Freedom of Information Act, Privacy Act, and Government Transparency
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal freedom of information law that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request. The FOIA defines agency records subject to disclosure, outlines mandatory disclosure procedures, and defines nine exemptions to the statute. The act was intended to make U.S. government agencies’ functions more transparent so that the American public could more easily identify problems in government functioning and put pressure on Congress, agency officials, and the president to address them. Unfortunately, many government officials treat public records as their own property and engage in activities that intentionally frustrate transparency.
Similarly, the Privacy Act (PA), 5 U.S.C. § 552a, gives individuals the right to access government records about themselves upon request.
Curry, Pearson & Wooten has the experience and resolve to take on federal, state, and local governments that operate in secret. We have obtained many favorable results in FOIA cases often exposing possible misconduct by government employees and officials. A few of our successes include:
- The Federal Aviation Administration (FAA) attempted to keep documents concerning an investigation into alleged employee misconduct secret. The incident that led to the investigation gathered widespread national media and congressional attention. A client filed a FOIA request for the records concerning the investigation, and the FAA maintained that it could not release the records due to privacy and law enforcement concerns.
Judge G. Murray Snow of the District of Arizona rejected those concerns, finding in favor of our client. Judge Snow held that “the public has an interest in knowing information about hiring officials who unfairly support specific job applicants, especially for positions that maintain public safety.”
The documents brought sunlight and transparency to the FAA’s actions, including its investigation into government misconduct, which led to immediate changes to its hiring process for air traffic controllers.
- The FAA failed to comply with Court orders compelling the release of records. This was due to the fact that the Court had ruled against the arguments the agency made in order to hide the documents from the public. The judge not only denied these attempts, but also informed the FAA that it would consider sentencing agency officials to jail for contempt if the FAA continued to ignore Court orders.
- CPW is not only experienced with FOIA exemptions, but also the additional requirements of FOIA. After the District Court ruled against our client concerning whether records in government employee’s email were agency records and therefore subject to FOIA, CPW represented the client on appeal. The Ninth Circuit Court of Appeals rejected attempts by the FAA to conceal records the FAA characterized as not agency records. CPW represented a client who made a FOIA request for records in a federal employee’s email account. That employee was using federal emails for agency business, and the Ninth Circuit, in a published opinion, laid out the standard to be used when deciding whether a record is an agency record and thus subject to FOIA or not.
- The Ninth Circuit Court of Appeals found in favor of our client in a case which challenged whether the government could withhold the identity of individuals who conversed with the government in a case involving government misconduct. Our client filed a FOIA request which included records exchanged from a federal employee’s email account to other employee’s personal email accounts. The Ninth Circuit rejected arguments made by the government that the identity of these federal employees could be withheld.
- The Ninth Circuit Court of Appeals rejected attempts to withhold documents created by a government contractor. The FAA, relying on the so called ‘consultant corollary’ which allows documents created by a consultant to be treated as agency records, won in the district court. CPW appealed the ruling to the Ninth Circuit, which rejected this practice, finding that the consultant corollary runs afoul and contrary to FOIA. The FAA then sought re-hearing en banc, which CPW worked with co-counsel at Orrick, Herrington & Sutcliffe to oppose, and ultimately brief and re-argue. Twenty six organizations filed an amicus brief in support of our client’s position.
- CPW is also familiar with the pre-litigation FOIA process. In a matter where a client was unable to get a commercial drone operator permit because of his previous whistleblowing efforts, CPW represented the client in the filing of a FOIA request for records of his permit. Our client’s business was severely limited because of the FAA’s lack of action on his permit request. After the FOIA request was filed, the FAA suddenly reversed course, and granted our client the permit it they had waited significantly longer than others for the FAA to grant. This likely occurred because an FOIA lawsuit would expose the agency’s retaliation towards our client.
How Can We Help?
If the government has refused to provide you documents under the Freedom of Information Act, or the Privacy Act, we encourage you to contact us today for a free initial consultation with an accomplished FOIA/Privacy Act attorney.