Freedom of Information Act

Balancing the right to know and privacy rights in the computer age

FOIA passed in 1966

Rumsfeld (right, with Cheney) was a big supporter of FOIA as a young congressman

Provisions of FOIA

• Applies to entire executive branch of the federal government

Provisions of FOIA

• Applies to entire executive branch of the federal government

• Does not apply to the president or his immediate staff

Provisions of FOIA

• Applies to entire executive branch of the federal government

• Does not apply to the president or his immediate staff

• Does not apply to Congress or the judiciary

Exemptions

1. National security

Exemptions

3. Laws that forbid the release of certain information, such as tax returns

Exemptions

5. Internal agency memos and policy discussions

Exemptions

6. Personal privacy

Exemptions

7. Information compiled for law-enforcement purposes

Exemptions

7. Information compiled for law-enforcement purposes

7(c) “… only to the extent that the production of such [materials] … could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

Using FOIA

• First, try the informal route

• Good examples near end of Chapter 6

• FOIA letter-generator is at:– www.rcfp.org/foi_letter/generate.php

Department of Justice v. Reporters Committee (1989)

• Shows how computers have changed attitudes regarding public records

Department of Justice v. Reporters Committee (1989)

• Shows how computers have changed attitudes regarding public records

• In 1978 Robert Schakne of CBS News sought rap sheets of Medico family, tied to corrupt Pennsylvania congressman, Daniel Flood

Department of Justice v. Reporters Committee (1989)

• Shows how computers have changed attitudes regarding public records

• In 1978 Robert Schakne of CBS News sought rap sheets of Medico family, tied to corrupt Pennsylvania congressman, Daniel Flood

• Department of Justice said “no”

Judge Laurence Silberman

• Public records should be available to the public

Judge Laurence Silberman

• Public records should be available to the public

• Must assume it’s for the public good

Judge Laurence Silberman

• Public records should be available to the public

• Must assume it’s for the public good

• FOIA is for everyone, not just the press

Justice John Paul Stevens

• Reverses Silberman, finds that not all public records must be disclosed

Justice John Paul Stevens

• Reverses Silberman, finds that not all public records must be disclosed

• Vote is 9-0

Justice John Paul Stevens

• Reverses Silberman, finds that not all public records must be disclosed

• Vote is 9-0• Makes two key

findings

Invasion of privacy

• Just because rap sheets are public records doesn’t mean they’re easily available

Invasion of privacy

• Just because rap sheets are public records doesn’t mean they’re easily available

• Reporters Committee takes “a cramped notion of personal privacy”

Invasion of privacy

• Just because rap sheets are public records doesn’t mean they’re easily available

• Reporters Committee takes “a cramped notion of personal privacy”

• “Vast difference” between scattered records and a computerized compilation

An unwarrantedinvasion of privacy

• What is the purpose of the FOIA?

An unwarrantedinvasion of privacy

• What is the purpose of the FOIA?

• An invasion of privacy may be warranted if it sheds light on the actions of the government

An unwarrantedinvasion of privacy

• What is the purpose of the FOIA?

• An invasion of privacy may be warranted if it sheds light on the actions of the government

• An invasion of privacy is unwarranted if it merely sheds light on the actions of an individual

Jane Kirtley of RCFP

• “It says that today something may be a public document but tomorrow it’s not because it’s on a computer tape”

• ACLU on the other side

Miller v. NBC (1986)

• An access case and a privacy case

Miller v. NBC (1986)

• An access case and a privacy case

• Television crew accompanied rescue workers and shot footage of Dave Miller as he lay dying on the floor

Miller v. NBC (1986)

• An access case and a privacy case

• Television crew accompanied rescue workers and shot footage of Dave Miller as he lay dying on the floor

• California Court of Appeal more offended by trespass than broadcast

Miller v. NBC (1986)

• An access case and a privacy case

• Television crew accompanied rescue workers and shot footage of Dave Miller as he lay dying on the floor

• California Court of Appeal more offended by trespass than broadcast

• Strong protection for publication; weak protection for newsgathering. Why?

Houchins v. KQED (1978)

• Television station sues for access to jail following an inmate suicide

Houchins v. KQED (1978)

• Television station sues for access to jail following an inmate suicide

• KQED cites Branzburg’s suggestion that newsgathering has some protection

Houchins v. KQED (1978)

• Television station sues for access to jail following an inmate suicide

• KQED cites Branzburg’s suggestionthat newsgathering has some protection

• U.S. Supreme Court rules against KQED

Houchins v. KQED (1978)

• Television station sues for access to jail following an inmate suicide

• KQED cites Branzburg’s suggestionthat newsgathering has some protection

• U.S. Supreme Court rules against KQED

• Is this surprising in light of California First Amendment Coalition v. Woodford?