1 Office of the Information Commissioner of Canada September 28, 2010 Balancing Openness and the Public Interest In Protecting Information Vanessa R. Brinkmann Counsel, Initial Request Staff Office of Information Policy United States Department of Justice

2 Enacted in 1966, and taking effect on July 5, 1967, the US Freedom of Information Act provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.

3 The United States Supreme Court has explained that “[t]he basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

4 The “FOIA is often explained as a means for citizens to know ‘what their government is up to’” The Supreme Court stressed that “[t]his phrase should not be dismissed as a convenient formalism.” Rather, “[i]t defines a structural necessity in a real democracy.”

5 PRESIDENT OBAMA’S PRESIDENT OBAMA’S FREEDOM OF INFORMATION ACT MEMORANDUM

6 “A democracy requires accountability, and accountability requires transparency.” “A democracy requires accountability, and accountability requires transparency.”

7 Clear Presumption of Disclosure Clear Presumption of Disclosure

8 “In the face of doubt, openness prevails.” openness prevails.” “In the face of doubt, openness prevails.” openness prevails.”

9 Information should not be kept confidential merely because: - officials might be embarrassed, - officials might be embarrassed, - errors and failures might be - errors and failures might be revealed, or revealed, or - because of speculative or - because of speculative or abstract fears. abstract fears. Information should not be kept confidential merely because: - officials might be embarrassed, - officials might be embarrassed, - errors and failures might be - errors and failures might be revealed, or revealed, or - because of speculative or - because of speculative or abstract fears. abstract fears.

10 “Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.” “Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

11 ATTORNEY GENERAL HOLDER’S FREEDOM OF INFORMATION ACT MEMORANDUM

12 The Attorney General’s FOIA Guidelines were written to underscore our nation’s “fundamental commitment to open government.” The Attorney General’s FOIA Guidelines were written to underscore our nation’s “fundamental commitment to open government.”

13 The Attorney General The Attorney General “strongly encourage[s] agencies to make discretionary disclosures of information.” “strongly encourage[s] agencies to make discretionary disclosures of information.” The Attorney General The Attorney General “strongly encourage[s] agencies to make discretionary disclosures of information.” “strongly encourage[s] agencies to make discretionary disclosures of information.”

14 The Attorney General made agencies more accountable by directing agency Chief FOIA Officers to report to him annually on steps taken to improve FOIA operations.

15 Agencies will now be defended Agencies will now be defended “only if “only if (1) the agency reasonably foresees that disclosure would harm an that disclosure would harm an interest protected by one of the interest protected by one of the statutory exemptions, or statutory exemptions, or (2) disclosure is prohibited by law.” law.” Agencies will now be defended Agencies will now be defended “only if “only if (1) the agency reasonably foresees that disclosure would harm an that disclosure would harm an interest protected by one of the interest protected by one of the statutory exemptions, or statutory exemptions, or (2) disclosure is prohibited by law.” law.”

16 Combined impact of these two memos is to usher in the new era of open Government. Combined impact of these two memos is to usher in the new era of open Government.

17 At the same time, the Attorney General recognized that the disclosure obligation of the FOIA is not absolute.

18 The FOIA provides exemptions to protect, for example, national security, law enforcement, privileged records, and personal privacy.

19 The challenge for government officials is to achieve the greatest possible disclosure, while appropriately protecting these important interests.

20 As the United States Supreme Court has recognized, Congress sought to achieve “a workable balance between the right of the public to know and the need of the Government” to protect certain information.

21 In the United States, ninety-four agencies are subject to the FOIA.

22 In Fiscal Year 2009, 557,825 requests were made.

23 Of the requests that were processed, ninety-four percent resulted in the release of some or all the requested information.

24 The FOIA exemption cited the most often was Exemption 6, which protects personal privacy.

25 The second most cited exemption was Exemption 7(C), which also protects personal privacy.

26 The next most cited exemptions were Exemption 5, which protects privileged information, and Exemption 2, which protects purely internal agency practices.

27 Exemption 1, which protects classified national security information, was asserted in only a small fraction of agency withholdings.

28 EXEMPTIONS 6 & 7(C) The Personal Privacy Exemptions Personal information may be protected from disclosure under Exemptions 6 and 7(C). The exemptions are slightly different, but the following analysis is used for both exemptions: –Step 1. Threshold satisfied? –Step 2. Privacy interest implicated? –Step 3. “FOIA public interest” in disclosure? –Step 4. Balancing interests.

29 Privacy Interest Privacy encompasses an “individual’s Privacy encompasses an “individual’s control of information concerning his control of information concerning his or her person.” or her person.” Information need not be intimate Information need not be intimate or embarrassing to qualify for or embarrassing to qualify for protection. protection.

30 “FOIA public interest” What is it? What’s a FOIA public interest? –It’s not necessarily what’s of general interest to the public. –Disclosure of the information must serve the “core purposes” of the FOIA, to “shed light on an agency’s performance of its statutory duties.” DOJ v. Reporters Committee. The agency’s conduct, not the personal conduct of individuals is relevant.

31 Balance the Interests Balancing ■ If there is a privacy interest and a FOIA public interest in disclosure: public interest in disclosure: - Accord each interest a measure of value, and value, and - Balance them to determine which is greater. greater.

32 EXEMPTION 5 Privileged Government Information Information exchanged within and between agencies may be protected if it falls within a legal privilege The most frequently cited privileges under Exemption 5 are: Deliberative Process Privilege Attorney Work-Product Privilege Attorney-Client Privilege Presidential Communications Privilege

33 Exemption 5 holds the greatest promise for increased discretionary releases.

34 EXEMPTION 2 Internal Agency Practices Applies to predominately internal information Exemption 2 has two distinct elements: –“Low 2”: trivial information –“High 2”: disclosure would risk circumvention of an agency statute or regulation

35 “Low 2” is the exemption most clearly affected by the Attorney General’s FOIA Guidelines, but “high 2” may also be appropriate for discretionary release.

36 Balance the Interests Whenever a governmental interest is at issue – as with Exemptions 2 and 5 – agencies weigh the government’s interest in protection against the public’s right to know what their government is doing.

37 Balance the Interests The most common government interests are national security, law enforcement, and the need for a free exchange of ideas among agency personnel. In considering whether protectable information may be released, agencies consider a variety of factors, including the age and content of documents.

38 Making Information Available in New Ways One of the core tenets of the Attorney General’s Guidelines is that agencies should find new ways to make information available to the public Agencies have successfully achieved this goal through a variety of methods, including: – Using technology and social media – Posting more information online – Modifying or reformulating information to make it releasable

39 By employing a balancing of interests, where personal privacy, government privileges, and national security are weighed against any public interest in disclosure, agencies in the United States work each day to increase transparency without hindering vital government processes. Conclusion

40 By developing new ways to provide information that otherwise wouldn’t be released, agencies in the United States have found dynamic ways to inform the public about government operations. Conclusion