Freedom of Information Act (FOIA) is legislation that supports the public right to request access to records from any federal agency. “Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.” …and don’t miss the list of “exclusions”. NARA is the National Archives Records Administration whose litany of red-tape may also come into play in your search for public records.
My effort here is to gather all the “government” regulation and requirements into one area, arrange it into a logical order of procedure, provide the “statutes to which it refers” (so you can quote their own rules back to them, if necessary), and hopefully, offer you a more simple and organized number of boxes to check-off, making the effort of wading through bureaucratic red-tape easier.
See general description for FOIA at Cornell WEX, which discloses that “only the records of the executive branch of the Federal government is accessible, which means, that FOIA does not apply to the records of the Federal courts or the Congress.” [per 36 CFR §1250]
Resources: FOIA at 5 USC §552; FOIA.gov; How to at FOIA.gov; 9 Exemptions.pdf at Justice.gov; 36 CFR §1250; Subpart B: §1250.20 through §1250.38; FOIA Reference Guide at National Archives; Cornell LLI and WEX;
JUMP TO:
Logical Steps to your Request
Key-FAQ takeaways
How to follow up a poor response
Logical Steps to your Request:
ONE: Before making a request, first look to see if the information you are interested in is already publicly available. You can find a lot of useful information on a range of topics on each agency’s website. You can also search for information agencies have already posted online here on FOIA.gov.
If the information you want is not publicly available, you can submit a FOIA request to the agency’s FOIA Office. The request simply must be in writing and reasonably describe the records you seek. Most federal agencies now accept FOIA requests electronically, including by web form, e-mail or fax. See the list of federal agencies for details about how to make a request to each agency and any specific requirements for seeking certain records. [FOIA.gov FAQ: “How do I make a FOIA request?”]
TWO: Address your request to the agency most likely to have the records on file you seek. Each federal agency handles its own records in response to requests. There are currently one hundred agencies subject to the FOIA with several hundred offices that process FOIA requests. Your request will receive the quickest possible response if it is addressed directly to the FOIA office of the agency or agency component that you believe has the records you are seeking. See the list of federal agencies for the individual contact information for each agency. [FOIA.gov FAQ: “Where do I send a FOIA request?”] [also: 36 CFR §1250.22]
THREE: Title your request “FOIA Request”
Just as you would with a “NOTICE”, title your request after the addressee list and prior to the salutation “To whom it may concern” or similar as “FOIA Request” centered and bold on page one; and on the envelope as note in the lower left corner, “ATTN: FOIA Request”. [ref: 36 CFR §1250.20 (d)]
FOUR: Consider what form the return of records should take and specify such format in your request, with delivery to the address you specify, see “What information to include”, next step. To expedite delivery, you might request response by email with electronic attachments or link to a download cache (folder) of requested items.
In what format does NARA provide copies?
After all applicable fees are paid, we provide you copies of records in the format you request if the records already exist in that format, or if they are readily reproducible in the format you request. [per 36 CFR §1250.38]
FIVE: What information to include: [per 36 CFR §1250.20]
(a) a description of records sufficient in detail to assist staff to locate
(1) agencies, offices, or individuals involved
(2) approximate dates records were created (or date range)
(3) subject, title, or description of records sought
(4) (originator), recipient, case or reference number, file designation
(b) contact information: your name (especially in the format of name likely to be on the records), full mail reception address, a contact phone number, and an email address; (access for questions or guidance). Include contact information in the body of the request marked “Address response to:”. Contact information in header or footer of letterhead may be missed or disregarded with any OCR (optical character recognition) processing.
[36 CFR §1250.20 (c) continues below…]
SIX: Dispel the qualifiers, “exemptions“, and “exclusions“. State that you have reviewed the list of “exemptions”, and “exclusions” and find no indication that this request encroaches upon any of the listed exemptions and exclusions described.
SEVEN: If you are requesting records that are directly related to “you”, your trusts, vessels, ens legis, entities, and transmitting utilities by which you have been addressed or encroached, you have a right to the information related directly to you, especially if such is in support of a court procedure or government agency inquiry; [ref: 18 USC §1519, §2071 for “conceals”. -dp] Such information, especially if related to finances, is not likely publicly available.
In such instances, FOIA.gov recommends:
“If you are seeking records on yourself you will be required to provide a certification of your identity. This certification is required in order to protect your privacy and to ensure that private information about you is not disclosed inappropriately to someone else. Whenever you request information about yourself you will be asked to provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person who you say you are.”
The simple solution is to notarize the FOIA request. Part of the public notary process is to check and insure identification that the man or woman in their presence is authorizing documents attributed to the same man or woman, name, and authority. A notary is a function of the STATE Secretary of State’s office, and a government official is therefore certifying your identity with the FOIA request.
Also: [per 36 CFR §1250.20] (c) records which are “about yourself” must comply with the Privacy Act and regulation at 36 CFR part 1202 (Privacy Act, esp. subpart C), including verification of your identity (per 36 CFR 1202.40 “access to records about myself”) can additionally be addressed to:
National Archives and Records Administration
8601 Adelphi Rd., Rm. 3110
College Park, MD 20740-6001.
Such request should be clearly marked on the letter and the envelope as a “Privacy Act Request.”
EIGHT: Consider whether your request might be expedited. “Under certain conditions you may be entitled to have your request processed on an expedited basis. There are two specific situations where a request will be expedited, which means that it is handled as soon as practicable. These two situations apply to every agency. First, a request will be expedited if the lack of expedited treatment could reasonably be expected to pose a threat to someone’s life or physical safety. Second, if there is 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, his or her request will be expedited. Agencies can also establish additional standards for granting expedited processing which they describe in their FOIA regulations.” [FOIA.gov FAQ: “…processed faster… expedited”] [also: 36 CFR §1250.28 request expedited processing]
NINE: Locate Agency specific FOIA Request Fees and method(s) of payment. You might mention to this end that such request supports your private purposes, your “private property” or interests, and are not for use in commercial pursuits, as with defense with court proceeding or other declaration. You might quote their own website which states, “There is usually no charge for the first two hours of search time or for the first 100 pages of duplication.” per FOIA.gov FAQ page, so please specify the enumeration of charges with justification for each. (quoted with FAQ below)
Note also: Fees subject to waiver per 36 CFR §1250.56:
(a) We waive or reduce your fees for NARA operational records only if your request meets both of the following criteria:
(1) The request is in the public interest (i.e., the information is likely to contribute significantly to public understanding of the operations or activities of the Government); and
(2) The request is not primarily in your commercial interest.
A NOTE on fees for FOIA records: 36 CFR §1250.50
An Example to help you start:
Invariably someone is going to ask for a “template“… however, in application of what you are requesting and who you are addressing for the request can vary widely. Each FOIA request is likely to be unique as with the client for whom I first explored this example.
They inquired for records from an international business corporation, a State Superior Court, and three (3) agencies of government, each holding different record types for a related purpose of defending one’s rights in a civil tort claim. Each request for records therefore was based on this format, but ended up unique to the particular request. Government agencies are subject to FOIA, but courts and commercial corporations are not. These may only be subject to “discovery” if named as “parties” to any action at law.
For the “Originator(s) ◄ AND any ► Account Title / Name(s) / number” section example at the bottom of page one, you can use or suggest a number of boolean operators to help target a return of records searched. For this section, you might include originator as “your name” with “account title as your SSN” as one example. Another application may be to cross reference a company or agency name, like “Social Security Administration” or “Social Security” with descriptions of all titles, names, or “gloss” of such which might appear on those records including names, abbreviations, and numbers. you can also change the “◄ AND any ►” designation to influence the search, or enter a second section and provide alternate boolean logic.
How to follow-up poor response:
You might file an administrative appeal, much as with the administrative judicial process. You [1] state the specifics of the matter, [2] provide an argument for “why” the information is key or critical to a just resolution of a dispute or preservation of your rights, and [3] back up such argument with the citings of “their statutes” or encoded “job description” which outline that withholding such information may be a trespass of your rights (quote Constitution and Bill of Rights), against public policy and precedent (quote supreme court findings) and/or encoded principles which should be recognized as they might be found with the United States Code, Uniform Commercial Code, State Constitution and statutes, etc… For example, note “conceals” for records held and not made available:
18 USC §1519: Destruction, alteration, or falsification of records in Federal investigations and bankruptcy; “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter…”
18 USC §2071: Concealment, removal, or mutilation (records/documents)(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
One might also require that an express specification for how such request or related records might violate “qualifiers”, “exemptions”, and “exclusions”; especially if you took the pains to express how your request avoids such to begin with (see this step).
You may also invite “outside eyes” upon the situation by carbon copy (CC:) as an co-addressee at the top of your “appeal”, or rather “second notice”, which addresses the oversight authority for FOIA;
“The Office of Information Policy at the Department of Justice is responsible for issuing government-wide guidance on the FOIA as part of its responsibilities to encourage all agencies to fully comply with both the letter and the spirit of the FOIA.” [FOIA.gov FAQ: “…Who Issues Guidance to Agencies…?”] The stated purpose: “The mission of the Office of Information Policy (OIP) is to encourage and oversee agency compliance with the Freedom of Information Act (FOIA).” [justice.gov/oip]
Office of Information Policy [LINK]
Office of Information Policy (OIP)
U.S. Department of Justice
6th Floor
441 G St. NW
Washington DC 20530
PH: 202-514-3642
Email: DOJ.OIP.FOIA@usdoj.gov
See step FOUR above for another carbon copy recipient for “outside eyes” as National Archives and Records Administration.
Q: How do I file an administrative appeal?
A: You may file an administrative appeal if you are not satisfied with an agency’s initial response to your request. Before doing so, however, you may wish to contact the FOIA professional handling the request or the agency’s FOIA Public Liaison.The FOIA Public Liaison is there to explain the process to you, assist in reducing any delays, and help resolve any disputes. Often, a simple discussion between you and the agency will resolve any issues that may arise.
If necessary, filing an appeal is very simple. Typically, all you need to do is send a letter or e-mail to the designated appeal authority of the agency stating that you are appealing the initial decision made on your request. There is no fee or cost involved. After an independent review, the appellate authority will send you a response advising you of its decision. Once the administrative appeal process is complete, you also have the option to seek mediation services from the Office of Government Information Services at the National Archives and Records Administration. [FOIA.gov FAQ: “…administrative appeal?”]
Key Takeaways from the FOIA FAQ at FOIA.gov:
Q: Who can make a FOIA request?
A: “Generally any person – United States citizen or not – can make a FOIA request.”
Q: “Is there a special form…?”
A: “There is no specific form that must be used to make a request.” [https://www.foia.gov/how-to.html]
There is, however, recommended information to include which will enable and support the success of your search results, see this step.
Q: How much does it cost to make a FOIA request?
A: There is no initial fee required to submit a FOIA request, but the FOIA does provide for the charging of certain types of fees in some instances.
For a typical requester the agency can charge for the time it takes to search for records and for duplication of those records. There is usually no charge for the first two hours of search time or for the first 100 pages of duplication.
You may always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If an agency estimates that the total fees for processing your request will exceed $25, it will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you agree to pay fees for a records search, you may be required to pay such fees even if the search does not locate any releasable records.
Q: Can I ask that any fees be waived?
A: You may request a waiver of fees. Under the FOIA, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records on themselves usually do not meet this standard. In addition, a requester’s inability to pay fees is not a legal basis for granting a fee waiver.
Three Exclusions:
Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions.” The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within an exclusion are not subject to the requirements of the FOIA. So, when an office or agency responds to your request, its response will encompass those records that are subject to the FOIA. [FOIA.gov FAQ: “…exclusions?”]
The nine exemptions from FOIA transparency
source: “…9 FOIA Exemptions?” .pdf from www.justice.gov lists as exempt from FOIA response, all information which is:
- classified to protect “national security”
- related solely to internal personnel rules and agency practice
- prohibited from disclosure by federal law
- a trade secret, confidential or privileged commercial or financial in nature
- privileged communication within or between agencies (see original .pdf for additional specification)
- that which disclosed would invade another’s privacy
- compiled for law enforcement that:
- may interfere with enforcement proceeding
- would deprive one of fair or impartial adjudication
- constitutes unwarranted invasion of privacy
- could disclose the identity of a confidential source
- would disclose law enforcement
- techniques/procedure
- guidelines for investigations/prosecutions
- pose risk to circumvention of the law
- may endanger life or safety of any individual
- that concerns the supervision of financial institutions
- geological information on wells
My impression: with as many exclusions and exemptions as they have listed, this Freedom of Information Act seems more like the “Semi-Transparency if We Feel Like Sharing Any Information” Act.