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THE FREEDOM OF INFORMATION ACT

The Freedom of Information Act (FOIA) was enacted in 1966 and went into effect in 1967. Since then there have been five (5) amendments to the FOIA, including the last, in 2002. That amendment was enacted in the wake of the 9/11 attacks and limits the ability of foreign agents to request records from the U.S. intelligence agencies. The FOIC is based upon the principle that openness in government and availability of government records will help citizens stay informed about government and advance the principles of discovery.

Only federal government agencies are covered by the FOIA laws. It does not create a right of access to records held by Congress, the courts, or by state or local government agencies. Government agencies covered by the FOIA laws, are agencies, are offices and departments of the Executive branch of the federal government such as the Department of Defense, the Department of Homeland Security, the National Security Agency, and the Office of Management and Budget. Also covered are federal regulatory agencies such as the Federal Trade Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, and the Environmental Protection Agency. The U.S. Postal Service, the National Railroad Passenger Corporation and the Smithsonian Institution are included on the list. Permanent records 25 years and older, pre-1925 passport and pre-1940 visa records are property of the National Archives and records Administration.

You may have occasion during a discovery period of litigation you are working on to make a request for documents under FOIA. Contact the agency or take a look at the agency’s website for the address of their FOIA officer, and find out if that agency uses a specific request form. If there is no form, you should send a letter request which does the following:

  1. Write the letter to the agency, to the attention of the FOIC officer. If you don’t know the officer’s name, refer to the “FOIA Officer” or “FOIA Unit”;
     
  2. Include your name, address of the requester, and the telephone number at which you can be reached during normal business hours;
     
  3. Describe as specifically as possible the information you wish the agency to disclose;
     
  4. Describe how you wish the agency to respond if your request is denied in whole or in part (e.g., “In the event that my request is denied in whole or in part, please justify all deletions by reference to specific exemptions of the Act. Please note that I expect you to release all segregable portions of otherwise exempt material, and reserve the right to appeal your decision to withhold any of the information I have requested.”);
     
  5. Describe whether the requested information is intended for commercial or non-commercial use, and state whether you represent an educational or noncommercial scientific institution, or are a representative of the news media;
     
  6. States your agreement to pay the applicable fees, and expresses any desired fee limitation; and
     
  7. Includes any request for a waiver or reduction of fees, in proper form under the governing statute and agency rules.

If your request is being made in association with ongoing litigation, additional rules may apply. You should ask about this when you contact the agency. Make sure that you keep copies of all requests and correspondence. Also, if you have conversations with somebody in the agency about your request, make notes with the date and time of the call, the name of the person with whom you spoke, and the substance of the discussion. When you contact the agency, ask what the fee will be. The fees generally include the cost of searching for the requested documents, the cost of reviewing the documents to determine if they should be included in the response to your request, and the cost of duplication. You can indicate in your FOIA request how much you are willing to pay for the information. If the cost exceeds the amount you expect, the agency will contact you before you incur a greater expense. Sometimes the agency may be willing to waive part or all of the cost, usually when it is determined that the request made is in the public interest – that is, that the information will significantly help the public understand the activities or operations of the agency to which the request was made.

After the agency receives your FOIA request, it is given a statutorily defined period to respond to the request. The response may be that the request is unclear, that the requested information does not exist, that the information requested is partially or wholly excluded from disclosure under FOIA, or the agency may provide the requested information subject to your paying the fees. The agency may argue that there are exceptional circumstances involved in fulfilling your request, and that they are entitled to additional time to comply. If they request a delay, ask for a specific date by which they will comply with your request, and inform them that their failure to comply by that date will be deemed as a denial of your request, and may result in your commencing an appeal or legal action to compel compliance.

If an agency’s FOIA officer will not properly comply with your request, you can appeal within the agency, contacting the head of the agency and demanding an explanation of why your request has been denied. If that doesn’t work, you should write to your government representatives, asking that they look into the matter. Finally, if all else fails, you can consider initiating a legal action to compel disclosure. This should not be done until and unless the request is significantly overdue.

Remember always, that requests for personal records require an original signature and cannot be accepted via internet or by fax.

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