen.pdfhttp://www.fas.org/sgp/foia/citizen.pdfhttp://www.usdoj.gov/oip/foia-ar.htmhttp://www.usdoj.gov/oip/foia-ar.htmhttp://www.usdoj.gov/oip/foia-ar.htmhttp://www.justice.gov/oip/foia_guide09.htm -
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Sources
Alan Charles Raul, Privacy and the Digital State: BalancingPublic Information and Personal Privacy (2002)
Justin D. Franklin and Robert E. Bouchard, Guidebook to the
Freedom of Information and Privacy Acts (2008)
P. Stephen Gidiere III, The Federal Information Manual: Howthe Government Collects, Manages, and Discloses Information
under FOIA and Other Statutes (ABA 2006)
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Sources
Roger C. Wiley, Virginia Freedom of Information Act (2007)
Travis McDade, A FOIA Request Can Aptly Serve a Clients
Case, Student Lawyer, Feb. 2007, at 11.