ACCESS TO GOVERNMENT INFORMATION

1. ACCESS TO GOVERNMENT INFORMATION Part 1: FOIA

2. FOIA vs. Privacy Act

3. Agencies Subject to FOIA Subject to FOIA • Executive branch • Office of the President (excl. personal assistant and advisors, e.g.,Nat’l Security Council) • Independent regulatory agencies Excluded from FOIA • State governments • Municipal government • Courts • Congress • Private citizens • Transition team

4. Records Subject to FOIA • Created by agency; • Obtained by agency; • Under agency control; • Any information that would be an agency record when maintained by an agency in any format, including an electronic format; • “Any reasonably segregable portion of a record" must be released after appropriate application of the Act's nine exemptions; and • Within the agency discretion.

5. Requester • “Any person“: a broad term that encompasses individuals (including foreign citizens), partnerships, corporations, associations, and foreign or domestic governments. • Excludes requests by foreign governments to intelligence agencies: FBI, CIA, NSA, Homeland Security.

6. FOIA Request STEP 1: Letter request that reasonably describers records desired, explanation, phone number, and offer to discuss further. STEP 2: Agency response required w/in 10 working days. --Agency may request more clarity in request; --release information; --Deny request w/ statement of reasons and exemption claimed and notice of appeal rights and judicial review.

7. FOIA Request STEP 3: If denial, then must file appeal w/in 20 days (w/ extension for 10 more days with show of due diligence or exceptional circumstances. ) If time limits not met, can treat as a denial and go to court. Agency has the burden of proof to show that an exemption applies. STEP 4: If go to court, court may order Vaughn index of documents where too voluminous to produce, in camera inspection to determine if exemption applies, conduct de novo review and can impose sanctions against official if denial was arbitrary and capricious. Courts will construe nine exemptions narrowly.  

8. Exemption 1: National Security • National security info, i.e., information protected pursuant to defense or foreign relations e.g. top secret. • Deals exclusively with classified information. • Disclosure would harm national defense or foreign-policy interests. • Information must be classified properly.

9. Exemption 2: Internal Agency matters • Internal agency matters for which there is no substantial or legitimate public interest, and may include internal agency instructions to investigators auditors, particularly if it would hamper the detection of violators. • Based upon the rationale of the administrative burden on the agency that would not be justified by any genuine public benefit.

10. Exemption 3: Precluded by Statute Material protected under other statutes which prohibit disclosure or confer discretion to agency to disclose under specified criteria --applies to Non-disclosure statutes, which are usually applied to voluntary submissions where nondisclosure agreements are permitted. --includes census data, pre-sentence reports, national security info and given Consumer Product Safety Commission.

11. Exemption 4: Business Records • (1) trade secrets; and (2) information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential. • Privileged and confidential records are distinct. • "Confidentiality" relates to information 1) where the agency needs the information, must rely upon voluntary cooperation to get it and will not be able to obtain it except with some promise of confidentiality; or 2) where release will likely cause substantial competitive injury to the business that furnishes the information.

12. Exemption 5: Executive Privilege • Internal communications w/in executive to the extent they are deliberative or covered by attorney-client privilege. • Can withhold info that could not be obtained from the agency through discovery in a civil action. • Designed to promote open discussion among gov. officials; and protect gov. privacy.

13. Exemption 6: Clearly Unwarranted Invasion of Privacy • "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.“ • This requires a balancing of the public's right to disclosure against the individual's right to privacy. 1) it must be ascertained whether a protected privacy interest exists that would be threatened by disclosure; and 2) the public interest in disclosure, if any, must be weighed against the privacy interest in nondisclosure.

14. Exemption 7: Law Enforcement Record Applies to "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information” could or would: • Be expected to interfere with enforcement proceedings, • Deprive a person of a right to a fair trial or an impartial adjudication, • Constitute an unwarranted invasion of personal privacy, • Be expected to disclose the identity of a confidential source, • Disclose techniques and procedures for law enforcement investigations ;or • Be expected to endanger the life or physical safety of any individual.

15. Exemption 8: Law Enforcement Record • 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, • 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 • could reasonably be expected to endanger the life or physical safety of any individual.

16. Rights of Target 1. Reverse FOIA- Individual requests that info about self not be released under an exemption or other statute. Often used re: business records. See exemption 4 2. Predetermination as to whether information considered protected. Some agencies have procedures. 3. Businesses will in practice be notified before information is disclosed to allow to assert reverse FOIA, or they can intervene in the proceedings and present why disclosure is not proper 4. FOIA exemptions are discretionary, not mandatory so agency has discretion to disclose or not under a claimed exemption.

17. FOIA Q: Would the information be disclosed? If not, what Exemption would you claim? 1) Reporter's personnel file while at the Department of Commerce and that of boss. Reporter filed a sexual harassment claim against boss and it has surfaced that other allegations have been filed about boss.

18. FOIA Q: Would the information be disclosed? If not, what Exemption would you claim? 2) Tobacco company report in 1980 chronicling efforts to develop a less carcinogen cigarette and internal memoranda about market feasibility. Report submitted pursuant to FTC investigation with a promise of confidentiality at the time, but the existence of the report was leaked to press and some of the contents disclosed.

19. FOIA Q: Would the information be disclosed? If not, what Exemption would you claim? 3) The names of Congressmen who bounced checks at the House Bank, the amount of check, and the payee. Information is for a story on a scandal that many members of Congress bounce checks. Assume this is an election year.

20. Assignment • Identify a state or federal agency that has jurisdiction over a problem that you have identified to write about and write a FOIA letter requesting information that may be germane to your paper. (Allow 10-20 days to get a response. Try to request something that would not be subject to an exemption.)

21. ACCESS TO GOVERNMENT INFORMATION Part 2: Privacy Act

22. FOIA vs. Privacy Act

23. Privacy Act of 1974 • "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions]." 5 U.S.C. § 552a(b). *Applies to Federal Government, but most states have comparable provisions.

24. Records Kept by Government • "record" relates to information that identifies an individual by name and includes education, financial transactions, medical history, and criminal or employment history.

25. Context for Privacy Act • When would you need to know what information the government has on you?

26. When would you need to know what information the government has on you? • Bar-Moral Character Portion re past activities. • Juvenile convictions, detentions • Foster care system, Adoption, education • Military service • Government jobs • Applying for a Government Job • Requiring a background check • Previous personnel history, disciplinary actions, performance review.

27. Basic Rights • the right to see records about oneself, subject to the Privacy Act's exemptions; • the right to amend a nonexempt record if it is inaccurate, irrelevant, untimely, or incomplete; and • the right to sue the government for violations of the statute, such as permitting unauthorized individuals to read your records.

28. Scope of Rights • Civil and criminal remedies for willful violation and applies only to US citizens; no corporations or businesses. • Requesting information about others subject to FOIA Exemptions 6 (c) invasion of privacy and Exemption 7 law enforcement • Timeframes not strictly enforced- 4-6 weeks vs 10-20 days (FOIA)

29. Exceptions 1) Need to knowIntra-agency disclosures 2) Required by FOIACan’t be a shield 3) Routine Use  intra-agency disclosures 4) CensusHow census data is collected 5) Statistical Research No identifiable info. 6) National ArchivesHistorical value6) Law enforcement  Re activity after written request

30. Exceptions 7) Law enforcement  Re activity after written request • Health & Safety Compelling circumstance to last known address • Congressional requestFrom Committee or Subcommittee • GAO Record keeping audits • Court order Legal action • Credit Bureau Bad debts

31. Paper Topic FOIA Request (15 min) • What is the problem or need? • What statute is involved? • What agency has delegated authority to address? • Who is the FOIA officer for the agency? • Is the agency the keeper of the records? • What FACTS do you need to have to make the case that there is a problem?

32. Navigating Inside Gov • Office of Personnel Mgmt.www.opm.gov • Office of Mgmt. Budget • Exec. Office of Pres Gov jobs, hiring, records https://www.opm.gov/efoia/ How $ is spent to operate fed gov. ; locate which agency is responsible for what Executive Orders Advisors of President

33. Office of President- Exempt Agencieshttp://www.whitehouse.gov/government/eop-foia.html Exempt from FOIA • Office of Administration • Office of the Vice President • Council of Economic Advisers • National Security Council • Office of Policy Development • Domestic Policy Council • Office of National AIDS Policy • National Economic Council • President's Foreign Intelligence Advisory Board Subject to the FOIA Council on Environmental QualityOffice of Management and BudgetOffice of National Drug Control PolicyOffice of Science and Technology PolicyOffice of the United States Trade Representative

34. Group Assignments I. Case Study Module 2.2.2: Toward National Voting Standards- Everyone • Council of State Governments • Federal Government • ACLU IV. Case Module 3.1.1 Location of Antenna Tower - Everyone • Developer  • Environmental Group  • University of Saints

35. II. Case Study Module 2.3.2: Use of Torture  ACLU (Representing prisoners) 1. Scott McClain 2. Erika Vasquez 3. Federal Government (Representing the Executive) 1. Christine Sharp 2. John Rogitz 3.

36. III. Case Study Module 2.4.2: Addressing Corruption in Government Democrats 1. Bianca Smith 2. Carter Knopke 3. Public 1. Michael Scott 2. Kale Heiman 3. Brian Blankenship Republicans 1. Angela Lightner 2. Patrick Feldman 3.

37. V. Rights for Undocumented Workers ACLU: 1. Patrick Sullivan 2. Jane Krikorian 3. Sarah Khorasanee Citizen Rights Group: 1. Michaelene Kapson 2. Justin Keller 3. Jeremy Snider Government: 1. Rochelle DeGolier 2. Emily Hemphill 3.