Freedom of Information Day Conference September 28, 2010 Increasing Transparency

1. Freedom of Information Day Conference September 28, 2010 Increasing Transparency While Protecting Privacy Melanie Ann Pustay Director Office of Information Policy United States Department of Justice

2. Enacted in 1966, and taking effect on July 5, 1967, the Freedom of Information Act provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.

3. The United States Supreme Court has explained that “[t]he basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

4. The “FOIA is often explained as a means for citizens to know ‘what their government is up to’” The Supreme Court stressed that “[t]his phrase should not be dismissed as a convenient formalism.” Rather, “[i]t defines a structural necessity in a real democracy.”

5. PRESIDENT OBAMA’S FREEDOM OF INFORMATION ACTMEMORANDUM

6. “A democracy requires accountability, and accountability requires transparency.”

7. Clear Presumption of Disclosure

8. “In the face of doubt, openness prevails.”

9. Information should not be kept confidential merely because: - officials might be embarrassed, - errors and failures might be revealed, or - because of speculative or abstract fears.

10. “Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

11. ATTORNEY GENERAL HOLDER’S FREEDOM OF INFORMATION ACT MEMORANDUM

12. The Attorney General’s FOIA Guidelines were written to underscore our nation’s “fundamental commitment to open government.”

13. The Attorney General “strongly encourage[s] agencies to make discretionary disclosures of information.”

14. Agencies will now be defended “only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”

15. Combined impact of these two memos is to usher in the new era of open Government.

16. At the same time, the Attorney General recognized that the disclosure obligation of the FOIA is not absolute.

17. The FOIA provides exemptions to protect, for example, national security, law enforcement, privileged records, and personal privacy.

18. The challenge for government officials is to achieve the greatest possible disclosure, while appropriately protecting these important interests.

19. As the United States Supreme Court has recognized, Congress sought to achieve “a workable balance between the right of the public to know and the need of the Government” to protect certain information.

20. In the United States, ninety-four agencies are subject to the FOIA.

21. In Fiscal Year 2009, 557,825 requests were made.

22. Of the requests that were processed, ninety-four percent resulted in the release of some or all the requested information.

23. The FOIA exemption cited the most often was Exemption 6, which protects personal privacy.

24. The second most cited exemption was Exemption 7(C), which also protects personal privacy.

25. Exemption 7(C) affords greater privacy protection, but is limited to records compiled for law enforcement purposes.

26. EXEMPTIONS 6 & 7(C)The Personal Privacy Exemptions • Personal information may be protected from disclosure under Exemptions 6 and 7(C). • The exemptions are slightly different, but the following analysis is used for both exemptions: • Step 1. Threshold satisfied? • Step 2. Privacy interest implicated? • Step 3. “FOIA public interest” in disclosure? • Step 4. Balancing interests.

27. Exemption 6 Applies to “personnel and medical files and similar files” when disclosure of such information “would constitute aclearly unwarranted invasion of personal privacy.” 5 U.S.C. 552(b)(6).

28. Exemption 7(C) • Applies to “records or information compiled for law enforcement purposes,” the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. 552(b)(7)(C).

29. Privacy Interest Privacy encompasses an “individual’s control of information concerning his or her person.”

30. Privacy Interest • Information need not be intimate or embarrassing to qualify for protection.

31. Privacy Interest • Privacy interests have been found in personally identifying information such as: - a person’s name, - address, - phone number, - date of birth, - criminal history, - medical history, and - social security number.

32. Privacy InterestGlomar Response • When a request seeks records concerning an identifiable individual and the records are of a particularly sensitive nature, it may be necessary to neither confirm nor deny the existence of the records, or “Glomarize.” • Must be a targeted or third party request. • Cannot acknowledge the very existence of records. • May need to “bifurcate” a request to process it—separate third party subjects from other subjects.

33. Privacy InterestWhat doesn’t get protection? • Federal employees. Per OPM regulation, 5 C.F.R. 293.311, agencies should release: • (1) Name; • (2) Present and past position titles and occupational series; • (3) Present and past grades; • (4) Present and past annual salary rates, performance awards and bonuses; • (5) Present and past duty stations; and • (6) Position descriptions, job elements, and performance standards.

34. Privacy InterestWhat doesn’t get protection? • Corporations have no privacy interests. • Exception: Small companies/sole proprietorships can take on the privacy interests of its members.

35. Privacy InterestWhat doesn’t get protection? • General rule is that deceased individuals have no privacy. • SURVIVOR PRIVACY: A deceased individual’s survivorsmay have a privacy interest in preventing disclosure of certain information pertaining to the deceased. • NARA v. Favish. Surviving family members’ right to personal privacy with respect to death-scene photos. • NY Times v. NASA. Final words of Space Shuttle Challenger astronauts withheld to protect privacy of family members.

36. Privacy Interest Unless information has become “practically obscure” there is generally no expectation of privacy in information that is in the public domain or widely available.

37. Privacy Interest Public figures do not forfeit all rights of privacy.

38. Privacy Interest The passage of time does not diminish a privacy interest and may, in fact, enhance it.

39. “FOIA public interest”What is it? • What’s a FOIA public interest? • It’s not necessarily what’s of general interest to the public. • Disclosure of the information must serve the “core purposes” of the FOIA, to “shed light on an agency’s performance of its statutory duties.” DOJ v. Reporters Committee. • The agency’s conduct, not the personal conduct of individuals is relevant.

40. “FOIA public interest”Requester’s Identity is Irrelevant Neither the identity of the requester nor the purpose for which the information is sought is given any weight in this determination. A requester’s private need for the information is not given any weight in this determination.

41. “FOIA public interest”Public, not Private Interest • The particular way that one requester can use the information to serve the public is irrelevant because all FOIA disclosures are public disclosures (except first party requests). • The public interest must be directly served by disclosure of the requested information.

42. “FOIA public interest”Official Misconduct • Official Misconduct Standard: • Often requesters will argue disclosure will reveal agency wrongdoing. • The United States Supreme Court has held requesters must produce evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred. NARA v. Favish. • There is a significant public interest in substantiated allegations of official misconduct of a serious & intentional nature by high-level official. • The lower level the employee, the less substantial the public interest.

43. “FOIA public interest”Burden • Burden is on the requester to show how disclosure would shed light on the operations of an agency. • Disclosure of the 3rd party’s personal information must serve a FOIA public interest. • What do I learn about the agency’s operations by knowing a third party’s personal information?

44. “FOIA public interest”Burden • In the absence of a cognizable public interest, the privacy interest will prevail in the balance. - “Something, even a modest privacy interest, outweighs nothing every time.” NARFE v. Horner.

45. Balance the InterestsBalancing ■ If there is a privacy interest and a FOIA public interest in disclosure: - Accord each interest a measure of value, and - Balance them to determine which is greater.

46. Balance the InterestsFactors To Consider In Balancing • Information concerning the intimate details of a person’s life generally deserve protection. • The passage of time usually serves to increase the privacy interest. • Agency may consider any adverse consequences disclosure may have on the identified individual. • Proven allegations of official misconduct, constitute a significant public interest. • Identities of individuals in law enforcement records are virtually never “very probative of an agency’s behavior or performance.” SafeCard Services v. SEC.

47. Balancing: One approach:■ Redact names and release remainder■ This both protects privacy and reveals government activity

48. Examples:■ Disciplinary records of cadets at service academy■ Lists of drugs routinely ordered by congressional pharmacy■ Database of medical tort claims filed■ Patient studies■ Drug reports of air traffic controllers

49. Balance can also lead to disclosure.Examples:■ Addresses of recipients of hurricane relief money■ Higher-level agency officials found to have committed misconduct

50. Conclusion By employing a balancing of interests, where personal privacy is weighed against any public interest in disclosure, agencies in the United States work each day to increase transparency while respecting personal privacy.