Chapter 9

What are six exceptions to state open-records law?

1. Confidential information, per federal or state level. 2. Law enforcement/investigatory information 3. Trade secrets and commercial information 4. Preliminary departmental memorandums 5. Personal privacy information 6. Information regarding litigation against a public body

What criteria is used to consider whether a document counts as an agency record?

1. If record is created/obtained by an agency, and was under agency control. 2. If the agency does not possess or control it, but has created it, it is not an agency record. 3. If the agency merely possesses it, but hasn't created it, it may or may not be an agency record, except if the agency received it as its official duty.

When is a document considered exempt under law enforcement?

1. If such disclosure interferes with enforcement proceedings. 2. If disclosure deprives a person of their right to a fair trial. 3. Constitutes an unwarranted invasion of privacy 4. Discloses the identity of confidential sources 5. Discloses and circumvents law enforcement techniques 6. Puts anyone's life or safety in grave jeopardy.

When can courts rule in favor of exemption for national security?

1. If the affidavits describe justifications for nondisclosure in specific detail. 2. Demonstrate that the information logically falls within the claimed exception and 3. Are not contradicted by evidence in record or agency's bad faith.

What three questions are asked by the courts when considering statutory exemption?

1. Is there a specific statute that requires withholding the information? 2. Does the statute specify criteria for information that may be withheld? 3. Does the information or record fall within the categories of information that may be withheld?

What three questions form the criteria for determining whether a document is a trade secret?

1. Must be a trade secret, commercial or financial document in character. 2. Must be obtained from a person. 3. Must be confidential or privileged.

What are the nine exemptions to FOIA?

1. National security matters 2. Housekeeping materials 3. Material exempted by statute 4. Trade secrets 5. Lawyer-client-privileged materials, working papers 6. Personal privacy files 7. Law enforcement records 8. Financial institution records 9. Geological data

What did the Homeland Security Act do?

1. Private persons and businesses submit voluntarily submit "critical infrastructure information" to the Department of Homeland Security. 2. Granted companies immunity from civil and criminal trial for their contribution of information. 3. Protected material that related solely to the internal affairs and practices of an agency.

What two things define open-meeting laws?

1. They require that meetings be open, but provide closed sessions or executive sessions depending on the circumstances. 2. Require advance public notice of both regular and special meetings.

How many exemptions to the Sunshine Act allow for closed meetings?

10; nine as stipulated in FOIA, plus an arbitration-and-case-adjudication exemption.

What is fraud?

A knowingly-false statement made to induce the plaintiff to believe it; journalists cannot lie to gain access to private property or information.

What is e-FOIA?

An amendment to FOIA that requires government agencies to treat electronic records the same as physical, paper records; however, the meaning of "electronic records" is undefined.

How is an agency defined under FOIA?

Any executive dep't, military dep't, government corporation, gov't-controlled corporation or other establishment in the executive branch, or any independent regulatory agency.

What is the Freedom Of Information Act (FOIA)?

Any member of the public is granted a statutory right of access to records possessed by federal government agencies; fullest possible disclosure of gov't-held records.

Sunshine Act

Applies to 50 federal bodies, and only those appointed by the President.

What are the three primary sources of law for journalists to access legal information?

Common law, constitutional law, and statutory law (state and federal levels).

What is the personal privacy exemption?

Concerns personnel, medical, and similar files, which contains highly-personal information comparable in magnitude to personnel and medical files.

What types of documents are considered records under FOIA?

Emails, paper documents, computer-generated materials, films, tapes, three-dimensional objects (e.g. criminal evidence).

Which state has the oldest open-records law in the USA?

Florida; the Public Records law was passed in 1909.

Who cannot give journalists access to private property?

Government agents, such as police officers or firefighters.

What is harassment?

Hounding, stalking, or surveilling another person without their consent; a reporter can be sued for it.

When is a document considered exempt under financial record protections?

If public disclosure would undermine public's trust in financial institutions; includes any document created by an agency to regulate the power of that institution.

When is consent a defense in trespassing cases?

If the owner granted the reporter access onto their private property, or if the property is open to the public and the journalists do not disrupt business.

What is trespass?

Intentional, unauthorized entry onto land occupied or possessed by another; may subject a reporter to civil and criminal liability.

What is the Health Insurance Portability and Accountability Act?

Limits the ability of journalists to obtain information about patients, only applies to healthcare and health insurance providers.

What is the Family Educational Rights & Privacy Act?

Named the Buckley amendment, allows parents to review their child's educational records before the child reaches 18 years of age, and prevents any unauthorized use of that information without the parents' consent.

What brought about the Homeland Security Act as an exemption to FOIA?

Post-9/11 concerns about terrorism.

Common law

Provides bare minimum of access to gov't documents, meetings of public agencies.

Failure to obey lawful orders?

Reporters who disobey a firefighter or police officer's orders (i.e. at the scenes of disasters, fires, accidents, or crime scenes) can face charges for disorderly conduct.

U.S. v. Matthews (1998)

Ruled that the reporter's job to get the story should not interfere with the law; evidenced when a journalist was convicted of child pornography.

What is the working papers exemption?

Shields studies, reports, and memoranda used in decision-making, protects communications between an agency and its attorney, and must be pre-decisional or deliberate. Also known as the "executive privilege" exemption.

Constitutional law

The First Amendment does not grant journalists free rein to report in prisons, but stipulates that citizens have a right to attend criminal trials.

What Amendment to the Constitution justifies holding gov't agents and journalists accountable for trespassing?

The Fourth Amendment (illegal search and seizure)

What is a government agency's policy regarding FOIA requests?

The agency must respond within 20 days; if an appeal is filed after a denial, they have that same amount of time to rule on the appeal.

What is the purpose of geological data exemptions?

To prevent speculators and other drillers from gaining access as to the whereabouts of oil wells.

How much would it cost for a FOIA request?

Unless it's for commercial use, any member of the public, of a news media, or of a scientific/educational institution can access the FOIA files for free.

What is true concerning Constitutional law and gov't officials?

While members of the media may not have a special right to demand one-on-one interviews with gov't officials, gov't officials cannot selectively deny access to public news conferences from journalists.