R. Kenton Musgrave

Transcription

This is professor Adam S. Wandt and we're here to discuss the basics of the Freedom of Information Act, FOIA. Most of you have heard of either of FOIA, the Freedom of Information Act or many of you have heard it called FOIL the Freedom of Information Law or Freedom of Information Legislation. These laws exist both on a both Federal and State Level. At the federal level its only appropriate to call it FOIA while at the state level many times it can be referred to as FOIL. The Freedom of Information Act, FOIA, could be found at 5 U.S.C. which stands for United States Code Section 55. The law was signed by president Lyndon B. Johnson on September 6, 1966. And its important to realize that this law only applies to executive branch agencies. It does not apply to congressional agencies or judicial agencies. As a matter of fact it does not apply to Congress or the Judicial Branch at all. Congress and the judicial branch have similar laws that provide for freedom of information, but FOIA does not apply to them at all. FOIA only applies to executive branch agencies. Generally it provides that people have the right to request access to federal agency records and information and thats the only way to say it. If a federal agency has information and its not privileged or confidential people should be able to access it to know what type of information their government has. Certain agencies must make information publicly available on websites as well and we'll talk about that when we get into the amendments. The Act has been amended several times over the years. One of the first amendments that we care and that we'll talk about was the Privacy Amendment Acts of 1974. This lecture is not really on the Privacy Act of 1974, however, you will be doing some reading about it because the Privacy Act and FOIA really go hand in hand. They have a lot of very similar goals they want to achieve and they do so by working together. So in 1974 Congress voted to override President Ford's veto of some of the amendments and basically what they did was they made it legal for people to see records about oneself so that if the federal government has a record about you and its not subject to confidentiality, which we'll go over later, you have the right to see it. It also provided for the right that if you have a record, if the federal government has a record and its inaccurate, irrelevant, or untimely, or incomplete, that you should have the ability to go in and have it corrected. After all, if the federal government has a record about me and I know there's an error and I could prove its an error I should be able to go in, submit the changes and have my record updated. Finally this Privacy Act Amendments of 1974 gives us the right to sue the government for violations not just be able to complain. Its really important to be able to provide a civil remedy if the government wrongs you and the Privacy Act Amendments of 1974 allow for that. The second Amendment I want to quickly cover is the Government in Sunshine Act of 1976. While the Privacy Act Amendments of 1974 expanded FOIL, the Government in Sunshine Act of 1976 held stuff back. What type of stuff? The obvious stuff, information relating to national defense or national security. Information accusing people of a crime not when your charged, but just accused. It also held back , it also doesn't allow the government to give up information where it would constitute a major breach of privacy and finally it allowed the government to hold back information relating to an executive agency's participation in a legal proceeding. If a government's involved in an ongoing legal proceeding and there has to be some confidentiality, the Government in the Sunshine Act of 1976 provides some relief. The Omnibus Anti-Drug Act of 1986 is not really important for us to know here unless we do anti-drug work, but basically FOIA was amended to address certain fees charged by different categories of requestors. Here at times if you want to make an application for a FOIA request the fees were changed a little bit and so was the scope of access to law enforcement records. This was done to better protect our anti-drug effort in the mid 1980s. One of the really important amendments was the Electronic Freedom of Information Act Amendments of 1996. This is critical, this did something really cool. One, it provided that executive branch agencies must be able to provide certain records electronically on their government websites. So there was a list of certain types of records, certain categories of records, and now the government must automatically publish some of these records on their websites. Furthermore, it held that the federal agencies have to create electronic reading rooms where you can go to a specific website, seal this information at one place and not have to go guess where its all located. This was a big thing because this allowed people to get information from government without having to actually request it. Now, due to the Electronic Freedom of Information Act Amendments of 1996, its open, anyone can get access just by the world wide web. Now there are still some things you have to go and apply for, and fill out an actual written FOIL or FOIA request for, but here for the first time,1996 on, lots of stuff's published on federal agency websites. The Intelligence Authorization Act for Fiscal Year 2003, well if you think about what we were going through in Fiscal Year 2003, this was post 9/11. This is the federal government's answer, not federal governments answer, this was the federal governments response to limit what foreign governments could get from us. Up until 2003 if a foreign government made a request to a U.S executive branch agency, sometimes they had to answer it. But, what they did here in effect this new language precluded any covered U.S intelligence agency from disclosing records in response to FOIL or FOIA requests, FOIA requests made by foreign governments or international government agencies. So what this really did is this protected our intelligence information from FOIA requests from international agencies and other types of organizations. This was a post 9/11 like I said and it was basically done to protect us. The final one I'll cover as an amendment is the Openness Promotes Effectiveness in our National Government Act of 2007. Many of us know this as the Open Government Act of 2007 and this did a couple of different things. So number one, it established an actual definition for representative of a news media. Up until now there was no real definition for representative of news media. We didn't really know if it had to be somebody from CBS or if it could be just a regular blogger. So what they did here in the Open Government Act of 2007 was they defined what a representative of news media means and in doing so it took all the question out of it and basically what they said was news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work and then distributes the work to the audience, to a audience. So what it really did here was it gave a much more broad definition of what media was in order to cover many other new entities that were popping up, not just your CBS late night news. So what else did the Open Government Act of 2007 amendments do? Ah, a couple of things. One, it changed around some of the fee structures having to do with FOIA requests. It actually punished certain federal agencies for not complying within certain time frames. And if the federal agency didn't apply, didn't reply to the FOIA requests, a lot of times they gave up the fee that they would have been able to collect. So its also important and when you read the actual FOIA law, which you will read, its important to realize that each federal executive branch agency has to implement FOIA and they do it in their own way. As a matter of fact they all do so by publishing their regulations for implementation in the CFR, the Code of Federal Regulation. I've given you two examples here, the FCC at 47 CFR 0.441.-0.470 and the Department of Justice regulations at 28 CFR section 16. I gave the websites here, feel free to take a look a them and you'll see the real infrastructure that each federal agency has to set up to ensure that they are FOIA compliant. So not only could Congress amend FOIA, but the President through executive orders can make amendments to FOIA as well. More specifically he could help regulate how FOIA is dealt with in the executive branch. So I'm gonna go over 5 major executive orders and we'll discuss what they did to the FOIA legislation. The first one is President Ronald Reagan's executive order 12356 of 1982. This allowed federal agencies to withhold information relating to national security. They were always able to withhold information relating to national security, but this really broadened what that scope is. So if a federal agency even suspects that there might be a national security issue involved, this executive order helped them hold back that information. President Clinton issued a series of executive directives and executive orders during his presidency and the idea here is he wanted to give out information of historical importance. So national security documents that were more than 25 years old that were of historical interest that the government really didn't need to hold on to anymore, and that were part of a FOIA request should really be given up. So even if it was something that a one time was confidential or secure if its still really not necessary to keep it confidential, President Clinton's executive orders passed between, I think was 1995 and 1999, now allowed 25 plus year old national security documents that are of historical interest to be given out. This was a really big deal at the time and obviously there were a flood or FOIA requests to the federal government after these executive orders. The third one that I want to talk about, which is really important, is executive order 13233, it was passed during the time of George W. Bush and it was drafted, as I put up here by attorney general Gonzales. What makes this unique, this was an emergency response to post 911. This executive order was drafted and published on November 1st 2001. And basically what it did was it restricted access to certain records and documents of former president. This executive order was revoked by President Obama almost on the first day of him taking his Presidency. President Obama passed executive order 13489 which encouraged openness, transparency, and accountability in government and government records. It basically said that the public has the right to access presidential records, and their right to do so was restored. The final one that I want to go over is December 29, 2009, President Obama issued Executive Order 13526 this becomes more restrictive again. Here what it allows is this for the time addressed a very specific problem that was popping up. Lets say you request documents under a FOIA request and the document that you request is not confidential, but upon reviewing it the FOIA officer determines that it relates to national security and should be confidential. Executive Order 13526 passed by Barack Obama basically allows the government to restrict access to certain documents after the FOIA request was filed. So here doesn't have to be pre flagged as confidential or relating to national security, if its something thats not top secret, its not confidential, but upon further review after the FOIA request has been filed the FOIA officer feels that the information is relevant to national security it could then be classified. So lets talk about what is not FIOA-able, okay, lets talk about the things that you can't FOIA at anytime, that FOIA just simply doesn't apply to. I have a list right here, I'll just go over it really quick. Most of these things if you've read the readings already should be very obvious, if you haven't you'll see the exemptions. I started off this lecture by saying records of Congress and the Courts, not FOIA-able. It only relates to executive branch agencies. But, even though it applies to executive branch agencies it does not apply to the Central Office of the White House. I guess this is one of those glass houses where the President can stay in the White House, his immediate central office is exempt. Many of his records are not, many of his records are public documents thanks to Barack Obama, but the central office of the White House you cannot FOIA. Classified National Defense and National Security documents obviously, a lot of our nuclear secrets are categorized under this. We can't exactly have everybody knowing how to go around building certain weapons, we don't want our defense military aircraft for example. We don't know how high certain airplanes could fly, the armament they carry, our intelligence, those are all classified as well. Internal agency rules and practices also are not FOIA-able. Many of them are available through different means, but a federal government agency does have the right to restrict access to some of its internal rules and practices. A lot of the work flow that exists is confidential. Also information prohibited for disclosure by other laws sometime's you'll have another law passed and it will specifically say, even though its relating to a federal executive branch agency it will say that this information is not subject to the FOIA regulations and also information that is legally privileged. So how do you get access to this stuff? Alright we know that FOIA exists, but how do you really go in and do it. Well first of all due to the electronic amendments, most of this stuff, not most of it, some of it could be found simply by going to the agency website. What if the information you want is not there? Well like I said in the previous slide, each agency is required to establish its own rules and regulations for handling written FOIA requests. The key here is written. FOIA requests must always be written. And then what do you write? Thats the question, well what do I have to write? Well you have to go to the federal government agency's website. FInd their regulations to figure out what type of information they want from you. Each agency is different. Each agency is allowed to establish its own guidelines. I've given you two kind of interesting websites here. The first one, National Security Archive at George Washington University this is a website put together by GWU that has a ton of national security documents that have either been FOIAed in the past or put up on certain electronic databases. Also I've given you the Department of Justice office of information policy website. Its the Justice Department's FOIA branch, they are a excellent resource for getting information from any branch of the U.S Department of Justice. One of the things that is required by FOIA is that each federal agency has to give a report each year. The report will include things like what types of things were FOIAed, what court cases are going on, whose asking for the information and whose asking for information that was withheld. So I've given you an example here of the DOJ's public annual report website. Go to it, take a look, its actually quite interesting. The FOIA officer for each government executive branch agency has to compile a report each year with all this information and there's the DOJ's. Something has to be quite interesting to go and take a look at. So we've already seen that Congress is the body that writes up the legislation the President signs. Congress wrote up he initial FOIA legislation, it was signed into law by the President. The amendments also written up, formed by Congress, signed into law by the President. The President has the power to shape the FOIA regulations via executive order. So where does that leave the courts? What do the courts have influence over? Obviously the courts interpret and the courts also shape law. So lets look at three cases that are of interest. The first two go together. The first two are Sieverding v. U.S Department of Justice and the U.S. Department of Justice v. Landano. Hopefully I'm not butchering these names too bad. So I'm not gonna go too deep into these cases purposely. I really don't want this to be about case law. I just want you to get an idea of how the courts help shape policy here. In Sieverding v. the U.S. Department of Justice, this was a really important case because this is about somebody's right to be acquitted under a fair hearing, fair trial. Let's say your charged with a crime and the FBI or the Department of Justice has information which normally would not be FIOA-able, normally might be confidential, maybe it talks about some informants or maybe it talks about some spying operations. But that information could help you get off, help you prove that your not guilty of the crime. Well in Sieverding v. the U.S. Department of Justice, the courts examined just that. And what the courts held was that records or information compiled for law enforcement purposes can't be withheld if it would deprive a person of a fair trial or impartial adjudication. So if the government has something that a criminal defendant needs to prove that they're not guilty of a crime normally now the government has to give it up. And Landano's kind of the same case. In Landano he was charged with homicide, he was accused of being a burglar as part of a group burglary somebody was murdered. And in 1993 Landano was trying to get some information to help him in his defense. Specifically this was after Sieverding so he was able to get the records from the FBI, but the records were redacted really heavily, meaning that the records he had, had a lot of things crossed out. One of the things that were crossed out which Landano wanted was the names of the FBI informants that gave the FBI information about him. So here, you know, normally in a court one has the right to confront their accusers, but the FBI was saying no this was a privileged criminal investigation, that they shouldn't have the right to get the information. And what basically the court held here was that even though the FBI does have some privilege when it comes to the court setting. This was by the U.S Supreme Court Sandra D O' Connor, she basically ruled that those who supplied information had no need to remain anonymous once it gets into the court setting. That the FBI should not have redacted all of those FOIA requests, that people had he right to face their accuser and now Landano had the names of the people that ratted him out to the FBI. One other case I wanna talk about really quick is the Scott Armstrong case. This I'll go over quickly, its just a interesting case. Scott Armstrong v. the Executive Office of the President, the reason why this is so interesting is this is a case that went on what seems like forever. It went on over three different administrations, three different presidential administrations. It cost well over 10 million dollars to litigate. During the Iran contra affair, and I'm gonna go over this very briefly and generally, during the Iran contra affair people in the White House, White House employees used a computer communications program known as PROFS, P-R-O-F-S, like professors but not, and the key here is that PROFS automatically encrypted information so no one could read it. This information was eventually printed out into hard copy, so hard copies of these records were made. So this lawsuit is actually over those hard copies. The paper copies, this lawsuits about whats called the National Security Counsel, many of us heard of the National Security Counsel. The National Security Counsel is a group that advises the President as to national security issues and on the eve of President George Herbert Walker Bush's inauguration, so this is the first Bush not the last Bush, the White House under President Carter decided to destroy all of these records. They wanted to get rid of them. So Scott Armstrong filed suit to try to get them not to destroy the records. Scott Armstrong was awarded an injunction and a temporary restraining order. And the federal government was told listen until this case was over no destroying the documents. The interesting part is that this went through so many administrations, George H. W. Bush couldn't destroy the records, it was in litigation. Clinton administration argued that the National Security Counsel was really not a federal agency and shouldn't be subject to FOIA requests. Basically what they said was the National Security Counsel is not an executive branch agency. Its a group of individuals that advises the president and they won on this. So basically one, this case holds that the National Security Counsel is not directly FOIA-able and two it set out certain prerequisites for what to do if you need records from the National Security Counsel. Lets talk about a funny case really quick. This is a great case. The case of Barbara Schwartz. And I have her picture here on the lower right. This case really shows what one person can do with a FOIA request. Barbara Schwartz allegedly, according to the Department of Justice, holds the record for the single person, single person in the United States, to submit the most number of FOIA requests. So she holds the record, she submitted more than anyone else and what she's FOIAing, what she's trying to get a hold of are her records. Now I don't care if you believe it or not, I think its just a funny story. She requests, first of all she lives in Salt Lake City Utah, but she's a citizen of Germany, she claims she was born in a secret U.S government lab I believe during the 1940s, like during the WWII era and here she has made request, after request, after request, after request on documents that the federal government says really doesn't exist to try to prove she was born in a secret government lab. Matter of fact her lawsuits have at least got up to one circuit court of appeals case. Somewhere in the nation every year since 1993, and she's filed unsuccessfully several times to the U. S supreme Courts. What do you do when someone's making requests for documents that don't exist? You tell them the document doesn't exist, but that just spawns a whole another conspiracy theory. So here, Barbara Schwartz, poor lady lives in Salt Lake City Utah, she's filed more FOIA requests than anybody else for documents that the federal government just says, hey these don't exist.