The Freedom of Information Act: An Introduction

A friend told me the other day about a post on Wired’s Danger Room blog, “CIA Committed ‘War Crimes,’ Bush Official Says.” The post described a 2006 memo written by State Department counselor Philip Zelikow, released under the federal Freedom of Information Act [FOIA], in which he concluded that interrogation techniques such as “waterboarding, walling, dousing, stress positions, and cramped confinement” were those “least likely to be sustained” under Article 16 of the Convention Against Torture. (Here’s more information about these techniques.) This contrasts with the Department of Justice Office of Legal Counsel “torture memos,” two of which Zelikow cites to.

Some disagree with the idea that the FOIA is important in allowing Americans to know what their government is doing. Antonin Scalia, when he was a professor of law at the University of Chicago, and the editor of the journal Regulation, wrote in that journal, in an article called ”The Freedom of Information Act Has No Clothes,” that the FOIA “is the Taj Mahal of the Doctrine of Unintended Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored” (Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar.-Apr. 1982, at 15, reprinted in Robert G. Vaughn, FREEDOM OF INFORMATION (2000)). To be fair, Scalia, in his short article, writes that “They [the Freedom of Information Act of 1966 and its 1974 amendments] were promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers” as a tool for retrieving information held by the government about private entities–though he provides no empirical support for this proposition (Id., at 16).

But despite the now-Supreme Court Justice’s view, there are other important, revelatory examples of information uncovered as a result of the FOIA. I spoke with Emily Willard, research associate at the National Security Archive, a nonprofit founded in 1985 as (to quote its “About” page) an “investigative journalism center, research institute on international affairs, library and archive of declassified U.S. documents (“the world’s largest nongovernmental collection” according to the Los Angeles Times), leading non-profit user of the U.S. Freedom of Information Act, public interest law firm defending and expanding public access to government information, global advocate of open government, and indexer and publisher of former secrets.”

Emily’s favorite FOIA tidbit is a revelatory quote from the minutes of a March 10, 1975 meeting between Secretary of State Henry Kissinger and Turkish Foreign Minister Melih Esenbel, who was expressing his displeasure with the arms embargo on Turkey passed by Congress after Turkey invaded Cyprus in 1974. The minutes record that Kissinger said: “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] But since the Freedom of Information Act, I’m afraid to say things like that.”

Emily went on to talk about the Zelikow memo. “The entire document, except for a few things, was completely released, even though it’s so controversial, and the government, the Bush administration, had tried to destroy all evidence of it.” Emily went on to describe this as a really great example of the use of FOIA and why it’s so important. If not for this system of checks and balances, she said, “how would we have ever known that this memo even exists. We would have heard about it, from the government official who wrote it, but we would never have been able to see actually what was being covered up, written on government letterhead.”

But enough about how interesting FOIA can be–it can also be a very useful–and cost-effective–lawyering skill. As Antonin Scalia also wrote, “The necessary training for any big-time litigating lawyer now includes not only the cross-examination of witnesses, but use of the Freedom of Information Act.” (Scalia, supra, at 16).

And there are many resources on the Web to help with FOIA requests. Two very good sites are:

The Freedom of Information Center, a a reference and research library at the University of Missouri’s School of Journalism. It was founded in 1958, and it and its founders were instrumental in the enactment of the FOIA. Their website has many resources, from a collection of sample FOIA and Privacy Act (the federal law that protects personal information and allows individuals access to their own information–useful in some types of government record requests) letters, to guides to the process, to indexes to their collection of government documents.

The Reporters Committee for Freedom of the Press, whose print publication the Federal Open Government Guide, a treasure trove of information on the care and feeding of the FOIA, is available for free online.

And finally, the National Security Archive itself has a guide that Emily says is aimed at the everyday FOIA requester, Effective FOIA Requesting for Everyone.

That will get you started. For more information, let the Web be your guide… or ask your local librarian.

UPDATED 04/16/2012: Added context about Scalia’s article, and added a link to the National Security Archive’s FOIA guide  Effective FOIA Requesting for Everyone.

SAME-SEX DIVORCE: UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                     

SAME-SEX DIVORCE:  UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                Gay rights are advancing at an increasingly rapid pace.  Recently, the United States Ninth Circuit Federal Court of Appeal declared Proposition 8 (which banned gay marriage in California) to be unconstitutional (click here for article).  Even more recently, Maryland passed legislation enabling same-sex couples to marry (click here for article).  On a larger level, Countries around the world are  recognizing the rights of same-sex couples to marry.  Gay marriage is now legal in ten countries (Canada, Argentina, Belgium, Iceland, The Netherlands, Norway, Portugal, Spain, South Africa and Sweden).  While there is a long way to go towards equality for same-sex couples, in general, an atmosphere of hope, optimism, and excitement grows stronger every day.

Enthusiasm may be partly to blame for the problems that occur when same-sex couples wish to divorce.  Many same-sex couples, overjoyed at the prospect of being able to get married after constantly being told that their relationships would not be legally recognized, jumped at the opportunity to be wed.  Such couples now face significant barriers if their marriages break down and they wish to file for divorce.  NPR featured a very informative broadcast available here which provides great background information.

Attorneys who work with same-couples are increasingly advising their gay and lesbian clients not to get married because of the difficulty involved in getting divorced (click here for article).  Equality in terms of same-sex marriage has come a long way, but in terms of divorce lags far behind.  Same-sex couples, while they may wish to marry for all of the same reasons as opposite-sex couples, are often stopped from doing so by the practicalities posed by laws which make access to divorce difficult if not impossible.  For instance, how do married same-sex couples divide their property if their marriage breaks down?  How can they seek alimony or custody rights?

The gay divorce issue poses problems not only for jurisdictions which recognize gay marriage, but also for those that do not.  Recently, in Canada, a “firestorm of outrage” arose after government attorneys challenged the validity of a same-sex marriage performed in Canada on the grounds that it was not legal in their current places of residence (U.K. and Florida) (click here for article).  The Prime Minister, Stephen Harper, was quick to react stating that he has no plans on re-opening the same-sex marriage issue.  Comments suggesting otherwise seem to be largely based on misinformation by those who are quick to attack the Conservative government (click here for article).  In fact, since this story broke in January, the Justice Minister, Rob Nicholson, released a statement confirming the validity of same-sex marriages saying:  “I want to make it clear that, in my government’s view, those marriages should be valid” (click here for article).

Last week, the Federal government proposed new legislation that would declare same-sex marriages “valid for the purposes of Canadian law” and provides rules for same-sex divorce of non-residents (click here for the full text of the Bill).  In short, the bill provides rules for non-resident same-sex couples to obtain a divorce in Canada if they were married in Canada.  What the bill does not provide these couples with is a forum to deal with all of the attending issues that accompany a divorce (ie: alimony, child support, custody, property division) (click here for article).  The government simply cannot pass a law that would deal with all of these issues because it would both overwhelm the judicial system and also involve the courts stepping outside of the purview of their jurisdiction.  In short, divorce granted by this legislation is a symbolic act at best and does nothing to address the more practical concerns associated with divorce for non-residents.

One of the Problems – Residency Requirements

Most countries and states that allow same-sex marriages do not easily allow couples to divorce.  This problem arises due to residency requirements.  A residency requirement essentially requires an individual who seeks divorce to be a resident of that jurisdiction for a certain period (typically 6 months to a year).  Residency requirements for divorce make divorce a lengthy battle for heterosexual couples and same-sex couples alike.  To seek a divorce, one spouse must be a resident of the state in which they seek divorce for a minimum of 6 months in general, but often longer.  The problem is compounded for same-sex couples who marry in a jurisdiction that recognizes gay marriage and subsequently move to one that does not.

Another Problem – D.O.M.A. (Defense of Marriage Act)

On the federal level, The Defense of Marriage Act, 28 U.S.C. § 1738C, came into effect in 1996 and defines marriage as between a husband and a wife while ensuring that states do not have to recognize the validity of same-sex marriages performed in other jurisdictions.   On the state level, states either:  recognize gay marriage (as in Massachusetts); neither allow nor forbid it; or specifically forbid it through legislation or constitutional amendments to their respective state constitutions.  Courts (in states which do not recognize same-sex marriage) claim to lack jurisdiction to hear a divorce case because to do so would effectively mean that they would have to recognize gay marriage.  (For an excellent and current article describing the various constitutional principles involved, see Elisabeth Oppenheimer, No Exit:  The Problem of Same Sex Divorce, 90 N.C. L. Rev.73).  Oppenheimer notes the inherent contradiction in these non-recognizing states stating “it certainly is bizarre for gay marriage opponents to argue that a gay couple must remain married” (Oppenheimer 81).

Several late night talk show hosts have been quick to pick up on this issue and have featured reports which do a good job at exposing the confounding nature of this argument.  The Daily Show, with John Stewart, recently featured this special report in which correspondent Jason Jones interviews a religious figure who is completely against the idea of same-sex marriage.  It simply makes no sense for someone who is so vehemently opposed to same-sex marriage to want to keep such a couple together should their marriage break down.  Not to be outdone, The Colbert Report also featured a segment on same-sex divorce highlighting the same lack of coherence (see this clip @ time 3:25-4:40).

Potential Solutions – There Is No “Quick Fix”

After thoroughly researching the issue of same-sex divorce, Oppenheimer (infra) proposes several solutions but notes that “there are no obvious solutions” (73).  Judges are limited in what types of cases they can hear both by constitutional and statutory rules.  I agree with Oppenheimer when she concludes that any meaningful change is going to have to come from the legislature.  Until then, same-sex couples face a tough decision.  They will need to decide if the idea of marriage – something they have long struggled for – is worth the hassle considering the legal and logistical nightmares that could result if their relationships fall apart.  Those who advocate against same-sex marriage will continue to do so, but they should bear in mind that by refusing to provide a same-sex couple, who was validly married in another jurisdiction, with the option of divorce and everything that goes with that (ie: property division, custody orders, etc.), they are implicitly condoning gay marriage by keeping the couple together.

Photo 1:   found here on February 28, 2012.

Photo 2 found here on February 28, 2012.

Public Knowledge’s Copyright Reform Proposal

The group Public Knowledge, "a Washington DC based public interest group working to defend your rights in the emerging digital culture," (see http://www.publicknowledge.org/about) has made a bold (but not so new) proposal for the reform of copyright law.

According to their Web site (http://www.publicknowledge.org/node/2906),
their Copyright Reform Act, which has five sections, is proposing to
strengthen fair use, reform the anti-circumvention provisions of the
Digital Millennium Copyright Act (DMCA), so that circumvention of
anti-copying technology is explicitly legal for lawful purposes, update
copyright law to better fit with how digital technology functions,
reform the anti-takedown provisions of the DMCA, and make music
licensing easier for users of that content.

Copyfighter Cory Doctorow has an essay on his Web site (http://www.internetevolution.com/document.asp?doc_id=188055)
that speaks to this issue. There is a rather secretive copyright
treaty, the Anti-Counterfeiting Trade Agreement (ACTA), under
development, and reform to the Copyright Act is especially important in
view of this treaty. Cory's essay is a call to action about ACTA.

George Mason University Law School teaches a seminar in multinational IP, (also covering so-called "hard IP"–patents) which is located at: http://www.law.gmu.edu/assets/files/academics/schedule/2010/spring/HOUSEL_MultinationalIP-Syllabus.pdf. The PDF of the syllabus is full of links to materials and also references primary materials.

For some information from the other side of the intellectual property debate:

The World Intellectual Property Organization (WIPO) has some information about intellectual property: http://www.wipo.int/about-ip/en/, with links to additional material.

WIPO also has a collection of international copyright laws, at http://www.wipo.int/clea/en/, the WIPO Intellectual Property Handbook, at http://www.wipo.int/about-ip/en/iprm/index.html, and an e-booklet, Understanding Copyright and Related Rights, at http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#intro.

Public Corruption, Part Two: Florida Faces, Tries to Fight Public Corruption

The
Federal honest-services fraud statute is being tested after a number of
officials in Palm Beach, Broward, and Miami-Dade counties
have been arrested for public corruption. Some Florida legislators–and
the Broward and Palm Beach County State Attorrneys, Michael Satz and
Michael McAuliffe–are advocating strengthening of Florida's
public-corruption laws in ways that do not depend on the language of
the Federal honest-services fraud statute. Called the "Restoring Faith
in Public Office Act," the new state legislation, SB 1076 (bill information page) (bill text), would amend Florida Statutes section 838.022,
"Official misconduct," to include failing, with corrupt intent, to
disclose a financial interest or a direct or indirect benefit.

The bill is sponsored by Democratic state senator Dan Gelber, and supported by other Democrats. The Miami Herald ran an article about the new public-corruption legislation, and the Sun-Sentinel ran an editorial advocating the legislation. According to the Sun-Sentinel, the legislation's chances of passage are limited unless it acquires bipartisan support.

Public Corruption, Part One: Honest-Services Fraud

Public corruption and honest services fraud are an issue both in
Florida and nationally. My next two blog posts will address this issue,
first on the Federal level, then on the state level.

Public
officials and businesspeople in the U.S. are being charged and in some
cases convicted under the Federal honest services fraud statute. The
statute, 18 U.S.C. §1346 (1988),
is itself an addendum to 18 U.S.C. chapter 63, "Mail Fraud and Other
Fraud Offenses," which includes wire fraud and bank fraud. Section
1346, which does not itself define a crime, adds to the definition of
"scheme or artifice to defraud." It reads: "For the purposes of this
chapter, the term 'scheme or artifice to defraud' includes a scheme or
artifice to deprive another of the intangible right of honest services."

The Supreme Court is considering the constitutionality of the honest services fraud statute in three cases this term: Black v. United States, Weyhrauch v. United States, and Skilling v. United States.  (The links are to SCOTUSWiki, a companion site to SCOTUSBlog, brought to you by Akin Gump's Supreme Court and Appellate practice group.) According to the Los Angeles Times, during the arguments over Black and Weyhrauch,
on December 9, 2009, the Supreme Court seemed dubious about the
constitutionality of the honest-services fraud statute, with no real
ideological split. The honest-services fraud statute is analyzed, and
its history delved into, in this article originally published on the
American Bar Association's Web site, "The Honest Services Statute: Scalpel or Axe?"  The Miami Herald ran an editorial in December 2009 about the necessity of the honest-services fraud statute.

“Don’t Ask, Don’t Tell” May Be Repealed

The White House and the U.S. military, with the support of Chairman of
the Joint Chiefs of Staff Admiral Mike Mullen, are moving to end the
"don't ask, don't tell" policy, codified at 10 U.S.C. §654 (1993).
Under "don't ask, don't tell," service members are not questioned over
their sexual orientation but are subject to discharge if they reveal
publicly that they are gay or lesbian. Accoding to the New York Times's coverage,
the Obama administration was faced with a choice: move away from the
policy, or defend in court a policy which President Obama had long
thought was wrong.

Here are some more links about "don't ask, don't tell":

• Google has a timeline of the debate, starting in 1993.
• Center for Military Readiness President Elaine Donnelly opposes repeal.
• The New York Times published an editorial advocating the repeal of "don't ask, don't tell.
• Former Chairman of the Joint Chiefs of Staff and Secretary of State Colin Powell now favors repeal.




• Retired
  Navy Capt. Joan E. Darrah, who served 29½ years as a naval intelligence
  officer and was chief of staff and deputy commander at the Office of
  Naval Intelligence, describes her experiences under "don't ask, don't
  tell."

“Why Minnesota 2008 Is Not Florida 2000″

Edward B. Foley, director of Ohio State University's Election Law @ Moritz, has posted a very interesting analysis of the current contest between Norm Coleman and Al Franken for Minnesota's senate seat. Among other points, he argues that, unlike the decisions in Florida's 2000 presidential election snafu, Minnesota's "judicial rulings over the counting of ballots do not appear to be a
partisan effort to tilt the legal playing field to assist a favored
candidate."  To read the entire post, click here.

Presidential Inaugural Committee

The PIC website details the extensive work that made the inauguration today possible. The committee’s blog, plans, an inaugural store selling collectibles, and live streaming coverage of the event starting at 11 are worth exploring.

- By: Robert Hudson

Looking for a “Plum” Job? Check This Out!

The 2008 Plum Book, which lists federal government positions appointed by the President, is now available online via GPOAccess.  Officially know as the United States Government Policy and Supporting Positions, this publication is compiled every four years, following the Presidential election. 

These are the major categories of positions, listed on p. iii:
• Executive Schedule and salary-equivalent positions paid at the rates established for levels I through V of the Executive Schedule;
• Senior Executive Service (SES) ‘‘General’’ positions;
• Senior Foreign Service positions;
• Schedule C positions excepted from the competitive service by the President, or by the Director, Office of Personnel Management, because of the confidential or policy-determining nature of the position duties;
and
• Other positions at the GS–14 and above level excepted from the competitive civil service by law because of the confidential or policy-determining nature of the position duties.

Even if you're not looking to try for a Presidential appointment, the Plum Book provides a wealth of information about those positions!

Boost your politcal awareness with just 5 websites

PC World highlights five websites that will improve your political awareness on matters like candidate voting histories, legislation, and money in politics.

Hat tip: Emily Feldman at the American Association of Law Libraries’ Washington Blawg.

- By: Meg Kribble