freedomofinformationact(jones)(2012)

7/31/2019 FreedomofInformationAct(Jones)(2012)

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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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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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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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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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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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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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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
http://www.gwu.edu/~nsarchiv/nsa/foia/foia_flowchart.pdfhttp://www.gwu.edu/~nsarchiv/nsa/foia/foia_flowchart.pdf


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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
http://www.foia.gov/glossary.htmlhttp://www.foia.gov/glossary.html


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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
http://www.gwu.edu/~nsarchiv/nsa/foia_requestsB.htmlhttp://www.gwu.edu/~nsarchiv/nsa/foia_requestsB.html


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GAO Reports

http://www.gao.gov
http://www.gao.gov/http://www.gao.gov/


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National Security Archive Blog

http://www.gwu.edu/~nsarchiv/nsa/foia.html
http://www.gwu.edu/~nsarchiv/nsa/foia.htmlhttp://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
http://dls.state.va.us/foiacouncil.htmhttp://dls.state.va.us/foiacouncil.htm


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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







http://www.virginiadot.org/info/foia.asp
http://www.virginiadot.org/info/foia.asphttp://www.virginiadot.org/info/foia.asp


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Virginia Coalition for Open Government

http://www.opengovva.org/
http://www.opengovva.org/http://www.opengovva.org/


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International

http://freedominfo.org
http://freedominfo.org/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
http://www.rcfp.org/foi_letter/generate.phphttp://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.