Access to Information, Records and Meetings
I. The Official Secrets Act of the United Kingdom (1911)
Presumption of confidentiality of all official information by any person who holds, or has held office, under the King/Queen
Section 2: "makes it a crime, without any possibility of defence, to report even the number of cups of tea consumed each week in a government department."
The Act was amended in 1989 to limit the official information to:
*security and intelligence
*defence
*international relations
*law enforcement matters
II. The U.S. Freedom of Information Act (1967)
Presumption of the availability of information compiled by federal government agencies (except Congress, the courts, the government of D.C. and the courts martial or the military during wartime). Eg. Environmental Protection Agency, Department of Justice, Department of State, . . .
1974 Amendments required:
*provision of an index of materials held
*a District Court judge may inspect documents in closed chambers to determine if records are properly classified, p. 605
1996 Amendments required:
*the information is to be made electronically available
EXCEPTIONS: THE FOLLOWING INFORMATION IS NOT AVAILABLE
[approximately one third of requests are denied]
(1) STATE SECRETS (NATIONAL DEFENSE; FOREIGN POLICY) IF PROPERLY CLASSIFIED
(2) INTERNAL PERSONNEL RULES AND PRACTICES
(3) SPECIFICALLY EXEMPTED BY STATUTE
(4) TRADE SECRETS; COMMERCIAL/FINANCIAL INFORMATION
(5) INTER- OR INTRA-AGENCY MEMOS
(6) PERSONNEL, MEDICAL OR OTHER SIMILAR FILES, THE DISCLOSURE OF WHICH WOULD CONSTITUTE AN INVASION OF PRIVACY
(7) RECORDS COMPILED FOR LAW ENFORCEMENT PURPOSES TO THE EXTENT THAT AVAILABILITY
A. interferes with enforcement
B. interferes with a fair trial
C. would constitute an unwarranted invasion of privacy
D. identifies a confidential source
E. discloses enforcement techniques
F. could reasonably be expected to endanger the life of physical safety of a person
(8) INFORMATION REGARDING THE REGULATION OF FINANCIAL INSTITUTIONS
(9) GEOLOGICAL AND GEOPHYSICAL INFORMATION
Cases:
Environmental Protection Agency v. Mink(1973) [1]
Advocates for the West v. Bureau of Land Management (D. Idaho 2010) [6]
Department of Justice v. Reporters' Committee for Freedom of the Press (1989) [7c]
National Archives and Records Administration v. Favish (2004) [7c]
At issue is FOIA Exemption 7(c): disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
In an earlier case, DOJ v. Reporters’ Comm for Freedom of the Press, the Court ruled that disclosure of “rap sheets”—a person’s criminal record—would be a 7(c) exemption.
The main purpose of FOIA was to disclose information of public interest regarding government workings and behavior. “FOIA is often explained as a means for citizens to know ‘what the Gov’t is up to’.” P. 611
In this case, Favish, wants the release of photos involving the Vince Foster suicide investigation. Five different investigations (FBI, Senate and House, 2 independent counsels) concluded the death was a suicide.
The family had been harassed by persons wanting to profit from their tragedy. They did not want death photos released.
Favish requested 11 photos, including
An overview taken from a height
Right shoulder
Right hand
Right side and arm
Eyeglasses
The D.Ct. concluded that the family’s privacy interest outweighed any public interest in disclosure. The Ct. App. Reversed and remanded. Then the D.Ct. ordered the release of all listed above except the overview.
Foster’s family members were asserting their own right of personal privacy, not the privacy of the deceased. “They seek to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility. . . .”
The Court found:
I. Congress “intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions.”
-respect of burial rights
-common law right of privacy of family members to control the death images of the deceased
[voices just before death of Challenger crew]
[autopsy X-rays and photos of Pres. Kennedy]
II. Balancing privacy and the public interest in disclosure is implicated by the term “unwarranted.”
The citizen seeking disclosure must show:
-a significant public interest
-information is likely to advance
that interest
What does this mean?
“We hold that, where there is a privacy interest protected by Exemption 7(c) and the public interest asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain the disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Gov’t. impropriety might have occurred” p. 612
Favish produced no evidence of impropriety.
The photos should not be released.
FOIA Interpretation After 9/11
Ashcroft Memorandum (Oct. 2001): information can be withheld from the public on any "sound legal basis."
Card, Jr. Memorandum (March 2002): instructed federal agencies to withhold "on national security grounds" information that doesn't fall under the exemption. This memo supports withholding any information that "could be misused to harm the security of our nation or threaten public safety."
The Open Government Act of 2007--a freedom of information reform bill
*The agency must respond to a request within the 20-day time period specified in the Act
*A requestor can obtain attorneys' fees if she is forced to file a lawsuit to make the agency release the records
*Agencies must assign a tracking number so citizens can follow their requests
*A new ombudsman office is to be established to mediate disputes over requests
III. Florida Open Records Act
Earnhardt v. Volusia County (Fla. App. 2002)
IV. The U.S. Privacy Acts of 1974
Disclosure conditions: written consent of the person to whom the file pertains
Access: persons may have access to their files, to obtain copies, to request change of inaccurate information
The Family Educational Rights and Privacy Act (FERPA)
Access: reqires parental consent for disclosure of "educational records"--"documents or other material maintained by a school and by which an individual student can be identified"
Owasso Independent School District v. Falvo (2002)
V. The U.S. "Government in the Sunshine" Acts
Presumption of open government meetings.
VI. Driver's Privacy Protection Act of 1994
Reno v. Condon (2000)
VII. HIPPA [Health Insurance Portability and Accountability Act] (1996), effective 2003.
(National Security Exception)