Chapter 8 - Freedom of Information and
other Open Government Laws
FOIA Materials from the Citizens Guide
States
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States follow the federal rule, but generally have
both more exceptions and a broader overall
openness mandate.
Appealing a Denial of a FOIA Request
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§ 552 a(4)(B) On complaint, the district court of the
United States in the district in which the complainant
resides, or has his principal place of business, or in
which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the
agency from withholding agency records and to order
the production of any agency records improperly
withheld from the complainant.
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.
Effect on the Courts
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What is the effect of de novo review?
Does it encourage litigation?
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).
Protecting Deliberation- NLRB v. Sears,
Roebuck & Co. - 510
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What does the regional office do when there is an
unfair labor practices complaint it does not want
to adjudicate?
Who does it ask for advice and what does it get?
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?
Why did Sears say it did not apply?
What presidential privilege does this resemble?
 Exemption 5 mirrors the executive privilege to not
disclose certain documents in litigation
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?
Where was this originally litigated?
Now we have some new cases with Clinton
 Bad cases make bad law - he should not
have fought these
What is the key test?
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Are the they pre-decisional documents or
documents that implement or explain the
decision?
 Remember the early case about finding out
what is in the secretary's head and how this
was discouraged in discovery?
What else does Exemption 5 cover?
Why do advice and appeals memos not fall
under 5?
What about memos which direct the filing of a
claim?
Rulemaking
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What if exempt materials are used as part of a
record for a ruling?
Materials that might be sec 5 exempt lose their
exemption if the agency incorporates them as part
of the record for a ruling
Cannot have it both ways
Disclosing Exempt Materials
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Even if information is exempt from
disclosure under the FOIA, the agency
still may disclose it as a matter of
administrative discretion when that
is not prohibited by any law and would not
cause any foreseeable harm.
Confidential Private Information - Chrysler
Corp. v. Brown - 519
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What did Chrysler try to enjoin?
Does the APA create a direct private right of
action 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)
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
Releasing Proprietary Corporate Data
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What is the key to deciding whether the date will be
released?
When is voluntary info covered?
 Ordinarily not available
When is compelled info covered?
 If it would cause significant harm
What are examples where Congress has compelled
disclosure? - MSDS
By executive order, companies must be notified
when the agency wants to divulge their info.
Problem
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Scientist submits grant proposal to the NIH
NIH sends it out to a peer review committee
The peer review committee evaluates and scores it
NIH makes the final determination on approval
Can rival scientists get the info in the hands of the NIH?
Key - is the grant a trade secret? (no)
Key - are their recommendations intra-agency memos?
The Sunshine and Advisory Committee
Acts – 525
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?
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, most of the
states are broader
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
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?
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
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.
Sanctions
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What sanctions can you get if 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) 529
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Why did congress pass this act?
 The feds increasingly rely on private
advisors and contractors
 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
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Does it violate separation of powers by
limiting the president's right to get advice?
What if they are all federal employees?
 Does not cover groups of only federal
employees
Hillary Health
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Was she a government employee?
Even if she claimed she was not for disclosure
purposes?
Bye Vince
What about the 800 folks who did the work as
"advisors" to the committee?