Week 11 Freedom of Information
Utah: GRAMA
The Government Records Access and Management Act went into effect in 1992. It sets forth guidelines for classifying information in government records based upon who has the right to access that information. The law also identifies the records management responsibilities of agencies, and the duties of State Archives and the State Records Committee
Access to Prisons, Disasters, etc.
The U.S. Supreme Court has ruled that journalists have no First Amendment rights to visit prisons. In another case, the U.S. Court of Appeals for the Ninth Circuit said journalists have no First Amendment right to view executions in their entirety.
Privacy Act of 1974
When the public's right to know, a right guaranteed by the Bill of Rights (but not by the First Amendment), conflicts with an individual's right to maintain a reasonable zone of privacy, journalists and civil libertarians — who are normally allies in the cause of informing the populace — are often at odds. The ACLU and similar organizations strongly oppose journalists' right of access to personal information collected by the government.
FBI v. Abramson, 456 U.S. 616 (1982)
Abramson, a journalist, filed an FOIA request with the FBI for documents relating to the FBI's transmittal to the White House of information concerning individuals who had criticized the Presidential administration. The FBI denied the request under the FOIA provision that exempts from disclosure "investigatory records compiled for law enforcement purposes" when the release of such records would "constitute an unwarranted invasion of personal privacy." After unsuccessful administrative appeals, Abramson filed a lawsuit in federal district court to enjoin the FBI from withholding the requested documents. While the lawsuit was pending, the FBI provided Abramson with certain documents, and Abramson modified his request to seek only a certain cover letter from the FBI to the White House, along with the accompanying "name check" summaries containing information culled from FBI files on the individuals in question, and certain attached documents. The district court granted the FBI's motion for a summary judgment with respect to material withheld pursuant to Exemption 7. The Court of Appeals reversed, holding that except for those documents attached to the "name check" summaries that may have been duplicates of FBI files, the FBI had failed to show that the documents were compiled for law enforcement purposes, and that Exemption 7 was unavailable even though disclosure would constitute an unwarranted invasion of personal privacy. The U.S. Supreme Court reversed the ruling, declaring sensitive investigatory information originally compiled for law enforcement purposes does not lose its Exemption 7 protection when subsequently recompiled into a new document for purposes other than law enforcement.
Government in Sunshine Act
Access to the meetings of government agencies is one of the oldest and most difficult information-gathering problems that journalists encounter. Public agencies are supposed to conduct their business openly, with citizens invited to observe and participate where appropriate, but public officials too often give in the temptation to conduct business and make decisions behind closed doors. If the press is to perform its "watchdog" function and serve as the public's eyes and ears, reporters must have access to meetings where public officials make decisions.
Buckley Amendent
Also enacted in 1974, the Buckley Amendment (named for Sen. James Buckley of New York) gives parents the right to see their children's school records and forbids the release of these records to outside parties without the parents' consent. It also allows students over age 18 to see their own school records and requires their consent before the records may be released to outside parties. School systems that fail to obey the Buckley Amendment may be denied federal funds.
CIA v. Sims, 471 U.S. 159 (1985)
Between 1953 and 1966, the CIA financed a research project code-named MKULTRA. It was established to counter Soviet and Chinese advances in brainwashing and interrogation techniques. Subprojects were contracted out to various universities, research foundations, and similar institutions. In 1977, John C. Sims, an attorney, and Dr. Sidney M. Wolfe, director of Ralph Nader's Public Citizen Health Research Group, filed an FOIA request with the CIA seeking the names of the institutions and individuals who had performed MKULTRA research. Citing Exemption 3 (which says an agency need not disclose matters specifically exempted from disclosure by statute, as long as the statute refers to particular types of matters to be withheld), the CIA declined to disclose the requested information. Sims and Wolfe filed a lawsuit in federal district court asking that the records be disclosed.
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980)
Henry Kissinger served as an Assistant to the President for National Security Affairs from 1969 to 1975 and as Secretary of State from 1973 to 1977. Throughout these periods, his secretaries monitored his telephone conversations and recorded their contents either by shorthand or on tape. The notes or tapes were used to prepare summaries and sometimes verbatim transcripts of the conversations. In 1976, after the notes had been moved from Kissinger's office in the State Department to a private estate in New York, he donated them to the Library of Congress, subject to an agreement restricting public access to them for a specified period, and they were transported to the Library. Three requests for the notes were made to the State Department under the Freedom of Information Act, including a request by newspaper columnist William Safire of The New York Times at a time when the notes were still located in Kissinger's State Department office, for any notes covering certain dates in which Safire's name appeared or in which Kissinger discussed information "leaks" with certain White House officials, and a request by the Reporters Committee for Freedom of the Press and others for notes made both while Kissinger was Presidential Assistant and while he was Secretary of State. The State Department denied the all three requests on the ground that requested notes had been made while Kissinger was Presidential Assistant and therefore were not agency records subject to FOIA disclosure. Later, after the records had been moved, the State Department held that the requested notes were not agency records and that their deposit with the Library of Congress prior to the requests terminated the State Department's custody and control. Meanwhile, Kissinger refused a government archivist's requests for return of the notes. Lawsuits were filed by the various FOIA requesters against Kissinger, the Library of Congress, the Secretary of State, and the State Department, seeking enforcement of the FOIA requests and a declaratory judgment that the telephone notes were agency records that had been unlawfully removed and were being improperly withheld. A federal district court ruled in the plaintiffs' favor as to the notes made while Kissinger was Secretary of State but denied relief as to the notes made while he was Presidential Assistant, finding that the former notes were "agency records" subject to disclosure under the FOIA, and that Kissinger had wrongfully removed them from the State Department in violation of the Federal Records Disposal Act. An order was entered requiring the Library of Congress to return the Secretary of State notes to the State Department and requiring the Department to determine which of the notes are exempt from disclosure under the FOIA and to provide the required materials to the plaintiffs. The Court of Appeals affirmed.
Driver's Privacy Protection Act
In 1994, Congress passed a law that significantly curtained access to motor vehicle registration records and driving records. The Driver's License Protection Act was enacted as part of an anti-crime campaign, and was justified by its sponsors on grounds that a fan of actress Rebecca Shaeffer used a private investigator's access to her driver's license information to stalk and murder her.
California First Amendment Coalition v. Calderon, 150 F.3d 976 (1998)
In 1998, the U.S. Court of Appeals for the Ninth Circuit considered a challenge to a prison regulation that limited witness observation of an execution. Essentially, the regulation allowed witnesses to lethal injection executions to view the process only after the condemned had been strapped to the gurney and an IV saline solution is running. The regulation prevented witnesses from hearing the warden's order to carry out the execution and from observing the placing of the condemned on the gurney and the insertion of the IV. The California First Amendment Coalition challenged the procedure on First Amendment grounds.
Electronic FOIA Amendments
In response to the explosion of Internet and computer use, both in and out of government, Congress passed the Electronic Freedom of Information Act Amendments in 1996. The most visible and widely reported change was the requirement that federal agencies make their records available in electronic form (Internet, CD-ROM, etc.)
Houchins v. KQED, 438 U.S. 1 (1978)
Journalists for KQED, a television station, were refused permission to inspect and take photographs at the portion of a county jail where a prisoner's suicide reportedly had occurred and where conditions were assertedly responsible for prisoners' problems. KQED filed a lawsuit against Houchins, who supervised the jail, claiming deprivation of their First Amendment rights. Thereafter, Houchins announced a program of regular monthly tours open to the public, including media reporters, to parts of the jail. However, the section of the jail that the KQED journalists wanted to see, called, Little Greystone, was not part of the tour. Also, cameras or tape recorders were not allowed on the tours, nor were interviews with inmates. The district court preliminarily enjoined Houchins from denying KQED news personnel and responsible media representatives reasonable access to the jail, including Little Greystone, and from preventing their using photographic or sound equipment or from conducting inmate interviews. The Court of Appeals affirmed.
U.S. Department of Justice v. Landano, 508 U.S. 165 (1993)
Landano was convicted in New Jersey state court for murdering a police officer during what may have been a gang-related robbery. In an effort to support his claim in subsequent state court proceedings that the prosecution violated a 1963 Supreme Court precedent by withholding material exculpatory evidence, Landano filed FOIA requests with the FBI for information it had compiled in connection with the murder investigation. The FBI edited some documents and withheld others, prompting Landano to file a lawsuit in federal district court seeking disclosure of the requested files' complete contents
U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989
On the basis of information provided by local, state, and federal law enforcement agencies, the FBI compiles and maintains criminal identification records or "rap sheets" on millions of persons. (At the time of this lawsuit, the total was estimated at approximately 24 million people.) These records contain descriptive information as well as a history of arrests, charges, convictions, and incarcerations. The Reporters Committee for Freedom of the Press, joined by CBS News, riled an FOIA request with the Department of Justice, seeking the rap sheet for one Charles Medico, insofar as it contained "matters of public record." The Pennsylvania Crime Commission had identified Medico's family company as a legitimate business dominated by organized crime figures, and the company allegedly had obtained a number of defense contracts as a result of an improper arrangement with a corrupt Congressman. RCFP argue that a record of Medico's financial crimes would potentially be a matter of public interest. The FBI denied the request, and RCFP filed a lawsuit in federal district court.
Reno v. Condon, 120 S.Ct. 666 (2000)
State departments of motor vehicles (DMVs) require drivers and automobile owners to provide personal information, which may include a person's name, address, telephone number, vehicle description, Social Security number, medical information, and photograph, as a condition of obtaining a driver's license or registering an automobile. Finding that many States sell this information to individuals and businesses for significant revenues, Congress enacted the Driver's Privacy Protection Act of 1994, which establishes a regulatory scheme that restricts the states' ability to disclose a driver's personal information without the driver's consent.
Freedom of Information Act
The Freedom of Information Act was passed by Congress in 1966 and amended in 1974. Based on the premise argued by Madison and others that openness in government will assist citizens in making the informed choices necessary to a democracy, FOIA creates procedures whereby any member of the public may obtain the records of the agencies of the federal government.
U.S. Department of State v. Washington Post, 456 U.S. 595 (1982)
The Washington Post filed an FOIA request with the U.S. State Department for documents indicating whether certain Iranian nationals held valid United States passports. The State Department denied the request on the ground that the requested information was exempt from disclosure under Exemption 6, which provides that the Act's disclosure requirements do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Pending an ultimately unsuccessful administrative appeal, the Post filed a lawsuit in federal district court to enjoin the State Department from withholding the requested documents, and the court granted summary judgment for the Post. The U.S. Court of Appeals affirmed, holding that because the citizenship status of the individuals in question was less intimate than information normally contained in personnel and medical files, it was not contained in "similar files" within the meaning of Exemption 6, and that therefore there was no need to consider whether disclosure of the information would constitute a clearly unwarranted invasion of personal privacy
