GPSolo Magazine - July/August 2006
Guidebook to the Freedom of Information and Privacy Acts
By Justin D. Franklin and Robert F. Bouchard
Finding resource materials on the Federal Freedom of Information Act (FOIA) can be difficult. The private practice bar that works with that law on a regular basis is quite limited. There are, of course, many government lawyers who regularly use this law. But the only time most lawyers need to resort to FOIA is when litigating a case against the federal government or representing a corporate entity that needs information from the government in connection with business operations.
For a lawyer who represents media clients, however, having a guide to FOIA can be critical. Reporters across the country (as well as book authors) are some of the greatest users of FOIA. And so a lawyer representing such clients will be pleased to find the Guidebook to the Freedom of Information and Privacy Acts ($291.50 from Thomson West). Originally published in 1986, it has been updated regularly to provide citations to federal cases that interpret the law.
Volume One of the book is a detailed analysis of the law and includes voluminous citations to cases. The book appears to be nearly a complete compendium to cases that interpret this law. It begins with chapters outlining the full text of FOIA and the Privacy Act, breaking each act down into its sections and including in citations the pertinent cases interpreting those sections. Each exemption to FOIA is outlined in detail. For example, Exemption Four, which protects “trade secrets and commercial or financial information,” contains subsections explaining how the term “trade secrets” has been defined by case law, similar sections on other terms in that exemption, then several sections analyzing the decision of Critical Mass Energy Project v. NRC, 942 F, 2d 799 (D.C. Cir. 1991) and its application to that FOIA exemption. Each of the other exemptions is similarly broken down into the terms contained in those exemptions and additional sections detailing significant cases related to those exemptions. Chapter Two is similarly organized with reference to the provisions contained in the Federal Privacy Act.
Chapter Three contains practical information on using FOIA and the Privacy Act. It discusses the process of making a FOIA request and how to request a fee waiver. It discusses how to locate records before making the request and outlines the appeal process for both laws. At the end of Volume One is a form FOIA request letter, a form Privacy Act request letter, notices of appeal for denial of access, and forms to request an amendment of personal records. Chapter Four is especially devoted to business data requests.
Volume Two serves more as a reference volume for the series. It contains an amazing compendium of related resources, including contact names and numbers for FOIA officers at federal agencies, information on the FOIA fee schedule, and a collection of all the access-to-information statutes of each state.
One criticism of the book is that the material you seek may be located in numerous places throughout the volumes. For example, the materials contained in Chapter One on “critical mass” and Exemption Four are further outlined in Chapter Three, which discusses briefly the potential exemptions that may be cited; they are again discussed in Chapter Four, where business data requests may generate a claim that materials sought are protected as trade secrets. This arrangement does, however, ensure a thorough discussion of the many exemptions and other elements that relate to FOIA.
Jean Maneke, of the Maneke Law Group, L.C., in Kansas City, Missouri, has practiced in the area of media and entertainment law for 20 years and counsels authors, newspaper and book publishers, film producers, recording artists, advertising and marketing agencies, photographers, and broadcasters. She can be reached at firstname.lastname@example.org.
Note: West Group is a corporate sponsor of the General Practice, Solo and Small Firm Division; this article appears in connection with the Division’s sponsorship agreement with West Group. Neither the ABA nor ABA entities endorse non-ABA products or services, and this review should not be so construed.