Newsgathering: Access to Meetings & Records

Access and the First Amendment

How has the U.S. Supreme Court responded to claims that the First Amendment guarantees journalists a right of access to government information?

The Prison Access Cases

Pell v. Procunier

&

Saxbe v. Washington Post

, 1974

“Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.”

Houchins v. KQED

, 1978

There is no “First Amendment guarantee of a right of access to all sources of information within government control.”

Federal Freedom of Information Act (FOIA)

Any person shall have access to all records of all federal agencies.



Any person

. Journalists have no greater access rights than others. You need not be a U.S. citizen to request records.



All records

. Not information. No right to interview or obtain oral information from a government official. Records consist of items that can be copied or reproduced, not physical objects.

Federal Freedom of Information Act (FOIA)

(continued)

Any person shall have access to all records of all federal agencies.



All agencies

. FOIA does NOT apply to the courts, Congress or President and his personal advisers. It does apply to all executive branch departments, including all cabinet departments (Defense, Justice, Education, etc.), all federal law enforcement agencies (FBI, CIA, etc.), all military departments (Army, Navy, etc.), all government controlled corporations (Amtrak, U.S. Postal Service, etc.), and all independent regulatory agencies (FTC, FCC, NLRB, etc.)

FOIA Request Procedures

 Initial request to the agency FOIA officer: 20 working days to respond. “Unusual circumstances” can delay response.  First appeal to the agency head (Attorney General, Secretary of the Navy, FBI Director, etc.)  If agency head denies appeal, next appeal is to U.S. District Court. The burden of justifying withholding of the document rests with the agency.

 Agencies can charge for search times and copies. If the disclosure of the record is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government,” fees are supposed to be waived or reduced.

Electronic Freedom of Information Act, 1996 (EFOIA)

Enacted to guarantee access to records maintained in



computer databases.

Requires: Agencies to make important records — such as regulations, opinions and policy statement — available online and in electronic formats.

 Agencies to provide records in the format desired by the requester whenever possible.

 Expedited access (within 10 days) when 1. the requester demonstrates a “compelling need”; 2. delay poses a threat to a person’s life or safety; 3. the person seeking the record is “primarily engaged in disseminating information” and can show “an urgency to inform the public concerning actual or alleged federal government activity.”

FOIA Exemptions

Agencies may (notice: not must) the following categories: refuse to release records that fit in 1.

2.

3.

National security: Properly classified documents the release of which would endanger national security.

Internal personnel rules and practices: Documents relating solely to the internal personnel practices of an agency, e.g., sick leave procedures, parking regulations. Statutory exemptions: More than 100 other federal statutes designate certain records as confidential.

4.

Trade secrets and other confidential business or financial information that businesses must submit to the government.

FOIA Exemptions

(continued)

5.

6.

7.

8.

9.

Pre-decisional inter- and intra-agency memoranda: Protects working documents.

Personnel, medical or similar records if the disclosure of such files “would constitute a clearly unwarranted invasion of personal privacy.” Courts must decide if an invasion of privacy would be Law enforcement records if their release would 1) interfere with law enforcement proceedings, 2) interfere with someone’s right to a fair trial, 3) constitute an unwarranted invasion of personal privacy, 4) disclose the identity of confidential sources, 5) reveal law enforcement techniques, 6) endanger lives.

Banking reports.

Geological and geophysical records about oil, gas and water wells.

Other Federal Laws Affecting Access to Information

Federal Open Meetings (Sunshine) Act

 Requires open meetings of about 50 executive branch agencies that are headed by boards or commissions of 2 or more members, e.g., the FCC, FTC, NLRB, SEC.  10 exemptions, most of which parallel FOIA exemptions.

 Most observers agree it is not a very useful or effective law, easily avoided.

Other Federal Laws Affecting Access to Information

Federal Advisory Committee Act (FACA)

 Requires open meetings of citizen advisory bodies and public access to reports, transcripts and other records.

 Also not considered especially effective.

Other Federal Laws Affecting Access to Information

Drivers Privacy Protection Act

 Prohibits states from releasing personal information from drivers’ records, including name, address, phone number and Social Security number.

 Constitutionality upheld by the U.S. Supreme Court

Other Federal Laws Affecting Access to Information

Family Education Rights and Privacy Act/Buckley Amendment (FERPA)

 Permits parents to see their children’s educational records — and students 18 and over to see their own records.

 Prohibits schools from releasing educational records except for directory information.  Does not apply to campus crime records.