MCOM 447 Chapter 9 Freedom of Access

Smith v. United States (1993)

A United States Supreme Court case that held that the exchange of a gun for drugs constituted "use" of the firearm for purposes of a federal statute imposing penalties for "use" of a firearm "during and in relation to" a drug trafficking crime.

Family Educational Rights and Privacy Act (1974)

A federal law designed to protect the privacy of children's school information.

Drivers Privacy Protection Act (DPPA)

A federal law protecting the privacy of state drivers license information.

Health Insurance Portability and Accountability Act (HIPAA)

A federal law which protects the privacy of individual's heal information.

FOI Statute

All 50 states have some type of access law for records and meetings, but they vary widely in terms of their practical use and enforcement.

Fee Category 2) Educational Institution Requests

An education institution means "a pre-school, a public or private elementary or secondary school, an institution of undergraduate or graduate higher education, an institution of professional education, or an institution of vocational education that operates a program(s) of scholarly research."

FOIA exemption 4) Trade Secrets

Documents which would reveal "trade secrests and commercial or financial information obtained from a person and privileged or confidential.

Fee Category

Every FOIA request is placed in a fee category which determines if there is a cost to the requester.

Expeditious Handling

FOIA requests are given expedited treatment if the requester is able to demonstrate a compelling need for the requested information.

FOIA exemption 2) Personnel Rules

For documents "related solely to the internal personnel rules and practices of an agency."

FOIA exmption 3) Statutory Exemptions

For documents "specifically exempted from disclosure by statute" other than FOIA, but only if the other statute's disclosure prohibition is absolute.

FOIA exemption 8) Financial Records

For documents related to specified reports prepared by, on behalf of, or for the use of agencies which regulate financial institutions.

FOIA exemption 9) Oil Field Data

For documents revealing oil well data.

FOIA exemption 5) Agency Memoranda

For documents that are "inter-agency or intra-agency memorandum or letters" which would be privileged in civil litigation.

FOIA exemption 6) Privacy

For documents which are "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

FOIA exemption 7) Law Enforcement

For documents which are "records or information compiled for law enforcement purposes," but only if one or more of six specified types of harm would result.

FOIA exemption 1) National Defense

For national defense or foreign policy information properly classified pursuant to an Executive Order.

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.

Fee Category 5) Freelance Journalist Requests

Freelance journalists have to show proof of publication or likelihood or publication through a representative of the news media, even though they are not actually employed by one.

Commercial Clause

Gives Congress power to regulate trade between the states, with foreign countries, and with Indian tribes. Used to justify the government's constitutional right to control broadcast radio by licensing.

Fee Category 3) Noncommercial Scientific Institution Requests

Noncommercial scientific institutions are ones whose sole purpose is to advance scholarly research, not just to achieve commercial gain.

Fee Category 1) Commercial Use Requests

Ones that serve to advance the commercial, trade, or profit interest of the person on whose behalf the request is made.

Federal Advisory Committee Act (FACA)

The FACA of 1972, is law which mandates trasnparency, reporting, and viewpoint diversity when private citizens give advice as part of a commission, committees, or advisory body established or utilized by the president or federal agencies in making policy.

Freedom of Information Act (FOIA)

The Freedom of Information Act is a federal law requiring federal agencies, on request, to disclose agency records unless the information can be kept secret under one of nine FOIA exemptions.

Government Accountability Office (GAO)

The GOA is a congressional federal agency that assists Congress in oversight of budget expenditures.

Protected Health Information (PHI)

The class of individual health-care information protected by the HIPAA.

Vaughn Index

The term "Vaughn Index" originated from Vaughn v. Rosen, wherein the court rejected an agency's conclusory affidavit stating that requested FOIA documents were subject to exemption. "A Vaughn Index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption." This detailed affidavit " 'permit[s] the court system effectively and efficiently to evaluate the factual nature of disputed information.' "

FOIA Exemptions

There are nine exemptions to FOIA specified in the statute. The government can deny a FOIA request, and keep information secret, if the requested material fails within one of the nine exemptions.

Fee Category 6) All Other Requests

These are requests that do not fall under the previous categories. Fees will not be charged for the first 100 pages and first two hours spent on the searching process for all except the requests pertaining to commercial use.

Fee Category 4) Represantitives of the News Media Requests

Those are made by journalists who collect news for a news organization, whose mission is to distribute the information to the public. Information, here, refers to news that is of public interest. News media can mean tv stations, radio stations, or publishers of periodicals.

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."

Presumption of Disclosure

Under FOIA, requests are presumptively granted unless the government can show that the information fails under one of the FOIA exemptions.