The Nuts and Bolts of FOIA

by | February 9, 2010 | KLAMP | Comments Off

I had the opportunity to spend some time this week summarizing the basics of FOIA, and thought that others might be interested as well. Best of luck in your FOIA requests!

FOIA Basics

As you might already know, the Federal Freedom of Information Act (FOIA) provides citizens with access to federal government documents. After making sure a FOIA request is necessary, such a request proceeds in three steps: filing the request; waiting for a response; and (if necessary) appealing the decision.

 Before FOIA

 It is always possible to make an informal request by telephone to government agencies requesting information. You can also contact the agency FOIA officer and informally ask for assistance. However, on sensitive subjects this is unlikely to be fruitful, and your legal rights under FOIA only are activated with a written request.

 There are already a number of sources for public documents, including the Federal Register, Code of Federal Regulations, and agency websites. Since FOIA requests require that you be able to ‘reasonably describe’ the material you want, it may be useful to first check these sites for related information and to be able to explain why it does not suffice.

 Filing a FOIA Request

 A FOIA request can be made by crafting a simple letter to the government agency of interest. It should:

  • Be addressed to the agency or subdivision in question, being as specific as possible. A list of government agency FOIA offices is here: http://www.justice.gov/oip/foiacontacts.htm.
  • Be marked at the top, and on the envelope, as a FOIA request.
  • List as specifically as possible the records which you are requesting
  • Explain why you are requesting such documents, and what public interest they serve
  • Explain why you might be entitled to a fee waiver (see below)
  • Include your contact information
  • Be photocopied and retained so that you have evidence the request was filed.

 A sample letter is available here: http://www.nfoic.org/sample-foia-letters#foireq. Note that lower on the page is more detailed language about fee waivers.

 Fees: The agency can request that you pay for the reasonable cost of reproducing the documents, unless you are entitled to a fee waiver. Search fees generally range from $11 to $28 per hour, while photocopying costs are normally between 3 and 25 cents per page. Non-commercial requesters generally receive two free hours of search time and 100 photocopied pages free.

 The news media and academics are exempted from search fees; thus, working with an investigative journalist (including some experienced bloggers) or academic is one way to reduce costs. Individuals can also request a fee waiver based on the following criteria.

  • The subject of the requested records concerns government operations and activities.
  • The disclosure is likely to contribute to understanding of these operations or activities.
  • Disclosure will likely result in public understanding of the subject.
  • The contribution to public understanding of government operations or activities will be significant.
  • The requester has a limited commercial interest in the disclosure.
  • The public interest in disclosure is greater than the requester’s commercial interest.

 It may be helpful to address these criteria in your initial request; otherwise the government may delay responding by requesting more information before deciding on the fee waiver. Agencies are generally more willing to grant fee waivers for more narrowly defined requests.

 What Happens After You File?

 The law requires that agencies respond to FOIA requests in 20 days, though federal agencies often ignore this deadline. Note that a simple response by the agency saying that it has received your request is not enough to meet the 20 day deadline.

 A response can take one of several forms:

  • The agency can provide the documents you request.
  • The agency can respond that the documents are subject to an exemption which would preclude their release.

The agency can also ‘stop the clock’ once by requesting clarification from the applicant, or if there are ‘unusual or exceptional circumstances’ related to your request.

 There are currently 9 exemptions for the release of government records:

1)      National Security

2)      Internal Agency Rules

3)      Statutory Exemptions

4)      Trade Secrets

5)      Internal Agency Memo

6)      Personal Privacy

7)      Law Enforcement Records

8)      Bank Reports

9)      Oil and Gas Well Data

 Common problems with FOIA requests include long delays in responses, high fees, and liberal use of the above exemptions to preclude the release of documents.

 FOIA Appeals and Litigation

 If an agency refuses to disclose information, or does not respond in a timely manner, you can appeal to the agency FOIA Officer. It is preferable to file within 30 working days of a denial. You can appeal the failure to release documents, the delay in response, the failure of the agency to conduct an adequate search, prohibitively high fees, or other matters that could effectively interfere with your ability to receive records. As with FOIA requests, these can be done be simple letter.

  • You should state why you think the agency’s actions were wrong.
  • If any exemptions were cited, you should explain why they do not apply.
  • If applicable, you should also indicate your willingness to take the matter to court.

 If you file an administrative appeal that is denied, or if your request is not responded to within 20 working days, you can then file a lawsuit in federal court. You may want to retain an attorney at this point. The Reporters Committee for Freedom of the Press has a sample complaint here which can be edited here: http://www.rcfp.org/foialetter/index.php?op=complaint.

 One can also file a ‘Motion for Vaughn Index’, which asks the court to order the government to describe the information it is withholding and the reasons for doing so. Some courts require you to wait for the government to respond to your complaint before allowing such a motion. A sample is available here: http://www.rcfp.org/foialetter/index.php?op=vaughn.

Additional Resources

Much of this information was drawn from the Federal Open Government Guide put together by the Reporters Committee for Freedom of the Press: http://www.rcfp.org/fogg/index.php?. There is also a FOIA-letter-generating section of the website, though personal letters may be better received.

 George Washington University’s National Security Archive also has a website on ‘FOIA Basics’: http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html. Their website also suggests that they undertake national security related FOIA litigation (though details are not yet available).

This website also provides links to a number of organizations which undertake FOIA litigation, though we cannot personally vouch for any of them: http://www.foiadvocates.com/links/index.html.

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