16 (PRLINV) Public Sources of Information

Executive branch-Executive orders data

Executive order tables can be viewed online at www.archives.gov/federal-register/executive-orders.

State and local bar directories and handbooks (Determining federal records)

Many state and local bar associations publish directories or handbooks containing information on the various federal agencies, including how to contact regional and local offices.

Party index

Record maintained by trial court clerk's office indexing cases by names of the parties; an alternative to the case docket numbers for locating a case file.

Computerized resources for searching federal court records

1. Computerized database vendors 2. Public Access to Court Electronic Records (PACER) system 3. Other online sites

The Privacy Act, 5 U.S.C. §552a

1. Another federal statute that is available for accessing records from executive agencies and departments of the federal government. 2. Passed in 1974 as an amendment to the FOIA, the Privacy Act allows an individual to access personal information held by an agency about him or herself and to seek the amendment of incorrect information. 3. The executive departments and agencies subject to the FOIA are also subject to the Privacy Act. 4. individuals may succeed in accessing more information about themselves under the Privacy Act than they could about another person under the FOIA. However, the Privacy Act also recognizes exemptions that an agency may rely on to withhold information. Those exemptions include: •information classified in the interests of national defense or foreign policy; •information related to law enforcement activities; •information developed in connection with Secret Service protection; •information related to the identity of confidential sources in connection with making decisions regarding federal employment, military service, federal contracts or classification; •information related to testing or examination for promotion in federal service or the armed services. 5. Since the Privacy Act is limited to individuals' right to request information about themselves, its usefulness to the investigator is primarily in assisting a client or cooperative witness to make such a request to obtain relevant information the government may have.

Sources of information introduction

1. By public records or public sources we mean information compiled and maintained by government agencies and offices at the federal, state, and local (i.e., city and county) levels. 2. By private records or private sources we mean information in the custody of private individuals, businesses, educational institutions, or any other non-governmental custodian.' 3. There are two distinct skills to be learned in connection with accessing public and private information as part of your investigation: (1) being able to identify the various sources of public and private information; and (2) knowing how to obtain the information from that source. In other words, knowing where to go for information and how to obtain it when you get there. And, as always in fact investigating, there are no substitutes for creative thinking and vigorous pursuit of information.

Congressional Records

1. Congressional records are, for the most part, readily available to the public. Sessions of Congress are normally open to the public and televised. Most congressional committee hearings are likewise open to the public. 2. The Congressional Record (accessible online at www.congress.gov/congressional-record and available through Westlaw and LexisNexis) is the official record of Congress and contains floor debate as well as the text of proposed bills and amendments. All committee reports (except those containing classified information) and most committee hearings are published by the government. The United States Code Congressional and Administrative News is a valuable source for selected committee reports as well. 3. In addition, copies of the numerous publications authorized by Congress are available at federal depository libraries throughout the country or through the GPO. (See discussion above and Appendix B.) Furthermore, all members of Congress retain staff members who are typically responsive to requests for information regarding the status of legislation, congressional investigations, or other official matters—at least to their constituents.

The phone book (Determining federal records)

1. In many locations the local phone book has a separate section for government offices. 2. Sometimes referred to as the blue pages (sometimes red or green pages, etc.) for their distinctive color coding, this section of the phone book is a quick source for addresses and phone numbers of regional or local offices of federal agencies. 3. Even if you do not have a land-line phone, the investigator should have ready access to local phone books either by ordering them from the publisher or local phone company or by visit to the nearest public library.

Online Database vendors

1. Much information concerning the actions taken by executive federal agencies is now accessible through online database vendors. 2. Both Westlaw and LexisNexis provide access to the Code of Federal Regulations, the Federal Register, track the history of proposed federal regulations, and provide information on sanctions and other oversight actions taken by a myriad of federal agencies. 3. There are also search companies that, for a fee, will perform electronic searches for public record information available from federal agencies

Public records in general

1. Public records can present a veritable gold mine of relevant information. 2. Not all of it is accessible in every case or by just anyone, but much of it is accessible at any time by anyone. 3. much information maintained by the government that is not truly public can be obtained in particular ways or by particular persons.

Data.Gov and agency websites (Determining federal records)

1. Pursuant to the E-Government Act of 2002, 44 U.S.C. §§3601 et seq., the federal government is now committed to making more records and information available online. In 2009 the government established Data.Gov (www.data.gov), an open data site (a website where data is posted for anyone to access, use, and share without restriction) dedicated to "democratizing the public sector and driving innovation. 2. Mountains of information are posted on the site originating from numerous government agencies and departments; data thought to be of particular concern or interest to large numbers of Americans. 3. More than 50 nations have established such open data sites with varying amounts of information available on them. Most states and a number of cities have established such sites as have many private organizations. 4. In addition to Data.Gov, individual federal departments and agencies have their own websites providing a wealth of information on the activities of the agency, information available from it, and, frequently, instructions on how to access that information. www.usa.gov. A single-source site to access federal government information and services. www.usa.gov. Known as FedWorld, this site is an indispensable gateway to all things federal. Operated by the U.S. Department of Commerce. www.benefits.gov/. Convenient site to locate information regarding government benefits including loans, disaster assistance, and SSA qualifications. www.regulations.gov/. Excellent site to locate and comment on regulations and actions of all governmental agencies. www.usaspending.gov/. Provides information on how federal dollars are being spent. www.gsa.gov/staff-directory. An online staff directory from the Government Services Administration (GSA).

Public Access to Court Electronic Records (PACER) system (Computerized resources for searching federal court records)

1. The court indexes and dockets of most civil, criminal, bankruptcy, and appellate cases filed in the federal courts throughout the country are now searchable using the Public Access to Court Electronic Records (PACER) system. 2. Created and administered by the Administrative Office of the U.S. Courts. 3. allows any subscriber to dial in by modem to a particular federal district or bankruptcy court clerk's office and quickly retrieve case information and dockets for a modest fee. Information can be downloaded and copied by the user. 4. The U.S. Party/Case Index feature of PACER allows subscribers to search regionally or nationwide by name or social security number in the bankruptcy index, by name and nature of suit in the civil case index, by defendant in the criminal index, and by party name in the appellate court index.

Experienced people in the office (Determining federal records)

1. The experienced attorneys and paralegals in your office will be primary sources to help you determine which federal agencies might be a source for what kinds of records or at least to direct you to someone who should know. 2. As the legal professional gains experience in working with different federal departments and agencies, he or she will become the office expert on what is available where. 3. Sometimes the inexperienced legal professional must rely on his or her own knowledge, initiative, and common sense to track down and obtain available information from government sources.

Government publications (Determining federal records)

1. The government prints several helpful publications available in the reference section of many schools or public libraries or from the Government Printing Office (GPO). These include The Congressional Directory (accessible online by search at www.gpo.gov) and the U.S. Government Manual (searchable online at www.usgovernmentmanual.gov/). These publications not only provide information on the scope of responsibilities of the various federal departments and agencies with addresses, phone, fax, and e-mail numbers for Washington and regional and/or local offices, they also contain current website addresses for the agencies. •Where to Write for Vital Records: Births, Deaths, Marriages and Divorces; •Fire Investigation Handbook; •Crime Scene Search and Physical Evidence Handbook; and •Forensics: When Science Bears Witness. 2. A catalog of U.S. government publications can be obtained without cost from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 or viewed and ordered from the GPO bookstore at https://bookstore.gpo.gov/. 3. A number of federal agencies also publish their own brochures summarizing the various publications available through that agency. An email or phone call to the agency will be sufficient to obtain the guide, usually at no cost. 4. There are also 1,400 federal depository libraries across the country, which contain comprehensive collections of substantially all publications of the federal government. To locate the depository library nearest you, search at www.fdlp.gov

Obtaining information from the White House

1. The home page of the White House is www.whitehouse.gov providing numerous informational links. 2. The GPO's Federal Bulletin Board also provides access to numerous White House documents at http://permanent.fdlp.gov/fbb/.

How to Access Information from the Federal Government

1. The judicial branch—court records 2. The legislative branch—Congress 3. The executive branch

Agency Websites

1. The various federal agencies are placing increasing amounts of information on their websites sometimes making an FOIA request unnecessary. 2. The legal professional should maintain an updated list of such sites and when performing an investigation try assessing the information on those sites before undertaking a FOIA request.

Publications (Determining federal records)

1. There are numerous publications available in many school and public libraries containing lists of the various federal departments and agencies, descriptions of their responsibilities and functions, as well as information on how to contact them. 2. These resources include American Jurisprudence 2d Desk Book and Philo's Lawyer's Desk Reference. Since its purchase of CQ Press in 2008, the leading commercial publisher of information on the federal government is probably Sage Publishing, which publishes more than 300 titles related to government activity, including the comprehensive Washington Information Directory, and the Federal Regulatory Directory, and U.S. Political Stats

Enabling statutes and regulations (Determining federal records)

1. To get a better understanding of the responsibilities of a particular government department or agency and the kinds of records it maintains, it is frequently helpful to review its enabling legislation, that is, the federal statute that created the particular agency or department. 2. The particular federal regulations governing that agency or department should be reviewed as well. The Code of Federal Regulations (CFR) (searchable online at www.ecfr.gov) contains the current federal regulations for each federal agency and department. The Federal Register (searchable online at www.federalregister.gov), published daily by the U.S. government, provides information regarding the status of proposed new or amended regulations. 3. Mastering the organization of the many federal agencies is challenging not only because of their number but because the control of many agencies with related functions is hardly centralized. nearly identical responsibilities often are spread among more than one federal agency. 4. Congress occasionally exercises its power to create new agencies or merge existing ones.

Accessing Congress through database vendors

1. Westlaw and LexisNexis both provide online legislative research capabilities. Both access the Congressional Record. 2. LexisNexis's Congressional and Congressional Research Digital libraries provide access to legislation, congressional hearings, public issues, more than 200 years of congressional history, as well as legal research. 3. Westlaw's Congressional Information, Bill Tracking, and Legislative History databases provide the full text of all bills pending in Congress, track pending legislation, and provide access to committee reports. 4. Bloomberg BNA (www.proquest.com/) offers a Bloomberg Law and Bloomberg Government subscription options which together providing comprehensive legal research tools as well as government information, congressional and regulatory activity and analysis. 5. Blue 360 Media (www.blue360media.com/) is a leading subscription provider of legal resources and educational materials to the law enforcement community. 6. Other computerized databases provide congressional information as well. The IntelliConnect subscription service offered by Commerce Clearing House (https://taxna.wolterskluwer.com/research/intelliconnect), a subsidiary of this text's publisher, Wolters Kluwer, allows access to current legislative materials dealing with tax, finance, and estate planning. ProQuest (www.proquest.com/), formerly Dialog, provides comprehensive research into legislative and other governmental reports. (See LBD 16-2.)

How to conduct searches in federal court records

1a. The standard way to obtain copies of court files is to visit the office of the clerk of the court in which the case was heard, ask for the file by assigned docket number, and pay the going rate for any copies made (usually 50 cents to a dollar per page). 1b. Requests for copies of files can also be accomplished by phone call or letter to the clerk's office, though there may be a delay in processing such requests and some court clerks may request payment in advance for copy and mailing costs. 2. Records of proceedings in the federal courts, unless placed under seal by order of the court, are public records accessible by anyone. 3. After a federal court file has been closed, it will eventually be sent to a regional branch of the National Archives (online at www.archives.gov) To locate a file there, you must obtain the case locator number for the file, which is available from the clerk of the originating court. 4a. Though case files in the clerk's offices will be maintained there by assigned docket number, the investigator who does not have a docket number can still locate files in which a particular person was a litigant. That is because federal court clerks maintain detailed party indexes of all civil and criminal cases that come before the court, regardless of their disposition. 4b. those index systems have been computerized and the investigator will be expected to conduct the search at a computer terminal. 4c. In other clerk's offices, the party index system may consist of bound computer printout sheets, or be kept on microfilm or microfiche, or even be recorded in a card file or ledger book. 4d. the indexes are maintained alphabetically by the names of the litigants. In criminal cases, this means cases are indexed by the defendant's name. In addition to the name, the criminal index will typically state the charge, the disposition, and the docket number. In civil cases, the cases are indexed by the names of the parties, either plaintiffs or defendants. 5. In bankruptcy and U.S. tax court proceedings, the cases are indexed by the name of the petitioner(s). The civil index will typically provide the name of the case, the disposition, and the docket number. 6. In some clerk's offices, separate indexes are maintained for corporations that are litigants. Some index systems may contain separate plaintiff and defendant indexes though, increasingly, most systems merge both into a party index. In older index systems, multi-party cases may be indexed only under the first-listed plaintiff and/or the first-listed defendant. But in modern systems, cases are cross-indexed under the names of all the parties.

Computerized database vendors (Computerized resources for searching federal court records)

1a. The two leading computerized database vendors, Westlaw, now owned by Thomson Reuters, and LexisNexis, a division of Reed Elsevier, Inc., are available by paid subscription only. 1b. Both provide docket search libraries that enable the investigator to perform online searches covering cases decided in all the federal appellate courts, increasing numbers of U.S. district courts, the U.S. bankruptcy courts, U.S. tax courts, and other specialized federal courts.

The Freedom of Information Act (FOIA), 5 U.S.C. §552

1b. The FOIA was enacted by Congress in 1966 and establishes a presumption that records in the possession of agencies and departments of the executive branch of the federal government are accessible by the public. 1c. The scope of the FOIA is broad. It includes the agencies, offices, and departments of the executive branch of the federal government 1d. Also includes independent federal regulatory agencies such as the Federal Trade Commission, the Environmental Protection Agency, the Securities Exchange Commission, and the Federal Communications Commission. Included too are federal government-controlled corporations such as the Post Office, the Tennessee Valley Authority, the Smithsonian Institution, and Amtrak. 2. Does not apply to Congress, the federal courts, or the Executive Office staff such as the White House Chief of Staff or others whose function is to advise and assist the president. It also does not cover state and local government agencies private businesses, private organizations, schools, or individuals. 3a. the kind of information that can be obtained from federal agencies under the FOIA is information concerning how the agency operates, what actions it has been taking, how it has spent money, and what statistics or information it has collected in the course of its operation. 3b. many federal agencies regulate corporations and other private businesses whose reports and other records will be in the possession of the regulating agency. 4a. All agency records are accessible through the FOIA except those falling into one of nine designated exemption categories as follows: •information related to foreign policy or national security if it has been properly classified; •records related solely to the internal personnel rules and practices of the agency; •information declared exempt under other federal laws—known as the "catch-all" exception; •trade secret and other commercial/financial information deemed confidential; •inter-agency or intra-agency correspondence and policy memoranda; •information about an individual in personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of that individual's privacy (applies only to living natural persons); •records or information compiled for law enforcement purposes if disclosure might reasonably violate a right to personal privacy; •records of financial institutions; and •certain geological information and data, including maps, regarding oil and gas wells. 4b. The burden is on the agency receiving the request to demonstrate that information requested falls into one of the exempt categories; otherwise it must be produced. 4c. If part of a record falls within an exemption and part does not, the part that does not must be produced. Moreover, other than the "catch-all" exemption, the government agency can exercise its discretion to release records that might fall within one of the other exemptions if the requester can convince the agency it is "in the public interest" to do so. 5a. The Openness Promotes Effectiveness in our National Government Act of 2007 (called the Open Government Act of 2007) amended the FOIA to authorize courts to award attorney's fees and costs to those who are forced to file suit to compel compliance with a FOIA request and who then prevail, either by court judgment or voluntary compliance. 5b. When a lawsuit is filed to compel disclosure, a manufacturer or other third party with an interest in preventing disclosure of the information sought may intervene in the lawsuit to assert the appropriate privilege, usually the trade secret or other confidential information privilege. See, e.g., Appleton v. Food & Drug Admin., 451 F. Supp. 2d 129 (D.D.C. 2006) (four pharmaceutical companies allowed to intervene in a FOIA compliance suit seeking information regarding the drug levothryoxine sodium). 6a. There is no central government office which handles FOIA requests. Each agency is required to designate an officer to handle requests submitted to that agency. The statute requires that an agency respond to a citizen's request for records within ten working days, though the agency may request an extension. 6b. The agency may also charge a nominal fee for locating, reviewing, and copying documents. It is prudent to request the fee schedule from an agency before making the request. Some agencies may require prepayment of fees. Sometimes agencies will waive the fee. 7. The current name, address, and phone number of the FOIA officer designated by a particular agency can be located in the regulations for that agency. Regulations for the various federal agencies are collected in the Code of Federal Regulations (CFR) (searchable online at www.ecfr.gov). Or, the investigator can simply call or write the particular federal agency to obtain that information. 8. The Congressional Directory, the U.S. Government Manual (both searchable online as indicated earlier), and other resources contain comprehensive lists of FOIA officers. The Office of Information Policy (OIP) within the Department of Justice (DOJ) (www.justice.gov/oip/foia-resources) is the principal contact point within the executive branch for advice and policy guidance on matters pertaining to the FOIA. The OIP maintains a FOIA Counselor Service that may be reached at (202) 514-3642 (202-514-FOIA) and provide a user-friendly FOIA site at www.foia.gov/. 9. Two excellent guides that are available to assist you in successfully completing a FOIA request are How to Use the Federal FOI Act and A Citizen's Guide on How to Use the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records. 10. FOIA requests must be made in writing, directed to the specific agency from which the records are sought, and must specify the records sought.

Determining What a Federal Agency or Department Does and the Records It Maintains

A. You should have a general understanding of what each federal department or agency is responsible for doing. That will provide you with knowledge, or at least an educated guess, as to the kinds of information or records the department or agency is likely to compile and maintain. B. You should also know the location of the national, regional, and/or local offices of the federal agencies with which you most frequently work. Keep handy an up-to-date source from which you can quickly locate the address and phone number for these government agencies and offices. sources the legal professional can utilize to obtain information on federal departments and agencies: 1. Experienced people in the office 2. Government publications 3. Data.Gov and agency websites 4. State and local bar directories and handbooks 5. The phone book 6. Publications 7. Enabling statutes and regulations

Obtaining information from executive agencies

Most federal agencies and departments are under the authority of the executive branch. The executive branch of the federal government includes the cabinet departments, the branches of the military, various regulatory agencies, government corporations, and various law enforcement agencies. ------------------- 1a. The primary means of accessing information from agencies and departments of the executive branch of government is the Freedom of Information Act (FOIA), 5 U.S.C. §552.

Kinds of information available in federal court records

Sworn answers to interrogatories; deposition transcripts; affidavits; positions taken in prior litigation; detail concerning an individual's personal, financial, and business affairs; or a company's history, finances, and activities may be among these public records available for a copying fee to the investigator who knows where and how to look.

Structure of the Federal Government

although we are using the terms departments and agencies, a number of federal entities are denominated as boards, commissions, bureaus, services, authorities, or offices.

The Importance of Knowing How Government Works

•You should have a basic knowledge of how the federal government and your state and local governments are organized and operate. •You should familiarize yourself with the various governmental agencies at both the federal and state levels and understand what each of them does. •If you have not had a course in administrative law in your formal course of study, go to your school, public library, a bookstore, or online and obtain a current administrative law text and educate yourself. •You should keep within arm's reach a source that gives you the addresses and phone numbers of the central, regional, and/or local governmental offices and agencies. •You should also keep notes on the names and disposition of individuals you deal with by phone or in person in government offices and cultivate those contacts for future use. (See Chapter 8 on Communication Skills.)

Congress on the Internet

•www.gpo.gov. This provides access to the CFR, Federal Register, U.S. Code, Congressional Directory, U.S. Government Manual, Government Administrative Office (GAO) reports, and the monthly catalog of U.S. government publications. •www.congress.gov. Operated by the Library of Congress, this site provides information on congressional procedures, legislation pending in Congress, and select committee reports. •www.senate.gov. This is the home page of the U.S. Senate. •www.house.gov. This is the home page of the U.S. House of Representatives. •www.loc.gov. This is the home page of the Library of Congress. •www.govtrack.us. This is a private project for tracking legislation and voting records of individual members of Congress.

Other online sites (Computerized resources for searching federal court records)

•www.supremecourtus.gov. This is the official site of the U.S. Supreme Court. It offers access to court slip opinions, term orders, argument calendar, court rules, etc. •www.uscourts.gov. This is the Federal Judiciary home page. It offers information on the structure of the judiciary, statistics on caseloads, judicial vacancies, answers to FAQs, lists of publications, and links to other websites. •www.oyez.org/. This site provides access to digital audio recordings of oral arguments before the Supreme Court as well as a multimedia guide to the Court. •www.abiworld.org. This site provides quick access to decisions of the U.S. bankruptcy courts as well as bankruptcy news and information. •www.law.cornell.edu. This is the site for Cornell University's Legal Information Institute, also a comprehensive legal resource. FindLaw (http://lp.findlaw.com) operates a powerful and comprehensive online search tool for locating court decisions and other law-related material.