Access to Information Flashcards
what law governs this area
o governed by statutory and administrative law (we only look to the 1st Am if you are dealing with access to the courts)
what interests do we balance here
o balancing act:
one side: citizen oversight of the government (democratic governance)
other side: giving citizens unfettered access to govt docs and processes threatens other important values, such as privacy, national security, and administrative efficiency
governing rule and exemptions for FOIA (9)
governing rule: any person may request information from an agency and the agency must supply it unless the information fits within one of the exemptions
exemptions
• (1) materials to be kept secret in the interest of national defense or foreign policy in accordance with an Executive order;
• (2) materials related solely to the internal personnel rules and practices of an agency;
• (3) certain materials specifically exempted from disclosure by statute
• (4) certain trade-secret and commercial information;
• (5) certain inter-agency or intra-agency memorandums or letters;
• (6) certain personnel and medical files and similar files;
• (7) certain records or information compiled for law enforcement purposes;
• (8) record of bank examinations; and
• (9) geological info relating to oil and gas wells
notes on FOIA exemption 7
• (7) certain records or information compiled for law enforcement purposes;
o the test: could the info reasonably be expected to constitute an unwarranted invasion of personal privacy (weigh privacy interest against public interest (Favish)
o where the privacy concerns are present, the exemption requires the person requesting the info to establish a sufficient reason for disclosure:
(1) the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the info for its own sake, and
(2) the citizen must show that the info is likely to advance that interest
o it must be remembered that once there is disclosure, the info belongs to the general public
o where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure
rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred (presumption of legitimacy accorded to govt’s official conduct)
ancillary notes on FOIA
- applies to all federal govt agencies except Congress, the courts, the govt of D.C., and courts martial or the military during wartime
- contains a process for appeal to federal courts
- agencies can evade FOIA through delay/redaction
• **disclosure, not secrecy is the dominant objective of the Act
o the exemptions have been consistently given a narrow compass
o the burden is on the agency to prove that the info it wishes to withhold falls under a claimed exception
o moreover, if exempt material can be segregated from the rest of the record, the govt agency responding to the FOIA request must make available the segregated material not subject to the exception
Homeland Security Act of 2002
o Homeland Security Act of 2002: makes critical infrastructure info voluntarily submitted by businesses to federal agencies exempt from disclosure under FOIA
DoD can also decline to release photos of abuse detainees if the agency can show that their release would endanger lives
Tennessee Open Records Act (and exemptions)
o Tennessee Open Records Act: records in the possession of public agencies in Tennessee are open to perusal by the public unless they are specifically exempted by statute or case law
any citizen of Tennessee can request public records and a statement of purpose is not required
exempt:
• medical records of patients in state institutions;
• some investigative records;
• public school student records; and
• some economic development issues, such as land acquisition
what is the federal Sunshine Act and what does it govern
o federal Sunshine Act: provides that all federal agencies headed by boards of two or more persons appointed by the president (so most all agencies) hold every portion of every meeting open to the public
adequate advance notice must be given of each meeting
if some info is subject to an exemption, the agency must still provide a transcript of the non-exempt material
exemptions apply where the agency properly determines is likely to result in disclosure of specified info (similar to FOIA)
**governs access to governmental meetings
rule for access to institutions (really just prisons)
o rule (prison access): neither the 1st Am nor the 14th Am mandates a right of access to govt info or sources of info within the govt’s control – the media have no special right of access different from or greater than accorded the public generally (Houchins) here we are not talking about the right to receive ideas and info – rather, we are talking about the right of access, which is not essential to guarantee the freedom to communicate or publish
rule for access to military operations
o rule: there is no constitutionally based right for the media to embed with US military forces in combat (Flynt)
rule for a special right of access to info for the press
o rule: the 1st Am does not guarantee the press a constitutional right of special access to info not available to the public generally (Ah King)
this is where the news reporter jumped the fence at the airplane crash (applies to scenes of crime or disaster
remember, the right to speak and publish does not carry with it the unrestrained right to gather info
however, I’m assuming a state statute can grant special press rights – its just not baseline provided for in the US Constitution
rule for discriminatory access
o rule: where the White House press facilities are made publicly available as a source of info for newsmen, the White House may not deny access arbitrarily or for less than compelling reasons (Sherrill)
the WH must publish or otherwise make publicly known the actual standard employed in determining whether an otherwise eligible journalist will obtain a press pass
o **so for any discriminator limitations (based on a specific person/sex/etc.) you need (1) a compelling reason; (2) proper notice; (3) and an opportunity for opponents to be heard
3 rules for 1st Am as a barrier to access
o rule: the First Amendment does not protect the use of cameras or audio recorders in the execution chamber
o rule: the First Amendment does not protect the use of tape recorders in court
o rule: challenging disclosure requirements in the electoral context requires exacting scrutiny review
exacting scrutiny: must show a substantial relationship between the disclosure req and a sufficiently important govt interest – to withstand this scrutiny, the strength of the govt interest must reflect the seriousness of the actual burden on 1st Am rights (Reed)
