1. Freedom of
Information Act –
Federal, State, International
Gail Zwirner
October 2, 2012

2. • Recent FOIA Headlines

3. E-mails give look at Washington's inside game
BYLINE: Robert Schmidt;and Jesse Hamilton
Washington Post, September 9, 2012
It had been two days since U.S. lawmakers negotiated all night to finish rules that would reshape the
business of Wall Street. That 20-hour session left legislators, aides, lobbyists and regulators exhausted.
Almost no one had a grip on all the details. Then Annette Nazareth stepped in. That Sunday morning, she
e-mailed a dozen Securities and Exchange Commission officials about the bill that would become the
2,300-page Dodd-Frank Act.
Nazareth, herself a former SEC commissioner, represents the biggest banks and securities firms as a
partner in the Washington office of Davis Polk & Wardwell. She attached an annotated copy of the
measure to her June 27, 2010, e-mail, marking changes made during the wee hours. It could be an
invaluable tool for an agency hard-pressed to analyze the bill on a tight deadline.
"In case you would find it helpful," Nazareth wrote to the group, many of them former colleagues.
Two hours later, SEC Chairman Mary L. Schapiro responded: "Thanks. We have our work cut out for us."
Dodd-Frank, which took effect in July 2010, would shape the SEC's agenda for the next two years as it
labored to write 100 regulations the law required. It also opened opportunities for Nazareth. With her
connections and SEC experience, she emerged as the preeminent legal advocate for financial services
firms as they sought to scale back the new rules.
With Nazareth on board, Davis Polk was hired as outside counsel on Dodd-Frank by the six largest U.S.
banks and the Securities Industry and Financial Markets Association, the Wall Street trade group,
according to the law firm's Web site. The firm also performed work for foreign lenders, including Credit
Suisse Group and Deutsche Bank.
Nazareth's e-mails to Schapiro and then-SEC general counsel and senior policy director David Becker,
obtained through a Freedom of Information Act request, show how lobbyists and lawyers draw on bonds
they formed in government service to gain access for clients - and how they maintain those ties.

4. The admiral and the Duke
BYLINE: Al Kamen
Washington Post, August 29, 2012
We caught the headlines about that recent memo by Adm. William McRaven taking Special Forces troops to
task for writing books about their on-the-job exploits. The chiding missive from the head of the Special
Operations Command was clearly aimed at the Navy SEAL who's penning a book about the raid in which
Osama bin Laden was killed. . . . .
And speaking of dramatizing the bin Laden raid, more back story (that's a Hollywood-script term) is
emerging about the access the Obama administration gave to the filmmakers working on the action film
"Zero Dark Thirty.“ E-mails between CIA officials, White House aides, the filmmakers and others - which
Judicial Watch obtained through a Freedom of Information Act request and just released - are light on jaw-
dropping revelations. But the trip-over-their-feet eagerness with which the administration helped director
Kathryn Bigelow and screenwriter Mark Boal might be a tad embarrassing in the cold light of day.
One e-mail shows former CIA spokeswoman Marie Harf talking up the project, apparently to colleagues,
citing the Oscar winners involved. "I know we don't pick favorites but it makes sense to get behind a
winning horse," she wrote. Another reveals George Little, who was then the CIA director of public affairs,
gushing to Boal. "I can't tell you how excited we all are (at DOD and CIA) about the project," he wrote,
adding: "PS - I want you to know how good I've been not mentioning the premiere tickets. :-)“ At least he
didn't ask for an autograph.
The most serious breach revealed in the new batch of documents, though, didn't come from the
administration. In one string of correspondence between Harf and New York Times reporter Mark Mazzetti,
the scribe gave the flack an advance copy of a column by Maureen Dowd slated to be published Aug. 7,
2011, in which Dowd took a dim view of the administration's courting of the filmmakers. "This didn't come
from me . . . and please delete after you read," Mazzetti wrote, apparently attempting to reassure the CIA
people the column wasn't as critical as they'd feared it would be. "See, nothing to worry about!"
A New York Times spokeswoman called the incident "a mistake that is not consistent with New York Times
standards, and said in an e-mailed statement that Dowd had given the column to Mazzetti for help with
fact-checking and didn't know he shared the whole piece with CIA. Earlier, NYT editor Dean Baquet
described the apparent lapse a bit differently to Politico, saying it was "an intelligence matter."

5. Unpredictable Danger Looms Close to the Heart
BYLINE: By KATIE THOMAS
New York Times, September 8, 2012
Monsters attacked Avery de Groh when she was 4. That is how she remembers the day in
2007 when the defibrillator in her chest misfired, sending nine electric shocks through her
body in less than 30 minutes.
Today, Avery is a chatty 9-year-old who just learned to roller-skate. . . .The culprit was a
broken wire from the defibrillator that keeps her heart beating normally. Like her mother
and two brothers, she has an inherited condition that makes her prone to a fatal heart
rhythm. After Avery's episode, doctors removed the faulty wire, made by Medtronic, and
replaced it with a new one made by St. Jude Medical.
Now it is possible that one is damaged, too. The wire, or lead, known as the Riata, was
recalled in December after St. Jude warned doctors that internal cables were poking
through the outer casing, causing unwanted shocks or failing to work when needed. Nearly
20 percent of the 128,000 people worldwide who have the Riata may be affected, according
to the company. . . .
In one example of the conflicting information about the devices, St. Jude reported last
November that the problem with the Riata leads was affecting less than 1 percent of
patients. But an internal report by an F.D.A. employee that month challenged that
assessment, arguing that the company was underestimating the problem. The agency did
not publicize the report, which was obtained through a Freedom of Information Act request
and provided to The New York Times by a lawyer whose client is suing St. Jude.
The F.D.A. analysis proved to be correct: in July, a new St. Jude study found that the Riata
showed signs of failing in 19 percent of patients.

6. U-M rejected Colorado shooting suspect
BYLINE: By, David Jesse and Tony Leys
Detroit Free Press, September 1, 2012
The University of Michigan confirmed Friday that it, too, rejected James Holmes -- the
troubled graduate student who police say shot and killed a dozen people at a Colorado
movie theater -- when he applied last year.
"I can now tell you that he did apply here, for the neuroscience graduate program, and he
was not admitted," U-M spokesman Richard Fitzgerald said Friday in an e-mail to the Free
Press. He gave no further details on Holmes' application or why he was turned down.
The neuroscience program, formed in 1971 and the longest-standing neuroscience
graduate program in the U.S., is part of the Rackham Graduate School. It has 75 students
pursuing their doctorates. There are 115 faculty with ties to the neuroscience program, its
website says.
U-M wasn't the only school that rejected Holmes last year. The University of Iowa released
documents Thursday under the Freedom of Information Act about Holmes' application.
"Do NOT offer admission under any circumstances," one professor wrote about Holmes in
an e-mail to the selection committee for the neuroscience program. The professor, Daniel
Tranel, did not explain why he felt this way, but Tranel wrote much more negatively about
Holmes than the other six applicants he interviewed, the e-mail shows. Another professor,
Mark Blumberg, echoed those thoughts about Holmes. "I agree with Dan. Don't admit,"
Blumberg wrote.

7. How Not to Fire a President
BYLINE: By ANDREW RICE
New York Times, September 16, 2012
On a languorous Sunday in June, low season on the campus of the University of
Virginia, Prof. Larry Sabato opened a perplexing e-mail. ''My instant reaction,'' he said,
''was that I thought we'd been hacked.'' The message, sent to the entire university,
announced the resignation of the university's president, Teresa Sullivan, obliquely citing
a ''philosophical difference of opinion'' with the institution's governing board. Sullivan
had held the job for just two years, without any scandal, and Sabato couldn't believe
she had been pushed aside with so little evident justification. ''I said that if this was
true,'' he recalled, ''this was going to be a P.R. disaster of national proportions.'' . . . .
For months, news organizations -- from The Washington Post to the student-run
Cavalier Daily -- have been poring over records obtained through the state's Freedom of
Information Act, including thousands of pages of internal e-mail correspondence. The
documents reveal something of the university's state of mind in the months leading up
to the crisis, as administrators feuded over budgets and discontent spread among board
members. But they are, by nature, a fragmentary record: the actors were loath to put
their true feelings in writing then, nor were they eager to discuss them with reporters
now. Few of those directly involved were eager to talk to me, but many did speak,
allowing me to piece together a fuller account of the puzzling affair. As it turns out, a
''philosophical difference'' wasn't just a euphemism: it was an apt description of a clash
between two fundamentally different theories of leadership.

8. Secrecy deepening under Freedom of Information, warns watchdog
BYLINE: SCOTT MACNAB
The Scotsman, September 19, 2012
The Scottish Government has presided over an "unacceptable" erosion of the public's right to
information, with complaints about secrecy among SNP ministers almost trebling, the official watchdog
has said.
Scots now have fewer rights to know about the way public bodies operate than they did when the
Freedom of Information (FoI) Act was passed ten years ago, the report added.
The warning comes as Alex Salmond undertakes a court battle against a ruling by Information
Commissioner Rosemary Agnew to reveal whether his government has received legal advice about the
status of an independent Scotland's EU membership.
Ms Agnew hit out at the growing number of quangos and PFI (public finance initiatives) that are funded
through public cash, but exempt from FoI, as she launched her annual report yesterday. It prompted
opposition claims that the SNP is treating Freedom of Information with "utter contempt".
Ms Agnew said: "An ever-growing concern is the loss of rights occurring through the delivery of public
services by arm's-length organisations and third parties. "FoI was introduced for a reason: to ensure that
the delivery of public services and the spending of public money is transparent, open and accountable.
"It is simply not acceptable that citizens' rights continue to be eroded through complex changes in the
delivery of services. This must be looked at as an immediate priority."
Appeals against FoI decisions by public bodies have risen 24 per cent in the past year to 524. The number
of appeals against Scottish ministers jumped 40 to 110 in 2011-12. Most of these were settled without
investigation. In those cases where Ms Angew was forced to issue a ruling, 23 cases went against the
Scottish Government. A further six were partially upheld, while 15 went in favour of ministers.

9. Federal FOIA
• 5 U.S.C. § 552, 100 Stat. 3207 (1966)
• Enacted in 1966 to establish the public’s right to
obtain information from federal government
agencies
• Amended in 1974 to force greater agency
compliance
• Amended in 1996 to allow for greater access to
electronic information
• Amended in 2007 to improve agency response time
to requests and allow attorney fees

10. Legislative Intent
• Congress envisioned three roles of the
electorate for which the Act was designed
to guarantee access to government
information
• To give the public access to the government information
necessary to ensure that government officials act in the public
interest – the “watchdog function.”
• To ensure the public’s access to government information
concerning public policy.
• To ensure that the government would not secretly create or
enforce laws or administrative regulations

11. Legislative History – 1966
Act
• Congressional Reports
• S. Rep. No. 813, 89th Cong., 1st Sess. (1965) (S. 1160)
• H. Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in 1966
U.S.C.C.A.N. 2418 (S. 1160)

12. Legislative History, cont.
• Debates on S. 1160
• Considered and passed Senate, Oct. 13, 1965, 111 Cong. Rec.
26820
• Considered and passed House, June 20, 1966, 112 Cong. Rec.
13007
• Presidential Signing Statement, Pub. L. 89-487
• July 4, 1966

13. From the Presidential Signing
Statement
• “This legislation springs from one of our most essential
principles: a democracy works best when people have all the
information that the security of the nation will permit.”
--Lyndon Baines Johnson, Presidential Signing Statement of S.
1160, July 4, 1966 (Johnson opposed the legislation but signed
it anyway.)

14. Legislative History – 1974
Amendment (Privacy Act)
• Placed limitations on agencies’ collection, disclosure, and
use of personal information.
• Both FOIA and Privacy Act allow individuals to seek
access to records about themselves, known as “first-
party” access.
• Congressional Reports
• H. Rep. No. 93-876, 93rd Cong., 2d Sess. (1974), reprinted in 1974
U.S.C.C.A.N. 6267 (H.R. 12471)
• S. Rep. No. 93-854 (S. 2543)
• S. Rep. No. 93-1200, 93rd Cong., 2d Sess. (1974), reprinted in 1974
U.S.C.C.A.N. 6285 (Conference Committee)

15. Legislative History – 1974
Amendment
• Debates
• House considered and passed, 120 Cong. Rec. H1787-H1803
(March 14, 1974)
• Senate considered and passed, amendment in lieu of S. 2543,
120 Cong. Rec. S9310-S9343 (May 30, 1974)
• Senate agreed to conference report, 120 Cong. Rec. S17828-
S17830, S17971-S17972 (Oct. 1, 1974)
• House agreed to conference report, 120 Cong. Rec. H10001-
H10009 (Oct. 7, 1974)

16. Legislative History – 1974
Amendments
• President Ford’s Veto Message
• H. Doc. 93-383 (Nov. 18, 1974)
• Debate on Veto
• Preliminary House Action, 120 Cong. Rec. H10705-H10706 (Nov.
18, 1974)
• House Action and Vote on Ford Veto, 120 Cong. Rec. H10864-
H10875 (Nov. 20, 1974)
• Senate Action and Vote on Ford Veto, 120 Cong. Rec. S19806-
S19823 (Nov. 21, 1974) (veto overridden) (became Pub. L. No.
93-502)

17. Legislative History – 1976
Amendments
• As part of the Government in Sunshine Act, Exemption 3
of the FOIA was amended.
• Congressional Reports:
• H. Rep. No. 94-880, Part I, 94th Cong., 2d Sess. (1976), reprinted in
1976 U.S.C.C.A.N. 2183.
• H. Rep. No. 94-880, Part II , 94th Cong., 2d Sess. (1976), reprinted
in 1976 U.S.C.C.A.N. 2212.
• H. Rep. No. 94-1441, 94th Cong., 2d Sess. (1976), reprinted in 1976
U.S.C.C.A.N. 2244 (Conference Committee)
• Presidential Signing Statement, Pub. L. No. 94-409
• Sept. 13, 1976

18. Legislative History – 1986
Amendment
• Addressed the fees charged; part of the Anti-
Drug Abuse Act of 1986.
• Debates
• Senate Bill introduced, 132 Cong. Rec. S13648, 13660-61 (Sept.
25,1986)
• Sen. Leahy amendment and statement, 132 Cong. Rec. S14033
(Sept. 27, 1986)
• Sen. Hatch statement, 132 Cong. Rec. S14038-40 (Sept. 27, 1986)
• Sen. Denton statement, 132 Cong. Rec. S14252 (Sept. 30, 1986)

19. Legislative History, 1986
Amendments
• Senator Leahy statement, 132 Cong. Rec. S14295-300 (Sept.
30, 1986)
• Senate Technical Amendments, 132 Cong. Rec. S14277-78
(Sept. 30, 1986)
• Reps. English and Kindness statements, 132 Cong. Rec. H9462-
68 (Oct. 8, 1986)
• House approves amendments, 132 Cong. Rec. H9462-68 (Oct.
8, 1986)
• Senate amendment to House, 132 Cong. Rec. S15956 (Oct. 10,
1986)

20. Legislative History, 1986 Amendment
• Sen. Leahy-Kerry Colloquy, 132 Cong. Rec. S16496-97
(Oct. 10, 1986)
• Sen. Hatch statement, 132 Cong. Rec. A16504-05 (Oct.
15, 1986)
• House amendment to Senate amendment, 132 Cong.
Rec. H11233-34 (Oct. 17, 1986)
• House approves amendments, 132 Cong. Rec. H10787
(Oct. 17, 1986)
• Senate concurs, 132 Cong. Rec. S16921 (Oct. 17, 1986)
• Became Pub. L. No. 99-570, Title I, §§1802, 1803 (Oct.
27, 1986)

21. Legislative History – 1996
Amendment
• Amended with the Electronic Freedom of Information
Act. (E-FOIA)
• Requires that agencies submit a report to the Attorney
General on or before Feb. 1 of each year that covers the
preceding fiscal year and includes information about FOIA
operations.
• Congressional Reports:
• H. Rep. No. 104-175 (H.R. 3802) (Committee on Government
Report and Oversight)
• S. Rep. No. 104-272 (S. 1090) (Committee on the Judiciary)
• Presidential Signing Statement (Clinton), became Pub. L. No.
104-231, §§ 3-11 (Oct. 2, 1996)

22. Legislative History – 1996,
cont.
• E-FOIA provided for “expedited processing” in cases where
the requestor could show “compelling need” – failure to
obtain could pose an imminent threat to the life or safety of
an individual

23. Legislative History – 2002
Amendment
• In the wake of the 9/11 attacks, the FOIA was amended
to limit the ability of foreign agents to request records
from U.S. intelligence agencies.
• Congressional reports:
• H. Rep. No. 107-592, 107th Cong., 2d Sess. (2002), reprinted in
2002 U.S.C.C.A.N. 1500.
• Became Pub. L. No. 107-306, Title III, § 312 (Nov. 27, 2002)

24. 2005 Executive Order
• Exec. Order 13392 in December 2005 aimed at improving
agencies’ response time of disclosure of information
consistent with FOIA.
• GAO’s subsequent survey of 16 agencies:
• 9 achieved decreases in backlog
• 5 showed increases in backlog
• 2 showed no material change
• Dep’t of Homeland Security, for example, decreased backlog by
29%

25. Legislative History – 2007
Amendments
• OPEN Government Act of 2007:
• to improve the agency response time for requests
• allows attorney fees when forced to file a lawsuit to release
records
• Designated Chief FOIA Office at each agency
• Established tracking numbers for requests
• Congressional reports:
• H. Rep. No. 110-45, 110th Cong., 1st Sess. (2007)
• S. Rep. No. 110-59, 110th Cong., 1st Sess. (2007)
• Became Pub. L. No. 110-175 (Dec. 31, 2007)

26. Current 112 Congress th
• H.R. 484, Personal Privacy Clarification Act
• To clarify the intent of Congress to limit the privacy exemption to
individuals, not to corporations in section 552(b)(7)(C)
• Section 552(b)(7)(C) of title 5, United States Code, is amended by
striking `personal privacy' and inserting `the privacy of any
individual'.
• Still pending
• AT&T Inc. v. F.C.C., 582 F.3d 490 (2009), rev’d, F.C.C. v. AT&T, 131
S. Ct. 1177 (2011)

27. DOJ Activity
• Proposed rules affecting 28 C.F.R. Part 16
• 76 Fed. Reg. 15236-15244
• Critics say, if adopted, the rules will be a step back for
transparency.
• One provision would allow DOJ officials to deny the existence
of a certain type of record, even if the record exists, a policy
said to be in use since 1987 to protect the integrity of certain
undercover investigative activities. Only applies to DOJ.
• 76 Fed. Reg. 57940 extended the comment period; still
pending

28. Supreme Court
Interpretation
• U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 772 (1989)(unanimous)(Justice Stevens)
• The broad purpose of the Act is “to open agency action to the
light of public scrutiny.”
• The Act “indeed focuses on the citizens’ right to be informed
about ‘what their government is up to.’”

29. Key Documents – Attorney
General Memoranda
• Reno (“. . .in determining whether or not to defend a
nondisclosure decision, we will apply a presumption of
disclosure.”)
• http://www.justice.gov/oip/foia_updates/Vol_XIV_3/page3.htm
• Ashcroft (Oct. 12, 2001) (DOJ will defend an agency as long as
the decision rests on a “sound legal basis.”)
• http://www.justice.gov/archive/oip/foiapost/2001foiapost19.htm

30. 2005 Executive Order
• Exec. Order 13392 (70 Fed. Reg. 75373) in Dec. 2005 aimed at
improving agencies’ response time of disclosure of
information consistent with FOIA
• Required the AG (Gonzales) to review agency FOIA Improvement
Plans
• http://www.justice.gov/archive/oip/ag_report_to_president_13392.pdf
• Criticized by the National Security Archive for ignoring issues such
as staffing and funding for agencies to “bring their FOIA programs
into compliance with the law.”
• Mixed Signals, Missed Results: How President Bush’s Executive
Order on FOIA Failed to Deliver (2008), available at
• http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/eo_audit.pdf

31. Obama Administration View
of FOIA
• http://www.whitehouse.gov/the_press_office/Freedom_of_Information_
• President Obama declared FOIA “a profound national
commitment to ensuring an open Government.”

32. Obama Administration View
of FOIA
• Reversed the Bush administration on the issue of disclosure
and instructed the AG to issue new guidelines
• http://www.whitehouse.gov/the_press_office/Freedom_of_Infor
mation_Act/
• AG Holder issued on March 19, 2009, a “Memorandum for
Heads of Executive Departments and Agencies” rescinding the
2001 Ashcroft memo and described an expectation of a
presumption of disclosure.
• http://www.justice.gov/ag/foia-memo-march2009.pdf

33. Application of FOIA
• FOIA applies to Executive Branch departments, agencies
and offices, and federal corporations.
• Each agency must release identifiable records to “any
person” (individual, partnership, corporation,
association, or public or private organization other than
an agency) who requests them unless the information
requested falls within one of the act’s exemptions.
• Requestors need not divulge the reason(s) why they seek
the records. However, agencies are allowed to inquire
whether the requested record will be used for a
commercial purpose to determine the fees.
• DOJ v. Rptrs. Comm. For Freedom of the Press, 489 U.S. 749, 771
(1989)

34. Application of FOIA
• Records sought must be “reasonably described.”
• Too specific, other pertinent records might not be retrieved
• Too broad, agency may deny the request as overly broad and
therefore too burdensome to fulfill.
• Congress, the federal courts, and parts of the Executive Office
of the President that function solely to advise the President,
are not subject to FOIA.
• DOJ oversees agencies’ compliance and is the primary source
of policy guidance
• OMB issues guidelines on the uniform schedule of fees

35. Application of FOIA
• Veterans’ Affairs accounts for half of all requests (first-party
medical requests)
• Other agencies with large numbers of requests:
• FEMA (now under Homeland Security)
• CIA
• Social Security Administration

36. What kinds of records?
• All “agency records” – print documents, photographs, videos,
maps, e-mail – that were created or obtained by a Federal
agency.
• Since the 1996 amendments, the best place to get the
information about how to make a request, or to make the
actual request, is at the agency website.

37. What are the exemptions?
• § 552(b)(1): National Security Information
• § 552(b)(2): Internal Personnel Rules and Practices
• § 552(b)(3): Information exempt under other laws
• http://www.usdoj.gov/oip/annual_report/2006/06foiapg4.htm

38. Exemptions, cont.
• § 552(b)(4): Trade secrets or Confidential business
information (CBI)
• Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C.
Cir. 1983) defined “trade secret” as “a secret, commercially
valuable plan, formula, process, or device that is used for the
making, preparing, compounding, or processing of trade
commodities and that can be said to be the end product of either
innovation or substantial effort.”
• GC Micro Corp. v. Defense Logistics Agency, 33 F.2d 1109, 1112
(9th Cir. 1994) qualified CBI as (1) commercial or financial
information; (2) obtained from a person, and (3) confidential.

39. Exemptions, cont.
• § 552(b)(5): Inter or intra agency memoranda or letters which
would not be available by law to a party other than an agency
in litigation with the agency.
• “A document must satisfy two conditions: its source must be a
Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of the
Interior v. Klamath Water Users, 532 U.S. 1, 8 (2001)

40. Exemptions, cont.
• § 552(b)(6): Personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.
• An agency cannot invoke Exemption 6 to withhold so-called first-
person information – that is, information about the requester.
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 771 (1989).

41. Exemptions, cont.
• Associated Press v. U.S. Dept. of Defense, 395 F. Supp. 2d 17
(S.D.N.Y. 2005), held that alien detainees held outside the U.S. may
have a right to privacy. Press sought the names of the Guantanamo
detainees who were involved in the proceedings before the military
Tribunals created for the purpose of determining whether a given
detainee is an enemy combatant. DOD denied the request, not on
national security grounds, but in the interests of protecting the
detainees’ privacy. The DOD was ordered to submit a questionnaire
to the detainees whether or not they wanted their identifying
information released. DOD’s motion for reconsideration was denied.
Only 17 of 317 detainees, when questioned about potential
disclosure, wanted to have their identifying information kept
confidential.

42. Exemptions, cont.
• § 552(b)(7): Records or information compiled for law
enforcement purposes,” but only if the records or information
also satisfy one of six additional requirements that
production:
• Could reasonably be expected to interfere with enforcement
proceedings;
• Would deprive a person of a right to a fair trial or an impartial
adjudication;
• Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;

43. Exemptions, cont.
• Could reasonably be expected to disclose the identity of a
confidential source;
• 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
• Could reasonably be expected to endanger the life or physical
safety of any individual.
• Ferguson v. FBI, 957 F.2d 1059, 1065 (2d Cir. 1992)
(reviewing the two-step analysis).

44. Exemptions, cont.
• § 552(b)(8): Financial Institutions
• Applies to information “contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for
the use of an agency responsible for the regulation or supervision
of financial institutions.”
• Interpreted broadly to include brokers and dealers of securities.
Feshbach v. SEC, 5 F. Supp. 2d 774, 781 (N.D. Cal. 1997).

45. Exemptions, cont.
• § 552(b)(9): Geological and geophysical information and data,
including maps
• Used rarely by the EPA and the Department of the Interior for
information regarding water sources

46. What does it cost?
• Fees said to be the number one problem to FOIA
Operations. There is no direct line item for agency FOIA
operations. Few agencies adequately staff for FOIA
needs.
• Five categories of fees:
• Commercial : Companies that or people who seek information for
a use or purpose that furthers commercial, trade, or profit
interests, including for use in litigation. $$$ for search, review
and duplication costs.
• Educational Institution: Preschools, public or private elementary
or secondary schools, and institutions of graduate higher
education, undergraduate higher education, professional
education, or vocational education that operate a program of
scholarly research. $$$; first 100 pages free.

47. Fee categories
• Non-Commercial Scientific Institution: Non-
commercially operated institutions that conduct
scientific research not intended to promote any
particular product or industry. $$$; first 100 pages free.
• News Media: People who actively gather news for
entities organized and operated to publish or broadcast
news to the public. $$$; first 100 pages free.

48. Fee categories
• Other requesters: Requesters who are not commercial,
news media, scientific or educational requesters and are
required to pay search costs for more than 2 hours and
duplication costs for more than 100 pages.
• Fee waiver possible if the material “is likely to contribute
significantly to public understanding of the operations or
activities of government and is not primarily in the
commercial interest of the requester.”

49. FOIA Federal Process
• http://www.gwu.edu/~nsarchiv/nsa/foia/foia_flowchart.pdf
• Write a request
• Fax, mail or e-mail your request to the agency contact
• Receive an agency acknowledgement (within 20 days)
• Receive possible inquiry from the agency to clarify the scope
of your request or resolve issues such as fees

50. Process, cont.
• Receive within no guaranteed time frame
• Documents in full
• Documents in part
• Notice of withholding documents
• Notice of finding no responsive documents
• Appeal the process within 30-90 days
• Appeal accepted and material released or appeal denied
• Seek judicial review of an appeal

51. Examples of Agency FOIA
Pages
• Justice Department
• www.usdoj.gov/oip
• Department of the Navy
• http://Foia.navy.mil
• Department of State
• www.foia.state.gov/foiareq/foialetter.asp
• Centers for Disease Control
• http://www.cdc.gov/

52. What you can expect
• A response saying the scope of the request is too large; expect
to have to narrow your request – you will already have lost
months of time.
• Phone calls to answer questions about the search.
• Need for patience.
• Redactions

53. Do we generate more or fewer
FOIA requests? What are the
trends? collects FOIA request data and submits it to the
• Each agency
Attorney General for its Annual Report
• According to OpentheGovernment.org, the number of FOIA
requests submitted annually has increased by more than 65
thousand requests since 2004.
• Federal agencies have not kept up with the demand. Thus
more and more pending requests are being carried over from
year to year (up to 14%).
• 90% of requests are provided in full.
• http://www.foia.gov/glossary.html
• Website to create data reports by agency

54. Appeals
• Appeals can be effective to challenge successfully excessive
processing delays, fee waiver denials, and the improper full or
partial withholdings of responsive documents.
• Agency regulations vary; make sure your appeal is timely.

55. Appeals
• Letter should state the grounds for appeal and reasons why
the agency’s response was improper
• Request a more precise explanation of the agency’s decision
• Say that you expect a final ruling on the appeal within the 20-
day statutory time limit
• Sample letter
• http://www.gwu.edu/~nsarchiv/nsa/foia_requestsB.html

56. GAO Reports
• http://www.gao.gov

57. National Security Archive
Blog
• http://www.gwu.edu/~nsarchiv/nsa/foia.html

58. A State’s FOIA
• Virginia
• Va. Code Ann. §§ 2.2-3700-2.2-3714
• Recodified in 2001
• Amended in 2004 to categorize the exclusions
• http://leg1.state.va.us/cgi-bin/legp504.exe?
000+cod+TOC02020000037000000000000

59. 2012 Amendments
• A member of a public body may attend a closed meeting held
by any of the committees or subcommittees, provided such
member does not participate; minutes must reflect the
identity of such member
• Amends an existing exemption to include certain information
furnished to the AG under the Virginia Fraud Against
Taxpayers Act

60. General principles
• All public records should be open to citizen inspection
• All meetings of public bodies should be open to the public

61. Who is covered?
• “Public bodies” include:
• City and town councils
• County boards of supervisors
• Planning commissions and boards of zoning appeals
• School boards and student government entities created or
funded by school boards
• Special purpose authorities (water and sewer, industrial
development, housing and redevelopment, regional jails,
airports)

62. Who is covered?
• Committees or subcommittees of any of the above entities
• Other agencies of local government, including elected
constitutional officers
• Any corporation or organization supported wholly or
principally by public funds

63. Who is guaranteed/not guaranteed
access under the act?
• Any Virginia citizen and any non-resident media
representative who circulates or broadcasts in Virginia;
incarcerated persons are not entitled to assert rights under
the act.
• Non-Virginians (other than a reporter above) are not entitled
to enforce the act’s requirements in court.

64. What gatherings constitute
“meetings” that must be open?
• Any gathering of two or more members of a public body is a
meeting, if the members are discussing the public body’s
business.
• Includes “work sessions,” “retreats”; may including “hanging
around after a meeting”
• Meetings may be recorded
• Minutes required for every public meeting
• Act doesn’t guarantee the right to speak, just be present

65. Virginia Records Exempt
from Disclosure
• Most common types of records exempt from mandatory
disclosure include:
• Individual tax returns
• Medical records
• Scholastic records
• Personnel records
• Architectural plans, specifications, and tactical security plans for
government buildings
• Public libraries’ records of patrons and the items they borrow
• Personal information in constituent correspondence, unless the
correspondence relates to the transaction of public business
(new 2012)
• Fire/EMS cell phone numbers (new 2012)

66. FOI Advisory Council
• Created in 2000 as an advisory agency in the legislative branch
to encourage compliance with FOIA
• “Working Groups” propose amendments
• It has issued 216 opinions through July 2012
• http://dls.state.va.us/foiacouncil.htm
• The Advisory Council’s director and Staff Attorneys are UR
grads
• Governor McDonnell’s Government Reform Commission
proposed eliminating or consolidating several different state
boards and commissions, including the FOI Advisory Council

67. Collection of data?
• There is no central repository for FOIA data in Virginia.

68. Example of Virginia
Department
• Virginia Department of Transportation
• FY05-06 = 351 requests
• FY06-07 = 363 requests
• FY07-08 = 553 requests
• FY08-09 = 498 requests
• FY09-10 = 380 requests
• FY10-11 = 525 requests
• FY11-12 = 666 requests
• http://www.virginiadot.org/info/foia.asp

69. Virginia Coalition for Open
Government
• http://www.opengovva.org/

70. International
• http://freedominfo.org

71. Creating FOIA Letters
• Reporters Committee for Freedom of the Press
• http://www.rcfp.org/foi_letter/generate.php

72. Sources
• James T. O’Reilly, Federal Information Disclosure (3d ed. 2000
& Supp. 2010)
• U.S. Dept. of Justice, Freedom of Information Act Guide (2009)
• http://www.justice.gov/oip/foia_guide09.htm
• U.S. Dept. of Justice, Freedom of Information Act Annual
Report, available at http://www.usdoj.gov/oip/foia-ar.htm
• A Citizen’s Guide on Using the Freedom of Information Act
and the Privacy Act of 1974 to Request Government Records,
H. Rep. 109-226, 109th Cong., 1st Sess. (2005), available at
http://www.fas.org/sgp/foia/citizen.pdf

73. Sources
• Alan Charles Raul, Privacy and the Digital State: Balancing
Public Information and Personal Privacy (2002)
• Justin D. Franklin and Robert E. Bouchard, Guidebook to the
Freedom of Information and Privacy Acts (2008)
• P. Stephen Gidiere III, The Federal Information Manual: How
the Government Collects, Manages, and Discloses Information
under FOIA and Other Statutes (ABA 2006)

74. Sources
• Roger C. Wiley, Virginia Freedom of Information Act (2007)
• Travis McDade, A FOIA Request Can Aptly Serve a Client’s
Case, Student Lawyer, Feb. 2007, at 11.