Introduction to FOIA

1. Introduction to FOIA: WHAT CAN FOIA DO FOR YOU?

     The Freedom of Information Act (FOIA), 5 U.S.C. § 552, makes almost every record possessed by a federal agency disclosable to the public unless it is specifically exempted from disclosure or excluded from the Act's coverage. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). The Act provides that any person has a right which is enforceable in federal court, to maintain access to records of any federal agency, except for those documents which are exempt from disclosure by one of nine specific exemptions. This outline sets forth the manner by which a person with no legal training may gain access to the workings of the agencies of the government of the United States by means of the mechanisms of FOIA. A successful FOIA requester will always remember and incorporate the following simple rules:

• Whenever you speak with agency personnel on the telephone, get their name and make sure that they know you are writing it down (e.g. ask for proper spellings, etc.),
• Whenever you speak with agency personnel on the telephone, send them a quick letter memorializing the points covered and request that they immediately inform you in writing if your recollection of the conversation is incorrect, and
• Make, and hang on to, copies of all correspondence involving your case.

These surprisingly elementary points are fundamental to establishing the groundwork of a successful FOIA request but are often surprisingly overlooked by otherwise savvy activists. The result being that documents which should be disclosed are not, cases which should be won, are lost.

	"The words of a statute [FOIA] are, of course, dead weights unless animated by the purpose of the statute. The purpose of this statute is to shed light "on an agency's performance of its statutory duties."
	United States Department of Justice v. Reporters Committee For Freedom Of The Press, 489 U.S. 749, 772-73 (1989).

   The FOIA creates the presumption that records in the possession of agencies and departments of the executive branch of the U.S. Government are accessible. Before the FOIA became law on July 4, 1966, the burden was on the requester to establish a right to examine government records. Moreover, there were no statutory guidelines or procedures in place to help a person seeking information as was there no provision for judicial review for those denied access. When FOIA was signed into law, the burden of proof shifted from the individual to the government. Those seeking information were no longer required to show a need for information. Instead, the "need to know'" standard was replaced by a "right to know'" doctrine. The government now has the burden to justify a need for secrecy in order to withhold requested information. The FOIA sets standards for determining which records must be disclosed and which records may be withheld. The law also provides administrative and judicial remedies for those denied access to records. Above all, the law requires Federal agencies to provide the fullest possible disclosure of information to the public.

     The crux of FOIA is to make Federal agencies accountable for information disclosure policies and practices. While the Act does not grant an absolute right to examine government documents, it does establish the right to request records and to receive a response to the request. If a record cannot be released, the requester is entitled to be formally advised of the reason for the denial. The requester also has a right to appeal the denial and, if necessary, to challenge it in court. Consequently, access to information of the Federal Government can no longer be controlled by arbitrary or unreviewable actions of a hidden bureaucracy.

     It will serve you well to remember that should you be confronted by an obstructionist bureaucrat who is clearly not going to provide you with materials to which you feel you are lawfully entitled, do not argue or quarrel. Rather, in such a situation the best retort (because it is the response most likely to ensure your ultimate access to the desired information) is to do everything you can to ensure that you have created an adequate record for review at the next level as afforded by FOIA. You are not likely to accomplish anything productive if you fall into an argumentative posture with the agency and you will probably tarnish the administrative record which you require to win on appeal.

     To be fair, the role of the agency FOIA staffer is not always as straightforward as one would hope. As accurately reflected in "FOIA Update," a publication of the U.S. Department of Justice:

Administering FOIA requires making determinations of fact, law, and policy. To do this adequately is sometimes a large or complex task, especially when requests are for records that may be numerous or sensitive. Difficulties are often magnified by new or conflicting court decisions; by gaps in an agency's knowledge, resources, organization, or training; by a need to involve other agencies; or by a need to reconcile divergent policies.

FOIA Update, Vol. I, No. 1, Autumn 1979. Correspondingly, it is usually appropriate to give the agency the benefit of the doubt the first time you encounter a problem in regard to your request. In that situation, we recommend that you do what you can to work with the agency to facilitate resolution of the problem. However, if you continue to encounter resistance, it is probably safe to assume that the real obstacle is intentional agency opposition to disclosure and you should then do everything you can to make a good record for review.

     The most recent amendments to the Act occurred though "The Electronic Freedom of Information Act Amendments of 1996." These revisions have the potential to create some of the most far-ranging impacts upon the transparency of our federal government since the Act was first signed into law. Primarily, as the name of the amendments suggest, the congressional intent was to force agencies to open a great majority of their records to automated access via the electronic phenomenon of the 1990's; the Internet. Congress found that "Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and . . . Government agencies should use new technology to enhance public access to agency records and information." See P.L. No. 104-231, 101 Stat. 2422, Sec. 2(a)(1996). Accordingly, if you have access to a computer with a modem and a web-browser, you may now get information from an agency's site on the Internet which previously required the time and difficulty of submitting a written FOIA request. However, not all of the agencies have complied with the mandates set forth in the amendments as well as required by law and there is also a significant variability in the quality and "user-friendliness" of the differing sites. These issues will be discussed below in more detail.

1. FOIA, 5 U.S.C. § 552, et seq., enacted on July 4, 1966, the Act established for the first time, a statutory right of access to almost all federal agency records.
   
   
   1. FOIA is unique in the world for effectuating the concept of public disclosure of internal governmental operations.
   
   
   
   2. FOIA allows "any person" to request materials. 5 U.S.C. § 552(a)(3). "Person" includes any "individual, partnership, corporation, association, or public or private organization other than an agency." 5 U.S.C. § 551(2).
   
   
   
   3. FOIA applies to any "agency records" which are documents which are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). The 1996 amendments to FOIA explicitly indicate that the term "record" and any other term used in FOIA in reference to information, should "include any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format." 5 U.S.C. § 552(f)(2).

   (a) Note that the second prong of this analysis means that the agency is not required to affirmatively produce documents which do not exist at the time of the FOIA request, e.g., an agency is not required to draft a summary of data which it may possess, even though the data itself might be disclosable under FOIA.
   
   (b) The recent expansion of the use of computer technology has prompted courts to explore the inclusion of computer software, as opposed to the data stored and organized by the software, within the definition of "agency records." Cleary, Gottleib, Steen & Hamilton v. HHS, 844 F. Supp. 770, 782 (D.D.C. 1993) ("These [computer] programs preserve information and 'perpetuate knowledge.'" (quoting DeViaio v. Kelly, 571 F.2d 538, 542 (10th. Cir. 1978)). See also FOIA Update Winter 1994, at 3.

2. Uses of FOIA.

     One of the goals implemented by the passage of the Act in 1966 was to ensure transparency in the governance of our country. The only mechanism by which we can assure governmental integrity is to have a clear understanding of what government is doing. Getting documents and other valuable information from the government is usually a crucial component in the resolution of any problem involving the operations or activities of the federal bureaucracy or those it does business with. The FOIA is the best manner of access to significant resources of information which would not otherwise be available to the public. For example, activists Paul Merrell and Carol Van Strum broke the story for Greenpeace that paper mills using chlorine to bleach their pulp were discharging dioxin into the waters of our country and the fact that the EPA was aware of this, yet remained silent.

     You-whether you are a trained lawyer, a law student or just someone with an interest in ensuring that our government operate in the open-can use the Act to expose all nature of the machinations of power in our country.

1. You can use the Act to illuminate, and to subject to public scrutiny, those records which concern controversial political and policy issues.

(a) EPA v. Mink, 410 U.S. 73, 75 (1973). Members of Congress sought public disclosure of documents transmitted to President relating to underground nuclear testing. Request failed because of "secret" nature of documents.

(b) Center for National Security Studies v. CIA, 711 F. 2d. 409, 410 (D.C. Cir. 1983). Public interest group uses FOIA to stimulate discussion of activities and functions of CIA.

2. You can use the Act to ensure agency performance of statutory responsibilities or expose governmental wrongdoing.

(a) FBI v. Abramson, 456 U.S. 615, 618 (1982). Journalist requested materials to disclose extent to which Nixon may have used the FBI to obtain derogatory information about political opponents of the White House.

(b) Int'l B. Elec. Workers Local 41 v. HUD, 763 F2d 435 (D.C. Cir. 1985). Union requested payroll reports submitted by nonunion contractor to protect its members from unfair and unlawful competition. Court stated, "the purpose of FOIA is to permit the public to decide for itself whether government action is proper." (emphasis in original).

(c) Allen v. CIA, 636 F.2d 1287, 1288-1300 (D.C. Cir. 1980). Request for CIA records to determine extent to which agency may have had a role in either the assassination of President Kennedy or obstructed investigations into the assassination.

(d) Miller v. Reilly, Civ. No. 91-6357-JO (D. Or. 1991). Successful request for database maintained by EPA which documented agency's non-compliance with nondiscretionary duties imposed by each of the federal environmental statutes.

3. You can use the Act to invalidate agency action.

(a) Similar to Administrative Procedure Act, 5 U.S.C. § 553 et seq., in that FOIA requires agency to follow specific procedures when performing rulemaking functions, in this instance, publication in Federal Register.

(b) Agency must publish in Federal Register "substantive rules of general applicability . . . statements of general policy or interpretations of general applicability formulated and adopted by the agency. . . . Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." 5 U.S.C. § 552(a)(1)(D).

(c) Examples of use of FOIA publishing requirement to invalidate agency action:

(1) Morton v. Ruiz, 415 U.S. 199, 232-235 (1974). BIA rules establishing standards of eligibility for general assistance to Native Americans stuck down for failure to publish in Federal Register.

(2) Anderson v. Butz, 550 F. 2d. 459, 462 (9th. Cir. 1977). Secretary of Agriculture's directive amending eligibility standards for food stamp program struck for failure to publish in Federal Register.

4. In preparation of litigation. Remember, sometimes a "no record exists" response is the "smoking gun" you need if you are trying to prove that an agency acted arbitrarily in some objectionable decision. For example, if the law requires the government to have considered certain facts or undertaken a particular action which would necessarily have left a paper trail, the absence of such a trail can be used as evidence that the agency failed in the performance of its statutory duties. We have used this tactic very successfully to paint an agency into a corner from which they could not escape after litigation began.
5. The use of FOIA with which most people are aware is to apply it to obtain agency records for: investigative reporting; obtain records for historical or academic research; discover evidence for use in proceedings before an agency or to challenge agency rulemaking; determine if agency has obtained information through an investigation of requester; and, to use as an alternative, or supplement, to civil or criminal discovery.
2. RECENT AMENDMENTS TO FOIA:
   "THE ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS OF 1996"
   On October 2, 1996, President Clinton signed into law "The Electronic Freedom of Information Act Amendments of 1996." The Congressional findings which accompanied the Amendments set forth a large number of proud sounding recitations focusing both on past successes of the Act as well as upon aspirations for the future:

Findings.-- The Congress finds that --



(1) the purpose of section 552 of title 5, United States Code, popularly known as the Freedom of Information Act, is to require agencies of the Federal Government to make certain agency information available for public inspection and copying and to establish and enable enforcement of the right of any person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose;

(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;

(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;

(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;

(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and

(6) Government agencies should use new technology to enhance public access to agency records and information.

See P.L. No. 104-231, 101 Stat. 2422, Sec. 2(a)(1996)

Moreover, the "purposes" section of the Amendments presents some very nice sounding goals for federal agencies:

Purposes.the purposes of this Act are to --



(1) foster democracy by ensuring public access to agency records and information;

(2) improve public access to agency records and information;

(3) ensure agency compliance with statutory time limits; and

(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government.

See P.L. No. 104-231, 101 Stat. 2422, Sec. 2(b)(1996)

   While not legally binding, these recitations make for nice reading. Moreover, they can help to remind a reviewing judge-should you be required to file suit-that the agency is supposed to do more than merely tolerate your presence; your invoking of FOIA is an act which summons forth some of the most basic principals of our democratic society, Congress said so. Consequently, always remember to cite these passages to the government when you are confronted by a less than forthcoming agency response, they will always look good in the record you are making for review.

   The 1996 FOIA Amendments break down into three general categories. One, the Amendments impose a number of mandates to enhance public access to agency records by requiring that agencies provide indexes to help requesters best craft their requests and to ensure that previously requested records are available without the filing of a request. Two, the Amendments enhance the public's ability to obtain records in electronic format by confirming that records in electronic form are subject to FOIA. Accordingly, agencies must honor requesters' preference for special format-if reasonably feasible-and agencies are now required to make more information available on the internet. And three, the Amendments slightly extended the deadlines in which to respond to an initial FOIA request while modifying the procedures for reviewing FOIA requests to allow for faster processing while requiring agencies to reduce backlogs and delays.

A summary of the major components of the Amendments is set out below:

1. Electronic Records -5 U.S.C.§ 552(a)(2)(D)-Records which are subject to FOIA shall be made available under the Act when the records are maintained in electronic format. This clarifies existing practice by making the statute explicit on this point.



2. Format Requests -5 U.S.C.§ 552(a)(3)(B)-(D)-Requesters may ask for data in any form or format in which the agency maintains those records. Agencies must make a "reasonable effort" to comply with requests to furnish records in other formats.



3. Redaction -5 U.S.C.§ 552(b)-Agencies redacting electronic records (deleting part of a record to prevent disclosure of material covered by an exemption) must note the location and the extent of any deletions made on a record.



4. Expedited Processing -5 U.S.C.§ 552(a)(6)(E)-Certain categories of requesters would receive priority treatment of their requests if failure to obtain information in a timely manner would pose a significant harm. The first category of requesters entitled to this special processing includes those who could reasonable expect that delay could pose an imminent threat to the life or physical safety of an individual. The second category includes requests made by a person primarily engaged in the dissemination of information to the public, and involving compelling urgency to inform the public. The term "primarily engaged" requires that information dissemination be the main activity of the requester, though it need not be their sole occupation. The specified categories for compelling need are to be narrowly applied.



5. Multitrack Processing -5 U.S.C.§ 552(a)(6)(D)-Agencies will be able to establish procedures for processing requests of various sizes on different tracks. Because of this procedure, larger numbers of requests for smaller amounts of material will be completed more quickly. Requesters will also have an incentive to frame narrower requests.



6. Deadlines -5 U.S.C.§ 552(a)(6)(A)-The deadline for responding to a FOIA request is extended to 20 working days from the current 10 working day requirement for initial determinations.



7. Agency Backlogs -5 U.S.C.§ 552(a)(6)(B)-(C)-Agencies can no longer delay responding to FOIA requests because of "exceptional circumstances" simply as a result of predictable request workload. This strengthens the requirement that agencies respond to requests on time. This single provision has the potential to have the greatest impact upon FOIA requests and litigation. Of a total of 75 agencies responding to a Department of Justice request for backlog information in February 1994, only 28 agencies could report that they had no backlog. Agencies have consistently failed to comply with FOIA's response deadline, and courts have allowed this. Congress has seemingly tried to put some teeth into the newly expanded 20 day response deadline by explicitly limiting the basis by which an agency can excuse a delay in the processing of a FOIA request.



8. Reporting Requirements-5 U.S.C.§ 552(e)-The amendments expands certain reporting requirements, e.g. agency reports to Congress regarding their levels of FOIA compliance, and requires agencies to make more information available through electronic means.

     These amendments, because there has been little opportunity for reviewing courts to evaluate them, present an unknown commodity to the FOIA requester. Historically, the courts have shown a willingness to extend a sympathetic ear to agency complaints of "exceptional circumstances" as justification for delinquent responses to FOIA requests. It remains to be seen how the courts will now receive such complaints. Additionally, the mechanisms to manipulate and release electronic data in its original format presents the potential to significantly speed release of the requested materials while also allowing a requester access to data which can be more easily searched and manipulated than paper. On the whole, these changes present the promise to make the FOIA progressively more responsive to the public; we shall see in the fullness of time.