What is freedom of information law?
In America, the government belongs to the people. Freedom of information
(or FOI) law is simply one means by which citizens, the owners, have given
themselves the ability to keep tabs on what it is their government and
governmental officials are doing. FOI law is based on the fundamental belief
that a democratic people do not and should not give their government the
right to decide what the people should or should not know. While most recognize
the need for some secrecy in government (for example, battle plans), FOI
laws, or "sunshine laws" as they are often called, recognize that most
of what the government does should be subject to public review, carried
out in the "sunshine" provided by open record and open meeting laws.
Too often, however, student journalists fail to take advantage of the
extraordinary power of freedom of information law. The university president
refuses to answer a student reporter's question about her annual salary.
School board members lock a reporter out of a budget meeting to discuss
controversial school closings. The campus police chief locks up all records
about an alleged sexual assault that took place in front of the school
library. A principal refuses to answer questions about a rumor that he
was arrested for drunken driving. Is that the end of the story? Too often,
the answer seems to be yes. For student journalists who know the basics
of freedom of information law, however, "no comments" and locked doors
are not deadends - just temporary obstacles that can very often be overcome.
For the purposes of most student journalist, FOI law falls into five
roughly defined categories: (1) the federal Freedom of Information Act,
(2) state open record laws, (3) the federal open meetings law, (4) state
open meetings laws and (5) miscellaneous FOI provisions. The federal laws
are typically used to obtain access to the meetings of federal governmental
bodies or records in the possession or control of a federal agency; state
laws are used to obtain access to the meetings or records of state or local
government agencies. The miscellaneous laws can apply to either state,
local or federal government agencies - some even apply to non-governmental
bodies, such as a private school.
What do freedom of information laws say?
Generally, FOI laws say that all records generated or meetings conducted
by a public body are open to the public unless they are specifically exempted
by law. Even when a specific exemption does exist, most laws still leave
disclosure up to the individual government official. In other words, an
official usually can disclose exempt records or grant access to exempt
meetings, but she is not required to. While private bodies (such as private
schools) are generally not covered by FOI laws, some laws ensure compliance
by private entities by threatening to withhold government funding if certain
information is not disclosed.
When requesting access under federal law, the exemptions are uniform
across the country. Under state law, however, the exemptions can vary.
For example, while Connecticut's open records law makes arrest records
available to the public, Delaware's law apparently exempts that same information.
Under most FOI laws, a public record or meeting is presumed to be open.
This is important because it means that where a public official decides
to deny access, it is up to the official to legally justify his decision.
Further, if a requester feels she was incorrectly denied access by a public
official, most FOI laws allow the decision to appealed.
No matter what type of information or meeting to which you are trying
to gain access, every newsroom should have a copy of their state's open
meetings and records law and the federal Freedom of Information Act available
for consultation should questions arise. If your newsroom does not, your
state press association, a local newspaper or attorney or the Student Press
Law Center can assist you in obtaining copies.
How do freedom of information laws work?
Fortunately, access to government meetings and records is often granted
on an informal basis by public officials who recognize the importance of
open government. Therefore, before waving your copy of the law in front
of a government official and demanding compliance, you will often find
officials more receptive to your request by simply asking for their assistance.
When the informal approach is unsuccessful, however, an FOI law may need
to be invoked.
Open Meeting Laws
Using FOI law is simple. For meetings of governmental bodies, just
show up. If the meeting is small or if your presence is questioned, you
should identify yourself as a reporter and politely explain your interest
in attending the meeting. Remember that you are not looking for a confrontation;
you are looking to gather news for your readers. If you are told that the
meeting is closed, ask why. This is also a good time to professionally
explain to the meeting's chair why you think you should be entitled to
attend, being sure to cite the relevant open meetings law. If the officials
still tell you the meeting is closed, ask that your objection and their
response be read into the minutes and then leave. Upon leaving, be sure
to record the names and titles of everyone you talked to and carefully
note what was said.
If after leaving you still feel that you were wrongly denied access,
you may wish to consider following the course of appeals prescribed by
your specific open meetings law. If you need help at this stage, you may
wish to contact an attorney experienced in FOI law or call the Student
Press Law Center.
Open Record Laws
To request records, most state laws say that all you have to do is
go to the person responsible for keeping the documents you're looking for
and ask for them. To formally request records from a federal agency or
to request records from a state agency when you think they might not act
on an oral request, a written request is required. Again, the process is
fairly straightforward. An automated
FOI records request letter, containing the basic information you should
include in your request, is available on the SPLC Web site to assist you.
In writing your letter, be sure to cite the relevant FOI law and note
the specifics relating to how much time the law gives an agency to respond
to your request and any penalties associated with non-compliance. Also,
make sure that you "reasonably describe" the material that you want. If
you want police incident reports relating to an assault committed in front
of Memorial Library on June 4, 1993, say so. A letter that merely requests
access to "all crime information" will probably only delay your getting
access to the information you want. You do not need to know an exact document
number or title, but your request should be specific enough so that a public
employee familiar with the subject area can locate the records with a reasonable
amount of effort. And again, you will find that courtesy and professionalism
are rewarded.
As with meetings, if you feel your request for access to records has
been wrongly denied, you should consult your open records law to determine
the procedure for appealing the decision. Usually, you will be required
to write a formal letter of appeal to a higher authority. Some states,
however, do allow for immediate review by a judge. And again, if you have
questions, this might be where should consider seeking professional guidance.
Other sources of FOI law
While open meeting and open record laws are the primary tools of most
journalists when trying to obtain information from and about their government,
they are not the only source of law available. Scattered throughout various
state and federal laws are pockets of FOI law that, once you know where
to find them and how to use them, can provide a journalist with other valuable
information about how the government or your school conducts its business.
For example, as part of a large body of law regulating federal financial
aid for students, Congress also included a small section requiring that
schools provide statistical information regarding campus crime. And buried
deep within the voluminous federal tax code is a provision that requires
private schools and other non-profit organizations to provide, upon request,
some of the nitty-gritty information about where their money comes from
and where it goes. The details of these and other FOI laws are provided
below.
Remember - FOI law is your friend
It is truly unfortunate how many student journalists either do not know
about or have not taken the time to learn how to use freedom of information
law. Do not be one of them. FOI law can be an invaluable ally in fulfilling
one's duty as a journalist to inform readers about the performance of their
government and in obtaining other interesting and useful information. For
student journalists and all those interested in the nuts and bolts of government,
a working knowledge of FOI law is essential. In addition to this basic
introduction, the Student Press Law Center can recommend other sources
that will provide additional information on how to get the most out of
FOI law. Remember, FOI law can be a potent tool in a journalist's arsenal
- but first you have to use it.
Your Guide to the FOI Law Toolbox
FOI Tool:
Federal Freedom of Information Act (FOIA)
(5 U.S.C. Sec. 552)
Type of Information Available: All records of all
federal agencies, unless those records fall within one of nine categories
of exempt information that agencies are permitted (but not required) to
withhold. The exemptions are: (1) national security, (2) internal agency
rules, (3) information specifically exempted by other federal laws already
on the books - the so-called "Catch-All" Exemption, (4) trade secrets,
(5) internal agency memoranda, (6) personal privacy, (7) law enforcement
records, (8) bank reports, (9) oil and gas well data. The exemptions, however,
are not always as broad as the exemption headings might suggest. For example,
the law enforcement exemption can only be used where an agency demonstrates
that release of a document could reasonably be expected to jeopardize an
ongoing civil or criminal investigation, deprive a person of a right to
a fair trial or cause harm to persons who assist law enforcement officials.
Unfortunately, interpreting the federal FOIA has become increasingly complex
and questions or record requests that seem fairly straightforward often
are not.
Who the Law Applies to: Every "agency," "department,"
"regulatory commission," government controlled corporation," and "other
establishment" in the Executive Branch of the federal government. The FOIA
does not apply to Congress, the federal courts, private corporations or
federally funded state agencies. However, documents generated by these
bodies and filed with a federal government agency become subject to Act
unless they fall within one of the exemptions.
How to Use it: In order to save yourself some time
and trouble, you may want to first try and make an informal oral request
to obtain the documents you are seeking. However, agencies will frequently
require that requests be made in writing. Also, to preserve your rights
under the Act, a formal request must be in writing. Filing a formal request
is usually not difficult. First, you must be able to "reasonably describe"
the material you want. You then ask to obtain that material in a formal
written request letter. You then submit a formal written request letter
to the FOIA officer at the federal agency you believe has custody of the
records you want (e.g., FBI, Department of Defense, Environmental Protection
Agency, etc.).(An automated FOI
letter generator is available here to assist you.) If you are unsure
which federal agency has the records you want, send the same request to
several agencies. Likewise, if a federal agency has numerous branches or
field offices and you believe the records might be held by one of them,
send a copy of your request to that location as well. Mark the outside
of the envelope "FOI Act Request," and send it registered mail, return
receipt requested.
Penalties for Non-compliance: If your request is
wholly or partially denied, the FOIA gives you the right to appeal. Your
appeal can be a brief letter to the agency administrator asking that he
or she review your request and explaining why you think the denial was
improper. The SPLC can provide you with a sample FOIA appeal letter. If
your appeal is denied you may file a FOIA lawsuit in the nearest U.S. District
Court. It is probably wise - though not necessary - to have legal help
in filing your complaint. The Act provides for the payment of attorneys
fees and court costs if you " substantially prevail" in your lawsuit. The
Act also provides that an " arbitrary" or "capricious" denial of properly
requested information by an agency employee can subject that person to
written reprimands, fines and/or removal.
FOI Tool:
State Open Record Laws
Type of Information Available: Varies from state
to state, however, the general idea is that all "public records" are available
unless they fall under a specific exemption listed by the state law.
Who the Law Applies to: Varies from state to state.
Again, however, the general idea is that all "state agencies" or state
"public officials" must provide access to their official records when requested
to do so.
How to Use it: Many state laws - unlike the federal
Act - allow requesters to make a simple oral request to the person that
holds the records. In these cases, the state official must provide reasonable
and prompt access to the requester during normal business hours. If your
oral request is denied, it is important that you note the name, title and
response of any official you deal with. In those states where oral requests
are not recognized - and any time such a request has been denied - a formal
written request should be submitted (The automated
FOI letter generator, available on the SPLC Web site, can help).
As with a federal FOI request, your letter should reasonably describe the
material you are seeking and be sent to the person(s) or agency(s) responsible
for holding that information.
Penalties for Noncompliance: Penalties vary by state.
Almost all states provide for an eventual court order in which improperly
concealed records are required to be opened. Some states require that a
requester first appeal a denial through an established administrative process
before going to court. Many states also allow a prevailing requester to
collect money for attorney fees and court costs. Additionally, many states
also allow for the imposition of monetary fines (and some even proscribe
jail sentences) against a state agency or officer who improperly denies
an open records request.
Go to: List
of state open record law citations
FOI Tool:
Federal Government in the Sunshine Act
(Federal Open Meetings Law) (5 U.S.C.A. Sec. 552b)
Type of Information Available: This FOI tool acts
as a standing invitation for journalists and other members of the public
to attend the business meetings of most federal government boards, commissions
and agencies. It also requires that agencies covered by the law give at
least one week's public notice of a meeting's topic, time and place. All
meetings - including budget deliberations - must be open unless the agency
demonstrates that the discussion would fall under one of ten exemptions.
The first nine of these exemptions parallel the FOIA exemptions, discussed
above. The tenth exemption provides for closure when an agency is involved
in arbitration or adjudication of a case.
Who the Law Applies to: The statute lists about
50 federal boards, commissions and agencies that must comply with the federal
open meetings law. Like FOIA, the Sunshine Act does not apply to Congress,
the federal courts, private corporations or federally funded state agencies.
How to Use It: Simply show up at the time and place
posted on the public notice. If there is a topic that you are particularly
interested in, most agencies will put your name on a mailing list to receive
public notices when they are issued. If you hear that a meeting is closed
or if you are asked to leave once you have arrived to cover a meeting,
ask that the meeting's chair provide you with a reason (preferably in writing)
for the closure. If you believe that the meeting is being closed improperly,
ask that your objection to the closure be read into the minutes of the
meeting and cite to the federal open meetings law. Record the names and
responses of all government officials you speak with - and then leave.
Short of going to court, it is often helpful to submit a written letter
of objection to both the meeting's chair and, if applicable, the chair's
supervisor or other individual in a position to exert pressure on the chair
to comply with the open meeting law's requirements. In the letter, you
should explain how you were denied access to the meeting and why you believe
that action was wrong. Give the recipient a reasonable deadline for addressing
your complaint and let him know that, if necessary, you are prepared to
legally appeal the decision of the chair.
Penalties for Noncompliance: The Sunshine Act allows
a court to dissolve an improperly noticed or closed meeting. Where such
an injunction is issued, future improper notices or closings could result
in a court finding the agency in contempt of court.
FOI Tool:
State Open Meeting Laws
Type of Information Available: Varies by state.
Generally, a state's open meetings law guarantees the right of the public
to attend meetings of a public body in which a quorum exists and during
which official business will be discussed. The laws usually require agencies
to give advance notice of the time, place and agenda of all meetings. The
laws also usually require agencies to keep minutes of all meetings, even
those that can be legally closed to the public. Every state allows agencies
to discuss some matters in closed session. The kinds of meetings that can
be closed vary from by state, but most laws permit the following discussions
to be in secret: personnel matters, litigation matters, negotiations and
collective bargaining sessions, discussions regarding the acquisition of
real estate.
Who the Law Applies to: Varies by state. Most states
- but not all - require a meeting be open only when a sufficient number
of the body's members are present to constitute a quorum. Chance social
or informal gatherings of agency officials are generally not covered. However,
officials cannot hide behind the pretext of a social or other "non-official"
gathering if the agency is meeting to discuss public issues and make decisions.
Non-governmental groups may fall under an open meetings law where they
are supported in whole or in part by public funds, are created by a government
body, use public facilities or perform traditionally governmental functions.
Unlike the federal open meetings law, some state laws also include certain
legislative and judicial bodies, in addition to executive branch agencies,
as among those required to conduct their business in public.
How to Use It: See discussion under the Federal
Government in the Sunshine Act, above.
Penalties for Noncompliance: In some states, action
taken at an improperly closed meeting can be declared null and void, requiring
the agency to take the action again in an open meeting. In other states,
government officials may be liable for criminal or civil fines. Also, attorney
fees are often available to those who successfully contest a closed meeting.
Go to: List
of state open meeting law citations
FOI Tool:
Crime Awareness and Campus Security Act of 1990
(20 USCS Sec. 1092(f))
Type of Information Available: Beginning September
1, 1992, educational institutions were required to publish and distribute
an annual security report containing: (1) campus security policies and
procedures, (2) the law enforcement authority status of security personnel,
including their working relationship with state and local police agencies,
(3) a description of crime prevention and drug and alcohol abuse programs
available to the campus community, (4) a listing of any policies which
encourage accurate and prompt reporting of crime to the appropriate police
agencies, (5) campus policies regarding law enforcement relating to drug
and alcohol use and (6) actual campus crime statistics. Statistics must
be released for the following crimes and violations: murder, rape, robbery,
aggravated assault, burglary and motor vehicle theft. Where an arrest is
made, a school must also report statistics concerning: liquor law violations,
drug abuse violations and weapons possessions. Currently, the law only
requires that schools report statistics concerning "on campus" occurrences
that were reported to campus security authorities or local police agencies.
"On campus" includes off-campus athletic facilities or other school-controlled
premises. Statistics for the preceding two school years must be made available
upon request.
In addition to the annual statistical report, this law requires that
schools make "timely reports to the campus community on crimes [from the
list above] considered to be a threat to other students and employees...."
"Timely reports" is undefined. The provision does state, however, that
its purpose is to enable the campus community to protect itself from potential
harm. Therefore, any amount of time that passes between when a crime is
reported and when the public is notified would arguably defeat the law's
purpose.
Who the Law Applies to: All institutions - public
and private - receiving federal financial assistance (for example, federal
work-study, grants, National Direct Student Loans, etc.).
How to Use It: The law requires that schools "prepare,
publish and distribute" the above security report to all current students
and employees and to any school applicant who requests the information.
The report can take many forms, from a no-frills mailing to a full-color,
tabloid-sized brochure complete with wall-size maps and safety tips. Some
schools are apparently including the required information in existing campus
publications, like school catalogues or student handbooks.
Penalties for Noncompliance: Schools that do not
comply risk losing their eligibility for federal aid. The Department of
Education has been charged with monitoring schools' compliance with the
Campus Security Act. Individuals who believe their school is not accurately
providing the required information should contact the Director of the Regional
Office of the Department of Education that serves the state in which the
school is located (the Student Press Law Center can provide you with more
specific contact information if you need it). When reporting a problem,
individuals should request that the Department provide them with a copy
of their findings.
More information on using the Campus Security Act can be found in our
Access
to Campus Crime Statistics packet.
FOI Tool:
State Crime Statistics Laws
Type of Information Available: These laws are the
state versions of the federal Campus Security Act, discussed above, which
require schools to compile and release statistical information regarding
campus crime. The advantage to some of these laws is that they require
schools to report more information (for example, more or different categories
of crime must be reported, crimes from a broader geographic area must be
included, more or different types of information must be included in reports)
than required by the federal law. Currently, eleven states (California,
Connecticut, Delaware, Florida, Louisiana, Massachusetts, Pennsylvania,
Tennessee, Virginia, Washington and Wisconsin) have campus crime statistics
legislation.
Who the Law Applies to: Varies by state. Some states
clearly limit the reporting requirements to public schools; most laws either
explicitly include private schools or contain language that would appear
to do so (e.g., "each institution of higher education.")
How to Use It: Varies by state. Some laws require
schools to actively distribute the information to students, faculty, etc.
Other laws require only that the information be made available upon request.
Penalties for Noncompliance: Varies by state. Some states have made failure
to comply with the law a crime, punishable by fine. Other states, unfortunately,
have put little "bite" in their respective laws. Students in these states
would be limited to obtaining a court order compelling a school to release
the records.
FOI Tool:
Campus Sexual Assault Victims' Bill of Rights
(20 USCS Sec. 1092(f)(7)(a))
Type of Information Available: This FOI tool - a
subsection of the Crime Awareness and Campus Security Act of 1990, discussed
above - may provide student journalists with a look at what goes on behind
the closed doors of an on-campus disciplinary body in cases involving sexual
assault. Who the Law Applies to: All institutions receiving federal financial
assistance (e.g., federal work-study, grants, National Direct Student Loans,
etc.).
How to Use It: In cases involving sexual assault,
this law requires that a school provide information regarding the outcome
of an on-campus disciplinary action to both the accused and accuser. While
the law does not require that the information be released directly to the
public, journalists now have the opportunity to contact an accused or accuser,
if their identities are known, and ask if they want the information reported.
In the past, journalists often found that their hands were tied for lack
of information, even when an apparent victim of sexual assault wanted her
story told. Further, because the law also requires schools to inform students
of their option to report the incident to the local police, it is likely
that more information regarding sexual assault on campus may be available
through normal police reporting channels.
Penalties for Noncompliance: Schools that do not
comply risk losing their eligibility for federal aid.
FOI Tool:
Student Right to Know Act
(20 USCS Sec. 1092(a)-(e))
Type of Information Available: This law was passed, in
large part, to combat the growing default rate on government insured financial
aid. Beginning July 1, 1993, it requires that schools submit a report to
the Secretary of Education that includes: (1) the identity of and procedures
used by an institution's accrediting or licensing body; (2) academic standards
adopted by a school; (3) student financial aid deferment policies; (4)
average indebtedness of students receiving federal aid, including average
monthly payments.
A second part of the law was enacted to remedy the perceived abuse surrounding
athletic scholarships. It requires that, effective July 1, 1993, schools
report the following information to the Secretary of Education: (1) the
number of students receiving athletically related aid, broken down by race
and sex, who participate in basketball, football, baseball, cross country/track,
and all other sports combined; (2) total number of students at the school,
broken down by race and sex; (3) completion or graduation rate of students
receiving athletic aid, again broken down by race and sex; (4) completion
or graduation rates of all students, broken down by race and sex; (5) average
completion or graduation rates for the four most recent classes of those
receiving athletically related financial aid, broken down by race, sex
and sport; and (6) average completion or graduation rate for the four most
recent classes of all students, broken down by race and sex. Once this
information is submitted to the Department of Education, they must compile
various reports showing how schools rank nationally.
Who the Law Applies to: All institutions receiving
federal financial assistance (e.g. federal work-study, grants, National
Direct Student Loans, etc.). Schools that already publish the athletic
scholarship information required above will not be required to duplicate
it.
How to Use It: Unlike the Campus Security Act, above,
there is no requirement under the Student Right-to-Know Act for mandatory
distribution to all students. Once the reports are compiled (no later than
July 1, 1993), most schools will probably release the information voluntarily.
Also, schools are required to give the information to potential student
athletes, so you might be able to get copies from them. If your public
school does not release the information voluntarily, invoke the power of
your state's open records law, discussed above. If you attend a private
school - or if you simply want to see the national reports compiled by
the Department of Education - contact the D.O.E. directly.
Penalties for Noncompliance: Schools that do not
comply risk losing their eligibility for federal aid.
FOI Tool:
Federal Internal Revenue Service Form 990
(26 U.S.C. Secs. 6104, 6652, 6685 (1987). See also:
1988-48 I.R.B. 10, 11/28/88.)
Type of Information Available: Private school student
journalists, in particular, simply must know how to use this powerful FOI
tool. The IRS Form 990 and the supporting schedules that go with it disclose
a wealth of information about the inner-workings of tax exempt bodies -- information you probably cannot obtain anywhere else. The following examples should pique your interest: (1) the amount of money the organization has taken in each year (including grants), with a break-down indicating the general sources and amounts of that money; (2) a comprehensive listing of where the money was spent, how much was spent and for what; (3) a detailed balance sheet indicating both the assets and liabilities of the organization at the end of each fiscal year; (4) information on the sale or purchase of the organization’s investments (such as stock portfolios, bonds, trusts and endowment funds) and how they have fared each year; (5) the identities and salaries of the top organization employees, consultants and professional service providers making more than $30,000 a year and (6) any legal fees paid by the organization.
Who the Law Applies to: Tax-exempt organizations, such as private schools, college foundations, charities and non-profit corporations.
How to Use It: Tax-exempt organizations are required by law to make the Form 990 available to the public. It can be obtained either through the Internal Revenue Service or inspected on the institution’s premises. Because of the time involved in obtaining a copy from the IRS (up to three months), it is suggested you first go to the organization itself. Contact the organization’s business office and request to inspect the form or ask that they direct you to the office where the form is kept. The organization must provide you with a copy. If you encounter reluctance, it may prove helpful to submit a written request, citing the law above (including the penalties for noncompliance, discussed below) and stating that you will go to the IRS if denied access. You may also wish to send a copy of your request to the organization’s attorney. To obtain a copy of the form from the IRS, contact the IRS Service Center that serves your state. The Student Press Law Center packet, "IRS Form 990: A Public Record for the Private School Journalist," describes the form and its use in greater detail.
Penalties for Noncompliance: If you are refused access to all or part of the form by an organization, keep a careful written record of who turned you down and when and where it occurred. The IRS can impose heavy penalties (up to $6,000) for non-compliance. Official complaints — along with supporting documentation — should be sent to the IRS Key District Office.
FOI Tool:
Family Educational Rights and Privacy Act (FERPA), also known as the "Buckley Amendment" [20 U.S.C. § 1232g]
