Chapter 8 - Freedom of Information and other Open Government Laws

1. Chapter 8 - Freedom of Information and other Open Government Laws

2. FOIA Materials from the Citizens Guide

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

4. 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.

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. Effect on the Courts • What is the effect of de novo review? • Does it encourage litigation?

7. 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).

8. 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?

9. 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

10. 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

11. 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?

12. 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

13. 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.

14. 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)

15. 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

16. 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.

17. 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?

18. The Sunshine and Advisory Committee Acts – 525

19. 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?

20. 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

21. 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

22. 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?

23. 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

24. 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.

25. 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

26. 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

27. 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

28. 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?