The Branzburg myth: how secrecy and law distort history and misinform policy

Americans live in a nation which depends for many purposes upon a constitutional system of free expression, with a number of constitutional and statutory elements. ' In addition to the First Amendment, the state of the union requirement, the congressional journal mandate, the audits and accounts clause, and other constitutional provisions, the United States has a collection of fair information practices laws including among others the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, the Federal Advisory Committee Act, the Family Educational Rights and Privacy Act, the Right to Financial Privacy Act, the Fair Credit Reporting Act, and parallel legislation in many states. fair assessment of information policy must contemplate both the constitutional and statutory dimensions of the subject. These elements of the system are interrelated and overlap.2 Madison captured the fundamental role played by the system in making information available when he observed: A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' The Freedom of Information Act (FOIA) is appropriately viewed as an adjunct to the constitutional elements of the system envisioned by Madison. The Supreme Court has observed that [t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.4 Both constitutional and statutory provisions are concerned with assuring the capacity of the citizenry to address specific substantive policy issues and with the maintenance of important structural features of the governing framework such as elections and the arrangement of checks and balances.5 In addition to their other essential interrelationships, FOIA and the First Amendment are frequently brought together in litigation involving both constitutional and statutory issues. The Supreme Court plays a vital role in fair information practices because it possesses tremendous discretion in the interpretation of the nature, boundaries, and functions of the system. Consequently, anyone attempting to assess the state of information policy must consider the directions in which the Court is moving in this field. In performing that analysis, one finds. a development which reached full flower in the * The First Amendment and the Freedom of Information Act (FOIA) are interrelated elements of the system offree expression. The Supreme Court's power to interpret both the constitutional provisions and the statutes plays a central role in shaping information policy. This article argues that while the Court has moved from a rights-based theory of free expression to a more expansive free-flow approach, it has simultaneously demonstrated deference to government claims for control over information in its interpretation of FOIA and created exemptions to the general free-flow concept in its constitutional rulings. The Court's recent decisions are inconsistent with its own demands that government should protect the free-flow of information needed by the citizenry for self-governance.

This article addresses the U.S. Supreme Court’s formulation of “practical obscurity” in Reporters Committee v. Department of Justice, a seminal case interpreting the U.S. Freedom of Information Act (FOIA). By examining lower federal court opinions interpreting Reporters Committee and by analyzing the effects of the Court’s opinion on the implementation of the privacy exemptions of the FOIA, this article finds that the Court’s opinion has greatly narrowed the scope of the FOIA and limited the power of the FOIA to democratize electronic information. Exemptions from the presumption of disclosure inherent in the FOIA were designed to balance the public’s right to know against other competing interests. Historically, courts have balanced the public interest in disclosure against privacy interests when weighing privacy claims made under the FOIA. The Department of Justice argued for a change in this analysis, however, and in Reporters Committee successfully urged the adoption of a narrower definition of disclosable records. This new analysis expands the scope of privacy under the FOIA while it restricts the scope of acceptable public interest arguments in favor of disclosure. This article demonstrates how the Court’s decision in Reporters Committee—specifically, its formulation of practical obscurity as a value worth protecting—holds far-reaching implications for federal access law and for FOI laws around the world.

FOIA Exemption 4 After Argus Leader And The FOIA Improvement Act

The tension between an individual's right to privacy and the public's right to obtain government-held information represents a conflict between two vital democratic values. The solution to resolving this tension lies in striking an appropriate balance between a person's need to be let alone and society's need to be informed. The crafters of the Freedom of Information Act (FOIA) intended to set such a balance when they created two privacy exemptions to the statute. In instances when the government refuses to release a record on privacy grounds, then a requester may turn to the courts to interpret what the law instructs. Consequently, the judiciary has significantly shaped the contours of the FOIA over the years. This article examines whether the Supreme Court's current FOIA-related privacy framework comports with the FOIA as reflected in its legislative history.

The Death Knell That Wasn't: Public Access to Federal Contractor Employment Data After Argus Leader Media

ABSTRACTThis article examines how evidence about Program A in Country A may be utilized in Country B, and thus how utilization may explain the adoption of the same program. Elites and activists have a number of interests in using policy evidence from another country: to put an issue to a systemic or institutional agenda, mollify political pressure, provide an exemplar, indicate the range of options or reinforce conclusions already reached. The interests of the importer dictate the nature, timing and origins of the evidence injected into policy debate. This framework is applied to the case of freedom of information policy. An analysis of how and why evidence about the United States Freedom of Information Act (FOIA) was utilized in Canada and Britain reveals that FOIA was used as an exemplar in Canada and the reverse in Britain.

: The Freedom of Information Act (FOIA) was established primarily to deter secrecy in government by guaranteeing a statutory right of access to government information; however, society's interest in an open government sometimes conflicts with the individual right to privacy . These personal privacy interests are protected by two provisions of the FOIA: Exemptions 6 and 7 (C) which concern 'personal and medical files and similar files' and 'records' or information complied for law enforcement purposes, respectively. This article addresses the right to privacy as it now exists under FOIA in light of the Supreme Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press. In examining the FOIA's personal privacy protections, the article first outlines the legislative history of the FOIA to include a brief history of its passage, subsequent amendments, and statutory structure. The foundations of the individual right to privacy are discussed, followed by a detailed description of the threshold requirements for Exemptions 6 and 7 (C). The article then explores the process presently employed by the courts in balancing the public's right to know against the individual's right to privacy.

Information governance, records management, and freedom of information: A study of local government authorities in England

Sunshine as disinfectant: The effect of state Freedom of Information Act laws on public corruption

Sunshine as Disinfectant: The Effect of State Freedom of Information Act Laws on Public Corruption

The scope of concurrent legislative powers under Nigeria’s Freedom of Information Act (FOIA) 2011 has generated sustained controversy, reflected in a series of judicial decisions marked by inconsistency and uneven enforcement. This paper interrogates the intersection of federal and state legislative authority over the FOIA. Adopting a doctrinal methodology, the study traces the historical evolution of the FOIA, analyses judicial interpretations of its applicability, and situates these within the constitutional framework governing concurrent legislative powers. It highlights how federal supremacy and state resistance have produced legislative anarchy, often to the detriment of citizens’ access to information. Comparative insights are drawn from the United States and Kenya, whose federal systems offer more coherent models of concurrency and cooperative governance. The paper argues that Nigeria requires clearer constitutional delineation and judicial fidelity to textual interpretation to avert legislative anarchy. It recommends that State Houses of Assembly confine themselves to procedural frameworks that facilitate implementation rather than enacting duplicative or conflicting statutes.

Introduction to the Special Issue: The Right to the Protection of One's Own Image in Ibero-America and Its Relevance for the Right of Publicity in Common Law Countries

This chapter covers the US Supreme Court’s position on access to private-sector data in the United States. Indeed, the Supreme Court has written a great deal about “privacy” in a wide variety of contexts. These include what constitutes a “reasonable expectation of privacy” under the Fourth Amendment to the Constitution; privacy rights implicit in, and also in tension with, the First Amendment and freedom of expression; privacy rights the Court has found implied in the Constitution that protect the rights of adults to make decisions about activities such as reproduction, contraception, and the education of their children; and the application of the two privacy exemptions to the Freedom of Information Act (FOIA).

Although South Korea's Truth and Reconciliation Commission has investigated many of more than 200 alleged cases of what it categorizes as civilian massacres committed by U.S. soldiers during the Korean War, the U.S. government has investigated only one, the refugee killings at No Gun Ri. The U.S. government's 300-page report on that inquiry exonerated the U.S. military of wrongdoing. Then president Clinton said the evidence was not clear that there was responsibility “high enough in the chain of command.” In reporting their findings, however, the U.S. Army investigators ignored and left undisclosed many of the most relevant documents and testimony. The most significant example is the “Muccio letter,” in which the U.S. ambassador to South Korea informed the State Department that the Army, fearing infiltrators, had decided to fire on South Korean refugees approaching U.S. lines despite warning shots. The No Gun Ri carnage began the next day. Only in 2007 did the Army acknowledge it knew about and deliberately omitted the Muccio letter from its 2001 report. Archival research and Freedom of Information Act (FOIA) requests found many other examples of crucial material unreported or misreported by the Army, including fighter-bomber mission reports that discuss attacks on refugees, a high-level communication confirming an Air Force policy of strafing refugees, and more than a dozen other documents showing colonels and generals ordering or authorizing attacks on civilians. Such undisclosed documents were found in the Army investigators' own files.

here is a belief that government should be highly transparent so that citizens X may monitor its actions, including those of government officials who appear in court. While this belief has been enshrined in the Freedom of Information Act (FOIA) and the common-law right of access to judicial records in civil suits, it has not been absolute. One exception to a presumption of disclosure relates to personal privacy: under what circumstances may personal information about those involved in litigation be withheld from public view? Two cases bearing on this question are dis cussed here. Capital Collateral Counsel. Capital Collateral Counsel (CCC), an organiza tion representing death-row inmate Michael Mordent, sought to compel the Department of Justice to release information concerning disciplinary proceedings conducted against Assistant U.S. Attorney Karen Cox in connection with a previous case. In that case, United States v. Sterba, 22 F.Supp.2d 1333 (M.D.Fla. 1998), it was discovered that, to secure a conviction, Cox purposely misrepresented the identity of a witness. Cox was investigated by the department's Office of Professional Responsibility, which reported its findings to James Santelle, deputy director of the Executive Office for United States Attorneys. After a final meeting with Cox, Santelle imposed on her a two-week suspension without pay. Cox faced contempora neous proceedings before the Florida Bar, whose recommendation of only a public reprimand was rejected by the Florida Supreme Court, which instead imposed a one year suspension. Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001). CCC requested that, pursuant to the FOIA, the Department of Justice disclose all records concerning Cox's disciplinary proceedings. The department initially nei ther confirmed nor denied existence of the requested documents but, after CCC filed a complaint in federal district court, agreed to release over 1,000 pages of material while refusing to divulge five requested documents. The district court reviewed those five documents in camera and held that two documents must be turned over although names of third parties in one could be redacted; the court also awarded attorney's fees to CCC. The department appealed. The Eleventh Circuit reversed the district court's decision to compel release of the documents and remanded the case so that the district court could reconsider the