Chapter Nine

Objectives To understand the Freedom of Information Act, where it applies, and how to exercise FOIA rights. To understand the Patriot Act. To understand journalist’s access to records and meetings.

Access to executive and legislative branches Each state has its own rules governing access to records and proceedings Two federal acts of importance: Freedom of Information Act (FOIA) of 1966; and Privacy Act of 1974

Freedom of Information Act of 1966 Unless specifically exempted under FOIA, public records presumed to be open to public Nine major exemptions to prevent disclosure of sensitive/personal info Amendments to FOIA: –1974: lower search and duplication fees, or fee waivers for research for public interest –1986: standardized fee schedules –1996: Electronic FOI amendments: more later!

Where does FOIA apply? To agencies, departments and government-controlled corporations of executive branch of federal government (not states) –Examples: State Department, FCC, FTC, SEC, US Postal Service Not to President and staff or consultants, Congress, federal courts, or private corporations

How to exercise FOIA rights Steps: –Informal phone call: ask for FOI officer, make request clearly –Written letter, requesting reply within 10 days, by certified mail or fax –Appeal to agency head, requesting reply within 20 days –File suit in federal court nearest your area if all else fails –Be clear about how much you are willing to pay before you order, and find out how much things cost Reporters Committee for Freedom of the Press : good resource

The nine exemptions 1. National security: the biggie, and difficult to dispute—release of info might cause harm to nat’l security or foreign policy of U.S. –All agency must show is appropriate classification 2. Internal rules and practices: mat’l that might divulge agency’s investigatory/prosecutorial practices can be withheld 3. Statutory exemptions: fed. statutes exempt classes of info —courts balance one statute against another to determine if info should be divulged

The nine exemptions 4. Trade secrets: protects food formulas, etc.— info supplied by private firms for regulatory reasons that includes such info exempt from disclosure (includes customer lists, market share information, profit/loss statements) –Reverse FOIA suits: attempts by companies to get info withheld 5. Executive privilege: inter- or intra- agency memos or letters—pre- decisional documents not available; post-decisional documents are –Memos, reports that go into final report probably not disclosable

The nine exemptions 6. Personal privacy: personnel and medical files, disclosure of which would constitute invasion of privacy (medical exams, job evals) 7. Law enforcement investigations: protected, but only to extent that releasing might: –(a) interfere with law enforcement –(b) deprive person of fair trial –(c) be invasion of personal privacy –(d) disclose identity of confidential source or of material in a case –(e) disclose guidelines for law enforcement or prosecutions –(f) endanger life/physical safety of any individual

The nine exemptions 8. Banks: protects fed. agency reports about conditions of banks and financial institutions under federal regs 9. Oil wells: protects against speculation based on info on maps and other geographical information that must be filed with gov’t More info is withheld under Exemption 7 than any other exemption!

eFOIA: major amendments! Electronic Freedom of Information Act Amendments of 1996: not only making info available in electronic format! –Requires agencies to make it easier for public to identify and access records –Facilitates computeriz- ation of FOI compliance –Reforms timetable and procedures agencies must follow

Major FOIA problems Interminable waits for info: supposed to respond in 20 days, but there are backlogs, and courts tend not to enforce deadlines High costs: both in access/copying and in possible court fees if lawsuit filed Legally sanctioned censoring of documents Attempts by agencies to weaken: CIA and FBI want blanket exemptions

USA Patriot Act of 2001 Atty. Gen’l John Ashcroft drafted, passed without markup by Congress Made significant amendments to over 15 important statutes Significantly expanded law enforcement authority to surveill and capture communications –Roving wiretapping and “trap and trace” of dialed numbers –Stored voic communi- cations, like , may be obtained via search warrant rather than via more stringent wiretap orders

USA Patriot Act of 2001 Other issues: –FBI has authority to request order “requiring the production of any tangible things (including books, records, papers, documents, and other items)” relevant to investigation of international terrorism or clandestine intelligence activities Library records, clickstreams, medical records, purchase records… –“Secret search” provision applies where court “finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect” (destruction of info, etc.)

Library warning

Privacy Act of 1974 FOIA for the individual: sets limits on info gathered about citizens by gov’t and guarantees right to see info gathered/held by executive agencies Individuals in files have access to them, subject to exemptions and FOIA requirements –Pay for duplication, not search; requests to be acknowledged in 10 days; access provided if appropriate in 30 days Prohibits creation of record of exercise of any 1A right—protesting, leafletting, etc. –If document can be disclosed under FOIA, cannot be kept secret under Privacy Act

Buckley Amendment Parents have right to see their kids’ school records Forbids release of records to outside parties without parental consent Students over 18 can see own records and must consent to release

Access to meetings Government in the Sunshine Act of 1976: Federal agencies, boards, commissions, councils must open proceedings to public –Any meeting in which business is discussed is presumed open, with public notice a week in advance, and communications in public record –Ten exemptions: first nine are like FOIA, and 10th applies to agency litigation, arbitration, adjudication Circumvent: meetings by telephone or impromptu or social meetings (“policymaking over cocktails”)

CA open meeting laws I Ralph M. Brown Act: applies to all local government agencies and their boards and commissions –Requires agendas, regular meetings, public meetings except for public safety, personnel matters, attorney talk, collective bargaining, licenses for ex-felons, real estate negotiations –Misdemeanor for public official to participate in closed meeting where action is taken OR he/she has reason to know should be open

CA open meeting laws II Bagley-Keene Open Meeting Act: applies to all state government agencies and their boards and commissions, as well as CSU and UC regents –Requires advance notice, agendas as part of public record, closed meeting justification, public meetings except for 24 exceptions (similar to Brown Act) –Misdemeanor for public official to participate in closed meeting he/she has reason to know should be open

CA public records laws California Public Records Act: applies to records maintained by state and local government agencies at all levels; records to be available for public inspection, copies made at cost (some exceptions) Information Practices Act of 1977: similar to Privacy Act of 1974 Legislative Open Records Act: applies same disclosure principles of CPRA to legislature

Access to legislatures Governed by legislature! Accessibility varies among federal, state and local jurisdictions Laws range from rules to common law to statute to state constitutions, as well as 1A and 14A arguments

Conclusion: Freedom of information Journalists have no right of access to government facilities beyond that of the public. FOIA makes federal records available to any person; however, nine categories of information can be exempt from disclosure to public. Sunshine Act requires agencies to meet in public.