FOIA: Government Disclosure Rules

FOIA Fees

- Agency incurs cost in locating, reviewing, and copying the requested files - Who pays varies depending on who asks: o Media requestors' fees typically waived o Commercial requestors may be required to pay costs - Members of the public may be asked to pay reasonable fees.

FOIA and Redaction

- If a portion of a document falls under one of the exemptions and can be redacted, the agency must duo so - Remainder must be provided to requestor: "Any reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt..."

FOIA Request Requirements

- Invoke FOIA in the request - Follow published rules starting time, place, fees, procedures to be followed, etc. - Make a reasonable effort to answer any request that "reasonably describes" the information sought - Must supply detailed reasons for denial of request - Agency receiving request has 20 days to respond (unless agency requests extra time due to "unusual circumstances." - Requestors may ask for expedited access based on showing of "compelling need."

Critiques of FOIA

- It doesn't work well. Slow, too many exemptions. - For profit business are the leaders in FOIA requests. They get FOIA requests information and then sell it. o Is FOIA too commercialized now? - Solutions: o Make all things open o Limit data reseller access o Restrict high volume requests o Charge more for a request.

FOIA Exemptions

- National defense exception - Internal personnel rules and practices - Exempted by some other statute - Trade secrets/financial info obtained from a person and privileged or confidential - Inter- or intra-agency memos or letters not available to a party other than the agency in litigation. - Personnel and medical files - Records compiled for law enforcement purposes that would interfere with fair trial, interfere with proceedings, constitute an unwarranted invasion of personal privacy, etc. -Documents related to oversight of financial institutions Geological and geophysical info/data concerning wells.

e-FOIA - 1996 Amendment: Electronic Freedom of Information Act

- Public access to electronic documents should be the same as access to paper documents. - Agencies required to affirmatively post material they expect will be frequently requested in "electronic reading rooms."

FOIA and Privacy

- The exemptions are permissive: agencies are not required to apply the exemptions - Only a government agency can raise these exemptions o Individuals do not have the right to be given notice that his or her personal information falls within FOIA o Do not have the right to require agency to assert exemption.

Forest Guardians v. FEMA (2005)

- They are more worried about the environment than FEMA. The issue is that FEMA gives them the maps, but they wanted more detailed gis maps. 7(c) isn't applicable here. They have to use exemption 6. o FOIA § 552(b)(6) "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." - Held: There is no public interest in these online files, b/c they had already been given hard copies. Also, the online files revealed people's houses and financial decisions.

US Department of Justice Reporters v. Reporters Comm. For Freedom of Press (1998)

A private person has a privacy interest in his criminal record and the criminal record is thus exempt from disclosure under the Freedom of Information Act. - Facts: The Federal Bureau of Investigation (FBI) has gathered and maintained information about the criminal records of more than 24 million persons in the United States, pursuant to various Congressional directives. These records, colloquially "rap sheets," contain descriptive information about a person, such as date of birth, physical characteristics, as well as information about the person's history of arrests, convictions and incarcerations. This information is a matter of public record, but not available in collected form except from the FBI. A CBS News correspondent and the Reporters Committee for Freedom of the Press (Reporters Committee) (plaintiff) requested under the Freedom of Information Act (FOIA) information about four members of the Medico family. The Pennsylvania Crime Commission had identified the family's company as having connections to organized crime and the company was alleged to have won several defense contracts as a result of an improper relationship with a corrupt Congressperson. The FBI originally denied the FOIA requests, then provided information on three of the four persons. The Reporters Committee filed suit in the United States District Court for the District of Columbia to obtain the rap sheet on the fourth person, Charles Medico. The district court found for the Department of Justice, and the District of Columbia Circuit reversed. The Department of Justice appealed and the Supreme Court granted certiorari. - Court made the distinction that: "Although the criminal records are public record, there is a difference between public records that have to be located in archives across the country and a central clearinghouse of information that the FBI has." - Compare: Whalen v. Roe - the medical records in the data house. The court is ok with data aggregation in both cases, but it is NOT ok with data dissemination. Does the court care more about a crime boss's record but not the patient list? No it is the idea of data aggregation. They agree with it but do not like data dissemination. Different legal burdens, time (justices understand tech more now), and this case is 10 years after Smith v. Maryland. o Different legal burdens - constitutional legal right that didn't yet exist. o FOIA - right already exits through the statute. - The court sort've blesses the right to be forgotten here? Yes - In a way, they are trying to let people move forward with their lives. The Court does NOT want an open records access system w/o a good reason requirement. - Policy: Who decides what is a good reason? And people don't know the information that they will get. What should be a good reason to access FOIA? o Practical obscurity is considered a privacy value.

FOIA Vaugn - Vaugh v. Rosen (1973)

Requires each agency to list each denied document's - Title - Date - Author - Recipients - Factual description, - The exemption that applies

FOIA Exemption 7

o (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;