FOIA, Sunshine Act, and Access to Information

Freedom of Information Act (FOIA), Sunshine Act, and Court Cases

Freedom of Information Act (FOIA)

  • Passed in 1966.
  • Purpose: To ensure public access to government information.
  • Applies to:
    • Departments (e.g., Department of Defense, Department of the Navy).
    • Regulatory agencies (e.g., Federal Communications Commission, Securities and Exchange Commission).
    • Government corporations (e.g., those setting up communication satellites).
    • Any establishments by the executive branch.
  • Open to anyone, including businesses seeking information on competitors.
  • Not suitable for stories with immediate deadlines (24-48 hours); better for long-term investigations.

Exemptions from FOIA

  • President
  • Members of the cabinet
  • Members of Congress
  • Federal courts
  • Private corporations (e.g., Coca-Cola)

FOIA Requests

  • Applies to records or documents that can be duplicated.
  • Process:
    1. Contact the department or agency and ask to speak to the FOIA officer.
    2. If denied orally, submit a formal written request specifying the documents and willingness to pay for duplication.
  • The agency has ten days (with a possible ten-day extension) to respond.
  • If denied, the burden of proof shifts to the agency to justify why the information should not be released.
  • Appeals can be made to the agency or department head, who has twenty working days to consider the request.

Important Terms

  • Glomar Response: The agency cannot confirm or deny the existence of the requested information, often used for sensitive material.
  • Vaughn Index: A method of denying information either because the identity is too specific or the release of information would violate exemptions.
  • Redact: To black out sensitive information in a document before releasing it.
  • Virtual Representation: A non-party member is bound by the judgment of a previous case, ensuring consistency in rulings (similar to stare decisis).
  • Qui Tam: Involves government whistleblowers seeking damages for information released by an agency.

Court System

  • If an agency denies a request, one can go to the federal court.
  • The hearing would be expedited but could still take years.

Exemptions Claimed by Agencies

  • The agency has the burden of proof to claim exemptions.

National Security

  • Information that could harm defense or foreign policy.
  • Not a mandatory exemption.

Agency Rules of Practices

  • Internal rules or policies do not necessarily need to be shared.
  • The only mandatory exemption.

Statutory Exemption

  • Congress exempts an agency or department from FOIA by statute.
  • Also known as a "catch-all exemption."
  • Mandatory in nature.

Confidential Business Information

  • Trade secrets or financial information that could jeopardize a corporation's standing.
  • Not mandatory.

Agency Memorandum

  • Internal documents circulating within an agency.

Personal, Medical, or Similar Files

  • Personnel evaluations or medical records are generally exempt.
  • Exception: The president must release medical files regularly after leaving office.

Ongoing Law Enforcement Investigation

  • Information that could jeopardize law enforcement officers or investigations.

Bank Reports

  • Financial operations information.

Gas Wells, Geological Information

  • Exempted to avoid government investigations for every company.

Electronic Information and Updates

Electronic Freedom of Information Act Amendment (1996)

  • Easier access to records using computer information or electronic retrieval systems.
  • Computerization of FOIA requests.

Data.gov (2009)

  • Increased access and machine accessibility to documents generated by the executive branch.

Pros and Cons of FOIA

Pros

  • Transparency

Cons

  • Unequal access to information within the government.
  • High costs of retrieving information and court costs.
  • Redacting of data, often by individuals with uncertain reliability.
  • Agencies (e.g., FBI, CIA) seeking to reduce FOIA.
  • Glomarization of data (cannot confirm or deny).
  • Computerization leading to higher fees.
  • False Claim Acts used by federal contractors to prevent uncovering fraudulent activities.
  • Exclusion of claims based on general news reports.
  • Potential damage to the agency or individual who turns over information.

Sunshine Act

  • Deals with open meetings.
  • Passed in 1976.
  • Applies to agencies and departments like FOIA.
  • Similar exemptions or exceptions.

Closed Sessions

  • Committees can enter closed sessions to discuss personnel, legal matters, or land purchases.
  • In Virginia, a set process must be followed, including quoting the Virginia code.
  • No action can be taken in closed session; must return and vote in public.

Open Government Act (2007)

  • Aims to speed up the process of getting information from open meetings.

Illegal Closed Meetings

  • Legal action to prevent closed meetings.
  • Lawsuits can be filed in the nearest district court.
  • Ability to sue for a copy of the transcript within sixty days.
  • Can sue the agency, but the penalty is not against the individuals.

Other Legislation Dealing with Information

Press Privacy Protection Act (1974)

  • Protects personal information by government agencies.
  • Recognizes that government employees have a right to privacy.

Computer Matching and Privacy Protection Act (1988)

  • Allows the transfer of information between agencies without violating privacy.

Family Educational Rights and Protection Act (FERPA)

  • Also known as the Buckley Amendment.
  • Protects student records, even from parents paying for education.
  • Colleges may incorrectly use FERPA to deny information about students accused of criminal actions.

Clery Act (1998)

  • A crime report that requires timely updates and yearly summaries of criminal activity on campus.
  • Issues include defining what constitutes a campus and how criminal actions are handled.

Federal Advisory Committee Act (1972)

  • Requests can be made to find information about advisory boards and their members.

Securities Act of 1933 and Securities Exchange Act of 1934

  • Publicly held corporations must provide information to all individuals equally.
  • Prevents insider information from being released to specific individuals only.

Court Cases Dealing with Access to Information

Zamel v. Ruskin (1964)

  • A reporter wanted to travel to Cuba to assess the travel ban's effectiveness.
  • The State Department denied the request.
  • The Supreme Court ruled that the First Amendment does not grant carte blanche to gather information in any way possible.
  • Recognized the tension between journalists seeking information and the government restricting access.

Representative Patsy Mink Case

  • Involved nuclear testing in Amchitka Island.
  • Mink sought EPA reports but was denied due to top-secret classification.
  • The Supreme Court initially ruled it could not reclassify information.
  • Congress amended the FOIA to give courts the power for in camera review, allowing them to reclassify documents.