Archive for the ‘Constitution’ Category


If You Sue Trump, This DC Lawyer Will Help You For Free

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Mark Zaid wants to help journalists file a national security-centered FOIA request against Trump so much he’ll do it for free:

According to Zaid’s site, he’s an expert in defending “former, current, and prospective civilian federal employees, defense contractors, members of our active duty and reserve military, and journalists, particularly when they are threatened by the overshadowing spectre of national security.”

Of course, consider the risk. At this point, if you sue Trump, he may sue you back (and/or stick his tongue out at you)—or throw you in jail.

Photo by Michael Vadon – Own work, CC BY-SA 4.0.

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FOI Update: Federal appeals court rules against reporter’s privilege in James Risen case

A federal appeals court ruled July 19 that the First Amendment does not protect reporters from being forced to testify against confidential sources suspected of sharing unauthorized information with them, according to The New York Times.

This decision against the so-called reporter’s privilege came from the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The court ruled James Risen, an author and a national security reporter for the Times, must testify against a former Central Intelligence Agency official charged with giving him classified information. Risen said he’s willing to go prison to protect his source, according to the Times.

The information was not for an article in the Times. It was for a chapter in Risen’s 2006 book, “State of War,” that portrays efforts by the CIA. under the Clinton administration to trick Iranian scientists as “reckless and botched in a way that could have helped the Iranians gain accurate information,” The Times said.

Chief Judge William Byrd Traxler Jr. justified the ruling by writing: “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.”

The 118-page decision comes one week after Attorney General Eric Holder announced new guidelines for leak investigations to supposedly tighten the circumstances for obtaining reporter’s records.

“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, told the Times.

For more information about the case, read The New York Times article.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: Judge dismisses North Carolina public records lawsuit for confidential settlement; Pennsylvania considers changes to Right-to-Know law

Judge dismisses N.C. public records lawsuit against hospital chain for confidential settlement

A Superior Court judge dismissed the lawsuit a Charlotte attorney filed against one of the nation’s largest public hospital chains for violating the North Carolina public records law, according to The Charlotte Observer.

Superior Court Judge Robert Sumner ruled that the hospital chain, Carolinas HealthCare System, can legally keep a confidential settlement from its 2008 lawsuit against the former Wachovia Bank (see previous post).

Since the hospital chain’s board of directors made the settlement in a closed session and kept it confidential, attorney Gary Jackson filed a public records request to inspect it and ensure it’s fair.

In a hearing last week, attorneys for Carolinas HealthCare argued that the hospital chain can legally withhold the settlement because the state’s public records laws has many holes.

But Jackson said legislators never intended the law to allow confidential settlements in lawsuits involving government agencies, so he plans to appeal Sumner’s ruling to the N.C. Court of Appeals, according to The Observer.

The Observer notes that former state Senator David Hoyle who sponsored most North Carolina public records laws, agrees with Jackson.

“The intent was that if it becomes a court case, the results of the settlement were to be made public,” Hoyle told The Observer.

Pennsylvania considers changes to Right-to-Know law

As Pennsylvania lawmakers weigh a series of potential changes to the state’s 5-year-old Right-to-Know law, the head of Pennsylvania’s open records agency is telling them to proceed with caution, according to NewsWorks.

The Senate is considering one piece of legislation to address problems with the state’s open records, and the House has at least 10 different proposals.

But Terry Mutchler, director of the Office of Open Records, told NewsWorks some of the changes proposed in the name of open government could deny certain populations, such as prison inmates, the right to access information and exempt information from public requests.

“While the intent is good, I have some concerns with the results,” Mutchler told NewsWorks.

But until the legislature decides to change Pennsylvania’s Right-to-Know law, a recent Commonwealth Court decision could mean more access to information from state-related universities, according to Watchdog News.

In the case of Ryan Bagwell v. Department of Education, Bagwell, a Penn State alumnus, requested information about the Jerry Sandusky investigation, including emails, letters, reports and memos sent to then-Secretary of Education Ron Tomalis. The Commonwealth Court decided since the records are part of the education secretary’s job dealing with state-related universities, they should be released, Watchdog News said.

Mutchler expects the decision to have a “domino effect” on similar cases, and she expects the state to expand the Right-to-Know law for state-related universities.

“I am grateful the Legislature took its time with deciding this question, because it has to be done right, and it has to be done well, and the implications of it have to be thought through,” Mutchler told Watchdog News.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: Arkansas blogger sues Secretary of State in ongoing records fight

An Arkansas blogger filed a lawsuit against Secretary of State Mark Marin and his office July 1 for slowly and inadequately responding to his public records request, according to Arkansas Blog for the Arkansas Times.

Matt Campbell, the plaintiff, has been in and out of FOI bouts with the Arkansas GOP since 2011, when he published a series of articles on his left-leaning blog, the Blue Hog Report, criticizing alleged misdeeds of Martin’s office and its reserved response to the Hog’s FOI requests.

When the GOP learned Martin was a state employee, they turned the tables, requesting information about his work through the state’s open records law, according to The Arkansas Project.

At the time, Martin was an employee of the Arkansas Supreme Court. Although the GOP couldn’t prove he was blogging on state time, the Supreme Court allegedly made it clear to Campbell they wanted him to stop blogging, so in May 2011, he quickly killed the Hog and its social media accounts, The City Wire said.

But after Campbell’s last day at the Court on April 30, 2013, he resurrected the Hog and the fight.

On June 2, he filed a freedom of information request for communications between Martin’s office and a law firm regarding the office’s defense against suits filed by two fired Capitol police officers, Arkansas Blog said.

Campbell requested:

“All client-engagement agreements or similar documents between Secretary of State Martin in his official capacity, or the Secretary of State’s office generally, and the law firm of Chisenhall, Nestrud and Julian, P.A., or any of its individual attorneys.

“All written correspondence between the Secretary of State’s Office and Chisenhall, Nestrud and Julian, P.A., or any of its individual attorneys. This request encompasses letters, faxes, and emails between the parties, regardless of which party sent the correspondence.

“All invoices payable from state funds received from Chisenhall, Nestrud and Julian, P.A., or any of its individual attorneys.”

But one month after Campbell filed his request, he filed a lawsuit, complaining that even though the office gave him PDFs and printouts of the documents he wanted, they did not provide the documents digitally, as he requested. He also said their response was riddled with “lies and half-truths” about their email-retention policy, according to Arkansas Blog.

Campbell allegedly thinks the office is withholding electronic versions of Word documents because they often contain underlying information about editing.

“By the end, they seemed convinced that I wouldn’t actually file a lawsuit to get the stuff, so I decided to call their bluff,” Campbell told Arkansas Blog.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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Florida Times-Union editor sues city for negotiating pension plan in private meetings out of town

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Frank Denton, editor of the Florida Times-Union, is suing the city of Jacksonville for violating the state’s Sunshine Act.
(photo provided by Frank Denton)

Like many cities, Jacksonville, Fla., is struggling to fund public service pension plans without raising taxes.

It’s a common dilemma, said Frank Denton, editor of the Florida Times-Union, noting that pension costs from California to Rhode Island are outpacing tax revenues.

But when Mayor Alvin Brown and his administration unveiled a police and fire pension proposal on May 8 to save Jacksonville about $1.1 billion during the next 30 years, Denton was skeptical—not only because the bulk of the savings won’t kick in for another decade, but because the plan, worth millions of taxpayer dollars, was devised in private meetings out of town.

On June 6, Denton filed a lawsuit against the city of Jacksonville for sidestepping Florida’s open-meetings laws and excluding citizens from a high-stakes decision before it goes to the city council.

“I think the people feel like this is sweeping over them,” Denton said. “They really appreciate our standing up for public involvement.”

Regardless of what citizens think about the pension plan, Denton is calling them to stand against private government mediation and demand the plan return to the table for public discussion.

Months before the pension plan surfaced in May, the Jacksonville Association of Firefighters, the Fraternal Order of Police and the Jacksonville Police and Fire Pension Fund were allegedly at odds in heated public meetings about pension reforms.

But the meetings stalled when the head of the firefighters union sued the city and the pension fund in federal court on Feb. 4, claiming both parties violated the union’s civil and property rights by breaching a Pension Fund Contract, according to the 80-page lawsuit.

At first, the city filed a motion saying the federal court did not have jurisdiction over the case because it was a local issue.

But before the court could rule, all three parties came together on March 22, saying they could resolve the issue themselves in a private mediation.

The city has not commented on whether a federal judge looked at the case or whether it was routinely approved. But Rod Sullivan, an associate professor at the Florida Coastal School of Law and a state Sunshine Act expert, suspects that if a federal judge saw the case, the mediation conference would have been open to the public.

Instead, the three opposed groups went into private meetings in Gainesville, Fla., to work out the issue.

That’s where trouble ensued, Denton said. While they were in private meetings, the parties negotiated larger issues, including a new pension plan.

“Nobody knew it was going on,” Denton said.

So when Brown announced the plan in May, Denton said the Times-Union immediately questioned him on its covert path to the city council.

“If you look at the legal steps that were taken, (the city) clearly knew what they were doing,” Denton said.

But representatives of the mayor’s administration maintain that there is nothing wrong with the pension plan or the private mediation, and they dismiss any allegations that public discourse was compromised.

“We’ve had numerous collective bargaining sessions,” said David DeCamp, the mayor’s communications director. “What has happened is we began public bargaining sessions, and the unions walked out of them and sued us.”

Even so, Sullivan thinks the lawsuit filed in February “was and is a sham” the city used to negotiate bigger issues behind closed doors.

“I think that the sole purpose of the lawsuit was not to vindicate the civil rights of the plaintiffs, but instead to try and permit the city and the union to engage in collective bargaining negotiations in secret in violation of the Sunshine Act,” Sullivan said in an email.

But in a statement issued after Denton filed suit, city attorney Michael Grogan called the paper’s case “off base and uninformed” legal fiction.

“Strangely, the Florida Times-Union never had a problem during the more than twenty-year period when past mayors and city councils approved settlement agreements related to police and fire pensions,” Grogan said in the statement. “So we are surprised and disappointed that the Times-Union is forcing the city to spend taxpayer dollars defending a case that has absolutely no basis or merit.”

In a letter on June 19, city attorneys called the Times-Union lawsuit “frivolous” and told the paper that if they wanted to take the city to court, they’d have to foot the legal fees.

It’s a “far-fetched” threat, said Sullivan, who maintains that even though the Pension Board and the city have negotiated without holding public meetings in the past, those previous negotiations were also subject to the Sunshine Act because the Pension Board was acting as a bargaining agent for the union.

“The mere fact that they have ‘gotten away with’ violating the Sunshine Act in the past does not justify continuing Sunshine Act violations when the prior violations are finally brought to the attention of the public,” Sullivan said.

He thinks Denton’s lawsuit points to a broader infringement of Floridians’ rights under the U.S. and state constitutions.

“We have a constitutional right under the U.S. Constitution to a ‘republican form of government,’ and we have a Florida constitutional right to have: ‘All meetings . . . . at which official acts are to be taken or at which public business of such body is to be transacted or discussed . . . . open and noticed to the public,’” Sullivan said.   “This ‘mere discussion’ doctrine means that the negotiations should be open to the public,  and when they are not, the rights of the citizens of the state of Florida are being violated.”

DeCamp, the city’s communications director, explained in an email that under Florida and federal law, mediation is confidential, and the tentative plan that came out of that mediation cannot take effect until it’s openly discussed, debated and approved by the Jacksonville City Council and the Jacksonville Police and Fire Pension Fund. If either the council or the Fund does not approve the agreement, it returns to private mediation.

But Denton said that means it’s take it or leave it.

“And if you leave it, they go back into secret meetings,” Denton said. “It was set up secretly to have the maximum chance of just sailing through.”

The city council responded to the mayor’s administration in a six-page letter in mid-June, offering suggestions about how the pension plan should be reformed before it is approved.

Denton said the city has until July 5 to respond to his lawsuit.

“If a few government officials go out and hold secret meetings with private parties that are controlling the city budget with no public input, then we don’t need journalism, and we don’t need the public,” Denton said.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: FOIA fines prompt change in Michigan; Washington city council tries private email trick; More public records controversy in California

Hefty FOIA fines prompt change in Michigan

Hefty fines for public records requests in Michigan rally support for the state’s House Bill 4001 aimed at limiting costs to 10 cents per page and eliminating the charge for on-sight inspection, according to the Oakland Press.

Residents and reporters are worried the state’s current fees for obtaining free information discourage the public from requesting records.

In Oakland Township, where the current cost is 25 cents per page plus labor, resident Marc Edwards racked up a nearly $2,500 bill for two FOIA requests with township officials. The bulk of the cost came from the 8,918 pages he requested in print, according to the Oakland Press.

House Bill 4001 was introduced Jan. 9 by Rep. Mike Shirkey. Along with lowering costs for the public, it raises fees from $500 to $5,000 for government agencies that delay or deny records requests. Government agencies would be allowed a 10-day extension, and after that, the cost of the request would drop 20 cents per day, the Press said.

Washington city council members discuss official business in private emails

Members of the Bainbridge Island City Council in Washington were caught discussing city business using private email accounts last week, and when the city asked them to turn over the emails pertaining to official business, some refused, according to the Bainbridge Island Review.

Discussing official business on private email accounts keeps information out of public reach and violates the city’s Manuel of City Governance adopted in 2010 that says council members “shall cease utilizing any private, public or proprietary email service other than the city’s, for the sending or receiving of any such emails that meet the definition of public records,” according to the Review.

More public records controversy in California

Although Gov. Jerry Brown vetoed legislation loosening requirements for meeting open records requests on June 27, he remains committed to relieving the state of its financial burden for reimbursing local governments when they meet records requests, according to The Associated Press.

The same afternoon Brown signed the state budget, lawmakers proposed constitutional amendment SCA3 to save the state government millions of dollars a year by requiring local agencies to pay for fulfilling the records requests they receive. It’s currently pending before the Senate, and it needs two-thirds support from both houses to be placed on a statewide ballot next year, the AP said.

But while Senate President Pro Tem Darrell Steinberg said the amendment is aimed at strengthening open-government laws and holding local governments accountable, the Oakland Tribune’s editorial board is skeptical it might go too far.

The Tribune fears the amendment requires local governments to comply with the exemption-ridden Public Records Act and Brown Act open-meeting law, giving both acts “greater legal weight.”

They also said the amendment allows the legislature and governor to change the laws and, hence, the constitution at any time without voter approval.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: ‘Transparent’ federal agency collects, analyzes, shares U.S. financial transactions without warrant

Judicial Watch found a federal agency created on principles of transparency is spending millions of dollars to collect and analyze U.S. financial transactions without a warrant. In a news release June 27, Judicial Watch President Tom Fitton calls the financial surveillance “every bit as serious as the controversy over the NSA’s activities.”

The Consumer Financial Protection Bureau (CFPB) was founded in July 2011 to help Americans use financial products and services by ensuring “that prices are clear up front, that risks are visible, and that nothing is buried in fine print,” their website said.

But when CFPB Director Richard Cordray testified about the agency’s data collection and use on April 23 in a semiannual report to Congress, the U.S. Chamber of Commerce accused it of breaking the law by demanding account-level data without a warrant or a National Security Letter, according to JD Supra Law News.

Judicial Watch filed a Freedom of Information Act request with the CFPB on April 24, asking for records about their personal financial data collection program.

The documents explain CFPB’s initiative to collect credit information about a nationally representative panel of five million consumers, joint borrowers, co-signers and authorized users “for use in a wide range of policy research projects.” CFPB contractors may also share credit card data with “additional government entities.

A news release said the documents reveal:

  • Overlapping contracts with multiple credit reporting agencies and accounting firms to gather, store, and share credit card data
  • An “indefinite delivery, indefinite quantity” contract with Experian worth up to $8,426,650 to track daily consumer habits of select individuals without their awareness or consent
  • $4,951,333 for software and instruction paid to Deloitte Consulting LLP
  • A provision stipulating that “The contractor recognizes that, in performing this requirement, the Contractor may obtain access to non-public, confidential information, Personally Identifiable Information (PII), or proprietary information.”

In April, Cordray made the case that the CFPB needs “big data” to keep up with other financial institutions and protect consumers in the financial marketplace, JD Supra Law News reported.

He said the data are “anonymized” and not connected to individuals, much of the data is already accessible to firms through commercial resources, other regulators have used the same sources in the past and the data are essential to CFPB’s congressionally mandated work.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: California reverses ruling on public records, New Mexico open government group fights for previously denied records

California to reverse ruling on public records

Pressure from reporters and open government advocates helped reverse legislation in California this week that threatened to make key parts of the state’s Public Records Act optional, according to the Los Angeles Times.

The California legislature passed Gov. Jerry Brown’s budget proposal on June 14 with an inconspicuous trailer bill to help the state save money on reimbursing local governments when they fulfill records requests (see previous post).  The bill said agencies no longer needed to explain why they were unable to meet requests, and they could provide data in any form of their choosing.

Once the bill was passed, it attracted immediate criticism from news outlets and citizens who wrote editorials, emailed and called legislators en masse, according to the Times.

Public voices grew louder until Assembly Speaker John A. Pérez (D-Los Angeles) proposed legislation June 19 to rescind the bill’s negative side effects. But Pérez’s proposal was blocked in the Senate later that afternoon by Senate President Pro Tem Darrell Steinberg (D-Sacramento).

Steinberg suggested passing the original legislation and then passing a constitutional amendment one year later to reinstate the records act and force local governments to pay for all its costs, the Times said (see another previous post).

But the one-year window of government secrecy induced more public outcry, so the legislature eventually agreed to pass both Pérez’s substitute bill and Steinberg’s constitutional amendment, calling it a short-term and a long-term solution.

Open government group in New Mexico fights for previously denied records

Freedom of information advocates in New Mexico are requesting previously denied records about the travel and expenses of Gov. Susana Martinez’s security detail during the 2012 election season, according to the ABQ Journal.

The New Mexico Foundation for Open Government (FOG) filed an inspection of Public Records Act request July 25 for “the schedules of any overtime paid to and all travel expenses of officers” assigned to Martinez’s personal security team when she made several political trips in August-October 2012, the Journal said.

The Department of Public Safety and the Department of Finance and Administration previously denied records requests from The Associated Press on grounds that the information might compromise the security of Martinez and her family.

But FOG argues that the agencies’ decision to deny the request flies in the face of a 2012 state Supreme Court ruling (Republican Party of New Mexico v. New Mexico Taxation and Revenue Department) that prohibited the state from withholding records unless they are specifically exempted from release under the Inspection of Public Records Act or other regulation.

“This is a troubling response because we do not think it reflects clear direction from New Mexico’s Supreme Court on an important issue of public access,” FOG acting executive director Janice Honeycutt told the Journal. “We would urge the agency to comply and avoid a costly legal battle in which the taxpayers will likely pick up the tab.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: NJ Senate votes on transparency protections; Philadelphia reporters hit hurdles over building collapse records

New Jersey Senate votes on open records, open meetings protections

The New Jersey Press Association is supporting two measures for a state Senate vote this week that would offer greater protections for government transparency, according to the Times of Trenton.

Sens. Loretta Weinberg (D-Bergen) and Joseph Pennacchio (R-Morris) sponsored a measure that offers three amendments to the Open Public Records Act and another measure that updates provisions in the Open Public Meetings Law.

Under new amendments to the Open Public Records Act, state government workers will no longer be able to redact, or blot out, information in public documents unless they can cite a “specific and lawful basis” for each redaction, the Times said.

Government workers must also alert those requesting information when they can access it for free online instead of paying for copies, and government agencies must post contact information for their custodian of records on their websites to simplify the requesting process.

Updates to the Open Public Meetings Law require agencies and organizations to post meeting schedules online and prohibit officials from communicating privately during the meeting via text messages or other means that the public cannot witness.

The Times notes the amendments allow a special surcharge to help local governments regain costs for “voluminous” requests and offer mechanisms to prevent those requesting information from abusing the system for commercial data mining.

 Philadelphia reporters hit hurdles in public records race

Philadelphia journalists seeking records and information in the wake of a deadly building collapse are hitting procedural and legal hurdles in the city’s public records system, according to The Philadelphia Inquirer.

After part of a Salvation Army thrift shop wall collapsed June 5, killing six people, after which a city building inspector committed suicide, reporters have requested information related to the incident, and their requests have been met with notoriously long “pending” processes that sometimes take six weeks.

The Inquirer said some delays stem from City Solicitor Shelly R. Smith’s “unpublicized decision” in February to restrict access to detailed explanations for millions of dollars in city legal settlements that have been considered public information for at least 30 years.

Smith’s decision limits access to memos and similar evaluations written by city attorneys describing the “factual circumstances and the reasons for paying tax dollars to resolve all sorts of legal claims against the city,” according to the Inquirer.

The Law Department allegedly ruled such memos are privileged communication between lawyers and clients, and public records experts interviewed by the Inquirer agreed that the memos could be exempt from the state’s right-to-know law as legal advice.

Even so, Melissa Melewsky, a media law counsel with the Pennsylvania News Media Association, questioned why the state’s policy would suddenly change when this information was subject to public access for decades.

“If it’s always been public in the past, it should remain public,” Melewsky told the Inquirer. “But I can’t say you’ll win that battle in court.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: Privacy exemption limits most FOIA requests

Privacy is the most frequently cited exemption for denying Freedom of Information Act requests, according to a study by the Investigative Reporting Workshop at the American University School of Communication.

The study compiled 15 years of annual FOIA  report data for 13 cabinet-level departments, excluding Veterans Affairs and Health and Human Services because they mostly receive individual requests for personal records.

Of the nine exemptions that limit the free flow of information act, agencies used privacy exemptions more than 232,000 times last year, or 53 percent of the time, to deny requests.

The exemption has not been applied so broadly since the fiscal year of 2002 in the wake of Sept. 11.

The exemption is meant to protect personnel and medical flies, information that would constitute “a clearly unwarranted invasion of personal privacy” and law enforcement information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” according to the study.

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