Com.Law Chp.9
State Government Access
FOI statue- all 50 states have some type of access law for records and meetings, but they vary widely in terms of their procedures, penalties, and enforcement.
FOIA Steps to Access * Sunshine in Government Meetings
Good state open-meeting laws have strong legislative declarations in support of public sessions specifically defining each one by listing the number of members who must gather to constitute a meeting and declaring void actions taken during a meeting that was improperly closed to the public. Most statutes provide for exceptions to open sessions in order to discuss such matters as personnel actions, real estate transactions, and pending litigation.
Laws That Restrict Access *Privacy of Health Records
Health Insurance Portability and Accountability Act (HIPAA)- a federal law which protects the privacy of individual's health information. Protected health information (PHI)- the class of individual healthcare information protected by the Health Insurance Portability and Accountability Act (HIPAA)
Press Freedoms to Gather Information
Prison administrators are expected to grant individual permission for inmate communication if no loss of security or the orderly administration of justice is threatened.
Laws That Restrict Access * Privacy Act of 1974
Privacy Act of 1974- this law was designed to protect individuals from the willful disclosure of personal information found in government records to third parties. It calls for consent of the citizen before such records can be made public or even transferred to another agency.
Laws That Restrict Access * State Driver's License Records
* Drivers Privacy Protection Act (DPPA)- a federal law protecting the privacy of state driver's license information * Commerce Clause- gives Congress power to regulate trade between the states, with foreign countries, and with Indian tribes. It is used to justify the government's constitutional right to control broadcast radio by licensing. Help gave strength to enacting the DPPA
FOIA Steps to Access * FOIA Initiatives * FOIA Responses * Accelerating the FOIA Response
* FOIA Initiatives No government form is needed to be filled out when requesting information. In the request a clear and specific statement needs to be there to identify the desired record. * FOIA Responses An agency that receives request chooses one of the three responses: fulfilling the request, denying the request in part, or denying the request in full. If the response is favorably that means the agency has jurisdiction over the information and has practical means to recover it. * Accelerating the FOIA Response Expeditious handling- FOIA requests are given expedited treatment if the requester is able to demonstrate a compelling need for the requested information. The request must be accompanied with the reason stating the urgent need for such handling, then the government decides whether it is truly warranted or not.
The Freedom of Information Act (1966) * FOIA Policies and Amendments * Policy Shifts
* FOIA Policies and Amendments The identity of the person requesting a public record, or the reason for needing it, should not determine whether it is released, but it could impact whether there is a charge involved. The press is entitled to no more access to information from the U.S. government than the general public * Policy Shifts Presumption disclosure requests are presumptively granted unless the government can show that the information falls under one of the FOIA exemptions
FOIA Steps to Access * Assessment of Fees * Removing FOIA Barriers
* Fee category- every FOIA request is placed in a fee category which determines if there is a cost to the requester Categories in which requests are organized include: commercial trade, educational and scientific institutions, and news media. * Removing FOIA Barriers- As more government bodies delegate to private contractors, citizens and the media need to be persistent in asking for a freedom of information clause in the local contract to avoid delegating away this information.
FOIA Exemptions * National defense * Personnel rules
* National defense or foreign policy information that are classified by an executive order by the President are FOIA exempted * Personnel rules- documents related solely to the internal personnel rules and practices of agency. It serves to relieve agencies from creating access to trivial internal documents and activities, which are generally of no legitimate interest to the public.
FOIA Exemptions *Privacy *Law enforcement * Financial records *Oil field data
* Privacy- documents that are personnel and medical which disclosure would constitute an unwarranted invasion of personal privacy. * Law enforcement- documents that records of information complied for law enforcement purposes * Financial records- documents related to specified reports prepared by or for the use of agencies which regulate financial institutions. * Oil field data- this exemption prevents the disclosure of geological, geophysical, and topographical information of oil wells that would be of interest to other drillers.
FOIA Steps to Access *Record *Agency
* Record- for the purposes of the FOIA, a letter, map, photograph, audio/video recording or figures, tables, or data used by an agency to keep track of its activities * Agency- under FOIA a federal agency is "any executive department, military department, government corporation, government controlled corporation or other establishment in the executive branch of government * The terms records and agency are central to the interpretation of access, but these apply to any materials the government has created, has control over, and holds in its possession. It cannot be something that the agency would have to create just in order to fulfill the FOIA request. Congress and judicial branches are not subject to FOIA access, only the executive agencies and bureaus. FOIA only affords access to agencies of the executive branch and doesn't entitle citizens to inspect court records or congressional proceedings. * When federal agency records are requested the individual government employee in charge of fielding requests is contacted. They must deem the material nonthreatening to anyone and they must determine if any FOIA exemptions apply. Even if confidentiality is warranted an explanation must be gave.
FOIA Exemptions *Statutory exemptions *Trade secrets exemptions *Agency memoranda
* Statutory exemptions- allows the agency to withhold information if it is prohibited from being disclosed by a statute * Trade secrets exemptions- help to safeguard the competitive practices of businesses that willingly provide reliable commercial and/or financial information to the government. * Agency memoranda- documents that fall under this are working papers and records that would be shielded from the discovery process in a court-of-law proceeding. Like those documents that include confidential information between a client and attorney.
FOIA Exemptions
A federal agency has to fulfill the requirements of the document seeker, but at the same time protect sensitive government information. Government of Accountability Office (GAO) is a congressional federal agency that assists Congress in oversight of budget expenditures *AF LN OPP ST
The Constitution and the Common Law
Courts traditionally protected only the right to uncover information of personal relevance making facts about the government remain hidden. The Administrative Produce Act (APA) of 1946 gave the right to inspect federal agency paperwork only to those who had "good cause" and were "properly and directly concerned" with information held by the U.S. government.
The Freedom of Information Act (1966)
It is a federal law requiring federal agencies, on request, to disclose agency records unless the information can be kept secret under one of the nine FOIA exemptions. It opened the access to government records without making citizens prove beforehand that they have a right to know based on their personal interest.
Access in Practice
The U.S. guarantee of a free press and its implied access to information is indirect, and demands of citizens or the press to be informed are weighed against other interests, especially national security and local law enforcement.
The Origins of Access
The decision making and the governing process should be clear to those affected by the decisions made, which often is not even in the eyes of the U.S. Supreme Court.
Laws That Restrict Access * Family Educational Rights and Privacy Act (FERPA) 1974
a federal law designed to protect privacy of children's school information. Also gives students and parents the rights to inspect personal school records and recommend corrections in them if they find information that is inaccurate or misleading. This law also requires their signature before any academic authority can release their records to third parties.
