If records aren't covered by FOIA are they sealed?

[dsc]

Poll question: If records aren't covered by FOIA are they sealed?

This came up in another thread and I need to know if I owe another poster an apology. Congressional records aren't covered by FOIA (see below). That means the records can only be seen with the permission of the Congressperson whose records they are. To me that is a defacto sealing of the records. So are they or aren't they?

The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, section 552, was enacted in 1966 and provides that any person has the right to request access to federal agency records or information. This right of access is enforceable in court. All agencies of the United States government are required to disclose records upon receiving a written request for them, except for those records that are protected from disclosure by the nine exemptions and three exclusions found in the FOIA. The federal FOIA does not provide a right of access to records held by Congress, the courts, state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local records and state authorities should be consulted for further information about such records.

[Feanorcurufinwe]

1. If sealed records don't exist, would you ever admit it?

[ModerateMiddle]

2. LOL

This is some kind of temper tantrum, isn't it? I didn't know that the FOIA exempted Congress. I think asking for evidence of it was reasonable. There are prolly gazillions of things about politics and laws that I don't know, and I post on a "political board". I must be stupid, huh?

What kinds of records would people seal? What I understand constitutes the stuff that Dean has sealed is correspondence with his own staff. I would expect that Congress-critters have that kind of stuff too. I think the difference is when someone has "executive" authority for something, they are able to actually DO things that Congress-critters can't. Executive orders and the like.

[dsc]

4. Dean's executive orders are public

which is one of my points.

[ModerateMiddle]

6. It's the communication leading up to them

that are at issue, I believe.

[dsc]

7. again

you can't get that for any Congress person either.

[Feanorcurufinwe]

8. Unless you ask

Perhaps you can't force them to release records under the FOIA, but that is not the same as the records being kept from the public by statute or court order.

Ask for the records, and see what the answer is. If the answer is no, then perhaps you could say it is sealed. But you are assuming in advance that the answer is no.

[stickdog]

9. Can I see the records of Kerry's checks to you? (NT)

[Feanorcurufinwe]

11. Can I see them?

That would be nice.

Are you capable of actually discussing anything or is nothing but ad hominem attacks and sycophantic praise of your candidate?

[stickdog]

12. Are you capable of exhibiting a sense of humor? (NT)

[Feanorcurufinwe]

13. Say something funny and let's find out.

[dsc]

3. Yes I would

There are three options here. Either they exist and access is directly controlled by the Congressperson, they exist and anyone or nearly anyone can see them, or they don't exist. If they once existed but don't now exist I think that is worse than sealing them. If it is your contention that no Congressperson in this race ever wrote memos to their staffs, recieved memos from their staffs, wrote letters to their constituents, nor recieved letters from them I would like some showing of that as I think that is ridiculous. And that is the context in which this inquiry was undertaken as the linked thread where you brought this up clearly shows.

[Feanorcurufinwe]

10. If there is some document you want to see, ask for it

if you are denied, you'll have something to talk about.

[Mairead]

5. For the convenience of those who want to know what it's all about

Below is the relevant extract from this thread:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=472504

DSC: Is there any candidate whose records are totally available?
I have asked this every time it has come up in regards to Dean and been stiffed everytime. So I decided to post a thread. Is there any candidate, even one, for whom the types of records that Dean has had sealed (correspondence between Dean and his staff and correspondence between Dean and his constituents) is readily available and not sealed for any period of time? In the alternative I will accept that I am wrong on what Dean has sealed if that can be proven. So this is your chance to put up.

DSC: gee not one of the anti Dean demagogues wish to take this?

MAIREAD: Flip it, why don't you: which of his opponents has ANY sealed records?
Apart from Smirk, I mean.

DSC: I know for a fact that every, yes every
Congressional opponent does. Congress is exempt from the FOI law.

MAIREAD: So they all have sealed boxes of records squirreled away somewhere?
Can you give a cite for that? It doesn't sound right, to me.

DSC: I shouldn't have to site what is a constitutional principle
under Seperation of Powers the executive can't enforce laws against Congress without its permission. On several laws including FOI Congress didn't.

MAIREAD: Would you please READ!?!
I asked whether you have a cite for your claim that they all have sealed boxes of records archived somewhere.

MAIREAD: Well? Can I have a cite, please?

[goodhue]

14. certainly not

Just because a record is not covered by FOIA does not in of itself make it "sealed." Indeed in general only courts of law "seal" records. Records of state and local government are governed by the relevant state data practices law and so would vary from state to state. Such records are not covered by FOIA and of course are not all sealed.

I take it, however, you are refering to the fact that federal congressional records, which are not covered by FOIA, are generally "closed". Congressional records are in fact "closed" for a period unless made open. But that has nothing to do with the fact that they are not covered under FOIA. Rather it is because they are closed under Senate and House rules.

http://www.archives.gov/records_of_congress/information_for_researchers/rules_of_access.html

Rules of Access to the Records of Congress

The Center applies the rules of access for congressional records as determined by the House and the Senate.

Access to House records is governed by the provisions of House Rule VII subject to determination of the Clerk of the House.

For the Senate it is based on Senate Resolution 474 from the 96th Congress.

Although the House and Senate regularly transfer records to the National Archives and Records Administration, these remain closed to researchers for designated periods of time: 30 years for most House records, with investigative records and records involving personal privacy closed for 50 years; 20 years for most Senate records, with a similar 50-year closure period for sensitive Senate records. Some Senate committees have instructed the Center to open selected series of records to researchers upon receipt of the records by the National Archives and Records Administration.

The records of Congress are not subject to the provisions of the Freedom of Information Act.

[goodhue]

15. vermont law

Upon further investigation of what in the world you are talking about I see you are all worked up about state records which of course have nothing to do with FOIA or the fact that congressional records are closed. It would be a matter of Vermont law so who knows. Ask some public lawyer in Vermont.

[goodhue]

16. vermont statute

http://www.vlct.org/local/publicrecords.htm

Access to Public Records Law

ACCESS TO PUBLIC RECORDS AND DOCUMENTS (1 V.S.A. § 316)

Any person may, during customary office hours, inspect or copy any public record or document of any agency of the state or political subdivision of the state including towns, cities, villages, counties, schools and all their subdivisions.

EXCEPTIONS (1 V.S.A. § 317)
"Public record or document" means all papers, documents, machine readable materials or any other written or recorded matters, regardless of their physical form or characteristics, produced or acquired in the course of agency business. Individual salaries and benefits of and salary schedules relating to elected or appointed officials and employees of public agencies shall not be exempt from public inspection and copying. The following public records ARE EXEMPT (See statute for complete description.):

(1) records designated confidential by law;
(2) records, which by law may only be disclosed to specifically designated persons;
(3) records, which, if made public under this law, would cause the custodian to violate duly, adopted standards of ethics or conduct for any profession regulated by the state;
(4) records, which, if made public under this law, would cause the custodian to violate any statutory or common law, privilege;
(5) records dealing with the detection and investigation of a crime. This does not exempt records of the initial arrest of a person and the charge;
(6) tax returns and related documents;
(7) personal documents relating to an individual; how-ever, information in an individual's personnel file shall be available to that individual or his/her designated representative;
(8) test questions and scoring keys;
(9) trade secrets;
(10) lists of names compiled or obtained by a public agency when disclosure would violate a person's right to privacy or produce public or private gain, unless the lists are made available to the public by law;
(11) student records at educational institutions funded wholly or in part by state revenue;
(12) records concerning formulation of policy if disclosure would constitute a clearly unwarranted invasion of personal privacy;
(13) information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project, and information pertaining to appraisals or purchase price of real or personal property for public purposes prior to the formal award of contracts thereof;
(14) records relating to pending litigation involving the public agency, until ruled discoverable or litigation has ended;
(15) records relating to negotiation of contracts including, but not limited to, public employee collective bargaining agreements;
(16) voluntary information provided by an individual, corporation, organization, partnership, or any other entity before the enactment of this law; and
(17) records within or between departments, which are preliminary to determination of policy or precede presentation of the budget;
(18) records of the office of internal investigation of the department of public safety;
(19) records relating to the identity of library patrons or the identity of library patrons in regard to the circulation of library materials; and
(20) information which would reveal the location of archeological sites and underwater historic properties.
(21) records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasijudicial capacity;
(22) passwords, access codes, user identifications, security procedures and similar information where disclosure would threaten safety of persons or security of public property;
(23) information and records provided to the department of banking, insurance, securities and health care administration by an individual for the purposes of having the department assist with resolving disputes with regulated companies.
(24) information and records provided to the department of public service to resolve a dispute with a regulated utility or other individual.

PROCEDURE (1 V.S.A. § 318)
Upon request, the custodian of a public record shall promptly produce the record unless:

(1) it is in active use, or in storage, or unusual circumstances make a delay necessary before the material is available;
(2) the custodian considers the record exempt from inspection;
(3) the record does not exist under the name given or any other name known by the custodian.
The custodian shall certify in writing his or her reasons for denying or delaying access to the record.

COPYING COSTS (1 V.S.A. § 316)
Unless a different fee has been established by law, the person requesting the copy may be charged the actual cost of providing the copy plus the cost of mailing or transmitting the record by facsimile or other electronic means. If the legislative body fails to establish a schedule of public records charges, any actual costs imposed by the municipality must be in accordance with the schedule of charges established by the secretary of state.