Balancing the right to know and privacy rights in the computer age.

1. Freedom of Information Act
Balancing the right to know and
privacy rights in the computer age

2. FOIA passed in 1966
Rumsfeld (right, with Cheney) was a big supporter
of FOIA as a young congressman

3. Provisions of FOIA
• Applies to entire executive branch of the
federal government

4. Provisions of FOIA
• Applies to entire executive branch of the
federal government
• Does not apply to the president or his
immediate staff

5. Provisions of FOIA
• Applies to entire executive branch of the
federal government
• Does not apply to the president or his
immediate staff
• Does not apply to Congress or the judiciary

6. Exemptions
1. National security

7. Exemptions
3. Laws that forbid the release of certain
information, such as tax returns

8. Exemptions
5. Internal agency memos and policy
discussions

9. Exemptions
6. Personal privacy

10. Exemptions
7. Information compiled for law-enforcement
purposes

11. Exemptions
7. Information compiled for law-enforcement
purposes
7(c) “… only to the extent that the production of such
*materials+ … could reasonably be expected to
constitute an unwarranted invasion of personal
privacy.”

12. Using FOIA
• First, try the informal route
• Good examples near end of Chapter 6
• FOIA letter-generator is at:
– www.rcfp.org/foi_letter/generate.php

13. Department of Justice v.
Reporters Committee (1989)
• Shows how computers have changed
attitudes regarding public records

14. Department of Justice v.
Reporters Committee (1989)
• Shows how computers have changed
attitudes regarding public records
• In 1978 Robert Schakne of CBS News
sought rap sheets of Medico family, tied to
a corrupt Pennsylvania
congressman, Daniel Flood

15. Department of Justice v.
Reporters Committee (1989)
• Shows how computers have changed
attitudes regarding public records
• In 1978 Robert Schakne of CBS News
sought rap sheets of Medico family, tied to
a corrupt Pennsylvania
congressman, Daniel Flood
• Department of Justice said “no”

16. Judge Laurence Silberman
• Public records should
be available to the
public

17. Judge Laurence Silberman
• Public records should
be available to the
public
• Must assume it’s for
the public good

18. Judge Laurence Silberman
• Public records should
be available to the
public
• Must assume it’s for
the public good
• FOIA is for everyone,
not just the press

19. Justice John Paul Stevens
• Reverses Silberman,
finds that not all
public records must
be disclosed

20. Justice John Paul Stevens
• Reverses
Silberman, finds that
not all public records
must be disclosed
• Vote is 9-0

21. Justice John Paul Stevens
• Reverses Silberman,
finds that not all
public records must
be disclosed
• Vote is 9-0
• Makes two key
findings

22. Invasion of privacy
• Just because rap sheets are public records
doesn’t mean they’re easily available

23. Invasion of privacy
• Just because rap sheets are public records
doesn’t mean they’re easily available
• Reporters Committee takes “a cramped
notion of personal privacy”

24. Invasion of privacy
• Just because rap sheets are public records
doesn’t mean they’re easily available
• Reporters Committee takes “a cramped
notion of personal privacy”
• “Vast difference” between scattered
records and a computerized compilation

25. An unwarranted
invasion of privacy
• What is the purpose of the FOIA?

26. An unwarranted
invasion of privacy
• What is the purpose of the FOIA?
• An invasion of privacy may be warranted if
it sheds light on the actions of the
government

27. An unwarranted
invasion of privacy
• What is the purpose of the FOIA?
• An invasion of privacy may be warranted if
it sheds light on the actions of the
government
• An invasion of privacy is unwarranted if it
merely sheds light on the actions of an
individual

28. Jane Kirtley of RCFP
• “It says that today
something may be a
public document but
tomorrow it’s not
because it’s on a
computer tape”
• ACLU on the other
side

29. Miller v. NBC (1986)
• An access case and a privacy case

30. Miller v. NBC (1986)
• An access case and a privacy case
• Television crew accompanied rescue
workers and shot footage of Dave Miller as
he lay dying on the floor

31. Miller v. NBC (1986)
• An access case and a privacy case
• Television crew accompanied rescue
workers and shot footage of Dave Miller as
he lay dying on the floor
• California Court of Appeal more offended
by trespass than broadcast

32. Miller v. NBC (1986)
• An access case and a privacy case
• Television crew accompanied rescue
workers and shot footage of Dave Miller as
he lay dying on the floor
• California Court of Appeal more offended
by trespass than broadcast
• Strong protection for publication; weak
protection for newsgathering. Why?

33. Houchins v. KQED (1978)
• Television station sues for access to jail
following an inmate suicide

34. Houchins v. KQED (1978)
• Television station sues for access to jail
following an inmate suicide
• KQED cites Branzburg’s suggestion that
newsgathering has some protection

35. Houchins v. KQED (1978)
• Television station sues for access to jail
following an inmate suicide
• KQED cites Branzburg’s suggestion
that newsgathering has some protection
• U.S. Supreme Court rules against KQED

36. Houchins v. KQED (1978)
• Television station sues for access to jail
following an inmate suicide
• KQED cites Branzburg’s suggestion
that newsgathering has some protection
• U.S. Supreme Court rules against KQED
• Is this surprising in light of California First
Amendment Coalition v. Woodford?