Sample FOIA requests and appeals

Re: The Yaffee Northern Spotted Owl Report FOIA Request.

Dear FOIA Officer:

This is an appeal pursuant to 5 U.S.C. § 552(a)(6)(1990), concerning the U.S. Forest Service's ("U.S.F.S." or "Agency") refusal to disclose certain documents within its control. The requested documents are a report and a summary of that report written by Steve Yaffee. The documents relate the history of the Agency's involvement with the Northern Spotted Owl. Mr. Yaffee was contracted by the U.S.F.S. for the purpose of producing those documents. The Agency's refusal to disclose the requested items violates the federal Freedom of Information Act (FOIA or Act), 5 U.S.C. § 552 et seq., as amended.

As the role of the Northern Spotted Owl in the overall fate of the Pacific Northwest's Ancient Forests is being actively and contentiously debated at this time, the disclosure of these documents stand to make a major contribution to the public's understanding of this divisive issue. Because irreversible decisions are about to be made, a quick resolution of this appeal is of extreme importance. TIME IS OF THE ESSENCE.

I am writing this letter on behalf of: ___________ As noted in their original FOIA request, dated January 20, 1992, the requested materials:

"will illuminate in a clear and direct way, the operations and activities of the USFS as it acts to fulfill important Congressional mandates to protect the environment. As such, its release will significantly contribute to public understanding and oversight of the USFS's operations, particularly regarding the quality of the USFS's activities and the efficacy of both Congressional directives and USFS policies and regulations relating to the Spotted Owl and its habitat."

See, original FOIA request, page 1, paragraph 3.

Unfortunately, by a letter dated February 12, 1992 (the date of which violated FOIA's 10 day response deadline, 5 U.S.C. § 552(a)(6(A)(i), 7 C.F.R. § 1.8(a), and 36 C.F.R. § 200.10), the Agency has refused to disclose any of the requested material. The stated basis is exemption 5, the so-called "deliberative process" exemption. 5 U.S.C. § 552(b)(5).

By this letter, I am therefore making a timely appeal pursuant to 5 U.S.C. § 552(a)(6), 36 C.F.R. § 200.11, and 7 C.F.R. § 1.8(a), in response to the Agency's denial of the FOIA request.

Because my clients do not agree that the requested materials are exempt from disclosure, they ask that the Chief reverse the denial of their FOIA request and waive all associated fees. They further request that if any portions of the requested documents are withheld, the Chief should describe the deleted material in detail and specify the statutory basis for the denial as well as your reasons for believing that the alleged statutory justification applies in this instance. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Additionally, they ask that those portions of the documents which may indeed be properly exempted from disclosure by exemption 5, should be released pursuant to the Chief's powers of discretionary release under 36 C.F.R. § 200.11(b), and 7 C.F.R. § 1.17(b).

DISCUSSION

To qualify for exemption 5 under the "deliberative process" privilege, a document must be both (1) "predecisional" or "antecedent to the adoption of agency policy," and (2) "deliberative," meaning "it must actually be related to the process by which agency policies are formulated." Jordan v. United States Department of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978).

It is the requester's belief that the vast majority, if not all, of the materials in question, are subject to FOIA's mandatory release provisions. The documents are primarily historical in nature. This is underscored by the Agency's letter denying the FOIA request which described the requested documents as "relat[ing] to the history of the Forest Service's involvement with the Northern spotted owl." See, Letter denying FOIA request, paragraph 1.

While in some attenuated way, all such compilations of historical fact do indeed contribute to future deliberation, exemption 5 did not envision the withholding of any governmental document which aids decision-makers (such as the Yaffee Report), only those which legitimately reflected the deliberations of those making decisions. To construe exemption 5 as proposed in the Agency's denial letter would create an exception which would swallow the general rule of mandatory disclosure. The underlying goal of FOIA remains "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language. . . ." S. Rep. No 813, 89th Cong., 1st Sess. p.3, n. 6, (1965). The fact that the requested material may contain some incidental recommendations regarding future U.S.F.S decisions can not act to exempt the entire document from disclosure.

In the letter of denial, the Agency stated that because the "withheld document includes recommendations regarding agency management of forest wildlife issues," the entire report, and its summary, were properly exempt from disclosure. This is a misstatement of law.

To imply that the FOIA allows the withholding of entire documents merely because a portion may be exempt from disclosure, overlooks entirely the "segregable portions" clause of the Act. "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. . . ." 5 U.S.C. § 552(b). Indeed, the requesters anticipated the Agency's posture by stating in their initial request:

"In the unlikely event that access to any of the requested records is denied, please note that the FOIA provides that if only portions of a requested file are exempted from release, the remainder must still be released. I therefore request that I be provided with all non-exempt portions which are reasonably segregable. I further request that you describe the deleted material in detail and specify the statutory basis for the denial as well as your reasons for believing that the alleged statutory justification applies in this instance."

This the Agency has refused to do. The applicable section of the Code of Federal Regulations also includes the directive that:

"In the event the records requested contain some portions which are exempt from mandatory disclosure and others which are not, the official responding to the request shall insure that all nonexempt portions are disclosed, and that all exempt portions are identified according to the specific exemption or exemptions which are applicable."

7 C.F.R. § 1.8(b), emphasis added.

It is by now well-established law, that a plaintiff in a FOIA case is entitled to an index of the documents and/or portions of documents that have been withheld by the defendant agency. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Moreover, the description of the withheld material must be "sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Dir. 1979). Of course we are not in the litigation context yet, but to help avoid such an eventuality, it would certainly be helpful if the Agency were to provide such an index if it were to decide to continue withholding of any portions of the requested documents.

Finally, because disclosure would be in the public interest, the Chief should release any materials which happen to be covered by exemption 5 by utilizing his discretionary release powers. 7 C.F.R. § 1.17(b). Release of material is to be "considered in the public interest if the benefit to the public in releasing the document outweighs any harm likely to result from disclosure." Id. As noted above, the requested documents represent a unique and important resource outlining the historical path of Agency interaction with a species at the center of an important public policy debate. It is hard to imagine materials falling more squarely within the goal of FOIA; the full illumination of governmental activities in areas directly affecting the public good. Compared to that important goal, and considering the immediacy of this particular issue, any balancing must tip in favor of complete disclosure.

It appears that the Agency has acted arbitrarily and capriciously by improperly denying the disclosure of the Yaffee Spotted Owl Report and its summary.

The Yaffee Report is historical in nature, therefore disclosure of its contents would not injure to goal of exemption 5; the protection of the vitality of agency decision making. Further, those elements of the report which might arguably be withheld under exemption 5 can not prevent the release of the rest of the materials requested. Finally, even if some aspects of the request are within exemption 5, the Chief should use his discretionary release powers to disclose the materials because to do so would be in the public interest.

In the event this appeal is denied, the Agency is required to provide a written response describing the reasons for the denial, names and titles of each person responsible for the denial, and the procedures required to invoke judicial assistance in this matter. 5 U.S.C. § 552(a)(6)(ii), 7 C.F.R. § 1.8(d). As noted above, time is of the essence in this matter, if this appeal is denied or the Agency's response is not forthcoming within 20 working days, my clients reserve their rights under FOIA to seek judicial review, including the award of attorney's fees. I await your prompt reply.

Sincerely,

David A. Bahr, Attorney