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🦹Intro to Law and Legal Process
Unit 8 Overview: Administrative Law Basics
8.1 Rulemaking process
8.2 Adjudication
8.3 Judicial review
8.4 Freedom of Information Act
8.5 Government transparency

🦹intro to law and legal process review

8.5 Government transparency

10 min read•Last Updated on August 20, 2024

Government transparency is crucial for democratic accountability. Laws like the Freedom of Information Act and open meetings requirements aim to give citizens access to government records and decision-making processes. However, these laws have exemptions to protect sensitive information.

Whistleblower protections and oversight mechanisms help expose misconduct while balancing transparency with national security needs. Ongoing debates center on finding the right balance between public access and legitimate secrecy in areas like classified information.

Freedom of Information Act

  • The Freedom of Information Act (FOIA) is a federal law that provides the public the right to request access to records from any federal agency
  • FOIA is a key tool for government transparency, allowing citizens, journalists, and watchdog groups to obtain information about government activities
  • Agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions

FOIA exemptions and exclusions

Top images from around the web for FOIA exemptions and exclusions

  • Department of Justice launches new FOIA.gov to kick off Sunshine Week : Sunlight Foundation View original

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  • Connecting freedom of information to open data: How to build a better FOIA.gov : Sunlight Foundation View original

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  • Department of Justice launches new FOIA.gov to kick off Sunshine Week : Sunlight Foundation View original

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Top images from around the web for FOIA exemptions and exclusions

  • Department of Justice launches new FOIA.gov to kick off Sunshine Week : Sunlight Foundation View original

    Is this image relevant?

  • Connecting freedom of information to open data: How to build a better FOIA.gov : Sunlight Foundation View original

    Is this image relevant?

  • Department of Justice launches new FOIA.gov to kick off Sunshine Week : Sunlight Foundation View original

    Is this image relevant?

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  • FOIA exemptions allow agencies to withhold certain types of sensitive information from disclosure
    • Exemptions include classified national security information, trade secrets, personal privacy, and law enforcement records
  • FOIA exclusions completely remove certain categories of information from the scope of FOIA
    • Exclusions cover narrow categories like certain law enforcement records and records related to terrorism investigations
  • Courts have interpreted FOIA exemptions narrowly to favor disclosure and place the burden on agencies to justify withholding information

FOIA request process

  • Any person can make a FOIA request by submitting a written request to the appropriate agency
  • Requests must reasonably describe the records sought and follow agency guidelines
  • Agencies have 20 business days to respond to a request, but this deadline is often extended
  • If a request is denied, the agency must provide the requester with the reasons for the denial and inform them of their right to appeal

FOIA fees and waivers

  • Agencies may charge fees for searching, reviewing, and duplicating records in response to a FOIA request
  • FOIA establishes three categories of requesters with different fee structures: commercial use requesters, educational or noncommercial scientific institutions and news media requesters, and all other requesters
  • Requesters can seek a waiver of fees if disclosure of the information is in the public interest
  • Agencies are required to provide the first 100 pages and 2 hours of search time free of charge for non-commercial requesters

FOIA appeals and litigation

  • If an agency denies a FOIA request, the requester can file an administrative appeal with the agency
  • If the appeal is denied, the requester can file a lawsuit in federal court to challenge the agency's decision
  • Courts review FOIA cases de novo and can order agencies to disclose records if they find the agency improperly withheld them
  • Successful FOIA litigants can recover attorney's fees and court costs

Open Meetings Laws

  • Open meetings laws require government bodies to conduct their business in meetings open to the public
  • These laws aim to ensure transparency and accountability in government decision-making
  • Open meetings laws typically apply to legislative bodies, executive agencies, and other public entities

State vs federal open meetings laws

  • All 50 states have open meetings laws that apply to state and local government bodies
    • State laws vary in their specifics but generally require open meetings with limited exceptions
  • The federal open meetings law is the Government in the Sunshine Act, which applies to federal agencies headed by multi-member boards or commissions
    • The Sunshine Act requires agencies to provide public notice of meetings and hold them open to public observation

Public notice requirements

  • Open meetings laws require government bodies to provide advance public notice of meetings
  • Notice must include the time, place, and agenda of the meeting
  • Some laws require a minimum notice period (e.g., 72 hours) and specify methods of notice (e.g., website posting, newspaper publication)
  • Emergency meetings may be held with less notice but are limited in scope

Executive sessions and closed meetings

  • Open meetings laws allow government bodies to hold closed executive sessions in limited circumstances
  • Common reasons for executive sessions include discussing personnel matters, litigation, and real estate transactions
  • Government bodies must cite the specific exemption authorizing the executive session and keep minutes of the closed meeting
  • Some laws require a public vote to enter executive session

Enforcement and penalties

  • Open meetings laws are enforced through citizen complaints, attorney general investigations, and lawsuits
  • Penalties for violating open meetings laws can include fines, invalidation of actions taken in illegal meetings, and removal from office
  • Some laws allow citizens to recover attorney's fees if they successfully challenge an open meetings violation
  • Many states have public access ombudsmen or freedom of information commissions to handle open government complaints and disputes

Whistleblower Protection Laws

  • Whistleblower protection laws shield employees who report illegal or unethical conduct from retaliation by their employers
  • These laws aim to encourage employees to come forward with information about wrongdoing and protect the public interest
  • Whistleblower protections apply in both the public and private sectors

Federal Whistleblower Protection Act

  • The Whistleblower Protection Act (WPA) protects federal employees who disclose evidence of illegal activity, gross mismanagement, waste of funds, abuse of authority, or substantial danger to public health or safety
  • The WPA prohibits agencies from taking adverse personnel actions against whistleblowers, such as firing, demotion, or pay cuts
  • Employees can file retaliation complaints with the Office of Special Counsel, an independent federal agency
  • The WPA also provides for confidentiality of whistleblower identities and limited protections for national security whistleblowers

State whistleblower protection laws

  • Nearly all states have whistleblower protection laws that apply to state and local government employees
  • Some states also have laws protecting private sector whistleblowers, particularly in industries affecting the public interest (healthcare, financial services)
  • State laws vary in the scope of protected disclosures, remedies available, and procedures for filing complaints
  • Some state laws protect internal whistleblowers who report wrongdoing to their supervisors, while others require reporting to an external agency

Whistleblower retaliation claims

  • Whistleblowers who face retaliation can file claims under the relevant federal or state whistleblower protection law
  • To prevail on a retaliation claim, whistleblowers must show they made a protected disclosure, suffered an adverse action, and the disclosure was a contributing factor in the adverse action
  • Remedies for retaliation can include reinstatement, back pay, damages, and attorney's fees
  • Whistleblowers can also bring common law claims for wrongful discharge in violation of public policy

Confidentiality and anonymity

  • Some whistleblower laws allow whistleblowers to make anonymous or confidential disclosures
  • Confidentiality helps protect whistleblowers from retaliation and encourages reporting
  • However, anonymity can make it more difficult to investigate claims and provide remedies
  • Agencies and courts have procedures to protect whistleblower identities, such as sealing court records and issuing protective orders

Classified Information

  • Classified information is sensitive national security information that is restricted from public disclosure
  • The classification system aims to protect intelligence sources and methods, military plans, and diplomatic relations
  • Unauthorized disclosure of classified information can harm national security and violate federal law

Levels of classification

  • There are three levels of classification: Top Secret, Secret, and Confidential
    • Top Secret information could cause exceptionally grave damage to national security if disclosed
    • Secret information could cause serious damage to national security
    • Confidential information could cause damage to national security
  • Each level of classification corresponds to specific security clearance requirements for access
  • Some classified information is further restricted to specific control systems or compartments

Declassification process

  • Classified information must be declassified when it no longer meets the standards for classification
  • Automatic declassification occurs after 25 years unless the information is exempt
  • Agencies can also declassify information through systematic review or mandatory declassification review in response to public requests
  • The Interagency Security Classification Appeals Panel adjudicates appeals of agency classification and declassification decisions

Leaks and unauthorized disclosures

  • Leaks of classified information to the media or public can expose government wrongdoing but also harm national security
  • Notable leaks include the Pentagon Papers, warrantless wiretapping program, and Edward Snowden's disclosures
  • The government has prosecuted leakers under the Espionage Act, a World War I-era law criminalizing disclosure of national defense information
  • Leaks have sparked debates about the balance between secrecy and transparency and the role of whistleblowers

Espionage Act and other penalties

  • The Espionage Act makes it a crime to gather, transmit, or lose national defense information with intent or reason to believe it may be used to the detriment of the U.S. or to the advantage of a foreign nation
  • Violators face up to 10 years in prison per count
  • Other laws penalize specific types of classified information disclosures (e.g., intelligence identities, nuclear secrets)
  • Government employees and contractors can also lose their security clearances and jobs for mishandling classified information

Government Oversight

  • Government oversight refers to the various mechanisms for monitoring and controlling the actions of the executive branch
  • Oversight aims to prevent abuse of power, ensure compliance with law and policy, and promote effectiveness and efficiency
  • Oversight is a key component of the system of checks and balances among the branches of government

Congressional oversight powers

  • Congress has broad powers to oversee the executive branch through investigations, hearings, and subpoenas
  • Congressional committees can compel testimony and document production from agency officials and private parties
  • Congress can also control executive action through appropriations, legislation, and confirmation of appointees
  • Notable congressional oversight investigations include Watergate, Iran-Contra, and Benghazi

Inspectors General and GAO

  • Inspectors General (IGs) are independent watchdogs within federal agencies that conduct audits and investigations of agency programs and operations
  • IGs report their findings to Congress and the public and make recommendations for improvement
  • The Government Accountability Office (GAO) is an independent legislative agency that audits and evaluates federal programs and spending
  • GAO reports and testimony inform congressional oversight and legislative decisions

Judicial review of executive actions

  • Federal courts can review the legality of executive branch actions through lawsuits brought by individuals, organizations, or states
  • Courts can invalidate executive actions that exceed statutory authority, violate constitutional rights, or fail to follow required procedures
  • Notable cases of judicial review include challenges to the travel ban, DACA termination, and EPA regulations
  • However, courts often defer to executive branch judgments on national security and foreign policy matters

Citizen oversight and advocacy groups

  • Citizens and advocacy groups can play a role in government oversight through FOIA requests, lawsuits, and public advocacy
  • Groups like the ACLU, CREW, and National Security Archive use FOIA to uncover government documents and shine a light on official conduct
  • Public interest organizations also file lawsuits and amicus briefs to challenge government actions in court
  • Grassroots movements and media investigations can also pressure officials and prompt oversight by other branches

Transparency vs National Security

  • Transparency and national security are often in tension, as the government seeks to balance the public's right to know with the need to protect sensitive information
  • Too much secrecy can enable government abuse and undermine democratic accountability, while too much transparency can compromise legitimate national security interests
  • The challenge is to find the right balance and create mechanisms for oversight and public access while safeguarding essential secrets

Balancing public interest and secrecy

  • Factors to consider in balancing transparency and secrecy include the sensitivity of the information, the public interest in disclosure, and the potential harm from release
  • FOIA exemptions and executive privilege recognize some need for secrecy, but there is debate over their proper scope and application
  • Transparency advocates argue that overuse of secrecy undermines public trust and accountability, while national security proponents emphasize the risks of unauthorized disclosures
  • In some cases, partial disclosure or controlled release of information can serve both interests (e.g., redacted documents, declassification of historical records)

Mosaic theory and aggregation of information

  • The mosaic theory holds that seemingly harmless pieces of information can be combined to reveal sensitive national security secrets
  • Under this theory, agencies can withhold unclassified information that could contribute to a damaging mosaic
  • However, critics argue that the mosaic theory is overused and can be a pretext for excessive secrecy
  • Courts have struggled to assess mosaic claims and balance speculative risks against concrete public interests

Overclassification and secrecy creep

  • Many transparency advocates argue that the government overclassifies information and keeps too many secrets
  • Excessive classification can make it harder for officials to share information, impede oversight, and undermine public trust
  • Secrecy creep refers to the tendency of secrecy to expand beyond its original justification and become entrenched
  • Experts estimate that 50-90% of classified information could be safely released

Reforms to improve transparency

  • Proposed reforms to improve transparency while protecting national security include:
    • Strengthening and expediting declassification processes
    • Limiting the duration of classification and requiring periodic review
    • Reducing overclassification through training and incentives
    • Enhancing congressional and judicial oversight of national security programs
    • Protecting whistleblowers and journalists who disclose government misconduct
    • Improving public access to government records and data
  • Striking the right balance requires ongoing vigilance, debate, and institutional reform to ensure that secrecy is the exception, not the norm, in a democracy

Key Terms to Review (18)

Conflict of interest: A conflict of interest occurs when an individual or organization has competing interests or loyalties that could potentially influence their decisions, actions, or judgment in a way that is not impartial. This situation can arise in various contexts, affecting the integrity of relationships and the credibility of decision-making processes. It is crucial to identify and manage these conflicts to ensure transparency and fairness, especially in legal and governmental settings.
Public interest: Public interest refers to the welfare or well-being of the general public, often guiding government actions, policies, and regulations. It serves as a foundational principle in democratic societies, emphasizing the importance of transparency and accountability in governance, which is crucial for informed citizen participation. When public interest is prioritized, it ensures that governmental decisions are made with the needs and rights of citizens at the forefront.
Freedom of Information Act: The Freedom of Information Act (FOIA) is a law that allows individuals to request access to federal agency records or information. This act promotes transparency and accountability in government by enabling the public to access documents that reveal how decisions are made and resources are allocated, which is essential for understanding the rulemaking process and ensuring government accountability.
Transparency: Transparency refers to the openness and clarity with which actions, decisions, and processes are conducted, allowing stakeholders to have insight into government operations. It is essential for fostering trust between citizens and their government, enabling accountability, and ensuring that the administrative process is understandable and accessible to the public. Transparency supports effective governance by encouraging informed citizen participation and minimizing corruption.
Accountability: Accountability refers to the obligation of individuals or organizations to explain their actions and decisions, and to be answerable for them. This concept is crucial in promoting responsible governance and ensuring that public officials, institutions, and systems operate transparently and ethically. When accountability is effectively implemented, it fosters trust within the community and enhances the legitimacy of governmental processes.
Participatory Governance: Participatory governance refers to a system where citizens actively engage in the decision-making processes of government, influencing policies and actions that affect their lives. This approach emphasizes transparency, accountability, and collaboration between government entities and the public, ensuring that diverse voices are heard and considered in governance. By fostering active involvement, it aims to enhance democratic processes and build trust between citizens and government.
Civic engagement: Civic engagement refers to the active participation of individuals in the political, social, and community life of their society. It encompasses a range of activities, including voting, volunteering, and participating in community projects or discussions. Engaging in civic activities fosters a sense of responsibility and connection among citizens, promoting transparency and accountability within government processes.
Government reports: Government reports are official documents produced by governmental bodies that provide information, analysis, and recommendations on various issues, programs, or policies. These reports are crucial for ensuring government transparency as they allow citizens to access important data about governmental activities and decisions, promoting accountability and informed public engagement.
Public records: Public records are documents or pieces of information that are not considered confidential and are maintained by government agencies. They include a wide range of materials such as court records, property deeds, marriage licenses, and vital statistics. Access to public records promotes accountability and transparency in government operations, allowing citizens to be informed about activities and decisions made by public officials.
Oversight Committees: Oversight committees are specialized groups within legislative bodies tasked with monitoring, reviewing, and evaluating the actions and performance of government agencies and programs. They play a crucial role in ensuring accountability, transparency, and adherence to laws and regulations by assessing the effectiveness and efficiency of government operations.
Transparency initiatives: Transparency initiatives are efforts aimed at increasing openness and accountability within government operations, ensuring that citizens have access to information about decision-making processes and public spending. These initiatives foster trust between the government and the public by promoting clarity, reducing corruption, and enhancing civic engagement. By providing accessible data, transparency initiatives enable informed citizen participation in governance.
Press Freedom: Press freedom refers to the right of journalists and media organizations to publish news and information without government interference or censorship. It is a fundamental principle of democracy, allowing for transparency, accountability, and public discourse. A free press plays a crucial role in informing citizens, scrutinizing government actions, and fostering an informed society.
Investigative journalism: Investigative journalism is a form of journalism that seeks to uncover hidden information, often regarding issues of public interest, by conducting thorough research and analysis. This type of journalism plays a crucial role in holding those in power accountable and promoting transparency within government and society. It involves extensive interviews, data analysis, and fact-checking to reveal truths that may otherwise remain concealed.
New York Times Co. v. United States: New York Times Co. v. United States is a landmark Supreme Court case from 1971 that upheld the right of the press to publish classified information, specifically the Pentagon Papers, without prior restraint from the government. This case reinforced the principle of freedom of the press and highlighted the importance of government transparency, emphasizing that a free press is essential in a democratic society to hold the government accountable.
Department of Justice v. Reporters Committee for Freedom of the Press: Department of Justice v. Reporters Committee for Freedom of the Press is a landmark Supreme Court case from 1989 that addressed the issue of whether the Freedom of Information Act (FOIA) could be used to obtain criminal records and information about individuals involved in federal investigations. The case highlighted the balance between government transparency and personal privacy rights, impacting how government information is accessed by the public.
Whistleblower protections: Whistleblower protections are laws and policies designed to shield individuals who report unethical or illegal activities within an organization from retaliation. These protections encourage transparency and accountability in both public and private sectors, fostering an environment where employees feel safe to disclose misconduct without fear of losing their jobs or facing other negative consequences.
Open Meetings Laws: Open meetings laws are regulations that require certain meetings of government bodies to be conducted in a transparent manner, ensuring that the public has the right to attend and observe these meetings. These laws promote accountability and discourage corruption by allowing citizens to witness how decisions are made within their government. They also establish procedures for notifying the public about meetings and set guidelines for closed sessions when confidentiality is necessary.
Sunshine laws: Sunshine laws are regulations that require certain proceedings of government agencies to be open to the public, promoting transparency and accountability in governmental operations. These laws ensure that citizens have access to the decision-making processes and can observe how public funds are spent and how policies are developed. By mandating that meetings, records, and actions be open to scrutiny, sunshine laws help foster trust between the government and its constituents.
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