FOIL/FOIA - Freedom of Information & Public Data: negate some censorship

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The Freedom of Information Act


The Freedom of Information Act, 5 U.S.C. § 552 (FOIA), generally provides that any person has a right enforceable in court, of access to Federal “agency records,” except to the extent that such records, or portions thereof, are protected from disclosure by one of the FOIA exemptions. This Handbook is intended to help the public understand the FOIA. It is not intended to effect any persons’ rights under the FOIA.


Agency records are documentary materials,
such as books, papers, maps, photographs, and machine-readable regardless
of physical form or characteristics (e.g., electronic form or format), in the FCA’s possession and control at the time the FOIA request is made. The following are not included within the definition of “agency record”:

Objects or articles, such as structures, furniture, vehicles, and equipment, whatever their historical value, or value as evidence.

Anything that is not a tangible or documentary record, such as an individual’s memory or oral communication.

Personal records of an individual not subject to agency creation or retention requirements, created and maintained primarily for the convenience of an agency employee, and not distributed to other agency employees for their official
use.

Information stored within a computer for which there is no existing computer program for retrieval of the requested information.
Hard copy or electronic records that are available to the public through an established distribution system.

The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society. Society’s interest in open government can conflict with other important interests of the general public — such as the public’s interests in the effective and efficient operations of government and in the preservation of the confidentiality of sensitive, personal, commercial, and governmental information. The FOIA seeks to accomplish the goals of ensuring responsible disclosure and appropriately protecting all interests.

The FCA’s FOIA regulations, found at 12 C.F.R. Part 602, are at Appendix I.

The FOIA Exemptions

A brief discussion of the FOIA exemptions follow:

Exemption 1. Those records properly and currently classified in the interest of national defense or foreign policy, as specifically authorized under criteria established by an Executive order.

Exemption 2. Records related solely to the internal personnel rules and practices of the FCA, including matters which are for the guidance of agency personnel.

Exemption 3. Records which are specifically exempted from disclosure by statute which permits no discretion on the issue.

Exemption 4. Records containing commercial or financial information obtained from any person or organization and is privileged
or confidential.

Exemption 5. Records containing inter-agency or intra-agency memorandums or letters which would not be available by law to a party in litigation with the agency.

Exemption 6. Personnel and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Exemption 7. Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(i) Could reasonably be expected to interfere with enforcement proceedings;

(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a confidential source, including
a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a confidential source;

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual.
Exemption 8. Records of or related to examination, operation, reports of condition and performance, or reports of or related to Farm Credit institutions or institutions that are regulated and/or examined by the FCA that are prepared by, on behalf
of, or for the Agency’s use.

Exemption 9. Records containing geological and geophysical information and data (including maps) concerning wells.

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  The federal Freedom of Information Act (FOIA) was made into law by Congress in 1966, declaring that every document in the possession of federal government agencies is presumptively available to the public. Many states' open records laws are similar to the operation of the federal FOIA. [But see ICP FOIA Updates of March 6 and December 1, 2003, below.]





      [Note:  ICP has decided to post updates on the development of FOIA at the top of this page -- ICP's more extensive FOIA guide and links are below.   Click here for ICP's Human Rights Enforcement project's recent FOIA request to the Dep't of Commerce, re Gabon.]




  In the United Kingdom on January 1, 2005, the Freedom of Information Act 2000 went into effect.   For an overview and practice tips, see the U.K. Campaign for Freedom of Information's User's Guide (in PDF). ICP / Fair Finance Watch has filed a request with the U.K. Financial Services Authority, regarding HSBC, Royal Bank of Scotland and other matters.

See also, “Delaware Records Act Ruled Unconstitutional,” by Rita K. Farrell, New York Times, May 16, 2005, Pg. C2; and on Marketplace Radio (here in Real Audio), August 9, 2005, by Aries Keck of WHYY Philadelphia and see below.

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Update of July 9, 2007: On the fortieth anniversary of FOIA implementation, a bill to restore some vitality to the law has been subject to a secret block -- by Arizona's Senator Kyle, media watcher can now report. For shame... Update of August 21, 2006:  From the NY Times of August 17: A federal appeals court ruled on Wednesday that it was unconstitutional for Delaware to deny public documents to nonresidents under a provision of the state’s Freedom of Information Act. The ruling by the United States Court of Appeals for the Third Circuit, in Philadelphia, affirmed an earlier decision by a Federal District Court in Wilmington.

In 2003, Matthew Lee, a consumer advocate and lawyer who lives in New York, sued the State of Delaware for denying him access to documents related to a nationwide settlement with the consumer lender, Household International, after the company was investigated for deceptive lending practices. "We sought the records to be able to show how widespread the problem of predatory lending was within Household," said Mr. Lee, who is also the publisher of Inner City Press, a nonprofit Bronx newsletter about the practices of banking and financial services companies.




M. Jane Brady, then the Delaware attorney general, denied Mr. Lee access to records regarding her handling of the settlement. Ms. Brady cited a provision of the state’s Freedom of Information Act law limiting access to records "to any citizen of the state." Mr. Lee then sued... In the 17-page decision, Judge D. Brooks Smith, writing for the three-judge circuit panel, said, "Delaware’s public records law discriminates on its face between citizens and non-citizens.




Although the state has a substantial interest in ‘defining its political community,’ the citizens-only provision” of the law bore no “substantial relationship to that interest,” Judge Smith wrote.  Delaware’s current attorney general, Carl C. Danberg, said Wednesday that he would not appeal... While he said the state had been processing other freedom of information requests to comply with the earlier ruling, Mr. Danberg said that Mr. Lee would still not receive the Household documents because they were protected under a separate Delaware law by an "investigative file privilege." Mr. Lee was surprised by the news and called the decision "an outrage."



He questioned why he could not receive the documents, particularly, he said, "because other states have given us reams of documents about their settlements on predatory lending with Household"  -- now owned by HSBC...





Update of July 10, 2006: Seven months ago, Inner City Press submitted to the Federal Reserve Board a Freedom of Information Act request, for records "regarding the Federal Reserve System having compiled a list of lenders with disparate 2004 Home Mortgage Disclosure Act data and transmitting such lists beyond the FRS."  Under the Freedom of Information Act, the Fed is supposed to provide records within twenty business day.  But with a single letter six months ago, the Fed unilaterally extended its time to respond.  Now, as it prepares its required annual FOIA report to the Department of Justice, the Fed begrudgingly sends a second letter, which states that "approximately five linear feet of documents will be withheld from you... no reasonably segregable nonexempt information was found." An appeal will follow...   




Update of May 15, 2006: On May 11, 2006 in the Third Circuit Court of Appeals in Philadelphia, argument were heard in Inner City Press' ongoing case seeking documents from the Delaware Attorney General about the predatory lending settlement of Household International, now HSBC. Delaware refused to provide any records, saying the Inner City Press request came from out of state.  Subsequently the Federal district court in Wilmington declared Delaware's "citizens-only" Freedom of Information Act to be unconstitutional; Delaware appealed, and three judges heard it on May 11.    






As recounted in the next day's New York Times, "At the hearing Thursday, a state deputy attorney general, W. Michael Tupman, argued that Delaware had the right to set limits to its records to 'help define the political community and strengthen the bond between citizens and their government.' Judge D. Brooks Smith asked, 'How does restricting a noncitizen strengthen that bond?'" To that, there was no answer. Delaware pressed a narrow definition of journalism, despite (as recounted by Dow Jones), acknowledging that ICP and its requester's "'achievements are truly remarkable on a national level,' Tupman told the court [adding] Delaware fears being deluged with requests for public records if the state's FOIA law is held unconstitutional.'" Too much open government is hardly our problem... See also, "Court to Rule on Delaware Public Records Law," by Rita K. Farrell, New York Times, May 12, 2006, Pg. C10 (and International Herald Tribune) "FOIA filing only puzzles U.S. judges - State law refuses queries from non-Delawareans,"  by Sean O'Sullivan, Wilmington News-Journal, May 12, 2006 "Delaware seeks to shield public records from nonresidents," by Maryclaire Dale, Associated Press, May 11, 2006 "Delaware Defends 'Citizens Only' Public Records Law," by Peg Brickley, Dow Jones Newswires, May 11, 2006

Update of May 17, 2005: Inner City Press’ 2003 lawsuit against the Delaware Attorney General’s withholding of all information about HSBC/Household’s predatory lending settlement was decided on May 13 -- and ICP won. Delaware’s citizens-only Freedom of Information Act was struck down as unconstitutional in federal court. To the Wilmington News Journal, Del. AG Jane Brady said she plans to “consult with attorneys general in states with similar laws, particularly Pennsylvania and New Jersey, while her office considers an appeal.”





The New York Times of May 16 reported that “Judge Joseph J. Farnan Jr. of the United States District Court in Delaware... wrote that consumer advocates and journalists like [those at ICP are] 'particularly suited to advancing the goals of transparency and accountability, whether they are Delaware citizens or not.’” Yep... We have also heard from the Texas Attorney General’s Office that HSBC’s litigation against the release of Household-related documents continues pending in that state, two years after the Texas AG ruled that ICP should receive the information. Abusive. And what of the other states that are withholding information? All in due time. Watch this space. For or with more information, contact us.




Update of March 14, 2005:  Update of March 14, 2005:  And now it can be told: earlier this month, Inner City Press filed a final reply brief in ICP’s Freedom of Information Act case in the Southern District of New York against the Federal Reserve Board’s withholding of the list of payday lenders, pawnshops and other subprime lenders assisted by Wachovia.  Of late, the FRB has taken to withholding more and more information, then citing these withholdings to the court to say, “You see? There is precedent for this withholding.” Some of the points made: