Administrative Appeals of Denials of Documents or Fee Waivers

1. Administrative Appeals of Denials of Documents or Fee Waivers • A requester may appeal the denial of a request for a document or for a fee waiver. • A requester may contest the type or amount of fees that were charged. • A requester may appeal any other type of adverse determination. • A requester can also appeal because the agency failed to conduct an adequate search for the documents that were requested.

2. Filing the Administrative Appeal • An appeal is filed by sending a letter to the head of the agency. • The letter must identify the FOIA request that is being appealed. • The envelope containing the letter of appeal should be marked in the lower left-hand corner with the words “Freedom of Information Act Appeal”.

3. Form of the Appeal • An appeal will normally include the requester's arguments supporting disclosure of the documents. • A requester may include any facts or any arguments supporting the case for reversing the initial decision. • However, an appeal letter does not have to contain any arguments at all. • It is sufficient to state that the agency's initial decision is being appealed.

4. Judicial Appeal • When an administrative appeal is denied, a requester has the right to appeal the denial in court. • A FOIA appeal lawsuit can be filed in the U.S. District Court in the district where the requester lives. • The requester can also file suit in the district where the documents are located or in the District of Columbia.

5. 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.

6. 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).

7. How Does the Court Decide if the Document is Exempt? • In camera review • This prevents the plaintiff from being able to attack the claim because he has no information about the documents being withheld • Vaughn list (Vaughn v. Rosen, 484 F2d 820 (1974) • Agency must list and describe the documents and explain why it is claiming an exemption

8. The Burden Of Justifying The Withholding Of Documents Is On The Government • How does this combine with de novo review to make this proceedings complicated and expensive for the government? • How does this lead to the Taj Mahal of unintended consequences?

9. FOIA Exemptions • There are 9 classes of documents that the agency may refuse to produce • This is a discretionary decision unless other law further restricts disclosure • For example, there are additional law protecting trade secrets and classified materials

10. FOIA Exclusions - What if the Agency Does Not Want to Admit the Document Exists? • Ordinarily, any proper request must receive an answer stating whether there is any responsive information, even if the requested information is exempt from disclosure. • In some narrow circumstances, acknowledgement of the existence of a record can produce consequences similar to those resulting from disclosure of the record itself. • Admitting you have a record about a confidential informant would give away the identity

11. What if You Ask for an Excluded Record? • The exclusions allow an agency to treat certain exempt records as if the records were not subject to the FOIA. • An agency is not required to confirm the existence of three specific categories of records. • If these records are requested, the agency may respond that there are no disclosable records responsive to the request.

12. Glomar Response • As you may know, a "Glomar" response is an agency's express refusal even to confirm or deny the existence of any records responsive to a FOIA request. This type of response was first judicially recognized in the national security context. Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes' submarine retrieval ship, the Glomar Explorer). Although the "Glomarization" principle originated in a FOIA exemption (1) case, it can be applied in cases involving other FOIA exemptions as well, in particular privacy exemptions (6) and (7)(C). • A "Glomar" response can be justified only when the confirmation or denial of the existence of responsive records would, in and of itself, reveal exempt information. (DOJ memo)

13. Exemption 1.--Classified Documents • The first FOIA exemption permits the withholding of properly classified documents. Information may be classified in the interest of national defense or foreign policy. • The government will often refuse to confirm or deny if the record even exists.

14. Exemption 2.--Internal Personnel Rules and Practices • The second FOIA exemption covers matters that are related solely to an agency's internal personnel rules and practices.

15. 2 – Types of Documents Exempted • First, information relating to personnel rules or internal agency practices is exempt if it is a trivial administrative matter of no genuine public interest. • Second, an internal administrative manual can be exempt if disclosure would risk circumvention of law or agency regulations. • In order to fall into this category, the material will normally have to regulate internal agency conduct rather than public behavior.

16. Exemption 3.--Information Exempt Under Other Laws • The third exemption incorporates into the FOIA other laws that restrict the availability of information. To qualify under this exemption, a statute must require that matters be withheld from the public in such a manner as to leave no discretion to the agency. • IRS records are one example

17. Exemption 4.--Confidential Business Information • Trade secrets • Confidential business information • The courts have held that data qualifies for withholding if disclosure by the government would be likely to harm the competitive position of the person who submitted the information. • Information may also be withheld if disclosure would be likely to impair the government's ability to obtain similar information in the future. • (Do not worry about the Trade Secret/Critical Mass distinction)

18. Confidential Private Information - Chrysler Corp. v. Brown • What did Chrysler try to enjoin? • Does the APA create a direct right 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

19. 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

20. Releasing Proprietary Corporate Data • What is the key to deciding whether the data will be released? • Was the data is provided voluntarily or under compulsion? • When is voluntary info covered? • If it would not ordinarily be available to the public

21. When is compelled info covered? • If it would cause significant harm if not released • What are examples where Congress has compelled disclosure? • MSD and community notification act under EPA • Do the companies have to be notified first? • By executive order, companies must be notified when the agency wants to divulge their info.

22. Clinical Trial Data • The FDA is under pressure to release clinical trial data submitted for new drug approvals • There are concerns that drug companies are overstating the benefits and understating the risks of drugs • What are the FOIA issues? • How could the agency solve these?

23. Exemption 5.--Internal Government Communications • The FOIA's fifth exemption applies to internal government documents. • 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. • Include lawyer client privilege

24. 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

25. 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

26. Why did Sears say it 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 presidential privilege does this resemble? • Exemption 5 mirrors the executive privilege to not disclose certain documents in litigation

27. 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? • Exemption 5 also covers attorney work product

28. What is the key test? • Are the they pre-decisional documents or documents that implement or explain the decision?

29. 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

30. 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

31. 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.

32. 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.

33. Problem • What about personnel files of supreme court nominees? • Can the government withhold them even if the person says it is OK to release them? • Tape of the last minutes of the space shuttle? • Why would the paper want the tape when they had the transcript?

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

35. 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, • (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,

36. Types of Interference II • (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

37. 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

38. What is a Law Enforcement Purpose? • Remember that law enforcement agencies are also big employers with extensive non-law enforcement activities

39. 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?

40. 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.

41. 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.

42. 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.

43. 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?

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

45. 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?

46. Can You Just Ask for All of Records the Government Has? • There is no central index of Federal Government records about individuals. • An individual who wants to inspect records about himself or herself must first identify which agency has the records.

47. 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.

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

49. 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?

50. 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