Freedom of Information Act Part II

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?

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.

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

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?

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

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.

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

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

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

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

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? Cheney's energy task force

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.

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?

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

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.

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.

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

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. Does not apply to national security If the government already has the information, why is computer matching a big issue? How does Equifax make this a moot issue?