Open Gov

Question 1

What does FOIA do?

Answer 1

Requires agencies to release records that are not exempted. Presumption of disclosure.

Question 2

What are the FOIA exemptions you need to know?

Answer 2

b1 - Classified Info
b2 - Internal agency personnel rules and practices
b3 - Info exempted from disclosure by statute
b4 - Private, commercial or trade secret info.
b5 - Inter/intra agency privileged comms.
b7 - Personnel, medical, or similar files - invasion of privacy
b9 - Info related to repose for or by an agency involved in regulating financial institutions.

Question 3

What is the rule on segregability under FOIA?

Answer 3

If a record is reasonably segregable, agency must provide the non-exempt part.

Question 4

Do agencies have to release exempt material?

Answer 4

Actually, yes, unless the agency foresees that disclosure would harm an interest protected by an exemption or would violate the law. Judicially enforceable.

Question 5

How long does an agency have to decide to comply with a FOIA request?

Answer 5

20 days.

Question 6

What if agency denies a request?

Answer 6

Must explain why and inform the person of any internal appeal opportunities.

Question 7

Can agencies charge for FOIA requests?

Answer 7

Yes,
Commercial requests: for the costs of search, duplication and review. Doesn’t include costs associated with resolving policy issues.
Non-commercial: Only reasonable duplicating fees.

Question 8

Is judicial review of FOIA denials available?

Answer 8

Yes, under FOIA itself. ∆ agency has burden of proof. De novo review. Reasonable fees and costs of plaintiff if it substantially prevails.

Question 9

Who can make FOIA requests?

Answer 9

Anyone in the world except fugitives from justice lol.

Question 10

What are the requirements of a FOIA request?

Answer 10

1) Must reasonably describe the records sought.
2) Must be made in accordance with any agency rules.

Question 11

What agencies are subject to FOIA?

Answer 11

Federal agencies. Subject to some combination of federal chartering and federal funding and federal control. Not Red Cross. Not President.

Question 12

What records are subject to FOIA?

Answer 12

1) Only agency records in agency’s possession, whether created by that agency or another.

Question 13

What are agency records?

Answer 13

1) Records created or obtained by agency.
2) In control of agency at time of request.
3) Placed into the agency’s files.
4) Used by the agency “for any purpose.” Doesn’t include personal records used by a sole employee.

Question 14

What must an agency provide in a FOIA suit re denial?

Answer 14

A Vaughn index—description of document withheld and grounds for withholding. Vaughn v. Rosen

Question 15

Can unclassified information be classified after a FOIA request is made?

Answer 15

Yes. Executive order.

Question 16

What are are exempted under the internal personnel rules exemption?

Answer 16

1) Trivial, internal matters.
2) Personnel manuals/stuff relating to the internal management of the agency/hiring firing/HR stuff basically
3) NOT a surveillance training manual.

Question 17

What are the requirements for confidential business information?

Answer 17

1) Commercial or financial.
2) Obtained from entity, not generated by gov.
3) Privileged or confidential.
a) Would impair gov’s ability to obtain necessary information in the future; or
b) cause substantial harm to the competitive position of the person from who it was obtained. Nat’l Parks
Note: Information voluntarily given to gov. is confidential if it is of a kind the provider would not normally make available to pub.

Question 18

What is the purpose the inter-intra agency memoranda exemption and what does it include?

Answer 18

1) Protect the government’s deliberative process in pre-decisional stage.
Includes:
a) Deliberative process privileged material.
b) Attorney work-product.
c) Attorney-client privileged comms.
d) Confidential commercial info of the gov itself.
e) Statements made to air crash investigators.
Also, applies to external bodies engaging in the decisional process.

Question 19

How does a court determine what private information is exempted?

Answer 19

Balance between public interest in disclosing info and the private interest in maintaining confidentiality.

Question 20

What does the law enforcement exemption protect?

Answer 20

Info that would reasonably be expected to result in six listed harms.
Anything that would identify a confidential source.
Anything that would endanger anyone’s life.

Question 21

What provides the cause of action for reverse FOIA suits?

Answer 21

702 of APA - legal wrong or adversely affected by agency action.

Question 22

What are the three types of advisory committees covered under FACA?

Answer 22

1) Established by statute.
2) Established by the Prez.
3) Established by agencies.

Question 23

What committees are exempted from FACA?

Answer 23

Committees composed wholly of federal officials as long as no non federal officials can vote or veto the committee’s decisions.

Question 24

What is the normal remedy for FACA violations?

Answer 24

Court makes info generated by the agency available to the public.

Question 25

What does the Sunshine Act do?

Answer 25

Requires that multi-member independent regulatory agencies have qualifying meetings [quorum, disposition of agency business] open to the public.
Ten subject matter exemptions.

Question 26

Can Sunshine apply to a subdivision of the agency?

Answer 26

Only of the subdivision has authority to take official action for the agency and deliberates upon matters within the authority.

Question 27

Why was FACA passed?

Answer 27

1) Reduce government waste on inefficient committees.
2) Reduce special interests’ influence on public programs.

Question 28

What does FACA require?

Answer 28

1) Requires balanced membership of subject committees in terms of views represented.
2) Committees cannot meet without approval and supervision of a federal officer or employee.
3) Meetings must be noticed and open to the public.
4) Records/minutes must be kept.