Presentation on theme: "FREEDOM OF INFORMATION EXECUTIVE BRIEFING PART II."— Presentation transcript:
FREEDOM OF INFORMATION EXECUTIVE BRIEFING PART II
FOIA EXEMPTIONS Nine exemptions permit withholding records. SSA only uses six of these exemptions (2 through 7).
EXEMPTIONS Exemptions are discretionary and do not require withholding - interaction of some exemptions with other statutes may require withholding.
DENIALS AND DELETIONS Agencies must specify the amount of information denied and note the record at the place of the deletion, where possible
Privacy Exemptions SSA most often withholds information or records because disclosure would affect an individuals privacy interests. Requires balancing of privacy interests with public interest.
EXEMPTION 6 Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
LAW ENFORCEMENT Records or information compiled for law enforcement purposes, but only if the information meets certain conditions.
GLOMARIZATION Refusal to confirm or deny the existence of records Used with exemption 1, 6 or 7(C) Named for Howard Hughes boat the Glomar Explorer
CONFIDENTIAL BY LAW Specifically exempted from disclosure by statute The statute must leave no discretion on withholding, establish criteria for withholding, or refer to particular matters to be withheld.
EXEMPTION 4 Trade secrets and commercial or financial information obtained from a person and privileged or confidential
Discretionary Exemptions Exemptions 2 and 5 are often called discretionary exemptions. The Attorney General often issues guidelines with respect to their use.
EXEMPTION 2 PERSONNEL RULES Related solely to the internal personnel rules and practices of an agency
EXEMPTION 5 Inter-agency or intra- agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency
THRESHHOLD Documents generated by an agency and not circulated beyond the executive branch Consider when the document would routinely be disclosed in private litigation
DELIBERATIVE PROCESS PRIVILEGE Deliberative process privilege To prevent injury to the quality of agency decisions To encourage open, frank discussion on policy matters between subordinates and superiors
DELIBERATIVE PROCESS PRIVILEGE To protect against premature disclosure of proposed policies before adoption To protect against public confusion that might result from disclosure of thoughts that were not grounds for agency action
FACTORS TO CONSIDER Nature of decision and decision-making process Status of decision and personnel involved Age of information Process impairment Sensitivity of information
ATTORNEY WORK-PRODUCT Documents prepared by an attorney in contemplation of litigation Litigation need not actually occur
ATTORNEY-CLIENT PRIVILEGE Confidential communications between an attorney and his client Opinions given by attorney Client-supplied information
OTHER PRIVILEGES Trade secret or confidential research, development or commercial information generated by the government
NATIONAL SECURITY INFORMATION Exemption 1 integrates national security protections provided by executive order with FOIAs disclosure mandate. Currently Executive Order 12,958 signed by George W. Bush March 25, 2003.
Exemption 1 Protects from disclosure national security information concerning national defense or foreign policy that has been properly classified in accordance with the requirements of the current executive order.
Exemption 1 As with most other exemptions, agencies must review records and release segregable non-exempt portions.
Executive Order 12,958 Recognized the publics right to be informed about activities of government and the need to protect national security information.
Executive Order 12,958 Information may not be classified unless the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, including defense against transnational terrorism.
Executive Order 12,958 Covered information categories include: Foreign government information Vulnerabilities or capabilities of systems, installations, projects, or plans relating to national security
Executive Order 12,958 Covered information: Intelligence activities, sources or methods Cryptology Foreign relations or activities, including confidential sources Military plans, weapons or operations.
Executive Order 12,958 Covered information: Scientific, technological, or economic matters related to national security Government programs for safeguarding nuclear materials and facilities
Executive Order 12,958 Information may not be classified to: Conceal violations of law or administrative error Prevent embarrassment Prevent or delay disclosure of information that does not require national security protection
Exemption 1 Courts will usually rely on agency affidavits to determine whether documents are properly withheld. Courts may request in camera inspection of documents.
Duration of Classification Agencies must attempt to establish a specific date or event for declassification based on duration of national security sensitivity. If that is not possible, the default is a ten- year limit on new classification actions.
Declassification Automatic declassification of information more than 25 years old Any person may request a declassification review.