Freedom of Information Act
Part II
1
Sunshine/Open Meeting Acts
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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?
2
State vs. Federal Law
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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.
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How do agencies try to get around
Sunshine acts?
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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
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What is a meeting?
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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?
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FCC v. ITT?
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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
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What do you tell your clients?
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Comply with notice
Do not make the decisions at the background
sessions
Clearly separate them, at least in time.
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Sanctions
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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
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Can the federal court overturn actions
because of improperly closed meetings?
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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
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Federal Advisory Committee Act (FACA)
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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
10
Separation of Powers
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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
11
Hillary Health
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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
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The Privacy Act - Access to Your Own
Records
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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.
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The Privacy Act Policy
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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?
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Which Act Applies?
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Do FOIA and the Privacy Act overlap?
Which should you cite when requesting records?
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Can You Just Ask for All of Records the
Government Has on You?
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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.
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Getting Other People’s Records
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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.
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Privacy Act Process
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This mirrors FOIA Process
We will not cover this in any more detail
18
The Computer Matching and Privacy
Protection Act of 1988
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The Computer Matching and Privacy Protection
Act of 1988 amended the Privacy Act by adding
new provisions regulating the use of computer
matching.
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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?
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