Chapter 8 - Freedom of Information and other Open Government Laws - 507
§ 8.1 Freedom of Information - 507
What is the policy behind FOIA?
How is FOIA different from discovery?
Why would a need to know test pose a constitutional problem?
Why would you use FOIA instead of discovery?
What are the potential costs?
How do the states compare to the Federal FOIA?
Do section by section review of 552(b) Exceptions
§ 8.1.1 Protecting Deliberation: § 552(b)(5) - 510
NLRB v. Sears, Roebuck & Co. - 510
What does the regional office do when there is an unfair labor practices complaint
it does not want to adjudicate?
Who does it ask for advice and what does it get?
What did Sears want?
What privilege did the NLRB claim?
Why did Sears say it did not apply?
What presidential privilege does this resemble?
What is for docs to be under this exemption?
Why does the court want to protect?
Where was this originally litigated?
What is the key test?
Remember the early case about finding out what is in the secretary's head
and how this was discouraged in discovery?
What else does Exemption 5 cover?
Why do advice and appeals memos not fall under 5?
What about memos which direct the filing of a claim?
What if exempt materials are used as part of a record for a ruling?
Does the FOIA require the agency to create new documents or explanations?
Notes and Questions - 516
Sec. 5 includes Presidential executive privilege
§ 8.1.2 Confidential Private Information: § 552(b)(4) - 519
Chrysler Corp. v. Brown - 519
What did Chrysler try to enjoin?
Does the APA create a direct right to enjoin such disclosures?
How could the APA be used to support the injunction?
Are trade secret protection absolute?
When might the agency release trade secret information?
Notes and Questions - 523
Why do agencies usually refuse to give out info with proprietary corporate
What is the key to deciding whether the date will be released?
When is voluntary info covered?
When is compelled info covered?
What are examples where Congress has compelled disclosure?
Do the companies have to be notified first?
5 - Problem
Scientist submits grant proposal to the NIH
NIH sends it out to a peer review committee
The peer review committee evaluates and scores it
NIH makes the final determination on approval
Can rival scientists get the info in the hands of the NIH?
§ 8.2 The sunshine and Advisory Committee Acts - 525
§ 8.2.1 Sunshine Acts - 525
A - Costs and Benefits
Why have these laws?
How broad are the state laws as compared to the federal law?
What is the downside?
How do agencies try to get around Sunshine acts?
B - What is a meeting?
Why is this a critical definition?
What did the Moberg case find?
Could you set the quorum very high, assuming you could ever get them together
when you needed to act?
What definition did the United States Supreme Court use in FCC v. ITT?
What are the key lawyering issues to tell agencies about open meetings?
What sanctions can you get if prevail on a claim that a meeting should have
Can the federal court overturn actions because of improperly closed meetings?
§ 8.2.2 Federal Advisory Committee Act (FACA) - 529
Why did congress pass this act?
Who does it cover?
What does it require?
Does it violate separation of powers by limiting the prez's right to get advice?
What if they are all federal employees?
Hillery Health posed an interesting problem
Was she a government employee?
Even if she claimed she was not for disclosure purposes?
What about the 800 folks who did the work as "advisors" to the committee?
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