Freedom of Information Act

1. Freedom of Information Act Balancing the right to know and privacy rights in the computer age

2. FOIA passed in 1966 Rumsfeld (right, with Cheney) was a big supporter of FOIA as a young congressman

3. Provisions of FOIA • Applies to entire executive branch of the federal government

4. Provisions of FOIA • Applies to entire executive branch of the federal government • Does not apply to the president or his immediate staff

5. Provisions of FOIA • Applies to entire executive branch of the federal government • Does not apply to the president or his immediate staff • Does not apply to Congress or the judiciary

6. Exemptions 1. National security

7. Exemptions 3. Laws that forbid the release of certain information, such as tax returns

8. Exemptions 5. Internal agency memos and policy discussions

9. Exemptions 6. Personal privacy

10. Exemptions 7. Information compiled for law-enforcement purposes

11. Exemptions 7. Information compiled for law-enforcement purposes 7(c) “… only to the extent that the production of such [materials] … could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

12. Using FOIA • First, try the informal route • Good examples near end of Chapter 6 • FOIA letter-generator is at: • www.rcfp.org/foi_letter/generate.php

13. Department of Justice v. Reporters Committee (1989) • Shows how computers have changed attitudes regarding public records

14. Department of Justice v. Reporters Committee (1989) • Shows how computers have changed attitudes regarding public records • In 1978 Robert Schakne of CBS News sought rap sheets of Medico family, tied to corrupt Pennsylvania congressman, Daniel Flood

15. Department of Justice v. Reporters Committee (1989) • Shows how computers have changed attitudes regarding public records • In 1978 Robert Schakne of CBS News sought rap sheets of Medico family, tied to corrupt Pennsylvania congressman, Daniel Flood • Department of Justice said “no”

16. Judge Laurence Silberman • Public records should be available to the public

17. Judge Laurence Silberman • Public records should be available to the public • Must assume it’s for the public good

18. Judge Laurence Silberman • Public records should be available to the public • Must assume it’s for the public good • FOIA is for everyone, not just the press

19. Justice John Paul Stevens • Reverses Silberman, finds that not all public records must be disclosed

20. Justice John Paul Stevens • Reverses Silberman, finds that not all public records must be disclosed • Vote is 9-0

21. Justice John Paul Stevens • Reverses Silberman, finds that not all public records must be disclosed • Vote is 9-0 • Makes two key findings

22. Invasion of privacy • Just because rap sheets are public records doesn’t mean they’re easily available

23. Invasion of privacy • Just because rap sheets are public records doesn’t mean they’re easily available • Reporters Committee takes “a cramped notion of personal privacy”

24. Invasion of privacy • Just because rap sheets are public records doesn’t mean they’re easily available • Reporters Committee takes “a cramped notion of personal privacy” • “Vast difference” between scattered records and a computerized compilation

25. An unwarrantedinvasion of privacy • What is the purpose of the FOIA?

26. An unwarrantedinvasion of privacy • What is the purpose of the FOIA? • An invasion of privacy may be warranted if it sheds light on the actions of the government

27. An unwarrantedinvasion of privacy • What is the purpose of the FOIA? • An invasion of privacy may be warranted if it sheds light on the actions of the government • An invasion of privacy is unwarranted if it merely sheds light on the actions of an individual

28. Jane Kirtley of RCFP • “It says that today something may be a public document but tomorrow it’s not because it’s on a computer tape” • ACLU on the other side

29. Miller v. NBC (1986) • An access case and a privacy case

30. Miller v. NBC (1986) • An access case and a privacy case • Television crew accompanied rescue workers and shot footage of Dave Miller as he lay dying on the floor

31. Miller v. NBC (1986) • An access case and a privacy case • Television crew accompanied rescue workers and shot footage of Dave Miller as he lay dying on the floor • California Court of Appeal more offended by trespass than broadcast

32. Miller v. NBC (1986) • An access case and a privacy case • Television crew accompanied rescue workers and shot footage of Dave Miller as he lay dying on the floor • California Court of Appeal more offended by trespass than broadcast • Strong protection for publication; weak protection for newsgathering. Why?

33. Houchins v. KQED (1978) • Television station sues for access to jail following an inmate suicide

34. Houchins v. KQED (1978) • Television station sues for access to jail following an inmate suicide • KQED cites Branzburg’s suggestion that newsgathering has some protection

35. Houchins v. KQED (1978) • Television station sues for access to jail following an inmate suicide • KQED cites Branzburg’s suggestionthat newsgathering has some protection • U.S. Supreme Court rules against KQED

36. Houchins v. KQED (1978) • Television station sues for access to jail following an inmate suicide • KQED cites Branzburg’s suggestionthat newsgathering has some protection • U.S. Supreme Court rules against KQED • Is this surprising in light of California First Amendment Coalition v. Woodford?