Freedom of Information Laws: Using Open Records Laws to Support - - PowerPoint PPT Presentation

Freedom of Information Laws:

Using Open Records Laws to Support Organizing Campaigns

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

Attributed to Supreme Court judge and free speech defender

Louis Brandeis.

Why use open records laws?

• Gather information about

policies

• Investigate executive actions
• Reveal misconduct
• Collect and interpret data
• Contribute to public debate
• Support organizing campaigns

Who can file an

• pen records request?
• Individuals
• Organizing and public interest groups
• Media
• Corporations
• And many others!

What Government Components Can You Request Information From?

Public records requests typically apply to Executive Agencies of Government, such as:

 U.S. Dep’t of Justice  N.Y. State Education Dep’t  Los Angeles Police Dep’t

State and local public records requests also often apply to legislatures.

What Government Records Can You Request?

• Decisions by government officials
• Policies
• Data
• Communications (emails, letters,

etc.)

• Maps
• Video & audio recordings
• Records of Investigation
• Your own records with the agency

State and Local requests may also provide for access to:

 Legislative records  Transcripts  Bills  Voting records  Certain communications from legislators

Requests can target any records, such as:

What Can’t Be Requested?

Federal FOIA exempts:

• Federal Courts
• Note: FOIA does apply to many

administrative courts such as EOIR

• U.S. Congress
• Note: FOIA may apply to some

communications between elected officials and federal agencies

• White House offices

State and Local requests, while more liberal, may exclude:

• The Judiciary
• Private records/

correspondence of officials

• Always check your state or

local open records laws for the possibility that it may allow for more access.

The Strategy of Your Request

There are some key questions to ask before crafting the request, even if you know that things may change as request is processed.

Do you want a long-term process to “net” a comprehensive set of documents? Or a quicker process that targets a narrower, smaller set of documents?

The Strategy of Your Request

• Do you have the

resources for a longer process?

• Do you have resources

if it goes to litigation?

• How will the documents you receive be used?
• Do you have a media strategy?

Do I Have to Pay?

Fees & Waivers

• While governments are typically

entitled to charge for processing and copying your request, they set limits on amount charged per page.

• Requesters can ask to be

contacted if the page numbers or cost exceed a certain amount

• FOIA and most state/local laws

provide for fee waivers in certain circumstances

FOIA:

Freedom of Information Act

5 U.S.C. § 552

Fees Under FOIA,

5 U.S.C. § 552 (a)(4)

If request made by educational or scientific institution,

• r by a member of

news media:

Limited to “charges for document duplication” (not search and review)

II. III. I.

If for commercial use:

Limited to “charges for search, duplication and review”

If neither (I) nor (II):

Limited to “charges for document search and duplication” (not review)

Fee Waivers Under FOIA

Federal FOIA will provide documents for free in these cases:

Small Requests:

For non-commercial requesters, if number of pages is below 100 pages or if search takes less than 2 hours.

Public Interest Requests:

The federal FOIA statute* provides for fee waivers where the “disclosure of the requested records is in the public interest because it is likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester.” ALSO: Remember to check state and local laws and regulations for fee waivers and public interest provisions.

* For specific information, see 5 U.S.C. §552 (a)(4)(A)(iii)

Timing Under FOIA

20 Business Days for Response:

FOIA requires federal agencies to determine whether to respond to the request and to notify requester of determination within 20 business days. 5 U.S.C. § 522(a)(6)(A)(i). 10-Day Extension: FOIA permits agencies to invoke the right to an extend the determination/notification by 10 business days “in unusual circumstances.” 5 U.S.C. § 522(a)(6)(B)(i)

State and local laws typically also require the government to respond within a certain period of time.

“Expedited Processing”

5 U.S.C. § 552 (a)(6)(E)

FOIA provides that requesters can be granted expedited processing if: (I) requester “demonstrates a compelling need” (II) or in “other cases determined by the agency.”

“Other cases” can include, for example, “imminent threat to life or physical safety of an individual.” See, e.g., 6 C.F.R. § 5.5 (DHS regs). Always check agency regulations for more detail.

Crafting the Request

Drafting the Request

• 1. Identify the agency

For example, the Dep’t of Homeland Security

• r Dep’t of State, as well as any components
• f those agencies (such as ICE) or sub-

components (such as EOIR).

• 2. Make the request for documents specific.

For example: “We seek any and all records related to detention facilities’ compliance with ICE’s “Performance-Based National Detention Standards.” Remember that FOIA requires that requests “reasonably describe” the information sought.

Drafting the Request

• 3. Define the terms you decide to use in your request.

This will help both you and the government identify what you are looking for. For example, “In this request, “Record” includes, but is not limited to, all Records

• r

communications preserved in electronic (including metadata)

• r

written form, such as correspondences, emails, documents, data, videotapes, audio tapes, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes,

• rders, policies, procedures, legal opinions, protocols,

reports, rules, technical manuals…..”

Drafting the Request

• 4. Specify that you seek both paper and electronic

records.

• 5. Specify Format of Production

It is important to specify how you want to receive your documents. Identifying a format like PDF, and also you might want to request data, like spreadsheets, in its original format. For example, you can use language like this: “Saved on a CD, CD-ROM or DVD; in PDF or TIF format wherever possible; electronically searchable text wherever possible; parent-child relationships maintained (i.e. attachments connected to email”)

Drafting the Request

• 6. Describe the requester.
• 7. Include a request for a fee waiver.

Make sure to explain why the statute/regulations apply. Ask that if fee waiver is denied, the agency contact you if fees are expected to exceed a certain amount.

“Center for Constitutional Rights is a non-profit, public interest, legal, and public education organization that engages in litigation, public advocacy, and the production of publications in the fields of civil and international human rights….”

Drafting the Request

• 8. Include request for expedited processing

Explain why the public needs to know about this information immediately, and cite to any news articles, recent events or reports that help to demonstrate the urgency of your request.

• 9. Certify that contents of your request are true and

correct, and provide contact information for where you want all correspondence and documents to be sent.

This is important, especially because of the timelines involved for any appeals to an agency – you don’t want an agency sending responses

• r documents to the wrong person or address.

Filing Your Request

Initial Steps

• Send request by mail and email in a form that can be tracked.
• Send one copy of the request to each agency and component you

are directing your request to. For example, you could send a copy to DHS, ICE and the FBI.

• Agency will typically alert you that request has been received.
• Agency may contact you to ask you to clarify parts of your

request.

• Agency will likely alert you of any timing considerations (e.g.

invoking 10-day extension, determination of time needed)

• Always keep copies of mail, emails and notes of

calls and contacts with agency.

Administrative Appeal

• FOIA permits you to appeal any “adverse

determination.” For example, if DHS responds to your request

and states they searched and found few or no records, you can appeal that response. Or, if ICE tells you they are denying your request for a fee waiver and expedited processing, you can appeal that as well.

• If you choose to appeal, write the appeal to the agency that made

the adverse decision within sixty (60) days. Agencies have 20 days to respond. (FN.)

• Make sure that all issues you want to appeal, including any full or

partial denial of fee waivers, are included in the administrative

• appeal. If there is new information to be added, add it.

Agency Response: What to Expect

• Agency will typically describe the documents

it is providing, and what components they searched to obtain the documents.

• Agency will typically redact or not provide

“non-responsive documents.”

• Agencies will “redact” any information that is

“exempt” under federal law from disclosure.

Redactions

Agencies will “redact” any information that is “exempt” under federal law from disclosure. The redacted information will be covered up with boxes like the example to the right.

The Nine Exemptions Under 5 U.S.C. § 552(b):

(1) Properly classified information (2) Internal personnel rules and practices (3) Documents exempted by a statute other than FOIA, if exemption is absolute (4) Trade secrets and confidential/privileged financial information (5) Inter- or intra-agency documents that reveal deliberative process (6) Personal/medical/similar files which if revealed would invade privacy (7) Records compiled for law enforcement purposes (8) Reports prepared by or for the use of agencies that regulate financial institutions (9) Documents that would reveal oil well data

Litigation

Filing a lawsuit is often the best way to push the government to release

• documents. You can obtain

court oversight over your request and get a judge to

• rder production of

documents.* If your administrative appeal fails, or if the agency does not respond within 20 days, you can choose to file a complaint in federal court.

*See 5 U.S.C. § 552 (a)(4)(B).

Before filing in court: Make sure you have “exhausted” administrative appeals, including for fee waivers. However, requests for expedited processing do not require administrative exhaustion prior to filing in federal court. Once you file: Make sure to be in consistent, clear contact with your

• attorneys. Let them know if there are priority

documents to push for, what you are or aren’t willing to give up in negotiations, or any questions you have about the legal process.

Litigation Process

Litigation Process

Challenging Exemptions

In court, you can challenge the redactions that an agency has made to the documents they produced to you, and potentially get a judge to order the agency to un-redact those portions.

Challenging the Search

An agency must tell you when it has finished searching for documents. You can challenge where, who and how the government searched. A court can find an agency did not do enough searching, and order an agency to redo all or part of a search.

Challenging Exemptions

When litigation may be necessary: Typically, challenges are done in litigation after documents are produced.

• Agencies’ ability to redact should be strictly limited: The

Supreme Court has said that the nine exemptions must be “narrowly construed.” Dep’t of the Air Force v. Rose, 435 U.S. 352, 361 (1976).

• It’s the agency’s responsibility to justify the redaction,

not the requester’s responsibility to justify the request: Most appellate courts hold that the “agency has the burden

• f showing that…any withheld documents fall within an

exemption to the FOIA.” Carney v. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994).

Challenging Adequacy of Search

• FOIA requires agencies to “conduct a search

reasonably calculated to uncover all relevant documents.” Truitt v. Department of State, 897 F.2d 540, 542 (D.C.Cir.1990).

• If challenged, agencies must demonstrate “beyond

material doubt that the search was reasonable.” Id.

• If productions appear incomplete, requesters can

challenge method of search, search terms, and

• ffices searched.

What to do when you get your documents.

Reviewing Your Documents

When you start getting documents, there might be hundreds or even thousands

• f pages to go through.

It is a good idea to figure out a system beforehand for how you want to track and analyze the information you find in the documents.

Reviewing Your Documents

Logging Documents

Ideally, you can make notes on all the documents you get. But if you don’t have that capacity, make sure to at least take key notes on those documents that might be useful in the future, so that you can easily find them. We often use spreadsheets to track the documents we get through FOIA.

Reviewing Your Documents

Bates Numbers Each page you receive should be labeled with a Bates number, which is like a legal index

• number. These numbers make it

easy to track and reference important documents.

Basic kinds of information to track:

• Bates Number
• Date
• Geography
• Important names
• Type of Document
• Summary of Document
• Is it a priority document?
• Redactions/Exemptions
• When you received the

document

Reviewing Your Documents

How will you publish or release the documents?

• Will you release all or some?

When?

• On your own website?
• Exclusives for media or self-

publish?

Coordinating Review of Your Documents

Document review is best done as a team, with each person taking a different section of what you receive, logging notes

• n what they review, and then coming

back together to discuss what you found and determine which documents might be useful for your campaign.

State Public Records Laws: Examples

Texas Open Records Act

Texas Government Code Ann. 552.001 et seq.

• Modeled on FOIA: Exemptions are limited,

and burden is on governmental body to show it does not have to disclose. Sec. 552.01.

• Provides for fee waivers or reductions if

information “benefits the general public.”

• Sec. 552.267.
• Provides for requestors to request short

time frame for production.

The Good

• Applies to more governme

nmenta ntal bodie

• dies

than FOIA, including legislatures, school boards, property associations, and certain non-profit organizations

• Explicitly provides for production of 18

categori

• ries of information, including

policies, settlement agreements, procedures, etc.

• No citizenship or residency

requirement; any ny person

• n m

may re request, for any purpose

• No administrat

ative a appeal al if denied -- can go directly to court

• Compared with FOIA, contains

more than 52 permissible exemptions to disclosure requirements, including communications between members of legislature and Legislative Budget Board, certain economic information

• Agencies are permitted but not

required to release information to incarcerated persons or their agents,

Texas Open Records Act

Texas Government Code Ann. 552.001 et seq.

The B Bad ad

• File with Texas officer for public

information (chief administrative

• fficer of agency or elected county
• fficer of county). § 552.301(c), § 552.201.
• Texas government must make

information available promptly or seek review by Attorney General if it believes information is exempt. If this takes longer than ten days, must explain why in writing. § 552.221.

Texas Open Records Act

Texas Government Code Ann. 552.001 et seq.

Basic steps for filing:

TEXAS

Litigation Where government denies or fails to release documents, requestors can seek a “writ of mandamus” in state court. A court may order release where the governmental body 1. refuses to request an attorney general’s decision on whether information is public 2. refuses to supply public information; or 3. refuses to supply information that the attorney general has determined is public information not excepted from disclosure

Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tx. App. 2002).

Texas Open Records Act

Texas Government Code Ann. 552.001 et seq.

Open Records as Part of a Campaign: Examples

EXAMPLE: NDLON v. ICE FOIA and the

Uncover the Truth Campaign

• In early 2010, National Day Laborer Organizing Network (NDLON)
• rganizes broad campaign targeting Secure Communities (S-Comm)

program, asks CCR and Cardozo Law to file FOIA request to DHS, ICE and FBI for information concerning how S-Comm operated.

• Spring 2010: After no response to our FOIA, we file a lawsuit to force

the government to give us documents.

• End of Summer 2010: We attempt to negotiate with the agencies but

still receive very few documents. Meanwhile, S-Comm continues to grow, and NDLON continues to organize against it. We go to court.

• Early 2011: Court orders agencies to

begin producing documents, and we begin reviewing them.

• Spring/Summer 2011: Our team of

reviewers scours productions and identifies key documents to publicize, which we post on our website Uncover the Truth, send to local organizers, as well as the press.

• At the same time, we go to court to

challenge the redactions in some of the documents to uncover more information.

• Summer 2011: Governors from three

states attempt to opt-out of S-Comm, in part from organizers using information uncovered in the FOIA.

• Late 2011: Court orders

agencies to un-redact several key documents, which get national press.

• Spring/Summer 2012:

We go to court again to ask for additional searches for specific sets of documents.

• Late 2012: Additional

documents produced.

• Summer 2013: Case is

settled.

Questions?

You can email us with follow-up questions at: Ghita Schwarz: gschwarz@ccrjustice.org Ian Head: ihead@ccrjustice.org