FOIA
How is FOIA different from discovery?
(1) Court ordered discovery is usually only available in litigation, it must lead to admissible evidence, there is limited ability to get info form non-parties, it puts the other side on notice of what you are looking for, and you are restrained by the limits of the rules of civil procedure and local court rules. (2) FOIA, on the other hand, you can get at any time on any party the government has information on (assuming no exception/exemption). You basically are only paying for copying (and sometimes not even that) and you can get it really for any reason
What if you are denied?
If denied then can file an appeal or can appeal the reasonableness of the fee charged for the information.
Why is this critical to reverse FOIA protections?
It gives the submitter a chance to intervene before those records are disclosed.
How do you request documents under the FOIA?
Now, instead of having to prove that you needed the info, you just get it unless there is a good reason not to. There are no purposes at all. You just get info. For what ever reason and you don't have to tell anyone why you want it.
Meeting under Sunshine Act
the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business
critical definition of Moberg case
whether there was a quorum present of either the governing body or its committees, unless it was a social or chance gathering
Why would you use FOIA instead of discovery?
would you use FOIA instead of discovery? i. There is no limit on the amount of information that can be obtained and do not have to follow the rules of civil procedure. You can get information that the other party does not know about. ii. You cannot get discovery until the lawsuit is filed and you must make an argument that will lead to discoverable evidence. iii. You are limited on info you can get from witnesses. FOIA provides access at any stage in the game.
What is necessary to assure that a document will not be released under FOIA? Vaughn list
1. Agency must list and describe the documents and explain why it is claiming an exemption 2. Most important for classified information
With FOIA
1. Anyone for any reason may get info. 2. A "need to know" test would pose Constitutional problems because the government would be deciding who needed to know - free speech problems. 3. The agency cannot say that info is irrelevant. 4. There is no notice to anyone outside the agency - must pay reasonable costs.
Court Ordered Discovery
1. Usually only in litigation 2. Must lead to admissible evidence 3. Limited ability to get info from non-parties 4. Puts other side on notice of what you are looking 5. Constrained by limits in the rules of civil procedure and in local court rules
the request must seek records
1. agency must either create or obtain the requested material 2. material msut have come into agency's possession in the legit conduct of its official duties. US DOJ v. Tax Analysts
Four requirements to request material under FOIA
1. obn extends only to an agency; 2. person requesting info must reasonably describe the records sought = a. the request should identify the records that are being sought as specifically as possible if a "professional employee of the agency who was familiar with the subject area of the request would be able to locate the record with a reasonable amount of effort. Ruotolo. But make it broad enough so you get all the relevant records 3. must comply with published rules that prescribe procedures and fees for FOIA requests; 4. The request letter should be addressed to the agency's FOIA officer or to the head of the agency. 5. The envelope containing the written request should be marked ``Freedom of Information Act Request'' in the lower left-hand corner. 6. the letter should state that the request is being made under the Freedom of Information Act. 7. the name and address of the requester must be included. 8. Pay any applicable fees for copying, finding, or reviewing costs.
If a document is covered by one of the nine exceptions, under what circumstances may the agency still release the document? FOIA Exemptions
9 classes of documents that the agency may refuse to produce Discretionary decision unless other law further restricts disclosure EXAMPLE: Trade secret laws, national security laws, etc.
What are the critical functions for meetings that trigger the Sunshine Act?
A meeting is the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business. This is important because anything that falls short of this standard does not have to be open to the public, and you get bet most agencies would like that
How does this support FOIA policy?
Agency would be biased, deference to agency would hurt this.
What does Ex. Order 12600 require?
E.O. 12600 generally requires agencies to notify people who have given confidential commercial information to the government when the information has been requested under the FOIA. In addition, E.O. 12600 gives the person who provided the information a chance to explain to the agency why the information should be withheld.. Like most executive orders, E.O. 12600 says that it is not intended to create any judicially enforceable private rights. Each agency to give predisclosure notification to submitters of commercial confidential information that those records are going to be disclosed under the FOIA.
Since this may be the only way computerized data can be disclosed, agencies are required to provide the data even if it means a new document must be created.
FOIA applies only to documents held by agencies of the executive branch of the federal government. An agency is neither required to collect information it does not have, nor must an agency do research or analyze for a requester. (think Freedom of Records Act). Unless the info. is in a document you can't get it, i.e. you can't make the agency create a new document. 2. When records are maintained in a computer, an agency is required to retrieve information in response to a FOIA request. The process of retrieving the information may result in the creation of a new document when the data is printed out on paper or written on computer tape or disk. Since this may be the only way computerized data can be disclosed, agencies are required to provide the data even if it means a new document must be created
Section 552 of the APA
FOIA is codified in Section 552 of the APA (after the definition and before rm and adj.). In addition to FOIA, the Privacy act is codified in 552a, the Gov't in the Sunshine Act in 552b. FOIA was designed for anyone who wants info from the fed. Gov't. It's purpose is to ensure "an informed citizenry," which is "vital to the functioning of a democratic society.
Government can resist discovery on the same terms that a private litigant can
Government has 2 additional privileges: 1. Evidentiary privilege 2. Executive immunity (privilege)
How do Agencies try to get around the Sunshine act
How do Agencies try to get around the Sunshine act a. Work off written documents - remember the exemption for intra-agency memos? b. Meet in groups of two c. Have staff do the recommendations, and then rubber stamp the results
When will the court defer to the agency in the review of FOIA requests?
In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).
What is reverse FOIA? (Chrysler case)
Soon after the enactment of FOIA, the question arose whether the exemptions are mandatory or discretionary. Originally, lower cts interpreted them as mandatory, thus persons hurt by disclosures could enjoin disclosure—suits for this relief were called "reverse-FOIA suits." However, in Chrysler v. Brown, SCt rejected that legal theory, noting that the exemptions are discretionary. FOIA does not create a c/a for a person who wants to prevent the agency's disclosure of info. However, this person will have a c/a under the APA b/c agency disclosure of info is agency action. Moreover, the person cannot get relief under the APA merely by proving that the info falls within one of the exemptions. Disclosure either has to violate some other law (e.g., Trade Secret Act), or be arbitrary and capricious
What is the standard for judicial review of denials of FOIA requests? Part 1
The court reviews agency denials de novo and may inspect the contents of records in camera to see if the records or any part thereof fall within an exemption. The burden is on the agency to sustain its action. ii.
Overview of what a "glomar" response is
This is an agency's express refusal to confirm or deny the existence of any records responsive to a FOIA request. It is necessary to protect national security interests and privacy rights. It can be justified only when the confirmation or denial of the existence of the responsive records would, in and of itself, reveal exempt information
What is the policy behind FOIA?
This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest
How do sanctions for violating the Sunshine/Open Meetings acts differ between the states and the federal government?
What sanctions can you get if prevail on a claim that a meeting should have been open? You can get attorney's fees if you prevail on a claim that a meeting should have been open Federal law does not allow the court to overturn an agency action because a meeting was improperly closed Some states do allow this, plus providing other penalties
What is the standard for judicial review of denials of FOIA requests? Part 2
When an administrative appeal is denied, a requester has the right to appeal the denial in court. A FOIA appeal lawsuit can be filed in the U.S. District Court in the district where the requester lives. The requester can also file suit in the district where the documents are located or in the District of Columbia. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.
What are Sunshine Acts?
i. Acts providing that all agency meeting be open to the public and advance notice of such meetings be given ii. Sunshine - every portion of every meeting of an agency shall be open to public observation.
What is a Glomar response and why is it necessary?
i. It's the national security's response of "neither confirm nor deny" to a FOIA request for sensitive information. It's necessary in national security to secure classified information. ii. The Glomar response will be upheld if the secretive
What does it mean to say that FOIA is about access to records and not to information? How is this changing in the electronic world?
i. Should be called Freedom of Records; You can request records, but you can't require them to create a new record. The FOIA provides that a requester may ask for records rather than information. ii. An agency is only required to look for an existing record or document iii. An agency is not obliged to create a new record to comply with a request. iv. An agency is neither required to collect information it does not have, nor must an agency do research or analyze data for a requester.
What did the Moberg case find?
i. The Moberg case found that the critical definition was whether there was a quorum present of either the governing body or its committees, unless it was a social or chance gathering ii. Could you set the quorum very high, assuming you could ever get them together when you needed to act?
Agency under Sunshine Act
must be headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president with advice of the senate
Justification of a "Glomar" response
only when the confirmation or denial of the existence of responsive records would, in and of itself, reveal exempt information. (DOJ memo). Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999): Plaintiff claims he worked for the CIA for 15 years and deserves a pension. He asks for his CIA employment records to document his employment. CIA refuses to admit he worked for them or to produce any records, because showing he was an agent would hurt agency work
Practical problem in asserting reverse FOIA remedies is notice
the agency does not notify submitter that someone is requesting information submitted by him, he will probably not have a chance to present his case to the agency or seek a reverse-FOIA injunction to disclosure.
