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How is the theme chosen for each year's National FOI Day?

The organizers, including the First Amendment Center, review the year's major developments in freedom of information issues and try to focus on the most pressing issues. For example, the 2003 theme of “FOI: Survival Strategies for an Embattled Right” was chosen to highlight some ways of addressing numerous attempts to weaken freedom of information in the preceding year.

Does the First Amendment guarantee a general 'right of access' to government information?

There is no Supreme Court case holding that the First Amendment provides such a guarantee. There is, however, a patchwork of Supreme Court and lower court decisions concerning press and public access to specific types of government-controlled information, institutions and events. In only a few matters have the courts been willing to grant an unqualified First Amendment right of access to the press or public. The Supreme Court has nevertheless recognized that freedom of the press would be “eviscerated” without some form of protection for gathering information and news. (See Branzburg v. Hayes, 1972.)

Who can file a FOIA request?

Anyone, anywhere, for any reason can request information from the government under FOIA. That includes individuals (including foreign citizens), partnerships, corporations, associations, and domestic or foreign governments (with newly enacted exceptions). However, the act does assign requesters to different categories in order to determine fees and fee waivers.

How long does it take to get information under FOIA?

Once the right agency (or component of an agency) has received a complete and perfected request, it has 20 working days to respond with its determination of whether to grant the request.

If information is denied in full or in part, the agency must give the reasons by this deadline. If it grants a request, the agency does not have to deliver the applicable documents within the time frame, but must do so promptly thereafter.

FOIA allows agencies additional time to process requests in “unusual circumstances,” including 1) the need to search for and collect records from separate offices; 2) the need to examine a voluminous amount of records required by the request; and 3) the need to consult with another agency or agency component.

Many times agencies cannot meet the time limits, owing to the complexity of the request or to a backlog of prior FOIA requests. In that case, agencies typically process requests on a first-in, first-out basis. Some agencies multitrack requests, allowing simpler requests to move through the system more quickly. Agencies sometimes expedite urgent requests if a “compelling need” is shown.

To get an idea how quickly a particular agency generally responds to its requests, see that agency’s annual FOIA report, where it describes its compliance with the time limits and the median number of days it requires to process requests. (The DOJ keeps all departments’ and agencies’ annual reports on its Web site.)

Can I request information from my congressman through FOIA?

No. The Freedom of Information Act does not cover Congress, the president or the courts.

What information cannot be obtained through FOIA?

All agency records must be made available to the public under FOIA, except:

  1. Records properly classified as secret in the interest of national defense or foreign policy.
  2. Records related solely to internal personnel rules and practices.
  3. Records specifically made confidential by other statutes.
  4. Trade secrets and commercial or financial information that is obtained from a person and is privileged or confidential.
  5. Inter-agency or intra-agency memoranda or letters, except under certain circumstances.
  6. Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
  7. Records or information compiled for law enforcement purposes, the release of which (a) could reasonably be expected to interfere with enforcement proceedings, (b) would deprive a person of a right to a fair trail or impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, (e) would disclose investigative techniques, and/or (f) could reasonably be expected to endanger the life or physical safety of any individual.
  8. Information contained in or related to certain examination, operating, or condition reports concerning financial institutions.
  9. Certain information concerning gas or oil wells.

For a detailed discussion on how these FOIA exemptions have been interpreted and defined by the courts, see the “Justice Department Guide to the Freedom of Information Act.”

To get an idea how the exemptions are used by a particular agency, see that agency’s annual FOIA report, where it tallies it use of each exemption during that year. (The DOJ keeps all departments’ and agencies’ annual reports on its Web site.)

How do you appeal a denial of information under FOIA?

If you are not satisfied with an agency’s initial response, you may file an administrative appeal. This appeal goes to the head of the agency, who will review the case and sometimes override the initial decision. Appeals can be made over denial of information, if you feel that exemptions were improperly applied, or over procedural aspects, for example if you believe there are records the agency failed to locate.

If your agency appeal is denied, you have the right to appeal the decision in federal district court. You may appeal a decision whether it is based on an exemption or on procedural aspects (e.g., an agency’s determination that a record does not exist or the fee amount it assessed). At this point in the FOIA process, most people will require the assistance of an attorney.

How can I find out more about the open-records act in my state, and file a state or local FOI request?

The Reporters Committee for Freedom of the Press publishes The Open Government Guide, a guide to each state’s open-meetings and open-records laws. Also see the Reporters Committee's FOI resources.

Similar information can be found at the Web site of the Marion Brechner Citizens Access Project.

Most states have FOI offices or officers within individual agencies, so it may be expedient to call the agency governing your area of interest.

When you know the address for the agency whose information you seek, see the Student Press Law Center's FOI request letter generator.

The Reporters Committee also has a user-friendly letter generator on its Web site. It prompts you for all relevant information about your request and drafts the letter for you, then allows you to edit it before saving or printing. You must e-mail or mail it yourself.

Must a federal agency produce records in an electronic format if asked to?

In line with 1996 amendments to the Freedom of Information Act, federal agencies must provide information in the format requested if the agency can readily produce the record in that format.

What are open-meetings laws?

Open-meetings laws are based on the principle that the development of public policy should not be conducted in secrecy. Such laws generally require that government entities meet, deliberate and act in public view so that citizens can have an active voice in policymaking.

Aren’t open-meetings laws unconstitutional? After all, don’t they infringe upon the speech of the members of governing bodies?

State courts around the nation have consistently ruled against numerous plaintiffs’ claims that open-meetings laws are unconstitutional. A few examples of such rulings include:

  • In Tennessee, the courts have held that the Open Meetings Act, by requiring that any deliberation by a governing body toward an official decision must be conducted openly, does not infringe upon the free-speech rights of members of governing bodies and does not exercise a chilling effect upon free expression. Dorrier v. Dark, 537 S.W.2d 888 (1976).

  • In Texas, a federal judge upheld the state’s open-meetings law after several city government employees challenged the law. The plaintiffs claimed that the law was unconstitutionally vague and that it violated their freedom of speech because they were barred from discussing public issues in private. U.S. District Judge Robert Junell held that the plaintiffs “failed to show that the Texas Open Meetings Act is unconstitutionally vague … in all its applications.” Jim Todd, the state’s lead attorney in this case, said Junell’s ruling “preserves the status quo. … It preserves the protections that the [Open Meetings Act] provides to the public and avoids the danger of losing those protections.” Rangra v. Brown, U.S. Dist. LEXIS 85833, 2006 WL 3327634 (W.D. Tax., 2006).

    How do states deal with violations of open-meetings laws?

    Over the past few years various states have begun to tighten their open-meetings laws so that fewer violations will result. For example, on May 3, 2005, Gov. Tom Vilsack of Iowa signed into law a bill that strictly enforces the state’s open-meetings law. Under the previous law, a public official found guilty of violating the meetings statute three times in a single term could be removed from office. The new law lowered that number to two. Those who violate the law are subject to a simple misdemeanor (up to 30 days in jail and a maximum fine of $500). Also in Iowa, the state’s Web site hosts a calendar of all public meetings on the agenda, with links to provide citizens with background and supplemental information related to a particular issue.

    Also in 2005, South Dakota Gov. Mike Rounds signed into law S.B. 62, which created a commission made up of five state’s attorneys that could reprimand those who violate the state’s open-meetings law. As a result of this new panel, prosecutors could either file charges against violators or they could send a complaint to the commission for consideration. Violations of the meetings law can be punished with a fine up to $500 and up to 30 days in jail.

    It is rare for criminal charges to be filed for open-meetings violations because of prosecutors’ reluctance to charge elected officials. In May 2005 in Texas, however, prosecutors charged and a grand jury indicted a former school board president in Upshur County for “conspiring to circumvent the Texas Open Meetings Act.” (A jury later acquitted the official.) The same week of this indictment, Texas Gov. Rick Perry signed a bill that required public officials to enroll in a course about the state’s open-meetings law. Officials must take the course within 90 days of taking office.

    Many states and municipalities are now webcasting public meetings. Can they forbid reproduction of the meeting videos by members of the public?

    It appears that there are no restrictions on reproducing videos of public meetings.

    Are city councils and similar public bodies required to have periods for public comment at meetings?

    States take different approaches to allocating time for public comments at public meetings and courts across the country have provided some guidance on this issue. Most states do not expressly require, via statutes or legal precedent, time for public participation in public meetings, although it has become a customary practice to allow individuals to speak. Often in the case of school board meetings, members of the public are required to provide notice, or to register, with the board well before the meeting to be allowed to make a comment.

    The Florida Supreme Court has recognized that public comments in open meetings are important in maintaining an open government. The court has stated that government bodies “should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doan, 224 So. 2d 693,699 (Fla. 1969). Furthermore, the Florida Code expressly provides that members of the public have a right to participate in local government meetings regarding land use, but the comment time can be regulated by the decision-making body. Fla. Stat. § 286.0115(2)(b).

    California has a statute that requires public bodies to allow for public comments at meetings. Cal. Gov. Code § 54954.3(a). A California case provides legal precedent for when a public meeting is continued to a later date for some reason. In Chaffee v. San Francisco Library Commission, 115 Cal. Rptr. 3d 336 (Cal. App. 2004), a public meeting was continued to a later date after the meeting body lost its quorum to continue. A California citizen bought suit alleging that the state sunshine laws (or open-meeting laws) required public comments at every meeting of a public body, not just a comment section on each agenda. The California Court of Appeals in the 1st Appellate District held in favor of the public body by holding that public comments are mandated only once per agenda, not once per body meeting. Allowing for public comments at each meeting regarding the same meeting would cause a “surplusage,” the court said.

    Some states, such as Wyoming, statutorily make it a right of a public body to prevent willful disruption of a meeting by removing anyone causing a disruption or by taking a recess. Wyo. Stat. § 16-4-406.

    How can I find out more about the open-meetings act in my state?

    In 2001, the Reporters Committee for Freedom of the Press published the fourth edition of its “Tapping Officials’ Secrets,” a guide to each state’s open meetings and open records laws.

    Can public officials violate state open-meetings laws by sending e-mails?

    Yes, they can, but the answer may vary depending on the particular state law and on how simultaneous the e-mail communications are. A threshold issue under a state open-meeting law is how many members it takes communicating with each other before there is a “meeting.” Another key issue is whether the e-mail messaging concerns actual policy deliberating or decision-making, or whether the e-mails are merely conveying factual information back and forth. Another important issue is whether the government officials are e-mailing each other back and forth in simultaneous fashion. For example, the Virginia Supreme Court ruled in Beck v. Shelton (2004) that e-mailing between government officials could constitute a meeting and trigger the open-meetings law, but only if the e-mails were exchanged simultaneously, such as in a chat room or through instant messaging.

    Do state open-meeting laws specifically address e-mail communications?

    Some address the issue, and others are silent on it. It varies from state to state. For instance, Tennessee’s open-meetings law contains no provision dealing with e-mail. California law provides that government officials may not conduct meetings through e-mail. Colorado’s law, on the other hand, provides that “if elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements of this section.”

    Do court transcripts fall under FOI? Can they be withheld from litigants?

    The Freedom of Information Act applies only to federal government agencies. Although all states have created their own FOI acts, these acts do not apply to the court systems. However, courts have tended to allow a right of access to court files and documents, including court transcripts. The problem that the courts have constantly faced is determining just how far the right of access reaches.

    The general rule is that if the public has access to a legal proceeding, then it has the right to access to the records of a proceeding, which include court transcripts.

    Many states’ Web sites have instructions for ordering court transcripts. For example, see Connecticut’s Judicial Branch site or Kansas’s Judicial Branch.

    Litigants in a trial have the right of access to obtain court transcripts of the trial if the public also has access. However, judges do have the authority to withhold court transcripts from the public and litigants.

    An Ohio Supreme Court decision held that the cost of obtaining a court transcript depends on who is making the request. In State ex. rel. Slagle v. Rogers, the state court held that parties to a court proceeding must pay the court reporter $2.50 per page for a transcript. Anyone who subsequently requests a court transcript must pay only 10 cents per page — the standard rate in Ohio for any public record.

    Are states making court records available electronically for the public?

    Many states have formed committees to propose initiatives and formulate policies regarding electronic access to court records. As a result of these committees’ findings, states have begun to implement procedures to allow for electronic access to court records. Most states have come to the conclusion, through committee studies, that the public should be able to access court records regardless of the medium in which they are stored.

    However, states have realized that there are additional privacy concerns when dealing with electronic access to court records. Many states respond to this by allowing electronic access only to non-confidential court records, as long as certain types of sensitive, personal information are removed from the records. This would include Social Security, credit card and financial account numbers, etc. Most states have reached the conclusion that electronic access to court records should be provided in a way that is consistent with the fundamental right of public access to court records. States have further concluded that narrowly tailored exceptions to public access are acceptable as long as states do not make broad categorical limitations as to what the public can request. Almost all states will deny the public’s access to electronic records if the state has an interest in secrecy that outweighs the public’s right of access to a particular document.

    Most states are actively working to integrate a multitude of court documents into the state’s official court Web site. For example, the Arkansas Judiciary Web site provides electronic access to docket information, state Supreme Court and appellate court decisions and court rules. The site is working to integrate court filings so that they will be available for public viewing. Another example of a state taking proactive measures regarding electronic access to court records is Texas. In addition to having a database of cases, there is a notification feature that allows an individual to sign up to receive information about changes to cases and the release of related case information.

    Some state courts have gone even further by making digital audio recordings publicly of courtroom proceedings publicly available online. The U.S. District Court in Nebraska and the U.S. Bankruptcy Court for the Eastern District of North Carolina were the first to make digital recordings publicly available on the Internet. Several more courts plan to join that movement in the coming months.

    Does the public have access to documents such as water-quality, toxic-waste and bridge-safety reports?

    The public has a great degree of access to water-quality reports thanks to the efforts of the Environmental Protection Agency. The EPA has collected information on every public drinking water system in the United States and has it stored in a database called the Safe Drinking Water Information System. Most of the information in this database is made available to the public and can be seen on the EPA’s Web site.

    The public also has a great degree of access to toxic-waste reports thanks to another EPA database called the Toxics Release Inventory, which contains information regarding toxic chemicals for communities across the nation.

    Before the collapse of the I-35 bridge in Minneapolis in early August 2007, the public had a greater range of access to bridge-safety reports from local governments. Since then, however, the Department of Homeland Security has informed states that some of the information contained within the reports might be used by people who are planning to conduct terrorist or criminal acts related to bridges. Because of this, a majority of states still fill the public’s requests for bridge information but provide a lot less information than they had previously supplied.

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