Freedom of Information Act (FOIA: GEN, PRA,EXC)

Regarding the FOIA Exemptions, what is the meaning of "Low 2" and "High 2"?

"Low 2" and "High 2" are judicial jargon for types of materials covered under FOIA exemption 2, materials "related solely to the internal personnel rules and practices of an agency." Until 2011, many courts applied Exemption 2 very broadly, siding with agencies against disclosing anything that related to the way federal employees did their jobs. "Low 2" referred to traditional personnel matters and "High 2" referred to any other internal documents whose disclosure might facilitate the circumvention of agency regulations or statutes. Exemption 2 yielded such favorable case outcomes for agencies that agencies would rely on this Exemption rather than others that seemed more relevant to the materials in question. Milner v. Department of Navy, rejected this idea and held that Exemption 2 applied only to "lower 2" type materials.

The banking commissioner requires banks to submit a large volume of confidential financial information, including information about their outstanding debts and outstanding loans, as well as their cash reserves, to the Banking commission. As part of his class preparation, the nutty professor files a FOIA request for filings made by the first national bank commission. The commissioner denies the professor request. In response to the denial, the professor brings an action to compel disclosure under the FOIA. Will the professor claims prevail?

- NO - The Nutty Proffessor's claim will not likely prevail based on exemption 8 of FOIA - Exemption 8 specifically exempts disclosure of operating or condition reports that are prepared by, on behalf of, or for an agency responsible for regulating or supervising financial institutions

After reviewing Johnny Appleseeds claim that the environmental protection agency wrongfully withheld agency records, the court held that the EPA did not wrongfully withhold the records based on the agency general argument that the requested records fell within FOIA exemption 9. In explaining its decision, the court stated that the exemptions to the FOIA should be broadly construed in favor of the agency claiming the exemption. On appeal, will the court's decision likely be upheld?

- NO - in "Rose", SCOTUS stated that dominant objective of FOIA is to allow public access to gov. records, & for the purpose of comporting w/ this basic underlying objective, namely disclosure, the FOIA exemptions should be narrowly construed - accordingly, the court reviewing appleseed's appeal should correst lower court's incorrect assertion regarding the construal of FOIA exemptions

On multiple occasions, Ronald has tried to contact Jack, an employee at the FDA's Department of Oversight for Fast Food. Each time Ronald has called Jack's secretary informs him that Jack is either out or sick or on vacation. Frustrated by his inability to reach Jack, Ronald submits a request under FOIA to the agency requesting a copy of its policies on sick leave and vacation time. Will the agency likely provide these documents to Ronald?

- NO, the agency most likely will NOT provide these docs. to Ronald - One of the FOIA exceptions exempts records regarding internal agency personnel matters

If an agency is willing to disclose information that is covered by FOIA exception, is it prevented from doing so?

- No. - an agency can voluntarily provide access to records that FOIA exceptions would allow the agency to withhold - EXCEPT: may NOT disclose trade secrets covered by the Trade Secret Act, which must be kept private.

At a recent National Security Council meeting documents were presented to the President regarding the possibility of sending American spies to countries that are allegedly harboring terrorists. Scout, a news reporter for the Mockingbird times, sends a FOIA request to the Executive office of the President requesting specific information about the potentially targeted countries discussed at the meeting. Will the agency likely disclose this information to Scout?

- Probably NOT - Under APA 552 (b)(1), matters of nat. sec. & foreign policy are exempt from disclosure under FOIA - however, if the info Scout requested was not properly classified, by exec. order, to be kept secret, then a court might order disclosure of the info

The U.S. Fish and Wildlife Service denied Yogi's Foia request stating that the information he requested is exempt from disclosure. Yogi appealed the decision to the agency and again his request was denied. Frustrated with this outcome, Yogi decides to seek judicial review. Who will bear the burden of proving to the court that the documents do or do not fall within one of the FOIA exemptions, Yogi or the agency?

- The agency has the burden of proof - FOIA places the burden on the gov. agency, according to APA 552(a)(4)(B) - agency must either prove that the requested materials are statutorily exempt from disclosure, or that the agency cannot find or identify the requested docs. despite a reasonable search

Pursuant to an executive order, Junker Motors Company, an automobile manufacturer that receives government contracts, is required to comply with equal opportunity regulations. To comply with the order, Junker must submit reports and other information about its affirmative action programs to the Department of labor. After receiving a third party FOIA request, the Department of labor notified junker about the request received for disclosure of junkers affirmative action program information. Despite junkers objection to the release of the information, the DOL explained to junker that the information is subject to disclosure under FOIA and that the information will be released within the next week. If junker, a private party, files suits to enjoin the agency from releasing the information, based on FOA exemption, will a court likely rule junkers favor?

- The court will most likely NOT rule in his favor. - Junker's claim is similar to that of "Chrysler v. Brown" where Chrysler sought to enjoin the compliance of the agency responsible for monitoring its employment practices from disclosing info - Chrysler contended that disclosure of its info was barred by FOIA - SCOTUS held that FOIA is exclusively a disclosure statute & that it provides no private right of action to enjoin agency disclosure - Thus, if court reviewing Junker's case applies "Chrysler", it is likely that Junker's claim will fail

FOIA EXEMPTION 7(c): covers information related to law enforcement and investigation that could reasonably be expected to constitute an unwarranted invasion of personal privacy. How does this provision differ from the other personal privacy protections in other FOIA Exemptions, such as Exemption 2?

-The Personal Privacy clause of the law enforcement exemption (Exemption 7) does NOT apply to corporations, - it ONLY applies only to INDIVIDUAL people. - "FCC v. AT & T", holding that corporations do not have personal privacy for the purposes of Exemption 7(c), but corporations do have some privacy protections under Exemption 4, which protects trade secrets and commercial or financial information obtained from a person and privileged or confidential.

What is a reverse FOIA suit?

A private party whose (otherwise confidential) information is about to be released by an agency to a third party, under a FOIA request, may bring a reverse FOIA action to prevent disclosure under the APA's judicial review provisions. Note that this does not apply to trade secrets, which are brought specially under the privacy act and APA §706(2)(a)

Can a party that obtains information legally through a FOIA request be subject to civil or criminal liability under other statutes for obtaining or using that information?

A recent decision, Maracich v. Spears, held that parties who obtain information via a FOIA request could still be subject to other legal prohibitions against obtaining or using such information. In Maracich, plaintiff attorneys used a FOIA request to get client names from the state DMV for a class action against car dealerships. Prospective clients who received solicitation letters sued the lawyers for violating the federal drivers privacy protection act. The Supreme Court held that the lawyers could be liable under the DPPA for obtaining the info via FOIA request and using it.

FOIA EXEMPTION 3: What type of government records come under the specifically exempted by statute exception to FOIA?

APA §552(3) includes three types of statutes that can exempt records from disclosure: 1. Statutes that identify specific types of records and give the agency no discretion or authority to disclose them (these are specifically identified typed of records) 2. Statutes that establish general criteria for not disclosing certain records (these are records with characteristics meeting certain disqualifying rules) 3. Statutes prohibiting certain matters from being disclosed (instead of disqualification being based on the type of documents, these statutes pertain to the consent of the documents themselves, barring certain content from disclosure.)

May an agency charge a requesting party fees incurred in resolving issues of law or policy while processing the request?

Agencies are allowed to charge for document review, in addition to search and duplication costs, if the records are requested for commercial use. For noncommercial requests by the news media, or educational and scientific organizations, the agencies can charge only duplication fees. On all other noncommercial requests, the agency can charge duplication and search fees (but not for documents review). Agencies can choose to waive fees.

Ted Chaough is a longtime business rival of Don Draper and Draper's advertising agency, Sterling Cooper. Sterling Cooper was the subject of an investigation by the FCC, but sterling cooper settled with an agency before an enforcement proceeding could get very far. Chaough files a FOIA request for the FCC files on Sterling cooper, hoping to find some dirt. Sterling Cooper objects to the disclosure, citing FOIA Exemption 7 (c), as the information could reasonably be expected to constitute an unwarranted invasion of personal privacy. When Chaough pursues his FOIA claim in court, who will prevail?

Chaough will prevail and sterling cooper will lose. These are nearly the same facts as FCC v. AT&T, in which the Supreme Court held that the personal privacy clause of the law enforcement exemption (exemption 7) does not apply to corporations, but only to individual people. Note that sterling cooper possibly could prevent disclosure under exemption 4 of trade secrets, commercial, or financial information that was obtained from Don Draper, as long as the information was privileged or confidential.

FOIA EXEMPTION 2: covers material that is related solely to the internal personnel rules and practice of an agency. What is the scope of this exemption?

Milner v. Department of Navy, held that Exemption 2 has a narrow scope, applying only to matters relating to hiring and firing, work rules and discipline, compensation and benefits, lunch hours and parking. Previously lower courts were applying exemption 2 very broadly to include almost anything involving agency employees and their tasks - any documents that were predominantly internal. Courts used the moniker "low 2" to refer to traditional personnel matters and High 2 to refer to any other internal documents whose disclosure might facilitate circumvention of agency regulations. The Supreme court rejected this line of cases and held that exemption 2 should apply narrowly to personnel matters.

FOIA EXEMPTION 5: Are inter- and intra-agency memos that discuss preliminary issues regarding a claim subject to FOIA disclosure?

No. Exemption 5, which exempts interagency and intra agency memoranda from FOIA disclosure, general protects the release of preliminary memos that discuss the agency's deliberation process. Note that although exemption 5 prevents disclosure of memos regarding preliminary actions by the agency, it does not apply to memoranda dealing with final agency decisions on agency matters.

Are all records located on an agencies premises considered agency records for the purposes of the FOIA?

No. For the purposes of the FOIA, there are two requirements that must be satisfied for requested materials to qualify as agency records. First, the requested materials must have been created or obtained by the agency in the course of performing the agency's official duties. Second, the agency must be in control of the requested documents at the time of the FOIA request.

Sherlock holmes submits a FOIA request to the Food and Drug Administration, seeking the formula for a particular veterinary sedative used on hounds decades ago, but which is no longer on the market. The FDA denies the request and wins the subsequent litigation by Sherlock. Sherlocks close friend, Watson, then submits a FOIA requests for the exact information, which the FDA ignores. Watson was not involved in Sherlocks litigation at all, and when he asserts his FOIA claim in court, he raises new legal argument in favor of disclosure. May the court treat Watson as a virtual representative of Sherlock, and dismiss the case summarily?

No. In Taylor v. Sturgell, the Supreme Court rejected the concept of virtual representation for purposes of the FOIA suits, which lower courts had used to bar subsequent parties from requesting (litigating over) the same information, especially when using different legal arguments.

When making a request for disclosure under the FOIA, must the person request identifiable documents?

No. The act merely requires that requests "reasonably describe" the records sought and that they be submitted in accordance with the agency's published procedures.

Mary Jane is currently serving time in a federal penitentiary for drug related charges. She submitted a FOIA request to the Drug Enforcement Agency (DEA) for specific documents compiled by the DEA in the course of its investigation of her illicit drug activities. The DEA, without explanation, refuses to comply with Mary Janes request. Mary brings a claim under the FOIA alleging the documents were wrongfully withheld. Who carries the burden of proof in litigation against the DEA?

The FOIA places the burden of proof on the government agency, according to APA §552(a)(4)(b). The agency must either prove that the requested materials are statutorily exempt from disclosure, or that the agency cannot find or identify the requested documents despite a reasonable search.

What is the relationship between the Freedom of Information Act and the APA?

The FOIA was codified as part of the APA at 5 U.S.C. § 552. Unlike other sections of the course and the relevant APA sections, most administrative law professors will simply refer to this body of legislation as FOIA rather than referring to the section of the APA.

What is the Freedom of Information Act?

The Freedom of Information Act (FOIA) was passed for the purposes of opening agency records to public inspection. This Act also established a procedure to ensure that agencies comply with the requirements of making their records public.

Section 552(b) lists several types of documents exempt from FOIA's disclosure requirement. What are these exemptions?

The Nine FOIA Exemptions in APA §552(b)(1)-(9) are: 1. National defense to foreign policy matters; 2. Internal agency personnel rules and practices; 3. Documents specifically exempted by statute; 4. Trade or Commercial secrets and privileged financial information; 5. Interagency or intra agency memoranda; 6. Medical and personnel files whose disclosure would be an unwarranted privacy invasion; 7. Law enforcement records (if disclosure would interfere with ongoing investigation); 8. Information submitted pursuant to banking regulations; and 9. Geological and geophysical information and data concerning wells. Mnemonic: No Inside Sources tell Me Many Lies Besides George (National Defense; Internal Personnel rule; Trade Secrets; Memoranda; Medical Records; Law enforcement; banking info; Geological surveys)

After receiving a FOIA request, how long does the agency have to make a determination whether or not it is going to comply with the request?

The agency has 20 working days to inform the requester of its decision to grant or deny access to the materials, and if access is granted, it must occur promptly thereafter.

Analyzing FOIA Problems

The two most common issues under the FOIA are the following: 1. Whether the material sought as part of a FOIA request constitutes an agency record within the meaning of the statute; and 2. Whether one of the FOIA's exceptions applies to this case, allowing the agency to refuse to disclose the information.

What information does the FOIA require agencies to publish in the Federal Register?

Under the FOIA, agencies are required to publish in the Federal Register descriptions of their structure and operating procedures, their substantive rules and interpretations, and the methods by which the public can obtain further information from the agencies, according to APA §552(a)(1)

If one person submits a FOIA request, which the agency denies, and the agency prevails in litigation over the request, can subsequent individuals submit requests for the same information?

Yes, as long as the subsequent parties were not part of the original litigation. In Taylor v. Sturgell, the Supreme Court rejected the concept of virtual representation for purposes of FOIA suits, which lower courts had used to bar subsequent parties from requesting (and litigating over) the same information, especially when using different legal arguments.

Penn E. Pincher submitted a request for documents to the federal trade commission (FTC). Because Pincher was entitled to the documents under the FOIA, the FTC complied with his request. Along with the documents, however, FTC also sent a bill to Pincher for the time spent searching for and duplicating the documents. Pincher, extremely unhappy about possibly having to part with his money, seeks judicial review of the FTC copy charges. Can the agency charge him these costs?

Yes. Pincher will probably lose this case. Agencies are allowed to charge for document review, in addition to search and duplication costs if the records are requested for COMMERCIAL USE. For non commercial requests by the news media or educational and scientific organizations, the agencies can charge only duplication fees. On all other noncommercial requests, the agency can charge duplication and search fees (but not fees for document review). Agencies can choose to waive fee.

Can anyone requests documents under the FOIA?

Yes. The language of the FOIA appears to place no limitations on who can request documents

Attorney Cheatham and his associate Milkem want to bring a class action lawsuit against the used car salesman in their area, so they file a FOIA request with the state Department of Motor Vehicles to get the names of the recent car purchasers. Cheatman and Milkem then sent solicitation letters to those individuals, offering to represent them and asking them to join the class action. Some of the recipients of the letters resent the solicitation, and sue the lawyers under the federal Driver's Privacy Protection Act. Can the lawyers, who obtained the names legally through the FOIA request, face civil or criminal liability under another statute for obtaining and using the information?

Yes. These are nearly the exact facts of Maracich v. Spears, which held that parties who obtain information via a FOIA request could still be subject to other legal prohibitions against obtaining or using such information. In Marachich, plaintiff attorney's used a FOIA request to get client names from the state DMV for a class action against car dealerships. Prospective clients who received solicitations letters sued the lawyers for violating the federal Drivers Privacy Protection Act. The Supreme Court held that the lawyers could be liabile under the DPPA for obtaining the info via FOIA request and using it.

Rafe McCawley leads a nonprofit dedicated to raising community awareness about the dangers of Navy offshore training exercises. McCawley files a FOIA request for Navy documents relating to the effects of explosions at several locations and the Navy;s storage practice for unused explosives. The Navy denied the request, invoking Exemption 2, which covers internal agency personnel rules and practices. McCawley challenges the denial of his FOIA request in court. Will the Navy prevail under the Exemption?

no. The Supreme court held that Exemption 2 encompasses only records relating to employee relations and human resources issues. The fact here are similar to those in the recent case Milner v. Department of Navy. The court rejected a recent trend among lower courts to include almost anything, including internal guidelines or inventory directions, under Exemption 2, following the lead of the D.C. Circuit. The court noted that the navy might be able to use other exemptions (the most obvious being exemption 1 for national security), but the Navy had relied solely on Exemption 2 because of the recent trend for courts to use a broad definition.