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Freedom of Information Act

Part II

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Exemption 3.--Information Exempt Under Other Laws

The third exemption incorporates into the FOIA other laws that restrict the availability of information. (A) requires that the matters be withheld from the

public in such a manner as to leave no discretion on the issue, or

(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. IRS records are one example

This is the real exemption - the agency cannot waive non-FOIA protections

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Exemption 4.--Confidential Business Information

Trade secrets and commercial or financial information obtained from a person and privileged or confidential.

Trade secrets Restatement - secret information used in a business to

give a competitive advantage D.C. Circuit - limits further to means of production -

secret formulas and processes, not marketing or financial information

If the info is a trade secret, it ends the inquiry and it is protected by statute - much faster and cheaper

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Exemption 5.--Internal Government Communications

The FOIA's fifth exemption applies to internal government documents that would not be available in litigation against the agency. Includes lawyer client privilege

Also recognizes the "deliberation process or executive privilege" which is reserved to the government The right of government decisionmakers to get

advice without fear of it becoming public

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Exemption 6.--Personal Privacy

The sixth exemption covers personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

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Interpretation

This exemption protects the privacy interests of individuals by allowing an agency to withhold personal data kept in government files. "which would constitute a clearly unwarranted

invasion of personal privacy" Allows release of info which is not so intrusive

Only individuals have privacy interests. Corporations and other legal persons have no privacy rights under the sixth exemption.

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Example - Tape of the last minutes of the space shuttle

Is the recording a "personnel [or] medical files [or a] similar file" within the meaning of Exemption 6? Personal information is enough

If you represented the New York Times, what public interest could you argue would be served by disclosure of the recording, keeping in mind that a transcript had already been disclosed? What is the government function angle?

If you represented NASA, precisely whose privacy could reasonably be expected to be invaded, and how (still keeping in mind the release of the transcript)?

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Exemption 7.--Law Enforcement

The seventh exemption allows agencies to withhold law enforcement records in order to protect the law enforcement process from interference.

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Types of Interference I

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,

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Types of Interference II

(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,

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Types of Interference III

(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

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Exemption 8.--Financial Institutions

The eighth exemption protects information that is contained in or related to examination, operating, or condition reports prepared by or for a bank supervisory agency such as the Federal Deposit Insurance Corporation, the Federal Reserve, or similar agencies.

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Exemption 9.--Geological Information

The ninth FOIA exemption covers geological and geophysical information, data, and maps about wells.

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Sunshine/Open Meeting Acts

Why have these laws? What are the benefits? What are the costs? What does a Baton Rouge School Board meeting

look like? How does it affect University hiring? State business development?

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State vs. Federal Law

How broad are the state laws as compared to the federal law?

Federal law has 10 exemptions Federal law and exemptions

Most of the states are broader, i.e., reach more meetings.

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How do agencies try to get around Sunshine acts?

Work off written documents - remember the exemption for intra-agency memos?

Meet in groups of two Have staff do the recommendations, and then

rubber stamp the results

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What is a meeting?

Why is this a critical definition? What did the Moberg case find?

The Moberg case found that the critical definition was whether there was a quorum present of either the governing body or its committees, unless it was a social or chance gathering

Could you set the quorum very high, assuming you could ever get them together when you needed to act?

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FCC v. ITT?

The United States Supreme Court used a narrower definition under the federal law in FCC v. ITT They are only meeting when they are deciding. They can get together privately when they are

receiving information and having informal background discussions

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What do you tell your clients?

Comply with notice Do not make the decisions at the background

sessions Clearly separate them, at least in time.

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Sanctions

What sanctions can you get if prevail on a claim that a meeting should have been open? You can get attorney's fees if you prevail on a

claim that a meeting should have been open

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Can the federal court overturn actions because of improperly closed meetings?

Federal law does not allow the court to overturn an agency action because a meeting was improperly closed

Some states do allow this, plus providing other penalties

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Federal Advisory Committee Act (FACA)

Why did congress pass this act? FDA as an example

Who does it cover? Covers every group used by the president

or an agency to get advice What does it require?

Should be balanced membership and not biased

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Separation of Powers

Does it violate separation of powers by limiting the president's right to get advice? FDR's Kitchen Cabinet?

What if they are all federal employees? Does not cover groups of only federal

employees

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Hillary Health

Was she a government employee? Even if she claimed she was not for financial

disclosure purposes? Bye Vince

What about the 800 folks who did the work as "advisors" to the committee?

Cheney's energy task force

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The Privacy Act - Access to Your Own Records

The Privacy Act of 1974 provides safeguards against an invasion of privacy through the misuse of records by Federal agencies.

In general, the act allows a citizen to learn how records are collected, maintained, used, and disseminated by the Federal Government.

The act also permits an individual to gain access to most personal information maintained by Federal agencies and to seek amendment of any inaccurate, incomplete, untimely, or irrelevant information.

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The Privacy Act Policy

Why is it important for you to get access to the information the government keeps about you?

Why might you want to challenge the accuracy of information in government files?

Why is it important that the Privacy Act requires agencies to publish descriptions of the systems they use to keep records?

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Which Act Applies?

Do FOIA and the Privacy Act overlap? Which should you cite when requesting records?

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Can You Just Ask for All of Records the Government Has on You?

There is no central index of Federal Government records about individuals. Not as true post-9/11, but you will not get

anything held under national security powers An individual who wants to inspect records about

himself or herself must first identify which agency has the records.

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Getting Other People’s Records

A request for access under the Privacy Act can only be made by the subject of the record.

An individual cannot make a request under the Privacy Act for a record about another person. The only exception is for a parent or legal guardian

who may request records on behalf of a minor or a person who has been declared incompetent.

It is a crime to knowingly and willfully request or obtain records under the Privacy Act under false pretenses.

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Privacy Act Process

This mirrors FOIA Process We will not cover this in any more detail

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The Computer Matching and Privacy Protection Act of 1988

The Computer Matching and Privacy Protection Act of 1988 amended the Privacy Act by adding new provisions regulating the use of computer matching.

Does not apply to national security, which now includes local policing

If the government already has the information, why is computer matching a big issue?

How does Equifax make this a moot issue?