I. Public Access to Government Records
A. FREEDOM OF INFORMATION ACT (1966) (p 1136 – 1149)
1. Pre-FOIA History
(a) Other Information acts/provisions
i. Federal Register Act of 1935
Ø required publication of all generally applicable agency regulations
Ø unpublished reg ineffective unless actual knowledge
Ø did not require non-reg publication (i.e. agency opinions, procedures, delegations, investigative reports, etc.
ii. Administrative Procedure Act § 3
Ø called a “public information provision”
Ø contained a lot of vague exceptions “in the public interest, etc”
Ø allowed access only to persons “properly and directly concerned”
Ø no judicial remedy for gov’t failure to disclose
(a) PURPOSE: To compel federal officials to disclose information not subject to subpoena during litigation.
(b) No support from any federal agencies
(c) Essentially rewrote § 3 of APA
i. sections (a)(3)-(5) and (b)-(c) establish expansive rights of public access to all agency records not specifically identified
ii. details the kinds of docs (even, e.g. internal staff instructions) that agencies must index and have available for inspection.
(d) Core provisions
i. 5 U.S.C. §552(a)(3): command that federal agencies make “records promptly available to any person”
ii. §552(a)(4)(b) confers jurisdiction to order production of agency records (threshold question) improperly held
3. Post-Enactment Amendments and History
(a) Resistance and obstruction from administrative agencies
(b) Amended in 1974 over Ford’s veto
i. tightened some exemptions
ii. details of administration and enforcement
(c) Amended 1996 (Electronic FOIA) to clarify storage of electronic info and Internet requirements
i. When exemptions are claimed
Ø in camera inspections have been used
· time consuming and inquisition-like
Ø can also appoint special master
Ø “Vaughan indexes” for huge records with detailed justification for
2: Wm. Safire request for records from when Kiss. was Ass’t. to the Pres. or where he discussed “leaks.”
v. HELD2: 1. Those records are not “agency records.”
vi. REASON2: Exec. Office of the President is defined as an agency, but res’s personal staff in the Exec. Office are exempted in a House Conf. Report for the 1974 amendments. Mere removal of records to State Dept. by Kissinger when he trxfrrd not sufficient to “make” them agency records.
vii. STEVENS DISSENT/CONCUR: A “withholding” occurs whenever an agency declines to produce agency records which it has a legal right to control or possess. Otherwise, you create the incentive for improper removal. Burden on agency to advance a reasonable explanation for failure to do something to retrieve records.
Forsham v Harris (1980)