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As you know, the Media Freedom and Information Access Practicum is all about access. So perhaps you won’t be surprised to learn that we had a hand in a big-name amici brief to the 10th Circuit in support of Prison Legal News’ effort to obtain the release of audio and video documents showing the behavior of two convicted killers. The District Court had declined to release the documents, requested under FOIA by PLN, even though they had already been shown in open court during the killers’ criminal trials.

The case is particularly interesting because the documents only became subject to FOIA because the prosecutor in the criminal trials held onto the documents. So the brief argues that because they were trial exhibits aired in open court, the audiovisual materials are judicial records. If the government wanted to prevent them from being disclosed publicly, they should have applied to seal the documents. To do otherwise allows the government to obtain a de facto sealing of the documents without meeting the burden for sealing.

The brief also argues that, regardless of the custody of the documents, the press and public’s right of access should apply to the court exhibits in question. It notes a strong, presumptive common law right of access to judicial documents which can only be overriden in extraordinary circumstances not present in this case. It also argues that a qualified first amendment right to court documents also favors their release.  

Supervised by Scott Schuchart of the Jerome N. Frank Legal Services Organization at Yale Law, Adri, Nabiha and myself worked on a very tight timeline to produce the raw materials for this brief. And it was a great success: Amici include 60 Minutes, the Associated Press, Westword, The American Society of News Editors, The Association of Capitol Reporters and Editors, the Society of Professional Journalists, and the ACLU of Colorado.

The case is Prison Legal News v. Executive Office of United States Attorneys (cases 09-1511 and 09-1531), and the amici brief will be made available soon, so watch this space!

Google has just been held criminally liable in Italian court for video content it hosted.

This is a horrific outcome. Here’s why, against a backdrop of US law:

Newspapers in the US may be liable for libel in what they publish (under a strong pro-free-press standard, of course, established in NYTimes v. Sullivan). This makes sense: if a publication has actual control over the content it publishes, it can be understood to be “responsible” for that content in a legal sense.

But in the online realm, online publishers such as websites or ISPs (like Comcast) are granted immunity from libel liability under the Communications Decency Act (CDA) § 230. Again, this makes sense: if you’re Comcast or Google and some user posts libelous information online, there’s no guarantee you’ll even have seen the posting, let alone should be held responsible for it on a more theoretical level of understanding “authorship”.

This is about leaving the conduits for newsgathering and news distribution out of the legal fray– especially when they don’t have any real initial control over what’s being posted. Yes, this raises questions about who is, in fact, responsible– and runs up against problems when trying to identify defendants.

But if governments start requiring ISPs and OSPs to pre-screen for libelous or “privacy-invading” content, which is what Italy has done to Google, then the chilling effects on online speech will be HUGE.

And the chilling will take place on the level of distribution, which is even more problematic. An intermediary like Google has little legal incentive to stand up to a government on behalf of user speech, except for their own inconveniences in screening. What’s to stop a newly-liable Google or Comcast from running automated filters on speech to determine if it’s “private”, “libelous”, or otherwise illegal? (Isn’t this effectively what’s happened/is happening in the copyright realm?) These are nebulous legal terms that should be subject to legal interpretation, not mechanized filters.

Keeping intermediaries liability-free encourages them not to get involved with this kind of screening. Making them liable will drastically change the nature of online platforms as centers of information gathering and distribution.

I had the opportunity to spend some time this week summarizing the basics of FOIA, and thought that others might be interested as well. Best of luck in your FOIA requests!

FOIA Basics

As you might already know, the Federal Freedom of Information Act (FOIA) provides citizens with access to federal government documents. After making sure a FOIA request is necessary, such a request proceeds in three steps: filing the request; waiting for a response; and (if necessary) appealing the decision.

 Before FOIA

 It is always possible to make an informal request by telephone to government agencies requesting information. You can also contact the agency FOIA officer and informally ask for assistance. However, on sensitive subjects this is unlikely to be fruitful, and your legal rights under FOIA only are activated with a written request.

 There are already a number of sources for public documents, including the Federal Register, Code of Federal Regulations, and agency websites. Since FOIA requests require that you be able to ‘reasonably describe’ the material you want, it may be useful to first check these sites for related information and to be able to explain why it does not suffice.

 Filing a FOIA Request

 A FOIA request can be made by crafting a simple letter to the government agency of interest. It should:

• Be addressed to the agency or subdivision in question, being as specific as possible. A list of government agency FOIA offices is here: http://www.justice.gov/oip/foiacontacts.htm.
• Be marked at the top, and on the envelope, as a FOIA request.
• List as specifically as possible the records which you are requesting
• Explain why you are requesting such documents, and what public interest they serve
• Explain why you might be entitled to a fee waiver (see below)
• Include your contact information
• Be photocopied and retained so that you have evidence the request was filed.

 A sample letter is available here: http://www.nfoic.org/sample-foia-letters#foireq. Note that lower on the page is more detailed language about fee waivers.

 Fees: The agency can request that you pay for the reasonable cost of reproducing the documents, unless you are entitled to a fee waiver. Search fees generally range from $11 to $28 per hour, while photocopying costs are normally between 3 and 25 cents per page. Non-commercial requesters generally receive two free hours of search time and 100 photocopied pages free.

 The news media and academics are exempted from search fees; thus, working with an investigative journalist (including some experienced bloggers) or academic is one way to reduce costs. Individuals can also request a fee waiver based on the following criteria.

• The subject of the requested records concerns government operations and activities.
• The disclosure is likely to contribute to understanding of these operations or activities.
• Disclosure will likely result in public understanding of the subject.
• The contribution to public understanding of government operations or activities will be significant.
• The requester has a limited commercial interest in the disclosure.
• The public interest in disclosure is greater than the requester’s commercial interest.

 It may be helpful to address these criteria in your initial request; otherwise the government may delay responding by requesting more information before deciding on the fee waiver. Agencies are generally more willing to grant fee waivers for more narrowly defined requests.

 What Happens After You File?

 The law requires that agencies respond to FOIA requests in 20 days, though federal agencies often ignore this deadline. Note that a simple response by the agency saying that it has received your request is not enough to meet the 20 day deadline.

 A response can take one of several forms:

• The agency can provide the documents you request.
• The agency can respond that the documents are subject to an exemption which would preclude their release.

The agency can also ‘stop the clock’ once by requesting clarification from the applicant, or if there are ‘unusual or exceptional circumstances’ related to your request.

 There are currently 9 exemptions for the release of government records:

1)      National Security

2)      Internal Agency Rules

3)      Statutory Exemptions

4)      Trade Secrets

5)      Internal Agency Memo

6)      Personal Privacy

7)      Law Enforcement Records

8)      Bank Reports

9)      Oil and Gas Well Data

 Common problems with FOIA requests include long delays in responses, high fees, and liberal use of the above exemptions to preclude the release of documents.

 FOIA Appeals and Litigation

 If an agency refuses to disclose information, or does not respond in a timely manner, you can appeal to the agency FOIA Officer. It is preferable to file within 30 working days of a denial. You can appeal the failure to release documents, the delay in response, the failure of the agency to conduct an adequate search, prohibitively high fees, or other matters that could effectively interfere with your ability to receive records. As with FOIA requests, these can be done be simple letter.

• You should state why you think the agency’s actions were wrong.
• If any exemptions were cited, you should explain why they do not apply.
• If applicable, you should also indicate your willingness to take the matter to court.

 If you file an administrative appeal that is denied, or if your request is not responded to within 20 working days, you can then file a lawsuit in federal court. You may want to retain an attorney at this point. The Reporters Committee for Freedom of the Press has a sample complaint here which can be edited here: http://www.rcfp.org/foialetter/index.php?op=complaint.

 One can also file a ‘Motion for Vaughn Index’, which asks the court to order the government to describe the information it is withholding and the reasons for doing so. Some courts require you to wait for the government to respond to your complaint before allowing such a motion. A sample is available here: http://www.rcfp.org/foialetter/index.php?op=vaughn.

Additional Resources

Much of this information was drawn from the Federal Open Government Guide put together by the Reporters Committee for Freedom of the Press: http://www.rcfp.org/fogg/index.php?. There is also a FOIA-letter-generating section of the website, though personal letters may be better received.

 George Washington University’s National Security Archive also has a website on ‘FOIA Basics’: http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html. Their website also suggests that they undertake national security related FOIA litigation (though details are not yet available).

This website also provides links to a number of organizations which undertake FOIA litigation, though we cannot personally vouch for any of them: http://www.foiadvocates.com/links/index.html.

When a citizen signs a petition to place an initiative on the ballot, is he or she acting as a voter or as a legislator?

Chime in!

The ABA Journal discusses what it calls “the U.S. Supreme Court’s first major test of whether the war on terrorism conflicts with the free speech principles of the First Amendment.” (…what took y’all so long?!)

“I am opposed to violence of all sorts. It seems crazy to me that I could go to jail for trying to persuade people to use nonviolent means to achieve their rights,” says Fertig, now 79 and president of the Los Angeles-based Humanitarian Law Project, a nonprofit human rights organization begun in 1985. Holder v. Humanitarian Law Project (click for briefs) is scheduled for oral argument on Feb. 23.

Stay tuned!

It’s no secret that I’m wildly, terribly, and insanely in love with Wikileaks.

The controversial whistleblowing platform publishes anonymous submissions of governmental, corporate, and organizational documents, and is dedicated to exposing oppressive regimes and revealing unethical behavior. The great thing is that they’re actually good at it: they released the Standard Operating Procedures for Camp Delta at Guantanamo; Sarah Palin’s Yahoo! adventures to circumvent public records laws; Climate Research Unit emails; internal reports on toxic dumping in the Ivory Coast; Internet censorship lists from across the globe; telephone intercepts of Peru’s “Petrogate”…you name it, and they’ve got dirt on it. Everyone from Julius Baer to the Scientologists have tried to shut ‘em down — whoever they are — and their general badassery has always prevailed.

Until now.

The Paypal-flaunting, UN-report-leaking, The Economist New Media Award-winning, military-grade-encrypted bastion of accountability, transparency, and all else that is good in this world has been brought to its knees by BUDGET CUTS.

Sigh…

There are some things we know nothing about until someone sues someone else.

(I’ll forgive you if you’re thinking about marital disputes…)

In the newsgathering context, this is extremely important. Well-heeled interests make a regular practice of hyper-secrecy as a way to preserve competitive advantages.  Litigation often provides the only vehicle for reporters to find stories on poorly understood industries who operate behind a veil of secrecy, hiding issues of extreme public interest.

Case in point: the New York Times’ recent story on the menopause drug franchise among major pharmaceuticals.  From the article:

The documents that have surfaced in the Wyeth cases offer a rare glimpse inside the file cabinets and hard drives of a major drug company. And the cases demonstrate the importance of litigation in detailing exactly how drug makers operate their businesses, says Dr. Jerome L. Avorn, a professor of medicine at Harvard Medical School who has written about the subject in The Journal of the American Medical Association.

“The information coming out in litigation helps us understand how a belief in a ‘protective benefit’ of estrogens on the heart was able to spread like wildfire through the medical community,” says Dr. Avorn, who is not involved in the Wyeth litigation.

If nothing else, this ought to remind us how threatening sealing orders are.  Litigation is often the only way we learn about matters of pressing public concern, and sealing orders threaten not only potential victims, but professional communities who rely on accurate information about industry practices and products.

Dr. Avorn’s article, “The Role of Litigation in Defining Drug Risks,” should push us to think very hard about a different aspect of the public’s interest in unsealing in the context of medical litigation.  Plenty of sealing cases accept the direct risk to the public as a dispositive public interest–doctor-patient sexual assault cases are the obvious example–but we should not hesitate to consider the derivative benefits to the medical community as well as a compelling rationale for unsealing.