Access to Information Chapter 7 1

The Supreme Court and the Right to Hear  Bd. of Educ. v. Pico  Stanley v. Georgia  Kleindeist v. Mandel Chapter 7Access to Information2

No constitutional right to gather news  Stewart speech at Yale Law School--  First Amendment is “neither a Freedom of Information Act nor an Official Secrets Act.” Chapter 7Access to Information 3

What about Hidden Cameras? Chapter 7Access to Information4

Military access issues Military bases Reporters embedded in combat zones Chapter 7Access to Information 5

A limited “equal protection” claim Chapter 7Access to Information 6 Honolulu mayor Frank Fasi could not bar specific reporters from press conferences

A limited “equal protection” claim Chapter 7Access to Information 7 Same true of Toledo mayor Carty Finkbeiner

A limited “equal protection” claim Chapter 7Access to Information 8 Same rule applied to Jefferson Parish (LA) sheriff Harry Lee

A limited “equal protection” claim Chapter 7Access to Information 9 But MD governor Robert Ehrlich did not have to return disfavored reporters’ calls

A right to hear from criminals and bureaucrats?  Simon & Schuster v. NYS Crime Victims Board (1991).  Struck down NYS Son of Sam law  U. S. v. NTEU (1995).  Struck down portions of Ethics Reform Act  Both cases emphasize public interest Chapter 7Access to Information10

Chapter 7Access to Information11

Chapter 7Access to Information12

Chapter 7Access to Information13 A right to videotape police conduct (Simon Glik case)

Federal FOIA  Hundreds of thousands of requests annually  Hundreds of resulting court cases Chapter 7Access to Information 14

FOIA and Statutory Construction  Is this an agency? A record? An “agency record?”  Does this exemption apply here? Chapter 7Access to Information 15

What is an “Agency?”  Includes:  Executive Departments  Military Departments  Govt and Govt- controlled corporations  Excludes  President, Congress, Federal Judiciary and staff  Advisors Chapter 7Access to Information 16

What is a record?  Need not be paper  Can be audio/video tape, computer data, etc Chapter 7Access to Information 17  Created or Obtained  Physical Location Unimportant

Making an FOIA request  Locate appropriate agency’s FOI officer Chapter 7Access to Information 18  Make specific request  Eligible for fee waiver?

Be prepared to appeal  Refusal  Redactions  Vaughn Index  Glomar Response Chapter 7Access to Information 19

Exemptions Chapter 7Access to Information 20

Exemption 1: National Security  Varies with each Administration’s style  Judges may use in camera inspection Chapter 7Access to Information 21

Exemption 1 used often in terrorism cases Chapter 7Access to Information22

Exemption 2: Internal Agency Personnel Rules  Protects relatively trivial matters  UPDATE (after book was published)– No more “High 2” (“records whose disclosure would risk circumvention of the law”) Chapter 7Access to Information23

Exemption 3: “We bow down to other laws” Sometimes called the ‘catch all” exemption  A ‘dance of deference’ often happens  Privacy Act very often implicated Chapter 7Access to Information 24

Exemption 4: Confidential Commercial Information Chapter 7Access to Information 25  Involuntary disclosure = National Parks test  Difficult to get this info in future?  Fair to company involved?  Voluntary Disclosure = Critical Mass test  Substitute for 2 nd bullet: “would a company “customarily reveal” this info to the public?

Exemption 5: Internal Policy Discussions  Includes the “working papers” exemption  Also allows agencies to consult with their own attorneys Chapter 7Access to Information 26

Exemption 6: Personnel, Medical and Similar files  Is this such a file?  “Similar” hard to define  Unwarranted invasion of privacy? Chapter 7Access to Information 27 Challenger astronauts John Walker Lindh

Exemption 7: Law Enforcement  Interference with law enforcement proceedings  Jeopardizing fair trial  Invasion of privacy  Disclosing confidential source  Revealing techniques  Endangering life or health Chapter 7Access to Information 28

Exemption 7: Law Enforcement Chapter 7Access to Information 29 Its privacy provision may apply to surviving family

(but not to the tort law of privacy) Chapter 7Access to Information 30 Showler v Harper’s Magazine Foundation

Exemption 7: Law Enforcement Chapter 7Access to Information 31 Its privacy provision does NOT apply to corporations

Exemption 7: Law Enforcement Chapter 7Access to Information 32 Circuits conflict on whether mug shots are private

Exemptions 8 and 9  Financial Institutions Chapter 7Access to Information 33  Geological & Geophysical data

Government in the Sunshine Act  Covers meetings rather than files Chapter 7Access to Information 34  The group must have policy making authority  “Meetings” can be quite informal  Restrictions on executive sessions  Exemptions mirror FOIA

Federal Advisory Committee Act  Fills in some gaps of the Sunshine Act  Designed to open up meetings of groups composed of private citizens  These groups were NOT covered:  Hillary Clinton’s Health Care Reform  Presidential Legal Expense Trust  Cheney’s National Energy Policy Development Group Chapter 7Access to Information35 Bill & Hillary with the Health Care Task Force (1993)

State FOIA’s  All 50 states plus DC Chapter 7Access to Information 36

State FOIA’s Chapter 7Access to Information 37  Out-of-State requestors (Sup Ct ruling)

State FOIA’s Chapter 7Access to Information 38  Government job candidates

State FOIA’s Chapter 7Access to Information 39  Civil Service test scores

State FOIA’s Chapter 7Access to Information 40  Use of outside contractors

State Open Meetings Laws  Majority of these predate federal law  Federal law is modeled after the law in Florida Chapter 7Access to Information 41

State Open Meetings Laws Chapter 7Access to Information 42 Not a violation of First Amendment Criminal sanctions OK’d for violations

When is a group covered?  Created by statutory or constitutional provisions? Chapter 7Access to Information 43  Are most members public officials?  Are public funds used ?  Does the group make policy?  Does it perform govt. functions?

Officials try to skirt the laws Chapter 7Access to Information44 “Spontaneous” meetings Serial Communication Improper use of executive sessions