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«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»

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The Right of Access Subsection (a)(3)(A) of the Act sets out the basic right of any person to request and receive information promptly from the agencies covered, as long as the request meets certain basic conditions and subject to the provisions of the law. The request must reasonably describe the record sought and the request must be in accordance with published rules relating to time, place, any fees and the procedures to be followed. There are no limits based on citizenship or residence, and foreigners do frequently use the law.377 Definitions The Act defines "record" - the term used throughout to refer to the subject of a request - as "any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format".378 This has been interpreted by the United States 372 Sweden adopted legislation in 1776. This also covered Finland, then a Swedish-governed territory, which adopted its own protection for freedom of information when it became independent in 1919.

373 5 U.S.C. § 552. Available online at: http://www.epic.org/open_gov/foia/us_foia_act.html.

374 5 U.S.C. § 552a.

375 5 U.S.C. § 552b.

376 5 U.S.C. App. II.

377 This was noted, for example, by David Hencke, investigative journalist with the British Guardian Newspaper, at an International Conference on The Right to Information: Focus on South Asia hosted by ARTICLE 19, 29-31 July 2001.

378 Paragraph (f)(2).

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Supreme Court to include any record created or obtained by the agency in question, which is under the control of that agency when the materials are requested.379 The term "agency", which is used by the Act to refer to the public bodies under an obligation to disclose, includes, "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency". In assessing whether or not a body is covered by the definition, the critical question is whether it has any authority under law. The Act is thus focused on the executive branch of government, in all its manifestations, including where it controls private corporations. It does not, however, cover either the legislative branch Congress - or the courts. Nor does it cover the Executive Office of President, including, for example, the National Security Council and White House Chief Counsel. Finally, it does not cover private bodies which are substantially publicly funded.

Process Anyone may make a request for information, subject to the formalities noted above relating to clarity and any procedural rules established by the agency in question. The Act includes detailed rules on time limits. Eligible requests - that is those that are within the ambit of the law and not covered by exceptions - shall be answered "promptly", normally be decided within 20 working days.380 In "unusual circumstances", the time limit may by notice be extended for an additional 10 days. In such cases, the agency shall notify the requester that the information cannot be provided within the original 20 days and provide him or her with an opportunity either to limit the scope of the request or to arrange an alternative timeframe.381 For these purposes, "unusual circumstances" shall mean, to the extent reasonably necessary to the proper processing of requests, the need to search for records from field facilities, the need to search through a large volume of records or the need to consult with another agency or two or more branches of the same agency.382 379 Department of Justice v. Tax Analysts, 492 US 136 (1989), pp. 144-145.

380 Subparagraph (a)(3)(A).

381 Clause (a)(6)(B)(ii).

382 Clause (a)(6)(B)(iii).

Freedom of Information: A Comparative Legal Survey An appeal will lie for breach of these time limits. However, if the government can show that exceptional circumstances exist which justify the delay, and that the agency is exercising due diligence in responding to the request, the court may grant the agency additional time to fulfil the request, while at the same time retaining jurisdiction over the case.383 In practice, as a result, some agencies, such as the FBI, have long delays, often several years, which have been upheld by the courts.

The Act also provides for "multitrack" processing of requests based on the amount of work involved,384 as well as for expedited processing of requests in cases where the requester demonstrates a "compelling need". A claim of such compelling need must be determined within 10 days and a notice to this effect provided to the requester. A compelling need exists either where a failure to obtain the record could reasonably be expected to pose an imminent threat to life or safety, or where there is an urgent need to inform the public about federal government activity and where the requester is primarily engaged in disseminating information.385 Jurisprudence under the Act requires an agency to undertake a search that is reasonably calculated to uncover all documents. This now finds statutory form in relation to records in electronic format, which require a reasonable effort to search for them, except where this would significantly interfere with the operations of the agency.386 In limited cases, agencies may aggregate different requests which actually constitute a single request.387 Requesters do not need to explain the reason for their request but this may assist them if they want to overcome any discretionary exemption, or apply for a fee waiver or for expedited request processing.

The notification should set out the reasons for the decision, along with any right of internal appeal.388 Where all or part of a request is denied, the notice shall also provide the names and titles or positions of any officers responsible for that denial,389 as well as a reasonable estimate of the quantity of information denied, unless this would divulge information excepted from disclosure.390 383 Clause (a)(6)(C)(i).

384 Subparagraph (a)(6)(D).

385 Subparagraph (a)(6)(E).

386 Subparagraphs (a)(3)(C) and (D).

387 Clause (a)(6)(B)(iv).

388 Clause (a)(6)(A)(i). The rules relating to this appeal are described below under Appeals.

389 Clause (a)(6)(C)(i).

390 Subparagraph (a)(6)(F).

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The Act sets out detailed rules on the fees which may be charged for requests for information. Each agency must, after public consultation, promulgate regulations specifying the schedule of fees which may be charged for access to information, as well as procedures and guidelines for waiving or reducing these fees. The schedules must conform to guidelines promulgated, again after public consultation, by the Director of the Office of Management and Budget, which shall provide a uniform schedule of fees for all agencies.391 The Law provides for three different fee systems for different types of request. Requests for commercial use may be billed "reasonable standard charges for document search, duplication, and review". Requests by educational or scientific institutions which are not for commercial purposes may be billed only "reasonable standard charges for document duplication" and all other requests may be charged for search and duplication.392 For the latter two categories of document, no fees may be charged for the first two hours of search or for the first 100 pages of documents. And no fee may be charged where the cost of collecting the fee would exceed the value of the fee.393 Only direct costs may be levied. As regards the review element of the charges, this shall apply only to the initial examination of the document to determine whether it should be disclosed. Furthermore, where disclosure is in the public interest because it is, "likely to contribute significantly to public understanding of the operations or activities of the government", records must be provided without charge or at a lower charge than would otherwise be the case.394 This is, in effect, a waiver for the media, as well as for NGOs who can show a public interest use.

Finally, no advance fee may be charged unless the requester has already failed to pay a fee or the agency determines that the fee will exceed US$250.395 This fee regime does not displace any statutory charging system for information.396 Pursuant to subparagraph (a)(3)(B), information must be provided to a requester in the specified format, as long as it is readily reproducible in 391 Clause (a)(4)(A)(i).

392 Clause (a)(4)(A)(ii).

393 Clause (a)(4)(A)(iv).

394 Clause (a)(4)(A)(iii).

395 Clause (a)(4)(A)(v).

396 Clause (a)(4)(A)(vi).

Freedom of Information: A Comparative Legal Survey that format. Agencies are also required to make an effort to ensure that their records are reproducible for purposes of compliance with this duty.

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The Law also requires agencies, in accordance with published rules, to make available for public inspection and copying a range of information, unless this information is to be published shortly and offered for sale. Records covered which were created after 1 November 1996 must be made available by electronic means.

Information covered by this rule includes final opinions and orders, statements of policy and interpretations and administrative staff manuals. Significantly, this rule also covers records released pursuant to a request which, "the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records", as well as an index of such records, which must be made available electronically. Information may be deleted from these records, to "the extent required to prevent a clearly unwarranted invasion of personal privacy" but in such cases a written justification must be provided and the extent of the deletion must be indicated, unless this would result in the disclosure of information which is exempt from disclosure. Agencies must maintain an index of all records covered by this rule, which must be published at least quarterly.397 397 Paragraph (a)(2).

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Every agency which has more than one member is also required to make available for public inspection a record of the final votes of each member in every agency proceeding.398 Exceptions The Act contains nine primary exceptions,399 in addition to exceptions for information that has already been published in the Federal Gazette or which is required to be made available for public inspection. The regime of exceptions is reasonably clear and comparatively narrow, but it could be significantly improved upon. There is no provision for a public interest override, and many of the exceptions are not subject to a harm test. In practice, as a result of this, many information requests fall into the "discretionary" category. A Department of Justice's FOIA Memorandum of 4 October 1993, issued by Janet Reno, called on agencies to use this discretion to disclose information.

This was effectively reversed by a FOIA Memorandum issued by Attorney General John Ashcroft on 12 October 2001, which required agencies to carefully consider any discretionary disclosures. The Ashcroft Memorandum also promised legal defence to agencies whenever there was a 'sound legal basis' for their decision to withhold information, replacing the 'foreseeable harm' test applied previously.400 Significantly, paragraph (b)(3), the third exception, excludes from the ambit of the Act all records which are exempt from disclosure by other statutes, as long as these laws leave no discretion as to non-disclosure or establish particular criteria for withholding information. These conditions would rule out some secrecy provisions, but this rule still effectively leaves in place most secrecy laws.

The first exception covers all information with is specifically classified as secret, under criteria established by an Executive Order, for purposes of national defence or foreign policy, as long as the material is in fact properly classified pursuant to that Executive Order.401 Although this does ensure some procedural guarantees against excessive classification, it is not subject to a harm test and there is little to prevent the original Executive Order from being overly broad.

398 Paragraph (a)(5).

399 These are set out in Subsection (b).

400 The text of the Memorandum is available at: http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm.

401The Clinton era Executive Order 12958 was recently amended by Executive Order 13292, of 25 March 2003. The new Order retains the basic system of automatic declassification after 25 years, but provides for greater discretion to exempt documents and extends the scope of documents not subject to this system, particularly those relating to national security.

Freedom of Information: A Comparative Legal Survey

The second exception covers records, "related solely to the internal personnel rules and practices of an agency". Again, there is no harm test, although the exception itself is relatively narrow. The fourth exception applies to trade secrets, and confidential or privileged commercial or financial information obtained from a third party. Once again, although the exception does contain conditions, it is not subject to a harm test. The fifth exception applies to inter-agency memoranda which would not be available to parties in litigation.

The sixth exception covers files the disclosure of which, "would constitute a clearly unwarranted invasion of personal privacy", a relatively strong form of harm test. In practice, courts have applied a modified public interest test to determine whether or not an invasion of privacy is unwarranted. The seventh exception relates to a range of records compiled for law enforcement purposes, all of which, apart from one, have built-in harm tests. The non-harm test exception is to protect confidential sources of information, where harm from disclosure may normally be assumed. Despite that, there is no reason why this exception should not also have a harm test.

The eighth exception relates to certain reports prepared by an agency responsible for regulating financial institutions. Once again, although harm may often be presumed, this will not always be the case and the exception would benefit from being explicitly subject to a harm test. The final exception, which is not found in most freedom of information laws, relates to geological and geographical information concerning wells.

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