Sunday, February 10, 2013

Friend or FOIA

On Friday, the Center for Computer-Assisted Legal Instruction (CALI) posted a new interactive tutorial about the Freedom of Information Act (FOIA). The CALI lesson provides an overview of the federal statute, which details the basic right of the American public to obtain access to federal agency records (subject to certain disclosure exemptions). Author Phillip Sparkes of Northern Kentucky University's Chase College of Law outlines the various requirements and exclusions within the current version of the statute, which has been amended several times since its original enactment in 1966.

The new CALI lesson is particularly timely, as controversy continues to swirl around the release last Monday of a U.S. Department of Justice white paper (PDF) which described the legal justification for ordering deadly "drone strikes" against American citizens who hold senior positions within the global terrorist organization al-Qaeda. NBC News obtained a copy of the undated sixteen-page memorandum, but pointed out that the official DOJ Office of Legal Counsel documents which it summarized remain classified.

However, that isn't due to a lack of effort on the part of the media and government watchdogs: the New York Times and the American Civil Liberties Union fought for nearly three years to obtain the more detailed OLC legal analysis with the help of FOIA. After the Justice Department rebuffed their requests, citing national security concerns, the organizations sued in federal court to compel disclosure. On January 3, U.S. District Court Judge Colleen McMahon declared that she was "stuck" at the conclusion that the DOJ had not violated FOIA by withholding the requested materials, ultimately stating in her opinion, "I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret."

Under mounting pressure after the NBC News story, the White House agreed to release the still-classified materials to the Intelligence Committees of the U.S. Congress. Committee members expressed frustration that their staff were still prohibited from viewing the documents, and that several of the items sought in the FOIA lawsuit were not included.

Only time will tell if the DOJ's drone strike materials will ever see the light of day, but many FOIA requests are much more successful (for statistics, check out FOIA.gov). In fact, DOJ (as well as most other executive agencies) maintains an online "FOIA Library" of frequently-requested documents. The DOJ also publishes a comprehensive Guide to the Freedom of Information Act, which can be read online or in the library's Reference Documents collection.

If you'd like to test your FOIA know-how with the new CALI lesson, but have not yet created an account on their website, visit the Academic Technologies' software download page (NetID login required) to obtain the Duke Law School authorization code. Once registered with the CALI site, students can access more than 900 online tutorials on a wide variety of legal topics. For help with accessing CALI lessons, or for more information on federal or state FOIA laws, be sure to Ask a Librarian.

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