Administrative Appeals of Denials of
Documents or Fee Waivers
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A requester may appeal the denial of a request for a
document or for a fee waiver.
A requester may contest the type or amount of fees that
were charged.
A requester may appeal any other type of adverse
determination.
A requester can also appeal because the agency failed to
conduct an adequate search for the documents that were
requested.
1
Filing the Administrative Appeal
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An appeal is filed by sending a letter to the head
of the agency.
The letter must identify the FOIA request that is
being appealed.
The envelope containing the letter of appeal
should be marked in the lower left-hand corner
with the words “Freedom of Information Act
Appeal”.
2
Form of the Appeal
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An appeal will normally include the requester's
arguments supporting disclosure of the documents.
A requester may include any facts or any arguments
supporting the case for reversing the initial decision.
However, an appeal letter does not have to contain any
arguments at all.
It is sufficient to state that the agency's initial decision is
being appealed.
3
Judicial Appeal
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When an administrative appeal is denied, a
requester has the right to appeal the denial in
court.
A FOIA appeal lawsuit can be filed in the U.S.
District Court in the district where the requester
lives.
The requester can also file suit in the district
where the documents are located or in the District
of Columbia.
4
What is the Standard for Review?
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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.
5
When does the Court Defer to the
Agency?
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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).
6
How Does the Court Decide if the
Document is Exempt?
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In camera review
 This prevents the plaintiff from being able to
attack the claim because he has no information
about the documents being withheld
Vaughn list (Vaughn v. Rosen, 484 F2d 820 (1974)
 Agency must list and describe the documents
and explain why it is claiming an exemption
7
The Burden Of Justifying The Withholding
Of Documents Is On The Government
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How does this combine with de novo review to
make this proceedings complicated and
expensive for the government?
How does this lead to the Taj Mahal of unintended
consequences?
8
FOIA Exemptions
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There are 9 classes of documents that the agency
may refuse to produce
 This is a discretionary decision unless other
law further restricts disclosure
 For example, there are additional law protecting
trade secrets and classified materials
9
FOIA Exclusions - What if the Agency Does Not
Want to Admit the Document Exists?
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Ordinarily, any proper request must receive an answer
stating whether there is any responsive information, even
if the requested information is exempt from disclosure.
In some narrow circumstances, acknowledgement of the
existence of a record can produce consequences similar
to those resulting from disclosure of the record itself.
 Admitting you have a record about a confidential
informant would give away the identity
10
What if You Ask for an Excluded Record?
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The exclusions allow an agency to treat certain
exempt records as if the records were not subject to
the FOIA.
An agency is not required to confirm the existence of
three specific categories of records.
If these records are requested, the agency may
respond that there are no disclosable records
responsive to the request.
11
Glomar Response
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As you may know, a "Glomar" response is an agency's express
refusal even to confirm or deny the existence of any records
responsive to a FOIA request. This type of response was first
judicially recognized in the national security context. Phillippi v.
CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether
CIA could refuse to confirm or deny its ties to Howard Hughes'
submarine retrieval ship, the Glomar Explorer). Although the
"Glomarization" principle originated in a FOIA exemption (1) case,
it can be applied in cases involving other FOIA exemptions as well,
in particular privacy exemptions (6) and (7)(C).
A "Glomar" response can be justified only when the confirmation
or denial of the existence of responsive records would, in and of
itself, reveal exempt information. (DOJ memo)
12
Exemption 1.--Classified Documents
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The first FOIA exemption permits the withholding
of properly classified documents. Information may
be classified in the interest of national defense or
foreign policy.
The government will often refuse to confirm or
deny if the record even exists.
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Exemption 2.--Internal Personnel Rules
and Practices
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The second FOIA exemption covers matters that
are related solely to an agency's internal
personnel rules and practices.
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2 – Types of Documents Exempted
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First, information relating to personnel rules or internal
agency practices is exempt if it is a trivial administrative
matter of no genuine public interest.
Second, an internal administrative manual can be
exempt if disclosure would risk circumvention of law or
agency regulations.
In order to fall into this category, the material will
normally have to regulate internal agency conduct rather
than public behavior.
15
Exemption 3.--Information Exempt Under
Other Laws
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The third exemption incorporates into the FOIA
other laws that restrict the availability of
information. To qualify under this exemption, a
statute must require that matters be withheld from
the public in such a manner as to leave no
discretion to the agency.
IRS records are one example
16
Exemption 4.--Confidential Business
Information
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Trade secrets
Confidential business information
 The courts have held that data qualifies for
withholding if disclosure by the government would
be likely to harm the competitive position of the
person who submitted the information.
 Information may also be withheld if disclosure
would be likely to impair the government's ability to
obtain similar information in the future.
(Do not worry about the Trade Secret/Critical Mass
distinction)
17
Confidential Private Information - Chrysler
Corp. v. Brown
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What did Chrysler try to enjoin?
Does the APA create a direct right 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
18
Are trade secret protections absolute?
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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
19
Releasing Proprietary Corporate Data
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What is the key to deciding whether the data
will be released?
 Was the data is provided voluntarily or
under compulsion?
When is voluntary info covered?
 If it would not ordinarily be available to the
public
20
When is compelled info covered?
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If it would cause significant harm if not released
What are examples where Congress has
compelled disclosure?
 MSD and community notification act under EPA
Do the companies have to be notified first?
 By executive order, companies must be notified
when the agency wants to divulge their info.
21
Clinical Trial Data
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The FDA is under pressure to release clinical trial
data submitted for new drug approvals
 There are concerns that drug companies are
overstating the benefits and understating the
risks of drugs
What are the FOIA issues?
 How could the agency solve these?
22
Exemption 5.--Internal Government
Communications
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The FOIA's fifth exemption applies to internal
government documents.
An example is a letter from one government department
to another about a joint decision that has not yet been
made.
Another example is a memorandum from an agency
employee to his supervisor describing options for
conducting the agency's business.
Include lawyer client privilege
23
Protecting Deliberation- NLRB v. Sears,
Roebuck & Co.
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What does the regional office do when there is an
unfair labor practices complaint it does not want
to adjudicate?
 The office of counsel makes the final decision
in an appeal memorandum
Who does it ask for advice and what does it get?
 When the regional office is considering such a
request it gets an advice memorandum from
counsel
24
What did Sears want?
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Sears wanted documents exchanged
between the NLRB counsel and the regional
offices
What privilege did the NLRB claim?
 Agency claimed (b)(5) agency
memorandum privilege
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Why did Sears say it did not apply?
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Sears says these reflect policies already adopted
by the agency and thus are not subject to this
exception because they do not further agency
consultation.
What presidential privilege does this resemble?
 Exemption 5 mirrors the executive privilege to
not disclose certain documents in litigation
26
When does this Exemption Apply?
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To fall into the exemption, the documents must
be part of the agency decisionmaking process
What does the court want to protect?
 The courts want to protect the "frank
discussion of legal and policy matters" so
that agencies will not be completely swayed
by public opinion
What else does Exemption 5 cover?
 Exemption 5 also covers attorney work
product
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What is the key test?
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Are the they pre-decisional documents or
documents that implement or explain the
decision?
28
Why do advice and appeals
memos not fall under 5?
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They are not sent until Counsel makes its
decision on not filing a complaint, and thus do not
fall under 5
What about memos which direct the filing of a
claim?
 They just initiate the process and are clearly
part of an ongoing transaction which includes
further decisionmaking and legal advice, thus
they are subject to 5
29
What if exempt materials are used as part
of a record for a ruling?
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Materials that might be sec 5 exempt lose
their exemption if the agency relies on them
as part of the record for a ruling
If the agency then finds it cannot release
them, the record for the rule would fail
30
Exemption 6.--Personal Privacy
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The sixth exemption covers personnel, medical,
and similar files the disclosure of which would
constitute a clearly unwarranted invasion of
personal privacy.
31
Interpretation
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This exemption protects the privacy interests of
individuals by allowing an agency to withhold
personal data kept in government files.
 "which would constitute a clearly unwarranted
invasion of personal privacy"
 Allows release of info which is not so intrusive
Only individuals have privacy interests.
Corporations and other legal persons have no
privacy rights under the sixth exemption.
32
Problem
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What about personnel files of supreme court
nominees?
 Can the government withhold them even if the
person says it is OK to release them?
Tape of the last minutes of the space shuttle?
 Why would the paper want the tape when they
had the transcript?
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Exemption 7.--Law Enforcement
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The seventh exemption allows agencies to
withhold law enforcement records in order to
protect the law enforcement process from
interference.
34
Types of Interference I
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A) could reasonably be expected to interfere with enforcement
proceedings,
(B) would deprive a person of a right to a fair trial or an impartial
adjudication,
(C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on
a confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of
a criminal investigation or by an agency conducting a lawful
national security intelligence investigation, information furnished
by a confidential source,
35
Types of Interference II
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(E) would disclose techniques and procedures for
law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could reasonably be expected to risk
circumvention of the law, or
(F) could reasonably be expected to endanger the
life or physical safety of any individual
36
Why Have This List?
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This was added in 1974
 Why 1974?
The previous provision was short, but gave the
government very broad discretion to withhold
anything that touched on law enforcement
This list was meant to limit discretion and
encourage the release of information
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What is a Law Enforcement Purpose?
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Remember that law enforcement agencies are
also big employers with extensive non-law
enforcement activities
38
What are the Privacy Interests?
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The FBI collects lots of raw info on people
Why not release it to the newspapers?
What about "rap" sheets?
39
Exemption 8.--Financial Institutions
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The eighth exemption protects information that is
contained in or related to examination, operating,
or condition reports prepared by or for a bank
supervisory agency such as the Federal Deposit
Insurance Corporation, the Federal Reserve, or
similar agencies.
40
Exemption 9.--Geological Information
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The ninth FOIA exemption covers geological and
geophysical information, data, and maps about
wells.
This exemption is rarely used - but LA and Texas
would be good places to find it used, if anywhere.
41
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.
42
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?
44
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.
If the government already has the information,
why is computer matching a big issue?
45
Can You Just Ask for All of Records the
Government Has?
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There is no central index of Federal Government
records about individuals.
An individual who wants to inspect records about
himself or herself must first identify which agency
has the records.
46
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.
47
Privacy Act Process
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This mirrors FOIA Process
We will not cover this in any more detail
48
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?
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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
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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 meetings and then rubber stamp
the results
51
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?
52
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.
54
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
55
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
56
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
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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
58
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?
59