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Freedom of Information Act

Part II

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What if the Agency Does Not Want to Admit the Document Exists?

Ordinarily, any proper request must receive an answer stating whether there is any responsive information, even if the requested information is exempt from disclosure.

In some narrow circumstances, acknowledgement of the existence of a record can produce consequences similar to those resulting from disclosure of the record itself. Admitting you have a record about a confidential

informant would give away the identity

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What if You Ask for an Excluded Record?

The exclusions allow an agency to treat certain exempt records as if the records were not subject to the FOIA.

An agency is not required to confirm the existence of these records.

If these records are requested, the agency may respond that there are no disclosable records responsive to the request. Glomar response

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Glomar Response

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

A "Glomar" response can be justified only when the confirmation or denial of the existence of responsive records would, in and of itself, reveal exempt information. (DOJ memo)

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Exemption 1.--Classified Documents

The first FOIA exemption permits the withholding of properly classified documents. Information may be classified in the interest of national defense or foreign policy.

The government will often refuse to confirm or deny if the record even exists.

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Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999)

Plaintiff claims he worked for the CIA for 15 years and deserves a pension

He asks for his CIA employment records to document his employment

CIA refuses to admit he worked for them or to produce any records, because showing he was an agent would hurt agency work Does he get his records? Where does this leave him if he does not?

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Exemption 2.--Internal Personnel Rules and Practices

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

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Exemption 2 – Types of Documents Exempted

First, information relating to personnel rules or internal agency practices is exempt if it is a administrative matter that does not affect the public Low Exemption 2 cases

Second, an internal administrative manual can be exempt if disclosure would risk circumvention of law or agency regulations

In order to fall into this category, the material will normally have to regulate internal agency conduct rather than public behavior. High Exemption 2 cases IRS audit guidelines?

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Examples

Forest Service does not want to release the spotted owl location maps to the bird watchers Is this exemption 2? Do the maps relate to personnel matters?

HHS does not want to release the Medicare Policy Guidelines Manual, which directs how to pay claims Is this exemption 2? Is it a high exemption 2?

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Exemption 3.--Information Exempt Under Other Laws

The third exemption incorporates into the FOIA other laws that restrict the availability of information. (A) requires that the matters be withheld from the

public in such a manner as to leave no discretion on the issue, or

(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. IRS records are one example

This is the real exemption - the agency cannot waive non-FOIA protections

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Example

Chinese dissident wants to get a US visa, but is denied He asks for all info related to his visa, fearing Chinese

government interference INS refuses, relies on statute:

The court observed that Section 1202(f) does not give the Secretary of State any discretion on the issue of whether visa records should “be withheld from the public”; it just gives the Secretary discretion to disclose visa records to a court in some situations.

Why would Congress want to protect the information in the Visa process? Even the margin notes?

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Exemption 4.--Confidential Business Information

Trade secrets and commercial or financial information obtained from a person and privileged or confidential.

Trade secrets Restatement - secret information used in a business to

give a competitive advantage D.C. Circuit - limits further to means of production -

secret formulas and processes, not marketing or financial information

If the info is a trade secret, it ends the inquiry and it is protected - much faster and cheaper

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Commercial and Financial Information

Privileged information means attorney client privilege Confidential information is protected if:

Disclosure would harm the competitive position of the person who submitted the information, or

Disclosure would be likely to impair the government's ability to obtain similar information in the future.

This can require expert testimony on the harm The DCC, in the Critical Mass case, gave extra protection

to information that was provided voluntarily - Why?

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Are trade secret protections absolute?

Court also said that the protection of the trade secret act is not absolute, but the agency must show some legal basis for releasing otherwise protected info

When might the agency release trade secret information? Congress does this for toxics in some cases MSD and community notification act under EPA Statutory direction however

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E.O. 12600 - Response to the Chrysler v. Brown Case

E.O. 12600 generally requires agencies to notify people who have given confidential commercial information to the government when the information has been requested under the FOIA.

In addition, E.O. 12600 gives the person who provided the information a chance to explain to the agency why the information should be withheld.

Like most executive orders, E.O. 12600 says that it is not intended to create any judicially enforceable private rights.

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Clinical Trial Data

The FDA is asked to release IND info about drug trials that have been halted Company says this could affect competition The IND contains info used in current trials Is an IND voluntary disclosure?

Court found that the IND was protected by 4 Should Congress require release of all clinical

trial data on drug as a condition of approval?

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Exemption 5.--Internal Government Communications

The FOIA's fifth exemption applies to internal government documents that would not be available in litigation against the agency. Includes lawyer client privilege

Also recognizes the "deliberation process or executive privilege" which is reserved to the government The right of government decisionmakers to get

advice without fear of it becoming public

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When does this Exemption Apply?

To fall into the exemption, the documents must be part of the agency decisionmaking process

What does the court want to protect? The courts want to protect the "frank

discussion of legal and policy matters" so that agencies will not be completely swayed by public opinion

What else does Exemption 5 cover? Attorney work product

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What Sort of Documents are Covered?

An example is a letter from one government department to another about a joint decision that has not yet been made.

Another example is a memorandum from an agency employee to his supervisor describing options for conducting the agency's business.

Does not cover records justifying or explaining decisions.

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

What does the regional office do when there is an unfair labor practices complaint it does not want to adjudicate? The office of counsel makes the final decision

in an appeal memorandum Who does it ask for advice and what does it get?

When the regional office is considering such a request it gets an advice memorandum from counsel

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What did Sears want?

Sears wanted documents exchanged between the NLRB counsel and the regional offices

What privilege did the NLRB claim? Agency claimed (b)(5) agency

memorandum privilege

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Why did Sears say that Exemption 5 did not Apply?

Sears says these reflect policies already adopted by the agency and thus are not subject to this exception because they do not further agency consultation.

What is the key test? Are the they pre-decisional documents or

documents that implement or explain the decision?

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Why do advice and appeals memos not fall under 5?

They are not sent until counsel makes its decision on not filing a complaint, and thus do not fall under 5

What about memos which direct the filing of a claim? They just initiate the process and are clearly

part of an ongoing transaction which includes further decisionmaking and legal advice, thus they are subject to 5

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

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

the record for the rule would fail The agency can protect the materials used to

decide what the rule should be.

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Exemption 6.--Personal Privacy

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

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Interpretation

This exemption protects the privacy interests of individuals by allowing an agency to withhold personal data kept in government files. "which would constitute a clearly unwarranted

invasion of personal privacy" Allows release of info which is not so intrusive

Only individuals have privacy interests. Corporations and other legal persons have no privacy rights under the sixth exemption.

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Example - Tape of the last minutes of the space shuttle

Is the recording a "personnel [or] medical files [or a] similar file[]" within the meaning of Exemption 6? Personal information is enough

If you represented the New York Times, what public interest could you argue would be served by disclosure of the recording, keeping in mind that a transcript had already been disclosed? What is the government function angle?

If you represented NASA, precisely whose privacy could reasonably be expected to be invaded, and how (still keeping in mind the release of the transcript)?

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Exemption 7.--Law Enforcement

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

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Types of Interference I

A) could reasonably be expected to interfere with enforcement proceedings,

(B) would deprive a person of a right to a fair trial or an impartial adjudication,

(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,

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Types of Interference II

(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

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Types of Interference III

(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(F) could reasonably be expected to endanger the life or physical safety of any individual

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Why Have This List?

This was added in 1974 Why 1974?

The previous provision was short, but gave the government very broad discretion to withhold anything that touched on law enforcement

This list was meant to limit discretion and encourage the release of information

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What are the Privacy Interests?

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

information? What about the LSU prof who was a person of

interest in the anthrax case? Should this be forbidden?

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What is a Law Enforcement Purpose?

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

Is this limited to criminal law? Includes civil and administrative enforcement

What if the data was compiled for other purposes, but is now being used by law enforcement? The original purpose does not matter

It must also met the criteria for interference

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Example - Crime Scene Photos of Vince Foster

Foster was found shot dead in a DC park Paper wants photos Government claims Exemption 7

Which element? What is the public interest to balance against the

unwarranted invasion of privacy? What about conspiracy theories?

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Exemption 8.--Financial Institutions

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

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Exemption 9.--Geological Information

The ninth FOIA exemption covers geological and geophysical information, data, and maps about wells.

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Sunshine/Open Meeting Acts

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

look like? How does it affect University hiring? State business development?

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State vs. Federal Law

How broad are the state laws as compared to the federal law?

Federal law has 10 exemptions Federal law and exemptions

Most of the states are broader, i.e., reach more meetings.

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How do agencies try to get around Sunshine acts?

Work off written documents - remember the exemption for intra-agency memos?

Meet in groups of two Have staff do the recommendations, and then

rubber stamp the results

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What is a meeting?

Why is this a critical definition? What did the Moberg case find?

The Moberg case found that the critical definition was whether there was a quorum present of either the governing body or its committees, unless it was a social or chance gathering

Could you set the quorum very high, assuming you could ever get them together when you needed to act?

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FCC v. ITT?

The United States Supreme Court used a narrower definition under the federal law in FCC v. ITT They are only meeting when they are deciding. They can get together privately when they are

receiving information and having informal background discussions

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What do you tell your clients?

Comply with notice Do not make the decisions at the background

sessions Clearly separate them, at least in time.

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Sanctions

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

claim that a meeting should have been open

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

Federal law does not allow the court to overturn an agency action because a meeting was improperly closed

Some states do allow this, plus providing other penalties

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Federal Advisory Committee Act (FACA)

Why did congress pass this act? FDA as an example

Who does it cover? Covers every group used by the president

or an agency to get advice What does it require?

Should be balanced membership and not biased

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Separation of Powers

Does it violate separation of powers by limiting the president's right to get advice? FDR's Kitchen Cabinet?

What if they are all federal employees? Does not cover groups of only federal

employees

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Hillary Health

Was she a government employee? Even if she claimed she was not for financial

disclosure purposes? Bye Vince

What about the 800 folks who did the work as "advisors" to the committee?

Cheney's energy task force

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The Privacy Act - Access to Your Own Records

The Privacy Act of 1974 provides safeguards against an invasion of privacy through the misuse of records by Federal agencies.

In general, the act allows a citizen to learn how records are collected, maintained, used, and disseminated by the Federal Government.

The act also permits an individual to gain access to most personal information maintained by Federal agencies and to seek amendment of any inaccurate, incomplete, untimely, or irrelevant information.

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The Privacy Act Policy

Why is it important for you to get access to the information the government keeps about you?

Why might you want to challenge the accuracy of information in government files?

Why is it important that the Privacy Act requires agencies to publish descriptions of the systems they use to keep records?

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Which Act Applies?

Do FOIA and the Privacy Act overlap? Which should you cite when requesting records?

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

There is no central index of Federal Government records about individuals. Not as true post-9/11, but you will not get

anything held under national security powers An individual who wants to inspect records about

himself or herself must first identify which agency has the records.

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Getting Other People’s Records

A request for access under the Privacy Act can only be made by the subject of the record.

An individual cannot make a request under the Privacy Act for a record about another person. The only exception is for a parent or legal guardian

who may request records on behalf of a minor or a person who has been declared incompetent.

It is a crime to knowingly and willfully request or obtain records under the Privacy Act under false pretenses.

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Privacy Act Process

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

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The Computer Matching and Privacy Protection Act of 1988

The Computer Matching and Privacy Protection Act of 1988 amended the Privacy Act by adding new provisions regulating the use of computer matching.

If the government already has the information, why is computer matching a big issue?

How does Equifax make this a moot issue?