FOIA, Federal Sunshine Act, and Privacy Issues

FOIA History

  • Congress adopted the Freedom of Information Act (FOIA) in 1966.
  • Agencies covered by FOIA include departments, regulatory agencies, government corporations, or other establishments of the executive branch.
  • Any person may submit a request under FOIA.
  • FOIA does not cover the President, his/her Cabinet, Congress, Federal Courts, or private corporations.
  • Documents covered under FOIA must function as records and be capable of being copied.

FOIA Procedure

  • Informal Call: Place an informal call to the relevant FOIA officer.
  • Formal Request: File a formal, written request for the information.
  • Agency Response Time: The agency must respond within 10 days, with a possibility of a 10-day extension.
  • Burden of Proof: The burden to turn over documents is on the agency, or it must supply a reason why it will not turn over the records.
  • Appeal to Agency Head: If access is denied, you may appeal to the agency head, who has 20 working days to respond to your appeal.
  • Appeal to Federal Court: If access is again denied, you may appeal to the federal district court nearest you for a ruling on the access.
  • Fees: Fees can be charged for searches, but they may be waived if the request is in the public interest.
  • Court Fees: If you lose, you could be charged for court fees.

Terms Associated with FOIA

  • "Glomar response": Agency says it can’t confirm or deny the existence of information.
  • "Vaughn Index": In denying information, an agency must (1) identify each document that was withheld and (2) say how the release of information would harm the interest of the exemption.
  • Redact: To edit or black out information in a document.
  • Virtual representation: A doctrine where a non-party may be bound to the judgement in a previous case if certain factors are met.
  • Qui tam: Primarily involving government whistleblowers where a private person brings a case on the government’s behalf and the person could recover some of the damages sought.

Exemptions

  • National Security: Information that could damage national defense or foreign policy.
  • Agency Rules and Practices: Documents related solely to internal personnel rules and practices.
  • Statutory ("Catch-All"): Applies to documents that Congress has declared in other statutes to be confidential.
  • Confidential Business Information: Protects trade secrets and commercial or financial information that businesses submit to government agencies.
  • Agency Memoranda: Exempts working documents circulated within agencies.
  • Personnel, Medical, and Similar Files: Such information would invade an individual’s privacy.
  • Law Enforcement Investigations: Prevents access to on-going investigations.
  • Banking Reports: Protects financial reports and audit information.
  • Information About Wells: Protects geological and geophysical information.

Government Updates and Amendments

  • Electronic Freedom of Information Act Amendments of 1996:
    • Required agencies to make it easier for the public to identify and access government records.
    • Facilitated computerization of FOIA requests.
    • Reformed timetable and procedures for agencies to respond.
    • Set up an electronic tracking system in 2007.
  • Data.gov (created in 2009):
    • Created to increase public access to high-value, machine-readable datasets generated by the Executive Branch of the Federal Government.

Problems with FOIA

  • Uneven Distribution of Transparency: Transparency message not distributed evenly among executive branch messages.
  • High Court Costs: High court costs associated with getting information from the government.
  • Legally Sanctioned Removal of Information: Redacting.
  • Agency Efforts to Weaken FOIA: Certain agencies (FBI/CIA) have made concerted efforts to weaken the FOIA.
  • Glomarization of Data
  • Computerization Costs: Computerization of information has led to higher fees for access to information that was once free.
  • False Claims Act: Allows private persons to file suits on behalf of the government against federal contractors, such as government contractors who are doing fraudulent activities.
    • Exclusion of Claims: The law excludes claims to the plaintiff if the claims are based on news reports or other information.
    • FOIA Information: A question came up if the information came from an FOIA claim, could the plaintiff claim damages.

Federal Sunshine Act

  • Passed in 1976, this legislation calls for federal agencies to meet in public.
  • Applies to the same agencies that are subject to FOIA.
  • Contains 10 exceptions which would allow “closed sessions.”

Reporter’s Options to Illegal Closed Meetings

  • File Suit to Prevent: You may file suit to prevent a closed meeting in federal district court.
  • File Suit to Stop Future Meetings: You may file suit to stop future closed meetings.
  • Sue for Transcript: You may sue for a copy of the transcript of the closed meeting, if the suit is filed within 60 days of the closed meeting.
  • Sue Agency: May sue agency, but not the individuals involved in the illegal meeting.

Privacy Issues

  • 1974 Privacy Act: Designed to protect personal information by government agencies.
  • Computer Matching and Privacy Protection Act of 1988: Allows government agencies to transfer information about individuals between the agencies.
  • FERPA (Buckley Amendment)
  • Clery Act of 1998: Requires notification of students of crimes on campus.
  • Federal Advisory Committee Act of 1972: Concerns secret advisory boards to government agencies.
  • Private vs. Public Corporations: Securities Act of 1933 and Securities Exchange Act of 1934 requires publicly held corporations to reveal certain information and must not report “insider information.” Publicly held corporations must provide a certain amount of information to its holders.

Case Law

  • Zemel v. Rusk (1964)
    • Facts: A reporter wanted to go to Cuba in violation of a State Department travel ban.
    • Importance: The USSC ruled that the right to publish does not carry with it the unrestrained right to gather information.
  • EPA v. Mink (1973)
    • Facts: Representative Patsy Mink requested access to classified documents used to decide the issue of nuclear testing in Alaska.
    • Importance: The USSC rejected Representative Mink’s request. This decision motivated Congress to amend FOIA to allow court review of classified documents, e.g., “in camera.”
  • U. S. v. Nixon (1974)
    • Facts: President Richard Nixon went to court to prevent the release of secret White House tapes to a special prosecutor investigating Watergate.
    • Importance: The USSC ruled that executive privilege can be asserted only when the material in question consists of military or diplomatic secrets.
  • Department of the Air Force v. Rose (1976)
    • Facts: A law review editor requested information on the Air Force Academy internal discipline council. Access was denied under the personal privacy exemption.
    • Importance: The USSC declared that the personal privacy exemption should not be read as an absolute barrier against disclosure of information.
  • Chrysler Corp. v. Brown (1979)
    • Facts: An auto labor union requested employee information that Chrysler had filed with the DOD. Chrysler did not want the DOD to release the information.
    • Importance: The USSC declared that an official may release information covered by one of the exemptions specified in FOIA. The “catch-all” exemption must be followed.
  • Kissinger v. Reporters Committee for Freedom of the Press (1980)
    • Facts: A request was made for access to the transcripts of Henry Kissinger’s telephone conversations when he was secretary of state and national security adviser. The Library of Congress possessed notes.
    • Importance: The term “agency” does not apply to the Library of Congress. This means that FOIA does not apply to this institution.
  • Forsham v. Harris (1980)
    • Facts: The Committee on the Care of Diabetics wanted the FDA to request specific data from a team of consultants on the effectiveness of various diabetes treatments.
    • Importance: The USSC held that FOIA can not be used to compel a federal agency to obtain data from a private contractor if the agency does not want to.
  • Consumer Product Safety Commission v. GTE (1980)
    • Facts: GTE wanted to prevent information being released to consumer publications on television sets exploding.
    • Importance: The USSC upheld the "catch-all" exemption.
  • Federal Bureau of Investigation v. Abramson (1982)
    • Facts: The Nixon administration requested the FBI gather information on the “enemies” of the President.
    • Importance: The USSC held that law enforcement information does not lose its protection when summarized or reproduced for another reason.
  • Pell v. Procunier (1974)
    • Facts: The California state correction authorities prohibited media interviews with specific individual inmates.
    • Importance: The USSC held that members of the media have no constitutional right of access to prisons or their inmates beyond that afforded the general public.
  • Houchins v. KQED (1978)
    • Facts: A television station was denied access to a portion of the Santa Rita jail where an inmate was reported to have committed suicide.
    • Importance: The USSC extended the Pell decision by limiting the access of the press in jailhouses.