Transcript Freedom of Information

FREEDOM OF INFORMATION
EXECUTIVE BRIEFING
PART II
FOIA EXEMPTIONS
• Nine exemptions
permit withholding
records.
• SSA only uses six of
these exemptions (2
through 7).
EXEMPTIONS
• Exemptions are
discretionary and do not
require withholding • interaction of some
exemptions with other
statutes may require
withholding.
DENIALS AND DELETIONS
• Agencies must specify
the amount of
information denied
and note the record at
the place of the
deletion, where
possible
Privacy Exemptions
• SSA most often
withholds information
or records because
disclosure would
affect an individual’s
privacy interests.
• Requires balancing of
privacy interests with
public interest.
EXEMPTION 6
• Personnel and medical
files and similar files
the disclosure of
which would
constitute a clearly
unwarranted invasion
of personal privacy
LAW ENFORCEMENT
• Records or
information compiled
for law enforcement
purposes, but only if
the information meets
certain conditions.
GLOMARIZATION
• Refusal to confirm or
deny the existence of
records
• Used with exemption
1, 6 or 7(C)
• Named for Howard
Hughes’ boat the
Glomar Explorer
CONFIDENTIAL BY LAW
• Specifically exempted
from disclosure by
statute
• The statute must leave
no discretion on
withholding, establish
criteria for
withholding, or refer
to particular matters to
be withheld.
EXEMPTION 4
• Trade secrets and
commercial or
financial information
obtained from a
person and privileged
or confidential
Discretionary Exemptions
• Exemptions 2 and 5
are often called
discretionary
exemptions.
• The Attorney General
often issues guidelines
with respect to their
use.
EXEMPTION 2
PERSONNEL RULES
• Related solely to the
internal personnel rules
and practices of an
agency
EXEMPTION 5
• Inter-agency or intraagency memorandums
or letters which would
not be available by law
to a party other than an
agency in litigation
with the agency
THRESHHOLD
• Documents generated
by an agency and not
circulated beyond the
executive branch
• Consider when the
document would
routinely be disclosed
in private litigation
DELIBERATIVE PROCESS
PRIVILEGE
• Deliberative process
privilege
• To prevent injury to
the quality of agency
decisions
• To encourage open,
frank discussion on
policy matters
between subordinates
and superiors
DELIBERATIVE PROCESS
PRIVILEGE
• To protect against
premature disclosure
of proposed policies
before adoption
• To protect against
public confusion that
might result from
disclosure of thoughts
that were not grounds
for agency action
FACTORS TO CONSIDER
• Nature of decision and
decision-making
process
• Status of decision and
personnel involved
• Age of information
• Process impairment
• Sensitivity of
information
ATTORNEY
WORK-PRODUCT
• Documents prepared
by an attorney in
contemplation of
litigation
• Litigation need not
actually occur
ATTORNEY-CLIENT
PRIVILEGE
• Confidential
communications
between an attorney
and his client
• Opinions given by
attorney
• Client-supplied
information
OTHER PRIVILEGES
• Trade secret or
confidential research,
development or
commercial
information generated
by the government
OTHER PRIVILEGES
•
•
•
•
Witness statements
Expert witness reports
Pre-sentence reports
Settlement
negotiations
• Critical
self-evaluations
NATIONAL SECURITY
INFORMATION
• Exemption 1
integrates national
security protections
provided by executive
order with FOIA’s
disclosure mandate.
• Currently Executive
Order 12,958 signed
by George W. Bush
March 25, 2003.
Exemption 1
• Protects from disclosure
national security
information concerning
national defense or foreign
policy that has been
properly classified in
accordance with the
requirements of the
current executive order.
Exemption 1
• As with most other
exemptions, agencies
must review records
and release segregable
non-exempt portions.
Executive Order 12,958
• Recognized the
public’s right to be
informed about
activities of
government and the
need to protect
national security
information.
Executive Order 12,958
• Information may not be
classified unless the
unauthorized disclosure of
the information reasonably
could be expected to result
in damage to the national
security, including defense
against transnational
terrorism.
Executive Order 12,958
• Covered information
categories include:
• Foreign government
information
• Vulnerabilities or
capabilities of
systems, installations,
projects, or plans
relating to national
security
Executive Order 12,958
• Covered information:
• Intelligence activities,
sources or methods
• Cryptology
• Foreign relations or
activities, including
confidential sources
• Military plans, weapons or
operations.
Executive Order 12,958
• Covered information:
• Scientific,
technological, or
economic matters
related to national
security
• Government programs
for safeguarding
nuclear materials and
facilities
Executive Order 12,958
• Information may not be
classified to:
• Conceal violations of law
or administrative error
• Prevent embarrassment
• Prevent or delay
disclosure of information
that does not require
national security
protection
Exemption 1
• Courts will usually
rely on agency
affidavits to determine
whether documents
are properly withheld.
• Courts may request in
camera inspection of
documents.
Duration of Classification
• Agencies must attempt
to establish a specific
date or event for
declassification based
on duration of national
security sensitivity.
• If that is not possible,
the default is a tenyear limit on new
classification actions.
Declassification
• Automatic
declassification of
information more than
25 years old
• Any person may
request a
declassification
review.