Chapter 8 - Freedom of Information and other Open Government Laws

FOIA Materials from the Citizens Guide

States

States follow the federal rule, but generally have both more exceptions and a broader overall openness mandate.

Appealing a Denial of a FOIA Request

§ 552 a(4)(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.

What is the Standard for Review?

In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.

Effect on the Courts

What is the effect of de novo review? Does it encourage litigation?

When does the Court Defer to the Agency?

In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

Protecting Deliberation- NLRB v. Sears, Roebuck & Co. - 510

What does the regional office do when there is an unfair labor practices complaint it does not want to adjudicate?

Who does it ask for advice and what does it get?

What did Sears want?

Sears wanted documents exchanged between the NLRB counsel and the regional offices

What privilege did the NLRB claim? Why did Sears say it did not apply? What presidential privilege does this resemble?

Exemption 5 mirrors the executive privilege to not disclose certain documents in litigation

When does this Exemption Apply?

To fall into the exemption, the documents must be part of the agency decisionmaking process

What does the court want to protect? Where was this originally litigated? Now we have some new cases with Clinton

Bad cases make bad law - he should not have fought these

What is the key test? Are the they pre-decisional documents or

documents that implement or explain the decision? Remember the early case about finding out

what is in the secretary's head and how this was discouraged in discovery?

What else does Exemption 5 cover? Why do advice and appeals memos not fall

under 5? What about memos which direct the filing of a

claim?

Rulemaking

What if exempt materials are used as part of a record for a ruling?

Materials that might be sec 5 exempt lose their exemption if the agency incorporates them as part of the record for a ruling

Cannot have it both ways

Disclosing Exempt Materials

Even if information is exempt from disclosure under the FOIA, the agencystill may disclose it as a matter of administrative discretion when thatis not prohibited by any law and would not cause any foreseeable harm.

Confidential Private Information - Chrysler Corp. v. Brown - 519

What did Chrysler try to enjoin? Does the APA create a direct private right of

action to enjoin such disclosures? How could the APA be used to support the

injunction? (Sec 10 of the APA which prohibits

agency actions contrary to law)

Are trade secret protections absolute?

Court also said that the protection of the trade secret act is not absolute, but the agency must show some legal basis for releasing otherwise protected info

When might the agency release trade secret information? Congress does this for toxics in some cases

Releasing Proprietary Corporate Data

What is the key to deciding whether the date will be released?

When is voluntary info covered? Ordinarily not available

When is compelled info covered? If it would cause significant harm

What are examples where Congress has compelled disclosure? - MSDS

By executive order, companies must be notified when the agency wants to divulge their info.

Problem

Scientist submits grant proposal to the NIH NIH sends it out to a peer review committee The peer review committee evaluates and scores it NIH makes the final determination on approval Can rival scientists get the info in the hands of the NIH? Key - is the grant a trade secret? (no)

Key - are their recommendations intra-agency memos?

The Sunshine and Advisory Committee Acts – 525

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?

State vs. Federal Law

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

Federal law has 10 exemptions, most of the states are broader

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 meetings and then rubber stamp

the results

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?

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

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.

Sanctions

What sanctions can you get if prevail on a claim that a meeting should have been open?

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

Federal Advisory Committee Act (FACA) - 529

Why did congress pass this act? The feds increasingly rely on private

advisors and contractors 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

Separation of Powers

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

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

employees

Hillary Health

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

purposes? Bye Vince What about the 800 folks who did the work as

"advisors" to the committee?