Chapter Nine

Objectives

• To understand the Freedom of Information Act, where it applies, and how to exercise FOIA rights.

• To understand the Patriot Act.

• To understand journalist’s access to records and meetings.

Access to executive and legislative branches• Each state has its own

rules governing access to records and proceedings

• Two federal acts of importance: Freedom of Information Act (FOIA) of 1966; and Privacy Act of 1974

Freedom of Information Act of 1966• Unless specifically exempted under FOIA, public

records presumed to be open to public• Nine major exemptions to prevent disclosure of

sensitive/personal info• Amendments to FOIA: – 1974: lower search and

duplication fees, or feewaivers for research forpublic interest

– 1986: standardized feeschedules

– 1996: Electronic FOI amendments: more later!

Where does FOIA apply?• To agencies, departments and

government-controlled corporations of executive branch of federal government (not states)– Examples: State Department,

FCC, FTC, SEC, US Postal Service

• Not to President and staff or consultants, Congress, federal courts, or private corporations

How to exercise FOIA rights• Steps: – Informal phone call: ask for

FOI officer, make request clearly– Written letter, requesting reply

within 10 days, by certified mailor fax

– Appeal to agency head, requestingreply within 20 days

– File suit in federal court nearestyour area if all else fails

– Be clear about how much you are willing to pay before you order, and find out how much things cost

• Reporters Committee for Freedom of the Press <http://www.rcfp.org>: good resource

The nine exemptions• 1. National security: the biggie, and difficult to

dispute—release of info might cause harm to nat’l security or foreign policy of U.S. – All agency must show is appropriate classification

• 2. Internal rules and practices: mat’l that might divulge agency’s investigatory/prosecutorial practices can be withheld

• 3. Statutory exemptions: fed.statutes exempt classes of info—courts balance one statuteagainst another to determineif info should be divulged

The nine exemptions• 4. Trade secrets: protects food formulas, etc.—info

supplied by private firms for regulatory reasons that includes such info exempt from disclosure (includes customer lists, market share information, profit/loss statements)– Reverse FOIA suits: attempts by

companies to get info withheld

• 5. Executive privilege: inter- or intra-agency memos or letters—pre-decisional documents not available;post-decisional documents are– Memos, reports that go into final

report probably not disclosable

The nine exemptions• 6. Personal privacy: personnel and medical files,

disclosure of which would constitute invasion of privacy (medical exams, job evals)

• 7. Law enforcement investigations: protected, but only to extent that releasing might:– (a) interfere with law enforcement– (b) deprive person of fair trial– (c) be invasion of personal privacy– (d) disclose identity of confidential

source or of material in a case– (e) disclose guidelines for law

enforcement or prosecutions– (f) endanger life/physical safety of any individual

The nine exemptions• 8. Banks: protects fed. agency

reports about conditions of banks and financial institutions under federal regs

• 9. Oil wells: protects against speculation based on info on maps and other geographical information that must be filed with gov’t

• More info is withheld under Exemption 7 than any other exemption!

eFOIA: major amendments!• Electronic Freedom of Information Act

Amendments of 1996: not only making info available in electronic format!– Requires agencies to make it easier for

public to identify and access records– Facilitates computeriz-

ation of FOI compliance– Reforms timetable and

procedures agenciesmust follow

Major FOIA problems• Interminable waits for info: supposed to

respond in 20 days, but there are backlogs, and courts tend not to enforce deadlines

• High costs: both in access/copying and in possible court fees if lawsuit filed

• Legally sanctionedcensoring of documents

• Attempts by agencies toweaken: CIA and FBIwant blanket exemptions

USA Patriot Act of 2001• Atty. Gen’l John Ashcroft drafted, passed without markup

by Congress• Made significant amendments to over 15 important statutes• Significantly expanded law enforcement authority to

surveill and capture communications– Roving wiretapping and

“trap and trace” of dialednumbers

– Stored voice-mail communi-cations, like email, may beobtained via search warrantrather than via morestringent wiretap orders

USA Patriot Act of 2001• Other issues:– FBI has authority to request order “requiring the

production of any tangible things (including books, records, papers, documents, and other items)” relevant to investigation of international terrorism or clandestine intelligence activities• Library records, clickstreams, medical records, purchase records…

– “Secret search” provisionapplies where court “findsreasonable cause to believethat providing immediatenotification of the executionof the warrant may have anadverse effect” (destruction of info, etc.)

Library warning

Privacy Act of 1974• FOIA for the individual: sets limits on info gathered

about citizens by gov’t and guarantees right to see info gathered/held by executive agencies

• Individuals in files have access to them, subject to exemptions and FOIA requirements– Pay for duplication, not search; requests to be

acknowledged in 10 days; access provided if appropriate in 30 days

• Prohibits creation of record of exercise of any 1A right—protesting, leafletting, etc.– If document can be disclosed under FOIA, cannot be kept

secret under Privacy Act

Buckley Amendment• Parents have right to see their kids’

school records

• Forbids release of records to outside parties without parental consent

• Students over 18 can see own records and must consent to release

Access to meetings• Government in the Sunshine Act of 1976: Federal

agencies, boards, commissions, councils must open proceedings to public– Any meeting in which business is discussed is

presumed open, with public notice a week in advance, and communications in public record

– Ten exemptions: first nine are likeFOIA, and 10th applies to agency litigation, arbitration, adjudication

• Circumvent: meetings bytelephone or impromptu orsocial meetings (“policymakingover cocktails”)

CA open meeting laws I

• Ralph M. Brown Act: applies to all local government agencies and their boards and commissions– Requires agendas, regular meetings, public meetings

except for public safety, personnel matters, attorney talk, collective bargaining, licenses for ex-felons, real estate negotiations

– Misdemeanor for public official to participate in closed meeting where action is taken OR he/she has reason to know should be open

CA open meeting laws II

• Bagley-Keene Open Meeting Act: applies to all state government agencies and their boards and commissions, as well as CSU and UC regents– Requires advance notice, agendas as part of public

record, closed meeting justification, public meetings except for 24 exceptions (similar to Brown Act)

– Misdemeanor for public official to participate in closed meeting he/she has reason to know should be open

CA public records laws

• California Public Records Act: applies to records maintained by state and local government agencies at all levels; records to be available for public inspection, copies made at cost (some exceptions)

• Information Practices Act of 1977: similar to Privacy Act of 1974

• Legislative Open Records Act: applies same disclosure principles of CPRA to legislature

Access to legislatures

• Governed by legislature!

• Accessibility varies among federal, state and local jurisdictions

• Laws range from rules to common law to statute to state constitutions, as well as 1A and 14A arguments

Conclusion: Freedom of information

• Journalists have no right of access to government facilities beyond that of the public.

• FOIA makes federal records available to any person; however, nine categories of information can be exempt from disclosure to public.

• Sunshine Act requires agencies to meet in public.