Freedom of Information Act

Immigration judges are career civil-service employees in the Department of Justice’s executive office. The judges preside over matters such as deportation, exclusion, removal and rescission proceedings for non-citizens charged with immigration law violations. The American Immigration Lawyers Association submitted a request under the federal Freedom of Information Act (FOIA) for records about complaints filed against

The federal Freedom of Information Act (“FOIA”) contains nine exemptions. Under the exemptions, the government can withhold information that might otherwise be available for disclosure. See 5 U.S.C. § 552(b)(1)-(9). FOIA “Exemption 4” applies to “trade secrets and commercial or financial information obtained from a person and privileged and confidential.” In a recent decision, the 9th Circuit Court of Appeals applied Exemption 4 to Notices of Seizure issued by the United States Bureau of Customs and Border Protection (“CBP”) to an importer of merchandise potentially infringing on a U.S. trademark.. CBP had heavily redacted the Notices of Seizure in responding to a FOIA request.

For application of Exemption 4, the 9th Circuit requires a government agency to demonstrate the information to be withheld is “(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged or confidential.” (Watkins v. U.S. Bureau of Customs and Border Protection, No. 09-35996, 5/6/11). The Court found that the Notices contained “plainly commercial information, which discloses intimate aspects of an importers business such as supply chains and fluctuations of demand for merchandise.”


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Has the Obama Administration effected real change in FOIA responsiveness? A recent Associated Press article, claims that the federal Freedom of Information Act is unwieldy and difficult, and that only the most patient and persistent requesters actually obtain the sought-for information. The article is critical of agencies’ efforts in implementing President Obama’s promise to make government more open and release more information rapidly.

During an event sponsored for Sunshine Week, March 13-19, reported in the AP article, Associate Attorney General Tom Perrelli is quoted as stating that more records are going out unredacted than ever before. “Where we once might have looked at a document, noticed a piece that could be released, and redacted the rest, we’re now more often determining that we can release the whole thing,” Perrelli is quoted as saying. However, a witness before the Senate Judiciary Committee, Thomas Fitton of Judicial Watch, stated that the conservative watchdog group has “filed 44 lawsuits to force the Obama administration to comply with the law.”


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The New York Times has been reporting on how open public records laws are being enlisted in the fight against governmental corruption – not here in the United States – but on the other side of the world, in rural India. In 2005, India joined a growing list of developing countries to enact a national open public records law, known as the Right to Information Act (“RIA”).  The legislation’s preamble asserted that “democracy requires an informed citizenry and transparent information” and identified curbing governmental corruption as a central goal of the RIA. The RIA requires governmental agencies to respond to citizen requests for information within 30 days of receiving a request. Similar to Washington’s Public Records Act, 42.56 R.C.W., and the federal Freedom of Information Act, 5 U.S.C. § 551-559, governmental agencies that fail to comply with information requests are subject to daily penalties.

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Update 7/12/09

Here is another article from Florida on whether governments should use web 2.0 sites:
Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter

Update 7/7/09

Spies should also stay off Facebook:  “British spy chief outed on wife’s Facebook page


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