Introduction to Making Federal Freedom of Information Act Requests

Adam A. Marshall, Esq.Jack Nelson – Dow Jones Foundation FellowReporters Committee for Freedom of the Press

Welcome to the jungle... FOIA is a complicated web of statutes, caselaw, regulations,

written and unwritten policies, and luck

The Federal Freedom of Information Act The statute: 5 U.S.C. § 552 Provide a right of access to existing “records” held by federal

executive branch “agencies” (for the most part) Does not apply to legislative or judicial branches

State public records laws Every state has also adopted its own public records law,

sometimes called the “sunshine” law, public records act, open records act, etc.

These laws vary widely Some provide access to judicial and legislative, as well as executive

branch records Response time is almost always much shorter Often have less-developed access procedures

Detailed information available for free at the Reporters Committee Open Government Guide:http://rcfp.org/open-government-guide

Trends in Federal FOIA 2009-2014

~514k/yr -> ~714k/yr ~75k -> ~160k

Trends in processing time

Processing time at DHS

Trends in access to information

FOIA: what is it good for?

How to start The basic process of filing a FOIA request is theoretically

easy. Three requirements:

Written request “Reasonably describe” the records sought Follow agency regulations

Look at the agency regulations/website – you never know what might be there

RCFP’s iFOIA.org

What can you ask for? FOIA applies to “records” that already exist.

Cannot ask for the creation or compilation of information This includes all types of documentary information, such as

papers, reports, letters, e-mail, films, computer tapes, photographs and sound recordings in any format, including electronic. You can ask for records in their original form

Physical objects that cannot be reproduced are not “records”

How to get what you want Your request must be specific enough so that a government

employee familiar with the subject area can locate the records with reasonable effort

You may want to consider specifying specific places for the agency to search Ex: FBI FOIA – both different information systems and physical

locations If you don’t specify, they won’t search everywhere For FBI, I’ve come across the following (and more):The main and cross-reference indices of the Central Records System (“CRS”), the electronic surveillance indices (“ELSUR”), the "Enterprise Vault" system that archives emails older than 30 days (for some DOJ components)

To Request Expedited Processing or Not? FOIA authorizes agencies to institute multitrack processing

What do you have to show? 28 CFR § 16.5(e)(1): Expedited processing is granted at DOJ when

the request involves: (i) Circumstances in which the lack of expedited processing could

reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;

(iii) The loss of substantial due process rights; or (iv) A matter of widespread and exceptional media interest in which there

exist possible questions about the government's integrity that affect public confidence.

Note that under the DOJ regulations, a request for expedited processing can be made at any time

If you do request expedited processing, you must include “a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing.”

It’s up to you Not many requests for expedited processing are granted, but

most are denied in a short period of time Look at the data, determine what your needs are www.foia.gov

Fees Agencies may charge “reasonable” fees for the “direct” costs

of searching for and copying the records you request, unless you are entitled to a fee benefits or waiver.

It’s probably a good idea to include a statement in your request of how much you are willing to pay, and ask the agency to contact you if it will exceed that amount before proceeding

Fee categorization If you are a representative of the news media, and the records are

not sought for commercial use, fees are limited to standard charges for document duplication. 5 U.S.C. § 552(a)(4)(A)(ii)(II) You get first 100 pages free, usually ~$0.05 - $0.15/page after that, or

the actual direct cost of the copy (e.g., if in electronic form) Who’s a “representative of the news media”? Statute: “any person or entity that gathers information of potential

interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.”

Cause of Action v. FTC (2005): requester must (1) gather information of potential interest (2) to a segment of the public; (3) use its editorial skills to turn the raw materials into a distinct work; and (4) distribute that work (5) to an audience.

Fee waiver Statute: “if disclosure of the information is in the public interest

because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”

Cause of Action v. FTC (2015) To qualify for a fee waiver under FOIA, the requested information

must: (1) shed light on the operations or activities of the government; (2) be likely to contribute significantly to public understanding of those operations or activities; and (3) not be primarily in the commercial interest of the requester.

FOIA does not require a requester to reach a wide audience. The standard “is whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.”

Sending it in Check the agency website! Some accept via email/electronic portal, some by fax, some

by snail mail If mailing/faxing, be sure to CLEARLY mark it as a FOIA/PA

request on the outside/cover sheet Use iFOIA

For normal FOIA requests, the agency must make a “determination” within 20 business days That includes: (i) gathering and reviewing the documents; (ii)

determining and communicating the scope of the documents the agency intends to produce and withhold, and the reasons for withholding any documents; and (iii) informing the requester that it can appeal whatever portion of the “determination” is adverse. CREW v. FEC, 711 F. 3d 180 (D.C. Cir. 2013)

This does not mean you have a right to the records themselves within 20 days.

However, an agency can extend this time if “unusual circumstances” apply, such as if voluminous records must be searched, if records must be retrieved from various offices or if several agencies must be consulted.

What happens next?

What happens next? For submissions that request expedited processing, the

agency must make a determination as to whether or not to grant the request for expedited processing within 10 calendar days After that, they must process the request “as soon as practicable”

Unfortunately, the statutory deadlines for FOIA requests are rarely complied with

Following up Agency acknowledgement

NOT a determination Tracking number Agency’s Public Liaison/Chief FOIA Officer

Consider negotiating/limiting request Office of Government Information Services (OGIS)

https://ogis.archives.gov/

Exemptions – the (b)’s

(b)(1) – Classified information (b)(2) – Internal personnel rules and practices of an agency (b)(3) – Specifically exempted by other statute (b)(4) – Trade secrets/commercial/financial information (b)(5) –

Deliberative process Attorney-client Work product

Exemptions – the (b)’s (b)(6) – personal privacy

“...personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(7): exempts records/information compiled for law enforcement purposes, but only to the extent that their release (A): could reasonably be expected to interfere with enforcement

proceedings, (B): would deprive a person of a right to a fair trial or an impartial

adjudication (C): could reasonably be expected to constitute an unwarranted invasion of

personal privacy (D): could reasonably be expected to disclose the identity of a confidential

source.... (E): would disclose techniques and procedures for law enforcement

investigations or prosecutions... (F): could reasonably be expected to endanger the life or physical safety of

any individual

Exemptions – the (b)’s

(b)(8) – Agency records related to supervision/etc. of financial institutions

(b)(9) – geological and geophysical information and data, including maps, concerning wells

Exemptions – other

Glomar 5 U.S.C. § 552(c)

Agencies can treat records as not falling under FOIA when (1) they are law enforcement records & subject is not aware of

investigation (2) confidential informant records (3) FBI records related to intelligence/terrorism matters

Administrative Appeals Keep everything related to your request!

You will need this for the appeal. What can you appeal?

Sufficiency of Search Exemptions Segregability

When to appeal? Check agency regulations. DOJ = 60 calendar days

Timing of response? 20 business days DOJ average = 67 days

Sample Administrative Appeal

Do administrative appeals work?

State Public Records Laws States vary widely in their timing requirements, exemptions,

administrative remedies Almost always faster than the federal FOIA RCFP has guides to all 50 states (http://rcfp.org/open-

government-guide)

Resources

RCFP Federal FOIA Appeals Guide (http://www.rcfp.org/federal-foia-appeals-guide )

RCFP FOIA Administrative Appeal Samples (http://www.rcfp.org/federal-foia-appeals-guide/sample-appeal-letters-and-templates

RCFP Open Government Guide (http://www.rcfp.org/open-government-guide )

www.ifoia.org OGIS (https://ogis.archives.gov/)