Exemption 5.--Internal Government Communications

1. 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

2. 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? • The courts want to protect the "frank discussion of legal and policy matters" so that agencies will not be completely swayed by public opinion • What else does Exemption 5 cover? • Attorney work product

3. What Sort of Documents are Covered? • An example is a letter from one government department to another about a joint decision that has not yet been made. • Another example is a memorandum from an agency employee to his supervisor describing options for conducting the agency's business. • Does not cover records justifying or explaining decisions.

4. Protecting Deliberation- NLRB v. Sears, Roebuck & Co. • What does the regional office do when there is an unfair labor practices complaint it does not want to adjudicate? • The office of counsel makes the final decision in an appeal memorandum • Who does it ask for advice and what does it get? • When the regional office is considering such a request it gets an advice memorandum from counsel

5. What did Sears want? • Sears wanted documents exchanged between the NLRB counsel and the regional offices • What privilege did the NLRB claim? • Agency claimed (b)(5) agency memorandum privilege

6. Why did Sears say that Exemption 5 did not Apply? • Sears says these reflect policies already adopted by the agency and thus are not subject to this exception because they do not further agency consultation. • What is the key test? • Are the they pre-decisional documents or documents that implement or explain the decision?

7. Why do advice and appeals memos not fall under 5? • They are not sent until counsel makes its decision on not filing a complaint, and thus do not fall under 5 • What about memos which direct the filing of a claim? • They just initiate the process and are clearly part of an ongoing transaction which includes further decisionmaking and legal advice, thus they are subject to 5

8. 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 relies on them as part of the record for a ruling • If the agency then finds it cannot release them, the record for the rule would fail • The agency can protect the materials used to decide what the rule should be.

9. 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.

10. 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.

11. 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)?

12. Exemption 7.--Law Enforcement • The seventh exemption allows agencies to withhold law enforcement records in order to protect the law enforcement process from interference.

13. 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,

14. 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,

15. 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

16. Why Have This List? • This was added in 1974 • Why 1974? • The previous provision was short, but gave the government very broad discretion to withhold anything that touched on law enforcement • This list was meant to limit discretion and encourage the release of information

17. What are the Privacy Interests? • The FBI collects lots of raw info on people • Why not release it to the newspapers? • What about "rap" sheets? • Does the FBI and others strategically release information? • What about the LSU prof who was a person of interest in the anthrax case? • Should this be forbidden?

18. What is a Law Enforcement Purpose? • Remember that law enforcement agencies are also big employers with extensive non-law enforcement activities • Is this limited to criminal law? • Includes civil and administrative enforcement • What if the data was compiled for other purposes, but is now being used by law enforcement? • The original purpose does not matter • It must also met the criteria for interference

19. Example - Crime Scene Photos of Vince Foster • Foster was found shot dead in a DC park • Paper wants photos • Government claims Exemption 7 • Which element? • What is the public interest to balance against the unwarranted invasion of privacy? • What about conspiracy theories?

20. 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.

21. Exemption 9.--Geological Information • The ninth FOIA exemption covers geological and geophysical information, data, and maps about wells. • This exemption is rarely used - but LA and Texas would be good places to find it used, if anywhere.

22. 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?

23. 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.

24. 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

25. 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?

26. 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

27. 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.

28. 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

29. 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

30. 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

31. 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

32. 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?

33. 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.

34. 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?

35. Which Act Applies? • Do FOIA and the Privacy Act overlap? • Which should you cite when requesting records?

36. 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.

37. 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.

38. Privacy Act Process • This mirrors FOIA Process • We will not cover this in any more detail

39. 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. • If the government already has the information, why is computer matching a big issue? • How does TRW make this a moot issue?