Freedom From Information Act (FFIA)

Guest essay by Charles Battig

No, that is not a mistake. FFIA is the unofficial, but real operative world of bureaucracy, which has its own interpretation of the official Freedom of Information Act (FOIA). For those who have wished to probe the nooks and crannies of   government at all levels, the original act provides a valuable investigative tool.What is FOIA? From the Federal website:

“Enacted on July 4, 1966, and taking effect one year later, the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. A FOIA request can be made for any agency record.” (snip)“Under the FOIA, agencies must disclose any information that is requested – unless that information is protected from public disclosure. The FOIA also requires that agencies automatically disclose certain information, including frequently requested records. As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.”

Moreover,

“It is the Executive Branch, led by the President, that is responsible for the administration of the FOIA across the government. The Department of Justice’s Office of Information Policy oversees agency compliance with these directives and encourages all agencies to fully comply with both the letter and the spirit of the FOIA.”

Mind you, not only the letter of the law, but the spirit of the law.The Commonwealth of Virginia FOIA version, enacted July 1, 1968, states:

“By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. Records and meetings shall be presumed open, unless an exemption is properly invoked.”

This all reads quite to the betterment of an informed citizenry, and puts governmental and public agencies on notice that they are open to public scrutiny. There have been some notable bumps on this inside-information super-highway, but it has provided many concerned citizens the information needed to deal effectively with governmental agencies at all levels.The U.N. Intergovernmental Panel on Climate Change (IPCC) proved to be a fertile area for the many seeking inside answers to the basic questions of climate science and the motivations of those promoting the U.N. version of climatology.  That version is the one with the built-in presumption that human activity is the predominant agent of climate change caused by conspicuous consumption of fossil fuels; that such change is universally harmful; and that such climate change is unprecedented.The correspondence unearthed in the 2009 Climategate data dump contained much behind-the-scenes uneasiness by the principal advocates of this U.N. policy. The fear of FOIA was singled out by U.K. researcher Phil Jones in one of the reported e-mails:

“In February 2005, Phil Jones wrote to Mann…If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone.”

Much of the details of Climategate have been covered. There was even a “Mr. FOIA.” The reams of downloads have been catalogued and made searchable for those wishing to explore further. But, onto the further adventures with FOIA. One of the luminaries of the Climategate e-mails was ex-University of Virginia (UVA) climatologist Professor M. Mann.  In a most peculiar modern version of “star-crossed lovers,” the paths of then Virginia Attorney General Ken Cuccinelli and the UVA academic record of M. Mann intersected in the Federal Courthouse in Charlottesville, VA August 2010.

The AG had filed a Civil Investigative Demand (C.I.D.) upon UVA to disclose Professor Mann’s climate research activities while employed by UVA and, and by inference, receiving VA taxpayer monies. As Climategate disclosures had given cause to doubt the scientific validity of many climate change claims, the AG claimed a possible misuse of taxpayer funds, and filed the C.I.D. in Charlottesville Federal Court.  Mothership UVA had been attacked, and she responded with legal phasers blazing.   Sitting next to me in the first row of the courthouse that day was attorney Chris Horner, who had become master of the successful FOIA process.  However, complete success was not to be the ultimate outcome of this case as it proceeded through the Virginia legal system.  Horner has detailed the arbitrariness of the FOIA process in action, as judges interpret what is “privileged” and thereby exempt from FOIA requests in his book, “The Liberal War On Transparency.”

The UVA home team circled their wagons of outrage around the rallying cry of “academic freedom.”The VA Supreme Court became the final arbiter of what is “privileged” at the last stop of this UVA FOIA legal process with its recent ruling. The April 2014 written decision homed in on the court’s definition of “proprietary” documents.  Yes, disclosure under FOIA is valid concern, except when judges decide that certain categories are “proprietary.”  Even, with this claimed victory for academic freedom under its belt, UVA might be a bit nervous, as one of its law professors has just been served with a FOIA request.  The local Daily-Progress newspaper reported May 23, 2014 that faculty legal star Douglas Laycock, husband of UVA President Teresa A. Sullivan, is now the subject of a FOIA records request by two UVA student activists. The good professor has apparently committed a politically incorrect transgression by voicing legal opinions upholding freedom of religion. Gay rights groups have viewed his writings as discriminatory.

The irony for UVA is that FOIA is being invoked by these activists.  The newspaper article reports: “The strategy of the FOIA request is to put everything on the table….We don’t think he’s doing anything wrong; it’s just looking at whether he knows how it’s being used.”That sounds very much like a “fishing expedition,” something the courts have frowned upon.

From USLegal.com: “The legislative history of the 1974 FOIA amendments indicates that a description of a requested record that enables a professional agency employee familiar with the subject area to locate the record with a ‘reasonable amount of effort’ is sufficient. Courts have explained that ‘[t]he rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters,’ or to allow requesters to conduct ‘fishing expeditions’ through agency files.”Let the UVA FOIA games begin, again.

Academic freedom versus a privileged minority group claiming discrimination should engender reams of legal opinion. Freedom from information or freedom of information…it all depends.

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Charles Battig, MD , Piedmont Chapter president, VA-Scientists and Engineers for Energy and Environment (VA-SEEE). His website is www.climateis.com

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27 thoughts on “Freedom From Information Act (FFIA)

  1. For the love of Gaia, what is so proprietary about climate research that it is exempt from FOIA?+

  2. The socialists set up the FOIA in the first place to get into Republican and big-business info.

    Now look at the results when they find themselves on the receiving end.

  3. It is this constant and continuous resistance, to open and transparent research data, that is driving many observers, rightfully, into a position, of CAGW skepticism. They soon realize that naked men have been casting bones for their projections.

    Of course the warmist religion doesn’t want the outsiders viewing their most secret rites. They demand conversion before releasing data. Isn’t freedom of religion more important than a few lines of code or resulting data? GK

  4. Where government is involved, it is always from. Like cockroaches, they can only operate under the cover of darkness. Exposure to light is an anathema to them.

  5. Time to time fact find.
    They knew to keep hidden from view.
    This for the favoured crew.

  6. The ruling class doesn’t want to be held accountable. That is the core of the matter.

  7. Trying to evade FOIA requirements is as natural to affected bureaucracies as padding their budget requests. The way to put a stop to all this nonsense is for the US Congress to halt all research funding to previous recipients who have refused to archive their complete data, methods, and where applicable, computer code. Effectively create a research grant blacklist of known offenders and deny funding to any proposal listing a banned researcher. Do the same for sponsoring institutions.

    We have a “no enter the country” list, a “no fly” list, and “no buy guns” list. Why not create a “no suck up public money for private research” list?

    I know the current US President (who must not be named) will never agree to this, but that simply means the Congress has to play hardball directly with the most egregious offenders. Subpoena them to appear under oath to explain why they think publicly funded research is their private property.

    Hell, the US Supreme Court has ruled that if you just call it a tax, you can force people to pay for any thing your want (the Roberts Doctrine). Write in the tax regulations that data, code, etc., created by public funding where the full results of that project are not publicly released constitutes a conversion of grant funds to private use and therefore must be recognized as income.

    Of course, that requires the US Congress to grow a pair, which is unlikely to happen before the next ice age.

  8. Same in the UK, near to the letter. Even the origins. Tony Blair kicked ours off big time and is now cursed by every one of his devotees by what he lumbered them with, though usually semantics or attrition can still make most go away.

    The BBC is an especially unique hoot, blowing off any question of them on the basis that it is in the business of ‘journalism art or literature’ and hence exempted no matter what if it pertains to what they do.

    Which as neat a catch-all exemption as I can imagine. What they have used it for would give Douglas Adams a fit of the giggles at how bonkers the logic is.

  9. The fact that they are fighting so hard to protect their research from being disclosed proves beyond a shadow of a doubt that these people are politicians, not scientists.

  10. I once worked for a regulatory bureaucracy and regarded FOIA as problematic – like blanket subpoenas that caused a national organization to have every employee of every office box up reams of documents for a civil suit witch hunt where – as Steyn puts it – the process is the punishment. Being conservative, I saw the abuse of the compliant. A progressive just sees that is inapplicable because … they can think of an excuse.

  11. Here’s an interesting email from Climategate where some are talking about money being transferred to private accounts.

    http://www.ecowho.com/foia.php?file=1351.txt

    At 09:53 26/03/96 -0500, you wrote:

    >When I get the money, how do you want to be paid? Will a personal cheque do?
    >
    >( I will need a receipt!!!)

    A personal cheque will do nicely or you can transfer all the money directly
    into my account the details of which I will give you on request. I will
    then split it with Phil. I am buying a personal computer for the house
    so the cash will go immediately to that. I will organise receipts from
    Phil and I in due course.
    best wishes
    Keith

    What money?

  12. There are some really good ideas in here today. No grant list for those that don’t disclose and converting the grants to income if they don’t disclose being two wonderful ideas. In fact, that should have been standard practice all along – except they are doing, essentially, what the government wants, therefore the government will do nothing to stop the process. It is sort of surprising how agenda driven the government and thus its processes and practices have become, and how anti liberty and freedom at the same time. Then again, it does appear the agenda IS to end liberty and freedom to start with, so perhaps I shouldn’t be surprised. We need to bow down th the elite and beg for mercy so that we can be among the privileged to survive the purge – if boot licking can be considered as surviving, that is.

  13. Once the logic of the First Amendment to the Constitution of the United States was successfully inverted by the dogmatic left the rest was easy. I’m a constitutionalist first and an atheist second.

    Mr. Obama – tear down these walls around our freedoms!

  14. Charles Battig says, “Courts have explained that ‘[t]he rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters,’”

    –Whereas environmental EPA regulations and IRS audits can reduce any citizen or private business to full-time paper trail makers for government agencies. Time for a flat tax.

    Battig: “…or to allow requesters to conduct ‘fishing expeditions’ through agency files.””

    –What are the Data Hub built into Obamacare (nationalized health care) and data bases built into ObamaCore (nationalized education aka Common Core) but data mining to allow fishing expedition and worse, hacking into any private citizen’s data?

    There is either equality before the law, or laws which apply to some and not to others, creating legal class privileges. Gov’t agencies have given themselves and their supporters waivers from all of their public programs. That is not equal application of the law.

  15. Our state governor routinely uses “executive privilege” to keep his records from becoming public. He is keen on developing huge multi-billion dollar public transportation projects, which no one can afford and no one wants to use. People want to see his negotiations with the Unions also.

    Once again, the public programs such as public trans., ObamaCare and ObamaCore are fast becoming compulsory, while government bureaucrats exclude themselves from participation.

    Accepting any “law that applies to thee but not to me” from these progressives is accepting becoming ghettoized. The FOIA denials for records is yet another example but it is an important part of the pattern.

  16. Battig suffers the politician’s acute blind spot. He fails to understand that information subject to FOIA discovery should already and by design be available to the public. If they were to satisfy the intent of the law in process there would be no need for FOIA. FOIA simply codifies the simple concept that they have no right to keep from us that which is already ours. Any re-interpretation requires corruption of the original intent, and that is political SOP.

  17. I apologize to Charles Battig for my failure to properly cut/paste my revised opening sentence. Battig “highlights”, not “suffers”. A regrettable error on my part.

  18. Disclosures redacted under the FOIA:

    “I got very little sleep night before last. Wife was gone on a 3 day horseback ride with the lady’s riding club so I went down to the bar for a couple of drinks. Then at home about 3:30 am there were these women hollering and pounding at my door. They would not stop until I finally got up and let them out!”

    Had I redacted the last sentence, the meaning might have been significantly misinterpreted.

  19. UVA’s position is that climate change represents the greatest threat to mankind in all of geologic history. Civilization as we know it teeters on the brink of destruction due to man-made CO2. They alone hold the knowledge that could lead human’s — nay all of god’s creature — to safety. And like the great epic heroes of mythology, UVA has been called to a higher purpose. Donating its extraordinary scholars and all of the knowledge they possess to the greatest cause of our time, UVA has risen up to to save the world from impending doom …

    Oh wait, no that last bit is not quite right. Let me re-phrase that: ..” UVA has has spent million on outside lawyers to protect their “intellectual property” to ensure that other scientists can’t get access to it and to secure their ability to profit from climate alarmism”.

  20. “… I think I’ll delete the file rather than send to anyone.”
    Phil Jones, 2005.

    Ha, ha, haaa!

    It is still there, Mr. Jones.

    “Delete” = put a post-it note on it that says in red letters: “TOP SECRET — KEEP OUT.”

    Heh, heh, heh.

  21. Phil Jones claimed the raw global temperature data files were lost in a move. How do we know he didn’t just delete them later “rather than send to anyone”? After all, that’s what he’s on record saying he would do.

  22. People tend to forget that government is evil. It is a necessary evil, as the founders knew. But now too many people think government is good, because they get their EBT card topped up every month, or they get a mortgage interest deduction, etc.

    Government is an organism. An evil organism. Niccolo Machiavelli wrote, “Men are bad, unless compelled to be good.” But who compels governments? Only other, more powerful governments.

    Citizens cannot compel government. Every day we see examples of government gaming the system, and gutting laws like FOIA. Voter fraud is rampant, because citizen voting is inconvenient to the organism. Sound money is inconvenient to the organism. Guns in private hands are inconvenient for the organism. Free speech is inconvenient for the organism. The organism wants to do what it likes to do, without interference.

    Anyone who thinks the FOIA laws will serve their original purpose is being naive. The organism dislikes freedom of information. Therefore, it will become harder and harder for citizens to get information. FOIA is dying. It is almost dead. Pretty soon, it will be.

  23. @dbstealey -

    You have it right – government, in and of itself, by its very nature, is fundamentally evil. The whole notion of one person being able to order another around, or take from another, or assault another under whatever circumstances, is ineluctably evil in and of itself.

    Government is like fire – useful for certain very limited purposes, when rigorously controlled, but a destroyer when it gets out of control.

    And right now, our government is out of control and, true to form, is a destroyer (via the global warming alarmist agenda, inter alia).

  24. “Courts have explained that ‘[t]he rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters….’”

    Well I guess government agencies know whereof they speak. Take it from the pros, the professionals, who routinely pass so many regulations that businesses are reduced to full-time paperwork makers to comply. For example,

    The One Policy That Would ‘Devastate’ Restaurants, According to Carl’s Jr. CEO

    “…Puzder, who wrote a book called “Job Creation” and spoke to The Foundry in 2011, cited the push for a minimum wage hike as one of the greatest threats facing restaurants.

    “I think you’ll see a lot of restaurants closing,” Puzder said. “I don’t think that restaurants can operate profitably if they’re paying a $15-an-hour minimum wage. I think you would see a devastating impact to the country.”

    Puzder listed several government actions that have stymied growth in the restaurant industry: higher taxes, increasing health-care costs, rising fuel prices and an “unnavigable regulatory maze.”

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