Freedom of Information Act – Federal, State, International

Gail ZwirnerOctober 2, 2012

•Recent FOIA Headlines

E-mails give look at Washington's inside gameBYLINE: Robert Schmidt;and Jesse HamiltonWashington Post, September 9, 2012

It had been two days since U.S. lawmakers negotiated all night to finish rules that would reshape the business of Wall Street. That 20-hour session left legislators, aides, lobbyists and regulators exhausted. Almost no one had a grip on all the details. Then Annette Nazareth stepped in. That Sunday morning, she e-mailed a dozen Securities and Exchange Commission officials about the bill that would become the 2,300-page Dodd-Frank Act.

Nazareth, herself a former SEC commissioner, represents the biggest banks and securities firms as a partner in the Washington office of Davis Polk & Wardwell. She attached an annotated copy of the measure to her June 27, 2010, e-mail, marking changes made during the wee hours. It could be an invaluable tool for an agency hard-pressed to analyze the bill on a tight deadline.

"In case you would find it helpful," Nazareth wrote to the group, many of them former colleagues. Two hours later, SEC Chairman Mary L. Schapiro responded: "Thanks. We have our work cut out for us."

Dodd-Frank, which took effect in July 2010, would shape the SEC's agenda for the next two years as it labored to write 100 regulations the law required. It also opened opportunities for Nazareth. With her connections and SEC experience, she emerged as the preeminent legal advocate for financial services firms as they sought to scale back the new rules.

With Nazareth on board, Davis Polk was hired as outside counsel on Dodd-Frank by the six largest U.S. banks and the Securities Industry and Financial Markets Association, the Wall Street trade group, according to the law firm's Web site. The firm also performed work for foreign lenders, including Credit Suisse Group and Deutsche Bank.

Nazareth's e-mails to Schapiro and then-SEC general counsel and senior policy director David Becker, obtained through a Freedom of Information Act request, show how lobbyists and lawyers draw on bonds they formed in government service to gain access for clients - and how they maintain those ties.

The admiral and the DukeBYLINE: Al KamenWashington Post, August 29, 2012

We caught the headlines about that recent memo by Adm. William McRaven taking Special Forces troops to task for writing books about their on-the-job exploits. The chiding missive from the head of the Special Operations Command was clearly aimed at the Navy SEAL who's penning a book about the raid in which Osama bin Laden was killed. . . . .

And speaking of dramatizing the bin Laden raid, more back story (that's a Hollywood-script term) is emerging about the access the Obama administration gave to the filmmakers working on the action film "Zero Dark Thirty.“ E-mails between CIA officials, White House aides, the filmmakers and others - which Judicial Watch obtained through a Freedom of Information Act request and just released - are light on jaw-dropping revelations. But the trip-over-their-feet eagerness with which the administration helped director Kathryn Bigelow and screenwriter Mark Boal might be a tad embarrassing in the cold light of day.

One e-mail shows former CIA spokeswoman Marie Harf talking up the project, apparently to colleagues, citing the Oscar winners involved. "I know we don't pick favorites but it makes sense to get behind a winning horse," she wrote. Another reveals George Little, who was then the CIA director of public affairs, gushing to Boal. "I can't tell you how excited we all are (at DOD and CIA) about the project," he wrote, adding: "PS - I want you to know how good I've been not mentioning the premiere tickets. :-)“ At least he didn't ask for an autograph.

The most serious breach revealed in the new batch of documents, though, didn't come from the administration. In one string of correspondence between Harf and New York Times reporter Mark Mazzetti, the scribe gave the flack an advance copy of a column by Maureen Dowd slated to be published Aug. 7, 2011, in which Dowd took a dim view of the administration's courting of the filmmakers. "This didn't come from me . . . and please delete after you read," Mazzetti wrote, apparently attempting to reassure the CIA people the column wasn't as critical as they'd feared it would be. "See, nothing to worry about!"

A New York Times spokeswoman called the incident "a mistake that is not consistent with New York Times standards, and said in an e-mailed statement that Dowd had given the column to Mazzetti for help with fact-checking and didn't know he shared the whole piece with CIA. Earlier, NYT editor Dean Baquet described the apparent lapse a bit differently to Politico, saying it was "an intelligence matter."

Unpredictable Danger Looms Close to the HeartBYLINE: By KATIE THOMAS New York Times, September 8, 2012

Monsters attacked Avery de Groh when she was 4. That is how she remembers the day in 2007 when the defibrillator in her chest misfired, sending nine electric shocks through her body in less than 30 minutes.

Today, Avery is a chatty 9-year-old who just learned to roller-skate. . . .The culprit was a broken wire from the defibrillator that keeps her heart beating normally. Like her mother and two brothers, she has an inherited condition that makes her prone to a fatal heart rhythm. After Avery's episode, doctors removed the faulty wire, made by Medtronic, and replaced it with a new one made by St. Jude Medical.

Now it is possible that one is damaged, too. The wire, or lead, known as the Riata, was recalled in December after St. Jude warned doctors that internal cables were poking through the outer casing, causing unwanted shocks or failing to work when needed. Nearly 20 percent of the 128,000 people worldwide who have the Riata may be affected, according to the company. . . .

In one example of the conflicting information about the devices, St. Jude reported last November that the problem with the Riata leads was affecting less than 1 percent of patients. But an internal report by an F.D.A. employee that month challenged that assessment, arguing that the company was underestimating the problem. The agency did not publicize the report, which was obtained through a Freedom of Information Act request and provided to The New York Times by a lawyer whose client is suing St. Jude.

The F.D.A. analysis proved to be correct: in July, a new St. Jude study found that the Riata showed signs of failing in 19 percent of patients.

U-M rejected Colorado shooting suspectBYLINE: By, David Jesse and Tony LeysDetroit Free Press, September 1, 2012

The University of Michigan confirmed Friday that it, too, rejected James Holmes -- the troubled graduate student who police say shot and killed a dozen people at a Colorado movie theater -- when he applied last year.

"I can now tell you that he did apply here, for the neuroscience graduate program, and he was not admitted," U-M spokesman Richard Fitzgerald said Friday in an e-mail to the Free Press. He gave no further details on Holmes' application or why he was turned down.

The neuroscience program, formed in 1971 and the longest-standing neuroscience graduate program in the U.S., is part of the Rackham Graduate School. It has 75 students pursuing their doctorates. There are 115 faculty with ties to the neuroscience program, its website says.

U-M wasn't the only school that rejected Holmes last year. The University of Iowa released documents Thursday under the Freedom of Information Act about Holmes' application. "Do NOT offer admission under any circumstances," one professor wrote about Holmes in an e-mail to the selection committee for the neuroscience program. The professor, Daniel Tranel, did not explain why he felt this way, but Tranel wrote much more negatively about Holmes than the other six applicants he interviewed, the e-mail shows. Another professor, Mark Blumberg, echoed those thoughts about Holmes. "I agree with Dan. Don't admit," Blumberg wrote.

How Not to Fire a PresidentBYLINE: By ANDREW RICENew York Times, September 16, 2012

On a languorous Sunday in June, low season on the campus of the University of Virginia, Prof. Larry Sabato opened a perplexing e-mail. ''My instant reaction,'' he said, ''was that I thought we'd been hacked.'' The message, sent to the entire university, announced the resignation of the university's president, Teresa Sullivan, obliquely citing a ''philosophical difference of opinion'' with the institution's governing board. Sullivan had held the job for just two years, without any scandal, and Sabato couldn't believe she had been pushed aside with so little evident justification. ''I said that if this was true,'' he recalled, ''this was going to be a P.R. disaster of national proportions.'' . . . .

For months, news organizations -- from The Washington Post to the student-run Cavalier Daily -- have been poring over records obtained through the state's Freedom of Information Act, including thousands of pages of internal e-mail correspondence. The documents reveal something of the university's state of mind in the months leading up to the crisis, as administrators feuded over budgets and discontent spread among board members. But they are, by nature, a fragmentary record: the actors were loath to put their true feelings in writing then, nor were they eager to discuss them with reporters now. Few of those directly involved were eager to talk to me, but many did speak, allowing me to piece together a fuller account of the puzzling affair. As it turns out, a ''philosophical difference'' wasn't just a euphemism: it was an apt description of a clash between two fundamentally different theories of leadership.

Secrecy deepening under Freedom of Information, warns watchdogBYLINE: SCOTT MACNABThe Scotsman, September 19, 2012

The Scottish Government has presided over an "unacceptable" erosion of the public's right to information, with complaints about secrecy among SNP ministers almost trebling, the official watchdog has said.

Scots now have fewer rights to know about the way public bodies operate than they did when the Freedom of Information (FoI) Act was passed ten years ago, the report added.

The warning comes as Alex Salmond undertakes a court battle against a ruling by Information Commissioner Rosemary Agnew to reveal whether his government has received legal advice about the status of an independent Scotland's EU membership.

Ms Agnew hit out at the growing number of quangos and PFI (public finance initiatives) that are funded through public cash, but exempt from FoI, as she launched her annual report yesterday. It prompted opposition claims that the SNP is treating Freedom of Information with "utter contempt".

Ms Agnew said: "An ever-growing concern is the loss of rights occurring through the delivery of public services by arm's-length organisations and third parties. "FoI was introduced for a reason: to ensure that the delivery of public services and the spending of public money is transparent, open and accountable. "It is simply not acceptable that citizens' rights continue to be eroded through complex changes in the delivery of services. This must be looked at as an immediate priority."

Appeals against FoI decisions by public bodies have risen 24 per cent in the past year to 524. The number of appeals against Scottish ministers jumped 40 to 110 in 2011-12. Most of these were settled without investigation. In those cases where Ms Angew was forced to issue a ruling, 23 cases went against the Scottish Government. A further six were partially upheld, while 15 went in favour of ministers.

Federal FOIA

• 5 U.S.C. § 552, 100 Stat. 3207 (1966)• Enacted in 1966 to establish the public’s right to

obtain information from federal government agencies• Amended in 1974 to force greater agency

compliance• Amended in 1996 to allow for greater access to

electronic information• Amended in 2007 to improve agency response time

to requests and allow attorney fees

Legislative Intent

• Congress envisioned three roles of the electorate for which the Act was designed to guarantee access to government information• To give the public access to the government information

necessary to ensure that government officials act in the public interest – the “watchdog function.”

• To ensure the public’s access to government information concerning public policy.

• To ensure that the government would not secretly create or enforce laws or administrative regulations

Legislative History – 1966 Act• Congressional Reports• S. Rep. No. 813, 89th Cong., 1st Sess. (1965) (S. 1160)• H. Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in 1966

U.S.C.C.A.N. 2418 (S. 1160)

Legislative History, cont.• Debates on S. 1160• Considered and passed Senate, Oct. 13, 1965, 111 Cong. Rec.

26820• Considered and passed House, June 20, 1966, 112 Cong. Rec.

13007• Presidential Signing Statement, Pub. L. 89-487• July 4, 1966

From the Presidential Signing Statement• “This legislation springs from one of our most essential

principles: a democracy works best when people have all the information that the security of the nation will permit.” --Lyndon Baines Johnson, Presidential Signing Statement of S. 1160, July 4, 1966 (Johnson opposed the legislation but signed it anyway.)

Legislative History – 1974 Amendment (Privacy Act)• Placed limitations on agencies’ collection, disclosure, and

use of personal information.• Both FOIA and Privacy Act allow individuals to seek

access to records about themselves, known as “first-party” access.

• Congressional Reports• H. Rep. No. 93-876, 93rd Cong., 2d Sess. (1974), reprinted in 1974

U.S.C.C.A.N. 6267 (H.R. 12471)• S. Rep. No. 93-854 (S. 2543) • S. Rep. No. 93-1200, 93rd Cong., 2d Sess. (1974), reprinted in 1974

U.S.C.C.A.N. 6285 (Conference Committee)

Legislative History – 1974 Amendment• Debates• House considered and passed, 120 Cong. Rec. H1787-H1803

(March 14, 1974)• Senate considered and passed, amendment in lieu of S. 2543,

120 Cong. Rec. S9310-S9343 (May 30, 1974)• Senate agreed to conference report, 120 Cong. Rec. S17828-

S17830, S17971-S17972 (Oct. 1, 1974)• House agreed to conference report, 120 Cong. Rec. H10001-

H10009 (Oct. 7, 1974)

Legislative History – 1974 Amendments• President Ford’s Veto Message• H. Doc. 93-383 (Nov. 18, 1974)

• Debate on Veto• Preliminary House Action, 120 Cong. Rec. H10705-H10706 (Nov.

18, 1974)• House Action and Vote on Ford Veto, 120 Cong. Rec. H10864-

H10875 (Nov. 20, 1974)• Senate Action and Vote on Ford Veto, 120 Cong. Rec. S19806-

S19823 (Nov. 21, 1974) (veto overridden) (became Pub. L. No. 93-502)

Legislative History – 1976 Amendments• As part of the Government in Sunshine Act, Exemption 3

of the FOIA was amended.• Congressional Reports:• H. Rep. No. 94-880, Part I, 94th Cong., 2d Sess. (1976), reprinted in

1976 U.S.C.C.A.N. 2183. • H. Rep. No. 94-880, Part II , 94th Cong., 2d Sess. (1976), reprinted

in 1976 U.S.C.C.A.N. 2212.• H. Rep. No. 94-1441, 94th Cong., 2d Sess. (1976), reprinted in

1976 U.S.C.C.A.N. 2244 (Conference Committee)• Presidential Signing Statement, Pub. L. No. 94-409• Sept. 13, 1976

Legislative History – 1986 Amendment• Addressed the fees charged; part of the Anti-

Drug Abuse Act of 1986.• Debates• Senate Bill introduced, 132 Cong. Rec. S13648, 13660-61 (Sept.

25,1986) • Sen. Leahy amendment and statement, 132 Cong. Rec. S14033

(Sept. 27, 1986)• Sen. Hatch statement, 132 Cong. Rec. S14038-40 (Sept. 27, 1986)• Sen. Denton statement, 132 Cong. Rec. S14252 (Sept. 30, 1986)

Legislative History, 1986 Amendments• Senator Leahy statement, 132 Cong. Rec. S14295-300 (Sept.

30, 1986)• Senate Technical Amendments, 132 Cong. Rec. S14277-78

(Sept. 30, 1986)• Reps. English and Kindness statements, 132 Cong. Rec. H9462-

68 (Oct. 8, 1986)• House approves amendments, 132 Cong. Rec. H9462-68 (Oct.

8, 1986)• Senate amendment to House, 132 Cong. Rec. S15956 (Oct. 10,

1986)

Legislative History, 1986 Amendment

• Sen. Leahy-Kerry Colloquy, 132 Cong. Rec. S16496-97 (Oct. 10, 1986)• Sen. Hatch statement, 132 Cong. Rec. A16504-05 (Oct.

15, 1986)• House amendment to Senate amendment, 132 Cong.

Rec. H11233-34 (Oct. 17, 1986)• House approves amendments, 132 Cong. Rec. H10787

(Oct. 17, 1986)• Senate concurs, 132 Cong. Rec. S16921 (Oct. 17, 1986)• Became Pub. L. No. 99-570, Title I, §§1802, 1803 (Oct.

27, 1986)

Legislative History – 1996 Amendment• Amended with the Electronic Freedom of Information

Act. (E-FOIA) • Requires that agencies submit a report to the Attorney

General on or before Feb. 1 of each year that covers the preceding fiscal year and includes information about FOIA operations.

• Congressional Reports:• H. Rep. No. 104-175 (H.R. 3802) (Committee on Government

Report and Oversight)• S. Rep. No. 104-272 (S. 1090) (Committee on the Judiciary)

• Presidential Signing Statement (Clinton), became Pub. L. No. 104-231, §§ 3-11 (Oct. 2, 1996)

Legislative History – 1996, cont.• E-FOIA provided for “expedited processing” in cases where

the requestor could show “compelling need” – failure to obtain could pose an imminent threat to the life or safety of an individual

Legislative History – 2002 Amendment• In the wake of the 9/11 attacks, the FOIA was amended

to limit the ability of foreign agents to request records from U.S. intelligence agencies.

• Congressional reports:• H. Rep. No. 107-592, 107th Cong., 2d Sess. (2002), reprinted in

2002 U.S.C.C.A.N. 1500. • Became Pub. L. No. 107-306, Title III, § 312 (Nov. 27, 2002)

2005 Executive Order• Exec. Order 13392 in December 2005 aimed at improving

agencies’ response time of disclosure of information consistent with FOIA.

• GAO’s subsequent survey of 16 agencies:• 9 achieved decreases in backlog• 5 showed increases in backlog• 2 showed no material change• Dep’t of Homeland Security, for example, decreased backlog by

29%

Legislative History – 2007 Amendments• OPEN Government Act of 2007:• to improve the agency response time for requests • allows attorney fees when forced to file a lawsuit to release

records• Designated Chief FOIA Office at each agency• Established tracking numbers for requests• Congressional reports:

• H. Rep. No. 110-45, 110th Cong., 1st Sess. (2007)• S. Rep. No. 110-59, 110th Cong., 1st Sess. (2007)

• Became Pub. L. No. 110-175 (Dec. 31, 2007)

Current 112th Congress• H.R. 484, Personal Privacy Clarification Act• To clarify the intent of Congress to limit the privacy exemption to

individuals, not to corporations in section 552(b)(7)(C)• Section 552(b)(7)(C) of title 5, United States Code, is amended by

striking `personal privacy' and inserting `the privacy of any individual'.

• Still pending• AT&T Inc. v. F.C.C., 582 F.3d 490 (2009), rev’d, F.C.C. v. AT&T, 131

S. Ct. 1177 (2011)

DOJ Activity• Proposed rules affecting 28 C.F.R. Part 16• 76 Fed. Reg. 15236-15244• Critics say, if adopted, the rules will be a step back for

transparency. • One provision would allow DOJ officials to deny the existence

of a certain type of record, even if the record exists, a policy said to be in use since 1987 to protect the integrity of certain undercover investigative activities. Only applies to DOJ.

• 76 Fed. Reg. 57940 extended the comment period; still pending

Supreme Court Interpretation• U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749, 772 (1989)(unanimous)(Justice Stevens)• The broad purpose of the Act is “to open agency action to the

light of public scrutiny.” • The Act “indeed focuses on the citizens’ right to be informed

about ‘what their government is up to.’”

Key Documents – Attorney General Memoranda• Reno (“. . .in determining whether or not to defend a

nondisclosure decision, we will apply a presumption of disclosure.”)• http://www.justice.gov/oip/foia_updates/Vol_XIV_3/page3.htm

• Ashcroft (Oct. 12, 2001) (DOJ will defend an agency as long as the decision rests on a “sound legal basis.”)• http://www.justice.gov/archive/oip/foiapost/2001foiapost19.ht

m

2005 Executive Order• Exec. Order 13392 (70 Fed. Reg. 75373) in Dec. 2005 aimed at

improving agencies’ response time of disclosure of information consistent with FOIA• Required the AG (Gonzales) to review agency FOIA Improvement

Plans• http://www.justice.gov/archive/oip/ag_report_to_president_133

92.pdf• Criticized by the National Security Archive for ignoring issues such

as staffing and funding for agencies to “bring their FOIA programs into compliance with the law.”

• Mixed Signals, Missed Results: How President Bush’s Executive Order on FOIA Failed to Deliver (2008), available at• http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/eo_audit.pdf

Obama Administration View of FOIA• http://www.whitehouse.gov/the_press_office/Freedom_of_In

formation_Act/• President Obama declared FOIA “a profound national

commitment to ensuring an open Government.”

Obama Administration View of FOIA• Reversed the Bush administration on the issue of disclosure

and instructed the AG to issue new guidelines• http://www.whitehouse.gov/the_press_office/

Freedom_of_Information_Act/• AG Holder issued on March 19, 2009, a “Memorandum for

Heads of Executive Departments and Agencies” rescinding the 2001 Ashcroft memo and described an expectation of a presumption of disclosure.• http://www.justice.gov/ag/foia-memo-march2009.pdf

Application of FOIA• FOIA applies to Executive Branch departments, agencies

and offices, and federal corporations.• Each agency must release identifiable records to “any

person” (individual, partnership, corporation, association, or public or private organization other than an agency) who requests them unless the information requested falls within one of the act’s exemptions.• Requestors need not divulge the reason(s) why they seek

the records. However, agencies are allowed to inquire whether the requested record will be used for a commercial purpose to determine the fees.• DOJ v. Rptrs. Comm. For Freedom of the Press, 489 U.S. 749, 771

(1989)

Application of FOIA• Records sought must be “reasonably described.” • Too specific, other pertinent records might not be retrieved• Too broad, agency may deny the request as overly broad and

therefore too burdensome to fulfill. • Congress, the federal courts, and parts of the Executive Office

of the President that function solely to advise the President, are not subject to FOIA.

• DOJ oversees agencies’ compliance and is the primary source of policy guidance

• OMB issues guidelines on the uniform schedule of fees

Application of FOIA• Veterans’ Affairs accounts for half of all requests (first-party

medical requests)• Other agencies with large numbers of requests:• FEMA (now under Homeland Security)• CIA• Social Security Administration

What kinds of records?• All “agency records” – print documents, photographs, videos,

maps, e-mail – that were created or obtained by a Federal agency.

• Since the 1996 amendments, the best place to get the information about how to make a request, or to make the actual request, is at the agency website.

What are the exemptions?• § 552(b)(1): National Security Information• § 552(b)(2): Internal Personnel Rules and Practices• § 552(b)(3): Information exempt under other laws• http://www.usdoj.gov/oip/annual_report/2006/06foiapg4.htm

Exemptions, cont.

• § 552(b)(4): Trade secrets or Confidential business information (CBI)• Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C.

Cir. 1983) defined “trade secret” as “a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.”

• GC Micro Corp. v. Defense Logistics Agency, 33 F.2d 1109, 1112 (9th Cir. 1994) qualified CBI as (1) commercial or financial information; (2) obtained from a person, and (3) confidential.

Exemptions, cont.• § 552(b)(5): Inter or intra agency memoranda or letters which

would not be available by law to a party other than an agency in litigation with the agency.• “A document must satisfy two conditions: its source must be a

Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath Water Users, 532 U.S. 1, 8 (2001)

Exemptions, cont.• § 552(b)(6): Personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy.• An agency cannot invoke Exemption 6 to withhold so-called first-

person information – that is, information about the requester. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989).

Exemptions, cont.• Associated Press v. U.S. Dept. of Defense, 395 F. Supp. 2d 17

(S.D.N.Y. 2005), held that alien detainees held outside the U.S. may have a right to privacy. Press sought the names of the Guantanamo detainees who were involved in the proceedings before the military Tribunals created for the purpose of determining whether a given detainee is an enemy combatant. DOD denied the request, not on national security grounds, but in the interests of protecting the detainees’ privacy. The DOD was ordered to submit a questionnaire to the detainees whether or not they wanted their identifying information released. DOD’s motion for reconsideration was denied. Only 17 of 317 detainees, when questioned about potential disclosure, wanted to have their identifying information kept confidential.

Exemptions, cont.• § 552(b)(7): Records or information compiled for law

enforcement purposes,” but only if the records or information also satisfy one of six additional requirements that production: • Could reasonably be expected to interfere with enforcement

proceedings;• Would deprive a person of a right to a fair trial or an impartial

adjudication;• Could reasonably be expected to constitute an unwarranted

invasion of personal privacy;

Exemptions, cont.• Could reasonably be expected to disclose the identity of a

confidential source;• 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

• Could reasonably be expected to endanger the life or physical safety of any individual.

• Ferguson v. FBI, 957 F.2d 1059, 1065 (2d Cir. 1992) (reviewing the two-step analysis).

Exemptions, cont.• § 552(b)(8): Financial Institutions• Applies to information “contained in or related to examination,

operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.”

• Interpreted broadly to include brokers and dealers of securities. Feshbach v. SEC, 5 F. Supp. 2d 774, 781 (N.D. Cal. 1997).

Exemptions, cont.• § 552(b)(9): Geological and geophysical information and data,

including maps• Used rarely by the EPA and the Department of the Interior for

information regarding water sources

What does it cost? • Fees said to be the number one problem to FOIA

Operations. There is no direct line item for agency FOIA operations. Few agencies adequately staff for FOIA needs.• Five categories of fees:• Commercial : Companies that or people who seek information for

a use or purpose that furthers commercial, trade, or profit interests, including for use in litigation. $$$ for search, review and duplication costs.

• Educational Institution: Preschools, public or private elementary or secondary schools, and institutions of graduate higher education, undergraduate higher education, professional education, or vocational education that operate a program of scholarly research. $$$; first 100 pages free.

Fee categories

• Non-Commercial Scientific Institution: Non-commercially operated institutions that conduct scientific research not intended to promote any particular product or industry. $$$; first 100 pages free.• News Media: People who actively gather news for

entities organized and operated to publish or broadcast news to the public. $$$; first 100 pages free.

Fee categories

• Other requesters: Requesters who are not commercial, news media, scientific or educational requesters and are required to pay search costs for more than 2 hours and duplication costs for more than 100 pages.• Fee waiver possible if the material “is likely to contribute

significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester.”

FOIA Federal Process• http://www.gwu.edu/~nsarchiv/nsa/foia/foia_flowchart.pdf• Write a request• Fax, mail or e-mail your request to the agency contact• Receive an agency acknowledgement (within 20 days)• Receive possible inquiry from the agency to clarify the scope

of your request or resolve issues such as fees

Process, cont.• Receive within no guaranteed time frame• Documents in full• Documents in part• Notice of withholding documents• Notice of finding no responsive documents

• Appeal the process within 30-90 days• Appeal accepted and material released or appeal denied• Seek judicial review of an appeal

Examples of Agency FOIA Pages• Justice Department• www.usdoj.gov/oip

• Department of the Navy• http://Foia.navy.mil

• Department of State• www.foia.state.gov/foiareq/foialetter.asp

• Centers for Disease Control• http://www.cdc.gov/

What you can expect• A response saying the scope of the request is too large; expect

to have to narrow your request – you will already have lost months of time.

• Phone calls to answer questions about the search.• Need for patience.• Redactions

Do we generate more or fewer FOIA requests? What are the trends?• Each agency collects FOIA request data and submits it to the

Attorney General for its Annual Report• According to OpentheGovernment.org, the number of FOIA

requests submitted annually has increased by more than 65 thousand requests since 2004.

• Federal agencies have not kept up with the demand. Thus more and more pending requests are being carried over from year to year (up to 14%).

• 90% of requests are provided in full.• http://www.foia.gov/glossary.html• Website to create data reports by agency

Appeals• Appeals can be effective to challenge successfully excessive

processing delays, fee waiver denials, and the improper full or partial withholdings of responsive documents.

• Agency regulations vary; make sure your appeal is timely.

Appeals• Letter should state the grounds for appeal and reasons why

the agency’s response was improper• Request a more precise explanation of the agency’s decision• Say that you expect a final ruling on the appeal within the 20-

day statutory time limit• Sample letter• http://www.gwu.edu/~nsarchiv/nsa/foia_requestsB.html

GAO Reports• http://www.gao.gov

National Security Archive Blog• http://www.gwu.edu/~nsarchiv/nsa/foia.html

A State’s FOIA• Virginia• Va. Code Ann. §§ 2.2-3700-2.2-3714• Recodified in 2001• Amended in 2004 to categorize the exclusions• http://leg1.state.va.us/cgi-bin/legp504.exe?

000+cod+TOC02020000037000000000000

2012 Amendments• A member of a public body may attend a closed meeting held

by any of the committees or subcommittees, provided such member does not participate; minutes must reflect the identity of such member

• Amends an existing exemption to include certain information furnished to the AG under the Virginia Fraud Against Taxpayers Act

General principles

• All public records should be open to citizen inspection• All meetings of public bodies should be open to the public

Who is covered?• “Public bodies” include:• City and town councils• County boards of supervisors• Planning commissions and boards of zoning appeals• School boards and student government entities created or

funded by school boards• Special purpose authorities (water and sewer, industrial

development, housing and redevelopment, regional jails, airports)

Who is covered?• Committees or subcommittees of any of the above entities• Other agencies of local government, including elected

constitutional officers• Any corporation or organization supported wholly or

principally by public funds

Who is guaranteed/not guaranteed access under the act?

• Any Virginia citizen and any non-resident media representative who circulates or broadcasts in Virginia; incarcerated persons are not entitled to assert rights under the act.

• Non-Virginians (other than a reporter above) are not entitled to enforce the act’s requirements in court.

What gatherings constitute “meetings” that must be open?• Any gathering of two or more members of a public body is a

meeting, if the members are discussing the public body’s business.

• Includes “work sessions,” “retreats”; may including “hanging around after a meeting”

• Meetings may be recorded• Minutes required for every public meeting• Act doesn’t guarantee the right to speak, just be present

Virginia Records Exempt from Disclosure• Most common types of records exempt from mandatory

disclosure include:• Individual tax returns• Medical records• Scholastic records• Personnel records• Architectural plans, specifications, and tactical security plans for

government buildings• Public libraries’ records of patrons and the items they borrow• Personal information in constituent correspondence, unless the

correspondence relates to the transaction of public business (new 2012)

• Fire/EMS cell phone numbers (new 2012)

FOI Advisory Council• Created in 2000 as an advisory agency in the legislative branch

to encourage compliance with FOIA• “Working Groups” propose amendments• It has issued 216 opinions through July 2012• http://dls.state.va.us/foiacouncil.htm• The Advisory Council’s director and Staff Attorneys are UR

grads• Governor McDonnell’s Government Reform Commission

proposed eliminating or consolidating several different state boards and commissions, including the FOI Advisory Council

Collection of data?• There is no central repository for FOIA data in Virginia.

Example of Virginia Department• Virginia Department of Transportation• FY05-06 = 351 requests• FY06-07 = 363 requests• FY07-08 = 553 requests• FY08-09 = 498 requests• FY09-10 = 380 requests• FY10-11 = 525 requests• FY11-12 = 666 requests• http://www.virginiadot.org/info/foia.asp

Virginia Coalition for Open Government• http://www.opengovva.org/

International• http://freedominfo.org

Creating FOIA Letters• Reporters Committee for Freedom of the Press• http://www.rcfp.org/foi_letter/generate.php

Sources• James T. O’Reilly, Federal Information Disclosure (3d ed. 2000

& Supp. 2010)• U.S. Dept. of Justice, Freedom of Information Act Guide (2009)• http://www.justice.gov/oip/foia_guide09.htm

• U.S. Dept. of Justice, Freedom of Information Act Annual Report, available at http://www.usdoj.gov/oip/foia-ar.htm

• A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, H. Rep. 109-226, 109th Cong., 1st Sess. (2005), available at http://www.fas.org/sgp/foia/citizen.pdf

Sources• Alan Charles Raul, Privacy and the Digital State: Balancing

Public Information and Personal Privacy (2002)• Justin D. Franklin and Robert E. Bouchard, Guidebook to the

Freedom of Information and Privacy Acts (2008)• P. Stephen Gidiere III, The Federal Information Manual: How

the Government Collects, Manages, and Discloses Information under FOIA and Other Statutes (ABA 2006)

Sources• Roger C. Wiley, Virginia Freedom of Information Act (2007)• Travis McDade, A FOIA Request Can Aptly Serve a Client’s

Case, Student Lawyer, Feb. 2007, at 11.