MCL CH. 9

Chief Justice Warren Burger on information privacy

"Neither the 1st/4th amendment mandate a right of access to government information or sources of information within the government's control"

Justice Byron White on info gathering

"Without some protection for seeking out news, freedom of the press could be eviscerated"

2009 study on FOIA under Obama

1. Ancient requests- some as old as 18 years- still persisted 2. Only a minority of agencies had responded to the Obama and Holder memos with concrete changes in their FOIA practices 3. Only 4 out of 28 agencies reporting, showed release of government records up and denials down under FOIA.

Working paper documents must typically...

1. Be precessional (used before a decision is made by the agency) 2. Deliberative (the documents must play a direct part in the deliberative process of making recommendations and decisions).

Companies that want to stop government agencies from releasing confidential commercial or financial information about them must prove that the release of the info will...

1. Cause them "substantial competitive harm" 2. Impair the government's ability to obtain such information in the future.

FOIA division of requesters

1. Commercial Requesters (charged for search time, processing time, etc.) 2. Educational Institutions, Noncommercial Scientific Institutions and Representatives of the News Media (charged only for duplicating) 3. All other requesters (charged for search time and duplicating).

Three tier classification system of national security

1. Confidential- lowest classification 2. Secret- info that may cause serious damage to national security 3. Top Secret- highest level, reserved for material that is revealed could be expected to cause exceptionally grave damage to national security.

Six common exemptions to the state open-records laws...

1. Information classified as confidential by state or federal law 2. Law enforcement and investigatory information 3. Trade secrets and commercial information 4. Preliminary departmental memorandums (working papers) 5. Personal privacy information 6. Information relating to litigation against a public body

Trade Secrets 3 part test

1. Information for which the exemption is sought must be a trade secret or commercial or financial in character 2. Must be obtained from a person 3. Must be privileged or confidential

Three questions asked when determining whether exemption 3 applies to a specific record of document:

1. Is there a specific statue that authorizes or requires the withholding of information? 2. Does the statute designate specific kinds of information or outline specific criteria for information that may be withheld? 3. Does the record or information that is sought fall within the categories of information that may be withheld?

9 Exemptions To Disclosure Under The Freedom Of Information Act

1. National security matters 2. Housekeeping materials 3. Materials exempted by statute 4. Trade Secrets 5. Working papers/lawyer-client privileged materials 6. Personal privacy files 7. Law enforcement records 8. Financial institution materials 9. Geological data

4 events that must over before a government agency is liable for attorney's fees

1. Plaintiff files FOIA request within the agency 2. Agency fails to disclose requested records 3. Plaintiff sues for the records 4. Agency voluntarily or unilaterally changes its position regarding those same records and provides them to the requestor.

The Open Government Act of 2007

1. Required government agencies to assign a tracking number for each FOIA request that will take more than 10 days 2. Penalizing agencies that fail to comply with the 20-day window 3. Allowing recovery of attorney fees And litigation costs to FOIA requesters who substantially retail in FOIA lawsuits 4. Creating the Office of Government Information Services to serve as a mediation for FOIA

State open-meeting laws are written in two ways.

1. Some declare that all meetings are open, except the following, 2. Others simply list the agencies that must hold open open meetings.

When a presiding officer of a governmental body announces at a meeting that the body is going into executive session, a reporter at the meeting must make sure that....

1. The officer has specified what topics will be discussed during the closed session and why the executive session has been called. 2. If the reporter believed the meeting is being closed improper should formally object 3. The reporter should ask what time the closed session will end.

Ruling that a file is a medical file or similar file does not automatically bar the release of date in the file....the court must determine that...

1. The release of this information will continue an invasion of privacy 2. The invasion of personal privacy is clearly unwarranted

Executive privilege under exemption 5

1. This privileges are not absolute 2. The "Office of the President" (chief of staff, white house counsel) is not subject to FOIA. 3. The confines of presidential communications privilege are constructed narrowly

Two basic ways to write an open-records law

1. To declare that the following kinds of records are to be accessible for public inspection then list the kinds of records that are open. 2. Proclaim that all government records are open for public exception except for those listed in the exception.

E-FIOA Priori tis faces with multiple requests for computer searches for records.

1. Top Priority- FOIA requests in which a delay would threaten the life or safety of an individual. 2. News media and others in the business of disseminating information to the public.

Limitations on attaining government information

1. Under common law a person seeing access to a record normally must have an "interest" (normally related to litigation) in that record

When a record is an agency record depends on...

1. When the intent of the document's creator is to retain or relinquish control over the records 2. The ability of the agency to use and dispose of the record as it sees fit 3. The extent to which agency personnel have read or relied on the record 4. The degree to which the document was integrated into the agency's record system or files.

Government agencies must now report their _________ older pending requests.

10

"Golden Age of Access"

1970's- early 1980's

Government agencies must answer requests for documents within...

20 days after they are recieved.

Reporters who want to enter private property need...

The permission of the occupant or the owner of the property.

Critical Information Infrastructure Act

This allows private parties to hide information about critical infrastructure- including concerns about health and safety- simply by submitting the data voluntarily to the new department.

All 50 states have statutes that mandate open meetings, and these laws range from good to awful. T/F

True

Federal agencies are not required to withhold documents from disclosure simply because they are included in an exempted category...

True.

Neither the public nor the media has a First Amendment right to...

Videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.

Freedom Information Act (FOIA)

Which was designed to open up records and files long closed to public inspection. `

Can state and local governments copyright certain records they create and maintain in order to stop their widespread distribution under freedom of information laws?

While public information must be granted pursuant to FOIA, a public entity may restrict further commercial distribution of the information pursuant to a copyright."

The CIA has managed to use exemption 3 to...

Almost completely shield its operations from public scrutiny.

Trespass

An intentional, unauthorized (w/o consent) entry onto land that is occupied or possessed by another. Reporters may face both civil liability and criminal trespassing when trespassing.

Agency

Any executive, military, government, government-controlled department or other establishment in the executive branch of government (including the executive office of the president), or any independent regulatory agency.

Most state laws permit inspection of records by...

Any person, some have "citizens-only" provisions

Discovery process exception

Attorney-client privileged communications and documents considered the "work product" of an attorney

Courts have strictly interpreted the requirement that the Government in Sunshine Act only applies to...

Bodies whose members are appointed by the president.

Although today access is guaranteed to nearly all sessions of Congress, much (even most) congressional business is conducted...

By committees that frequently meet in secret.

Information sources of law

Common law, constitutional law (the first amendment of the US constitution), statutory law (both state and federal statues)

The law does not cover records held by...

Congress od the federal courts.

Until the mid-20th century there were few significant rules that....

Defined the rights of citizens, including journalists, to gain access to information generated and kept by the government.

Financial Records Exemption purpose

Designed to prevent the disclosure of sensitive financial reports or audits that, if made public, might undermine the public confidence in banks, trust companies, investment banking firms and other financial institutions.

Smiling mugshot....

Does fall under exemption 7 because it was: 1. Created for law enforcement purposes 2. Reasonably triggered individual privacy concerns 3. Did not advance public interest advanced by FOIA

Exemption 5 includes an _______ privilege.

Executive

Keeping and maintaining secrets is...

Expensive

Records held by private contractors working for the government are subject to...

FOIA requests.

President Obama vowed to change the privacy of government by creating...

FOIA, disclosure of government agency records.

Examples of independent regulatory agencies

FTC, Federal Aviation Agency, Nuclear Regulatory Commission, Social Security Administration, Securities and Exchange Commission.

Government in Sunshine Act

Federal-Open Meetings Act, any meeting is open when two or more public officials meet.

If the agency merely possesses the document but has not created it...

If the agency came into possession of the document as part of its official duties, it is probably an agency record. If it just happens to have the document, it is probably not an agency record.

FOIA statue provides that a record includes...

Information maintained by an agency in any format, including electronic format.

The first amendment plats a rather...

Insignificant role in defining the rights of citizens and journalists in the news-gathering process.

A public official's denial of an interview...

Is allowed. They just cannot selectively deny access to specific reporters from public press conferences that are open to all members of the news media.

If a record is created/obtained by an agency, and the record is under agency control at the time of the FOIA request...

It is an agency record

If the agency has created the document but does not possess or control it...

It is not an agency record

Housekeeping practices means...

Matters solely related to the internal personal rules and practices of an agency.

The high court ruling on whether the First Amendment guarantees a journalist an obstructed right to gather news in a prison...

No.

Purely personal natures are...

Not a matter of public record

Taping and recording...

Not allowed

Financial Records Exemption

Not used often. Matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation and supervision of financial institutions.

Discovery process

One party is able to gain access to evidence, testimony, and any other kinds of material possessed by the other party.

Geological Data Exemption

People who drill oil and gas wells provide valuable information to the government. This exemption prevents speculators and other drillers from gaining access to this valuable information.

Personal Privacy Exemption

Personnell and medical files and similar filed the disclosure of which would constitute a clearly unwarranted invasion of privacy.

Materials exempted by statute was designed to...

Protect from disclosure information required or permitted to be kept secret by scores of other federal laws. Records that fall under this exemption: census bureau records, public utility information, trade secrets, patent applications, tax returns, bank records, veteran benefits, and documents help by CIA and National Security Agency.

Law enforcement exemption

Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: a) could reasonably be expected to interfere with enforcement proceedings b) would deprive a person of a right to a fair trial or an impartial adjudication c) could reasonably be expected to constitute an unwarranted invasion of personal privacy d) could be expected to disclose the identity of a confidential source e) would disclose techniques and procedure for law enforcement investigations or prosecutions f) could reasonably be expected to endanger the life or physical safety of an individual

In 1996 Congress adopted an amendment to the Freedom of Information Act that...

Requires government agencies to apply the same standards of disclosure to electronic records as paper records.

Working papers

Studies, reports, memoranda and other sorts of documents that are prepared and circulated to assist government personnel make a final report, an agency policy or a decision of some kind