|Federal Sunshine Laws
By Sandra F. Chance, Esq.
B. Overview of the FOIA
C. FOIA Caveat
D. FOIA Exemptions
E. The Electronic FOIA
F. Access in an Age of Terrorism
G. Privacy Concerns
H. New Legislative Initiatives
Tips on Getting Access to Records
Appendix A: Sample FOIA request letter
Appendix B: Sample Administrative Appeal Letter
Appendix C: Selective List of Federal Agencies Frequently Receiving FOIA Requests
Introduction to Federal Access Laws
Freedom of information laws codify the concept that the business of government is the “public’s business” and that the people have a “right to know” what their government is doing. These laws, often referred to as the “public’s right to know” laws, give citizens access to information about their government, helping inform the citizenry and protects against government corruption, inefficiency and waste.
The policy of public access to the government’s business can be traced back to the writings of those instrumental in the American Revolution and the founding of the new democracy. The principle that the government served the people and that it existed only with the knowledge and consent of the governed was encapsulated in the formation of the government and the Bill of Rights. The laws are based on the underlying principle that government business is the public’s business. Therefore, people have a fundamental right of access to that process and the information and records related to it.
I. The Freedom of Information Act
The Administrative Procedure Act attempted to restore a sense of order to government by standardizing the procedures used to adopt and enforce rules and by making sure those procedures were accessible to the public. Though this was a considerable improvement, particularly for those regularly doing business with an agency, in another sense it failed because of its focus on how things were done, rather than on what was being done and why. And agencies remained largely their own judges of how well they complied with the act.
In response to these problems and the swelling interest in the public’s right to know, the Administrative Procedure Act was amended in 1966 by the Freedom of Information Act. For the first time, the public had a clear right of access to records of the executive and administrative agencies of government. In contrast to the common law, the legal burden was on the government to justify withholding, not on the requester to justify release.
Some agencies adopted tactics to undermine the law: The exemptions were given sweeping interpretations; fees for finding, copying and segregating exempt from non-exempt material were exorbitant; long delays became routine; and agencies claimed they couldn’t find the requested information. As a result, the act was extensively amended in 1974. The changes sought to ensure compliance, for example, by limiting the fees agencies could charge to actual costs, expediting the scheduling of FOIA cases and allowing a wrongly denied requester to recover attorney’s fees from the agency. The act was again amended in 1976,1986 and again in 1996.
The FOIA is critical to the work that journalists do, providing a wealth of information regarding the policies and actions of government. Journalists and scholars have used the act to reveal vital information affecting the public’s health and safety, government waste, inefficiency and, occasionally, misconduct. Reporters have successfully used FOIA to learn about crimes committed in the United States by those with diplomatic immunity, cost overruns of defense contractors, and terrorist activities.
The Internet has dramatically altered the way the public and reporters access information. The federal government maintains hundreds of web sites and FOIA requires that agencies post records likely to be requested frequently in “electronic reading rooms” so that anyone can easily access them.
B. Overview of the FOIA
FOIA applies to all 15 departments and 73 other federal agencies, like the Environmental Protection Agency, in the executive branch of the government. The Act also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President or his immediate staff, Congress or the federal courts. In general, it requires these agencies make their records available for inspection and copying unless the records fall into one of nine categories.
Some information must be published by an agency — statements of its organization, functions, procedures and rules, for example, and steps one must take to obtain information, including copies of decisions. Many agencies, including all those of special interest to communications law, have public reading rooms where this and other information is available.
Other agency records must be specifically requested. The FOIA does not define “agency record,” but judicial interpretations are so broad as to include almost anything containing information, so long as it was created by and is under control of the agency. Audio tapes and computer disks, as well as written materials, are agency records. Some records — appointment books, calendars and telephone logs, for example — may exist only for the convenience of individual employees. These aren’t agency records. And the FOIA does not require an agency to create a document that does not exist.
The FOIA requires that a record be “reasonably described” by a requester so it can be located. An agency can charge reasonable search and copying fees. There are standard fee schedules, but individual requirements vary, so a requester should ask for an estimate of costs. The law authorizes waivers for educational and non-commercial scientific institutions and for the news media when the requested information will “contribute significantly to public understanding of the operation or activities of Government.” To qualify for consideration, a requester will have to explain the purpose of the request, something not otherwise required.
In 2003, the federal government reported it received more than 3.2 million requests for information under FOIA, a 36 percent increase over the previous year. Stephen Gidiere, Freedom of Information Act Keeps Door Open, The Commercial Appeal, Mar. 15, 2005, at B5. Contrary to a popular belief, journalists use the FOIA relatively infrequently. In reality, the FOIA is a tool for companies to snoop on each other, with an estimated 75 percent of all FOIA requests coming from corporations. The FBI reported that requests from the news media made up less than three percent of the total requests. Tony Mauro, FOIA: A Good Idea Changing With the Times, First Amendment News, Sept. 1996, at 6.
C. FOIA Caveat
In 1993, for example, the attorney general reversed the previous administration’s policy and ordered agencies to presume that a requested document should be disclosed, rather than search for an exemption under which to hide it. The Office of Management and Budget now assists agencies in making their information available, particularly with electronic access. And in 1995, President Clinton issued a long-awaited executive order that sharply reduced the number of documents that may be classified for national security. Clinton said his order would “lift the veil” on millions of documents and keep others from ever becoming classified. The New York Times characterized it as the least secretive policy on government records since the beginning of the Cold War. Douglas Jehl, Clinton Revamps Policy on Secrecy of U.S. Documents, N.Y. Times, April 18, 1995, at A1.
Despite this “presumption of openness” promised by Clinton’s order on classification in 1995, the government, four years later, succeeded in its efforts to keep a document secret, taking the case all the way to the Supreme Court. See United States v. Weatherhead, 528 U.S. 1042 (1999). By granting certiorari and ruling on the substantive issues, the Supreme Court was poised to interpret the national security exemption to FOIA for the first time. In an unusual decision, it vacated the appellate court’s ruling before the oral arguments were even heard. As a result, the Court deferred to the government’s unsubstantiated claim that national security would be damaged and set the tone for increased governmental discretion over release of information.
United States v. Weatherhead was the second case in three years in which the Supreme Court set aside an appellate court ruling favorable to a requester without a hearing, The first was Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355 (1997). and it continued a line of cases narrowing what the act is meant to do and, thus, the kinds of records it makes available. In a key FOIA case, for example, Justice John Paul Stevens wrote for the majority:
[T]he basic purpose of the Freedom of Information Act [is] to open agency action to the light of public scrutiny.... Official information that sheds light on an agency’s performance of its statutory duties fall squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various government files but that reveals little or nothing about an agency’s own conduct. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989).
Advocates of an expansive interpretation of the FOIA argue that the law’s purpose is the discovery of truth. The more restrictive view is often based on the argument that the purpose of the FOIA is only to disclose the final actions of government. The law itself contains no statement of purpose, leaving plenty of room for interpretation.
D. FOIA Exemptions
Exemption 1: National Security. This exemption authorizes the president to make and enforce rules to keep information secret in the interest of national defense or foreign policy. These rules are established by an executive order without congressional involvement. While the president has leeway to decide what documents should be protected, the order must make plain both the procedures for classifying and declassifying and the underlying criteria for determining whether any specific document should be classified.
This exemption has become one of the most important weapons in the war on terrorism, as President Bush institutes new rules and issues new executive orders classifying massive amounts of information in the name of national security. Under Executive Order No. 13292, §§ 1.4 (a) to (h), information may not be considered for classification unless it concerns one of the following categories:
● military plans, weapons systems, or operations;
However, some argue that the new orders cover more than national security matters. For instance, many people do not associate national security with trade agreements. However, under a new presidential executive order, any document received from a foreign government “is presumed to cause damage to the national security” and will not be subject to release. Exec. Order No. 13,292, 68 C.F.R. 15,315 (2003), available at http:// www.whitehouse.gov/news/releases/2003/03/20030325-11.html. This is not unexpected; administrations since that of George Washington have withheld information claiming national security concerns. Even the most outspoken advocates of public access concede that the release of certain information would be devastating for the country. But national security has also been used to shield misconduct or incompetence from public view.
As originally enacted, the exemption gave the executive branch virtually blanket authority to classify information in the interest of national security or foreign policy. In 1973, for example, the Supreme Court held that the mere fact that the administration had classified a document was enough to justify withholding the document. Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). The FOIA, it ruled, just did not allow a national security classification to be challenged. Partly in response to that decision, Exemption 1 was amended in 1974 to permit a court to examine a document in private to determine whether it should be released. The amendment also allowed courts to order the release of non-classified portions of otherwise properly classified documents, that is, segregating portions of a document.
Courts today scrutinize agency actions closely to see whether the government follows its own procedures to classify documents. But they remain reluctant to overrule government experts as to whether the release of a particular document would threaten national security. Given the potential consequences of a mistake, the line between information that is safe and that which is harmful may be too fine for courts to draw with confidence. The Clinton Administration, for example, refused to disclose details of a $25 million telephone system at the White House. Would disclosure expose national secrets? Or extravagance? Or both.
Exemption 2: Administrative Documents. This exempts from required disclosure routine and insignificant matters that are “related solely to the internal personnel rules and practices of an agency.” And, though the decisions of lower courts are not uniform, the exemption also protects agency manuals and rules — such as law enforcement manuals — if their release would help people evade the law. (Materials like these are often also exempt under Exemption 7, law enforcement records.)
The exemption protects routine administrative documents, such as rules about lunch hours or sick leave, because it would be burdensome for an agency to assemble and maintain the material for public inspection, and the public wouldn’t reasonably be expected to have an interest. On the other hand, the mere fact that an FOIA request has been made is evidence that information is not of interest solely to an agency.
Some agencies attempt to use Exemption 2 to conceal significant information. The leading case is Air Force v. Rose, 425 U.S. 352 (1976). in which the Supreme Court rejected the contention that summaries of hearings concerning violations of the Air Force Academy Honor and Ethics Code were merely internal personnel matters. The Court found there was enough legitimate public interest in the integrity of its military academies to remove the records from the shield of this exemption.
Exemption 3: Information Exempted by Other Statutes. This exempts from required disclosure records that are “specifically exempted from disclosure by statute ... provided that such statute (a) requires that matter be withheld from the public in such a manner as to leave no discretion on the issue, or (b) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” An example is 50 U.S.C. sec. 403(g), under which the Central Intelligence Agency is not required to disclose its organization, functions, names, official titles, salaries or number of personnel employed. There are probably hundreds of statutes that authorize withholding. A complete list isn’t available.
This exemption applies only to statutes and not to agency rules and regulations. Thus, an agency can’t exempt itself; only Congress can do that. Similarly, an agency cannot invoke the exemption because a state law may protect certain records. A U.S. Court of Appeals has held that state juvenile records in possession of federal authorities could not be withheld under this exemption because the federal law protected only federal juvenile delinquency proceedings from disclosure. McDonnell v. United States, 4 F.3d 1227 (3rd Cir. 1994). A record exempt from disclosure under state law may be available under the FOIA. The opposite may also be true.
As with all FOIA exemptions, the government bears the burden of proving that the requested records fall within the exemption. Accordingly, the government must prepare a detailed Vaughn index. The Vaughn procedures were established to challenge the government’s claims of exemption without compromising the confidential nature of the requested records, in Vaughn v. Rosen. 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The Vaughn procedures require the government to provide the FOIA plaintiff and the court with an itemized “index” of the withheld records, including descriptions and justifications for withholding the records, correlating each exemption the government asserts protects the information from being released.
Exemption 4: Trade Secrets. This exemption protects “trade secrets and commercial or financial information” that individuals and businesses supply to government. For Exemption 4 to apply, the information must be commercially valuable, actually used in a trade or business and maintained in secret.
The idea is to protect the competitive positions of those who submit confidential information to the government. If companies that voluntarily submit information cannot depend upon it being held in confidence, they may refuse to cooperate, and government’s ability to get information will be impaired. When the government compels production of the information, the rationale becomes strained, and this exemption would seem not to apply.
This distinction was muddied, however, by a 1992 case in which the Court of Appeals for the District of Columbia held that when a company submits information voluntarily, even if the government could have compelled disclosure, the information enjoys exempt status. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc). This decision has been criticized, for it seems to invite collusion between an agency and a business when neither wants the information to be made public. An agency and a business simply agree to voluntary submission, undermining a line of cases that refused to recognize an agency’s pledge of confidentiality as a substitute for meeting the standards of Exemption 4. Whether the other circuits will follow this court’s lead is unknown. But because of the number of FOIA cases it decides due to its location in the District of Columbia, and the expertise it has developed in this area, the FOIA decisions of the D.C. Circuit merit special attention. They are highly influential.
Businesses themselves sometimes try to protect their interests in secrecy through “reverse FOIA” suits. In these, a business that has provided information to the government sues the government to stop it from making the information public. Reverse FOIA suits only involve information that falls into an exempt category, usually Exemption 4, and that the government has the discretion to release. These suits challenge the release as an abuse of discretion.
Exemption 5: Inter- and Intra-Agency Memoranda. The exemption protects agency memoranda or letters and reflects several common law privileges. Under the common law, some communications are privileged, that is, protected from forced disclosure by a court. These privileges seek to protect some larger purpose. The attorney-client privilege, for example, is said to make the criminal justice system function better, even though it may create injustices in a particular case by denying access to some evidence.
Because of the privileges, Exemption 5 is probably the most complex and, some would argue, the most important exemption: More than 95 percent of all documents are inter- or intra-agency memoranda.
The exemption protects the deliberative process of government that leads to a decision — candid advice and recommendations or the open exchange of ideas — in what is called “executive privilege.” The exemption doesn’t apply to the final decisions and opinions themselves, and it doesn’t apply to statements of policy and instructions to staff that affect the public.
In deciding whether the privilege is applicable, courts examine whether a particular “pre-decisional” document is “so candid and personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency,” whether it is in the form of a recommendation or a draft and whether it considers the “pros and cons ... of one view-point or another.” Coastal States Gas Corp. v. Dep’t of Energy, 644 F.2d 854, 866 (D.C. Cir. 1980).
The privilege protects only opinions, not factual information. The distinction between fact and opinion, however, isn’t always self-evident and can’t be made mechanically. Sometimes the factual component of a document is so merged with the deliberative component that it cannot be segregated. The D.C. Court of Appeals, for example, held that factual material about former United Nations Secretary General Kurt Waldheim was not required to be disclosed under Exemption 5. Mapother v. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1993). The department was considering whether to exclude Waldheim as an undesirable alien in light of his alleged activities in World War II. The discretionary selection of material from a large number of primary documents, the court said, revealed significant insights into the Department of Justice’s deliberations. In contrast, a complete chronological account of Walheim’s military service was not exempt since it did not suggest the thinking of the decision-makers.
The Supreme Court decided an important FOIA case involving Exemption 5 in March 2001. In Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). it unanimously ruled in favor of public disclosure of correspondence between American Indian tribes and the Department of the Interior. The case involved a dispute over water rights in the Klamath River Basin in Oregon and California.
Water users, competing with a handful of Native American tribes for water use rights, filed FOIA requests for documents the tribes had turned over to the Bureau of Indian Affairs in the Interior Department. The government denied the request, saying the papers were inter-agency memoranda and should be withheld from the public under Exemption 5. The Court reiterated several of its earlier FOIA rulings, stating that the “limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Id. at 8 (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). It also pointed out that FOIA mandates a “general philosophy of full agency disclosure,” which would “help ensure an informed citizenry, vital to the functioning of a democratic society.” Id. at 16 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1987)).
In addition to executive privilege, Exemption 5 incorporates several other common law privileges, including attorney-client confidences and a lawyer’s work product — documents prepared in anticipation of actual or foreseeable litigation. But courts also have cited lesser-known privileges, including, for example, one that protects commercial information created by government itself if its disclosure would put the government at a competitive disadvantage in, say, contract negotiations.
Exemption 6: Personal Privacy. This exemption protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Congress enacted the exemption to protect intimate and personal details in government files. No specific kinds of files are categorically exempt, though some are more likely to contain the sort of highly intimate, personal information the exemption is designed to protect.
The substantive test for Exemption 6 requires a “balancing of the individual’s right of privacy against the preservation of the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’” Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1975); accord Dep’t of State v. Ray, 502 U.S. 164 (1991). In a series of cases, the courts have held that the statute “instructs the court to tilt the balance in favor of disclosure.” Getman v. NLRB, 450 F.2d 670, 674 (D.C. Cir. 1971); stay denied, 404 U.S. 1204 (1971); Rose, 425 U.S. at 378 n. 16; 841 F.2d 1459, 1453 (9th Dir. 1988).
The term “similar files” has been interpreted broadly. One appellate court, for example, held that the voice recordings of the crew in the Challenger rocket was a “similar file” since the tape revealed personal information about particular individuals. New York Times Co. v. NASA, 920 F.2d 1002 (D.C. Cir. 1990) (en banc). The tapes contained the final radio transmissions before the rocket exploded, killing everyone on board.
Some decisions, however, have hardly concerned the sort of records usually associated with medical and personnel records. In Department of Defense v. FLRA, 510 U.S. 487 (1994). for example, two unions sought the home addresses of certain federal employees. The privacy interest at stake was that of individuals not wanting to be bothered at home with work-related matters.
The Supreme Court reversed a lower court that had ordered release of those addresses. It balanced the competing interests and found that if the privacy interest of the employees was slight, the weight on the public interest side of the judicial balance beam was even slighter. Disclosure of home addresses would not shed appreciable light on government operations or activities. With this case, the Court has instructed lower courts to consider only the broad purpose of the FOIA in striking a balance — to what extent does disclosure enlighten the public about the operations of government? The particular purpose of the requester is irrelevant. Compare this categorical kind of balancing with that of the common law, which may consider the particular use to which the information will be put.
Exemption 7: Law Enforcement Records. The purpose of this exemption is to protect law enforcement records and other information whose disclosure would jeopardize present and future investigations. This could happen because the details of a specific investigation were released, or because of the release of general investigative techniques or policies. The exemption also protects the physical safety of officials, informants and others in the criminal justice system.
Congress narrowed the exemption in 1976 to avoid results like that. First, it limited withholding only to situations where release would cause any of several specific kinds of harm, disclosure of the identity of a confidential source, for example. Second, it allowed only the withholding of records, not entire files. Authorities had often withheld an entire file even if only one record in the file contained exempt material. One result of this amendment was to give historians and others access to a wealth of important material — such as that related to executed spies Julius and Ethel Rosenberg — that had remained sealed for decades as an “investigatory file.” Agencies complained that the amendment went too far in the other direction and no longer gave adequate protection to some sensitive law enforcement information, particularly training manuals and other non-investigatory materials. So the exemption was again amended in 1986.
For a record to be exempt from required disclosure, a two-part test must be met. First, it must be determined that the records or information were compiled for “law enforcement purposes.” This includes more than investigatory records; training manuals, for example, are exempt.
The Supreme Court answered one crucial question in 1989: Could an agency invoke Exemption 7 to deny access to information that was originally compiled for a purpose other than law enforcement but was later assembled for a criminal investigation? A majority of the Court said it could; the language of the statute did not require the original purpose of the information to be considered. John Doe Agency v. John Doe Corp., 492 U.S. 146 (1989). Justice Antonin Scalia dissented, arguing that the majority focused too tightly on the words of the law. He complained that the decision allows the policy behind the exemption to be “readily evaded (or [made] illusory) if it requires nothing more than gathering up documents the government does not wish to disclose, with a plausible law-enforcement purpose in mind. This is a hole one can drive a truck through.” Id. at 163 (Scalia, J., dissenting).
Whether the information is compiled for law enforcement purposes is only the first part of the test. For the exemption to apply, it must also be shown that release of the information “could reasonably be expected to cause” one of six specific kinds of harm. Four are not controversial and have received little judicial attention. They are the following:
· the withholding of records when disclosure would deny a person a right to a fair trial or impartial adjudication;
The remaining categories produce much litigation and confusion. One allows withholding if disclosure could “interfere with enforcement proceedings.” If enforcement proceedings are over, however, or if none are on the horizon, this exemption shouldn’t apply. Nonetheless, some agencies claim the exemption on the basis that a case may arise or be reopened.
Records or information may also be withheld if their release could “reasonably be expected to constitute an unwarranted invasion of personal privacy.” This exemption is similar to Exemption 6 in that a balancing of the privacy interest and the public interest is required. A comparison of the wording of the two exemptions suggests that privacy interests should receive greater weight here. Before the privacy interest prevails in Exemption 6, the intrusion must be “clearly unwarranted.” Here it must only be “unwarranted.” In Department of Justice v. Reporters Committee for Freedom of the Press, the Court held that a request for information about a person’s criminal history was unwarranted since it shed little light on “public understanding of the operations or activities of government.” 489 U.S. 749, 775 (1989).
The case is important, not just for an explanation of the substantive test to be used here, but for the insights it provides about the Court’s attitude toward electronic data. Most of the records the Reporters Committee sought were available in one place or another in the form of accessible, traditional, paper records. Getting them would require a lot of leg work. The federal government had them all in one place — a computer. But the Court said the records, in electronic form, were qualitatively different; the power of the computer to assemble and manipulate the data held vastly greater potential to violate personal privacy.
In 2004, the U.S. Supreme Court decided another important FOIA case involving the conflict between access and privacy and ruled in favor of “survivor privacy” in National Archives and Records Administration v. Favish. 124 S. Ct. 1570 (2004). California attorney Allan Favish sued for access to photos taken at the death scene of former top aide to President Bill Clinton, Vince Foster. The Court held exemption 7© allowed the government to withhold documents that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. at 1580. The Court ruled that survivors of deceased person could assert a privacy interest in “their own piece of mind and tranquility.” Id. at 1577.
The government has interpreted Favish broadly, advising federal agencies to “take heed of the Court’s explicit recognition in Favish that unfortunately today’s ‘sensation-seeking culture’ breeds the potential for ‘unwarranted public exploitation’ of FOIA-disclosed records.” U.S. Dept. of Justice FOIA Post,, available at http://www.usdoj.gov/oip/foiapost/2004foiapost12.htm.
Exemption 8: Records of Financial Institutions. This applies to records related to government supervision of financial institutions such as banks and savings and loans. The purpose is to protect the security and integrity of financial institutions.
The primary purpose of Congress in adopting Exemption 8 was to “ensure the security of financial institutions” against the possibility that disclosure of examination, operation, and condition reports containing frank evaluations of the investigated banks might undermine public confidence and cause unwarranted runs of banks.” Consumers Union v. Heimann, 589 F.2d 531, 534 (D.C. Cir. 1978).
Exemption 9: This exemption applies to “geological and geophysical information and data, including maps, concerning wells.” This exemption protects oil well data and has been criticized as a “Texas touch,” providing blanket protection for oil well materials. The Interior Department has cited it on occasion to apply to water wells.
E. The Electronic FOIA
Agencies are now required to respond faster in two situations: (1) when failure to obtain records can pose an imminent threat to an individual’s life or physical safety, and (2) when a request is made by a person “primarily engaged in disseminating information ... to inform the public concerning actual or alleged federal government activity.” 5 U.S.C. § 552 (a)(6)(E)(v)(II) (1996). According to the new law, expedited access requests must be processed within ten days. In addition, the new law changes the time limit for other requests from ten to twenty days.
Ultimately, the EFOIA should also improve access to database searches. Agencies must make reasonable efforts to search for requested records in electronic form, except when a search would significantly interfere with agency information. Programming created to facilitate a database search does not amount to the creation of records. 5 U.S.C. § 552(a)(3)(C) (1996).
Commentators believe that the legislative history surrounding the new law may provide broader access to governmental information and limit the Supreme Court’s problematic ruling in Department of Justice v. Reporters Committee. 489 U.S. 749 (1989). In Reporters Committee, the Supreme Court limited access to governmental records that revealed information relevant to the agency’s “core purpose.” Access advocates, including those in Congress, disagreed with the Court’s decision. Congressional leaders indicated they crafted this FOIA amendment to address this restrictive view of access to public records.
“The purpose of the FOIA is to require agencies of the federal government to make records available to the public through public inspection and upon the request of any person for any public or private use,” according to the findings of the Senate. 5 U.S.C. § 522 (a)(2)(a) (1996). With this finding, Congress challenges the Supreme Court’s narrow interpretation of the purpose of FOIA in Reporters Committee.
In language intended to clarify the FOIA’s purpose, one of the bill’s sponsors, Democratic Senator Patrick Leahy of Vermont said:
The purpose of the FOIA is not limited to making agency records and information available to the public only in cases where such material would shed light on the activities and operations of government. Efforts by the courts to articulate a “core purpose” for which information should be released imposes a limitation on the FOIA that Congress did not intend and that cannot be found in its language, and distorts the broader import of the Act in effectuating government openness. S. Rep. No. 104-272 (additional views of Sen. Patrick Leahy, at 23).
The terrorists’ attacks on in New York and Washington had an immediate impact on federal freedom of information September 11, 2001, laws and access to information. Following the attacks, President George W. Bush’s administration adopted numerous measures that increased government secrecy and restricted the public’s right to know. It is now more difficult to get information from federal agencies under FOIA, access information from governmental web sites and review presidential records.
A month after the attacks, Attorney General John Ashcroft issued an official memorandum directing agencies to withhold information from FOI requesters if there were any “sound legal basis.” U.S. Dept. of Justice, Memorandum for Heads of All Federal Department and Agencies, available at http://www.usdoj.oip/foiapost/2001foiapost19. htm. See also Don Wycliff, Top Secret: Just Whose Government Is It?, Chi. Trib., Jan. 17, 2002, at 23. This action reversed a policy adopted during President Bill Clinton’s administration that created a presumption of “maximum responsible disclosure of information.” Eric Sinrod, Defanging the Freedom of Information Act, N.Y. L.J., Jan. 22, 2002, at 5. Then Attorney General Janet Reno had instructed federal agencies not to use discretionary exemptions to FOIA unless they could point to a “foreseeable harm” that would occur from disclosure. Office of the Attorney General, Memorandum for Heads of Departments and Agencies, available at http:///www.fas.org/sgp/clinton/reno.html. See also Tamara Lytle, White House Clamps Down on Information, Orlando Sent., Mar. 10, 2002, at A22. As a result, the presumption of openness to federal records was reversed and agencies were encouraged to withhold massive amounts of information formerly available to the public. See Jane Kirtley, Hiding Behind National Security, Am. Journ. Rev., Jan.-Feb. 2002, at 62.
On Nov. 19, 2002, Congress passed and President Bush signed the Homeland Security Act. P.L. 107-296, Sec. 214. One staunch FOI advocate, Sen. Patrick Leahy, called it “the most severe weakening of the Freedom of Information Act in its 36-year history.” Dan Morgan, Disclosure Curbs in Homeland Bill Decried; Information From Companies at Issue, Wash. Post, Nov. 16. 2002, at A13. The act contains a provision that provides mandatory confidentiality for information submitted to the government by business. This section is designed to protect information about the vulnerabilities of the country’s critical infrastructure. The new act criminalizes agency disclosure of critical infrastructure information without the consent of the business. Companies that voluntarily share information with the government are guaranteed that the government will keep the information secret. In addition, they become immune from civil liability if the information reveals wrongdoing and immunity from antitrust suits for sharing the information with the government and each other. Homeland Security Act of 2002, Pub. L. No. 107-296; 116 Stat. 2135 (2002) (codifying various new surveillance and security measures and creating the Department of Homeland Security).
Citizen activists, public interest groups and environmental groups insisted that FOIA already protected against any legitimate risk of harmful disclosure. The groups argued, unsuccessfully, that knowing about vulnerabilities is the first step to correcting them. Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know (3d ed. 2003), available at http:// www.rcfp.org, at 55 (Mar. 2003).
The most notable FOIA case of 2002 had to do with information about potential terrorists and their supporters. A number of public interest groups filed suit to force the government to disclose the names of detainees arrested after September 11. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002). The federal appellate court reversed a lower court’s decision, ruling the government did not have to release the information. “Both the Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security,” the court ruled. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003), 2003 U.S. App. LEXIS 11910, at 23.
Information available on the Internet was also severely limited following the terrorists’ attacks. A number of federal agencies removed information from their Web sites, posting notices on the site that the information had been removed because of its possible usefulness to terrorists. See Kevin Galvin, Wary Agencies Stem Flow of Information, Seattle Times, Dec. 11, 2001, at A1. OMB Watch, a Washington, D.C., group that encourages citizen participation and open government, reported that twenty-one online sources have been partially or completely shut down since September 11. Dale Dempsy, Databases Shut Down for Security; Federal Agencies Strive to Thwart Terror Attacks, Nov. 11, 2001, Dayton Daily News, Lexis.
“The atmosphere of terror induced public officials to abandon this country’s culture of openness and opt for secrecy as a way of ensuring safety and security,” according to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “No one has demonstrated however, that an ignorant society is a safe society,” she added. White House Embarked on Path of Secrecy After Sept. 11, Report Says, available at http://www.rcfp.org/2002/ 0315report.html (Mar. 15, 2002).
The same power that makes electronic information so attractive to many private and commercial interests raises grave privacy concerns to others. Remember, the Supreme Court found a computer database to be much more than the sum of its parts. It was not the release of the individual rap sheet that the Court found to be an invasion of privacy — it was the vast power of the computer to acquire and manipulate the data. Privacy advocates are successfully raising these issues in many states and at the federal level.
In 1994, the U.S. Congress, concerned about protecting privacy, passed legislation that controls access to state government records. The Drivers Protection Privacy Act is a complex federal statute that prevents public access to personal information in state drivers’ records. 18 U.S.C. § 2721-2725 (1994 & Supp. IV. 1998). The Act is filled with irony. Congress passed it following the 1989 death of Rebecca Schaeffer, who was killed by an obsessed fan. The fan hired a private investigator to obtain the actress’s address by accessing her California motor vehicle record. The irony is that private investigators continue to have access to this information under the relatively new federal law.
1. Be prepared.
Do your homework. Know the law. Understand how the process works. Be aware of possible exemptions.
2.Understand the agency you are investigating.
Identify the official responsible for the records or meetings you want and be as specific as possible with your requests.
3. Put your request in writing.
This serves as an official record of the request. See sample letter. Send your requests by certified letter, return receipt requested.
4. Be prepared for delays.
Most agency FOIA offices are experience a backlog in requests. This often leads to enormous delays in filling FOIA requests. Keep in contact with the FOIA office to make sure your request doesn’t fall through the cracks.
5. Don’t give up when you hear “no.”
Many records custodians use the initial denial as a test and count on you giving up. Review and utilize the appeals process.
6. Report the story.
When you can’t get the records or attend a meeting, that may be news; report it.
7. You don’t have to explain why you want the information.
Keep your request formal and your description of why you want the information broad. Explaining the purpose of your request can sometimes alert the records custodian, making it more difficult to get your information.
8. Understand computers.
Computers are being used more and more to store the information you want and how you can get electronic access. This is often the cheapest and the most efficient way to get records.
9. Consider Filing an Appeal.
Appeals can be effective when seeking to challenge excessive processing delays, fee waiver denials and improper withholding of documents or material. Pay close attention to the instructions for filing an appeal in the agency’s response.
10. Pursue all avenues of access.
If the agency does not respond satisfactorily to your request, and you have filed an administrative appeal, consider asking your congressional representative to contact the agency on your behalf. You have other legal alternatives, as well. If all else fails, you have the right to go to court to force the agency to release the documents.
CERTIFIED- RETURN RECEIPT REQUESTED
Freedom of Information Act (Coordinator of Unit)
FREEDOM OF INFORMATION ACT REQUEST
Dear Sir or Madame:
This is a request under the Freedom of Information Act as amended (5 U.S.C. Sec. 522) on behalf of (name of news organization and ___________________ one of its reporters).
We request a copy of the following:
(Describe information requested as precisely as possible).
As you know, the Act provides that if some parts of a file are exempt, the "reasonably segregable" portions shall be provided. I, therefore, request that, if you determine that some portions of the requested information are exempt, you provide me immediately with a copy of the remainder of the information. I, of course, reserve my right to appeal any such decisions.
If you determine that some or all of the information is exempt from release, I ask you to advise me as to which exemption you believe covers the material which you are not releasing.
I am prepared to pay reasonable duplication fees for processing this request. I am willing to pay up to a maximum of $. If you estimate that the fees will exceed this limit, please inform me first.
As you know, the Act permits you to reduce or waive the fees if it "is in the public interest because furnishing the information can be considered as primarily benefiting the public." Since the information is sought for publication by (name of news organization), I believe that this request plainly fits that category and ask you to waive any fees.
If you have any questions regarding this request, please telephone me at _____________________.
As provided in the Act, I will expect to receive a reply within 20 business days, as the statute requires.
Name of Agency Official
Name of Agency
City, State, Zip Code
RE: FREEDOM OF INFORMATION ACT APPEAL
This is to appeal the denial of my request for information pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 522.
On ___________________________________ (date), I received a letter from ___________________ (individual's name) of your agency denying my request for access to _________________________ (description of information sought).
I am enclosing a copy of this denial along with a copy of my original request. I trust that an examination of these communications and the exemptions which are cited to deny my request will lead you to the conclusion that the information I am seeking should be disclosed.
However, even if the exemptions technically could be invoked, I urge you to release the requested information unless you determine that some demonstrable harm will occur as a result of disclosure.
(When agency delays) It has been (state number) of days since your agency received my request. This clearly exceeds the 20 days provided by statute, thus I deem my request denied. A copy of my correspondence and the postal form showing receipt by your office is also enclosed.
The information that I have requested is clearly releasable under the FOI Act.
I made this request in the capacity as a journalist. The information is timely and its release serves an important public policy. Therefore, I would appreciate your expediting the consideration of my appeal in every way possible. In any case, I will expect to receive your decision within 20 business days, as required under the statute.
Thank you for your assistance,
Agency for International Development (USAID)
J. M. Paskar
Room 2.07C, RRB
Washington, D.C. 20523-2701
telephone number: (202) 712-1217
fax number: (202) 216-3070
Department of Agriculture
Andrea E. Fowler
Room 440AA, Whitten Building
Washington, D.C. 20250-1300
telephone number: (202) 720-8164
11 CS/SCS (FOIA)
1000 Air Force Pentagon
Washington, D.C. 20330-1000
telephone number: (703) 696-7263
fax number: (703) 696-7273
e-mail address: email@example.com
Bruno C. Leuyer
7701 Telegraph Road, Suite 144
Alexandria, VA 22315-3860
telephone number: (703) 428-6508
fax number: (703) 428-6522
e-mail address: FOIA@rmda.belvoir.army.mil
Bureau of Customs and Border Protection
John A. Milne
FOIA/Customer Satisfaction Unit, Office of Field Operations
1300 Pennsylvania Avenue, N.W.
Washington, D.C. 20229
telephone number: (202) 344-1850
fax number: (202) 344-2791
Central Intelligence Agency
Scott A. Koch
Information and Privacy Coordinator
Washington, D.C. 20505
telephone number: (703) 613-1287
Citizenship and Immigration Services
Magda S. Ortiz, Director
425 Eye Street, N.W., 2nd Floor
Washington, D.C. 20536
telephone number: (202) 514-1722
fax number: (202) 514-4310
Department of Commerce
FOIA/PA Officer, Room 5327
14th Street and Constitution Avenue, N.W.
Washington, D.C. 20230
telephone number: (202) 482-3707
fax number: (202) 219-8979
e-mail address: EFoia@doc.gov
Department of Defense
Office of Freedom of Information/Security Review
1155 Defense Pentagon
Washington, D.C. 20301-1155
telephone number: (703) 697-1180
fax number: (703) 693-7341
e-mail address: firstname.lastname@example.org
Defense Contract Audit Agency
8725 John J. Kingman Road, Suite 2135
Fort Belvoir, VA 22060-6219
telephone number: (703) 767-1002
fax number: (703) 767-1011
Defense Contract Management Agency
P.O. Box 151300
Alexandria, VA 22315-9998
telephone number: (703) 428-1453
fax number: (703) 428-3580
Defense Intelligence Agency
Brian S. Kinsey
Chief, FOIA Staff, DAN-1A
Washington, D.C. 20340-5100
telephone number: (202) 231-3916
fax number: (202) 231-3909
e-mail address: email@example.com
Defense Criminal Investigative Service
Inspector General, Department of Defense
Freedom of Information Act & Privacy Act Office
400 Army Navy Drive, Room 223
Arlington, VA 22202-4704
telephone number: (703) 604-9775
e-mail address: FOIA@dodig.osd.mil
Department of Education
FOIA Specialist, PCP-9139
400 Maryland Avenue, S.W.
Washington, D.C. 20202-4700
telephone number: (202) 245-6651
Department of Energy
Director, FOIA/PA Division, ME-73
1000 Independence Avenue, S.W.
Washington, D.C. 20585
telephone number: (202) 586-5955
fax number: (202) 586-0575
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
telephone number: (202) 566-1667
fax number: (202) 566-2147
e-mail address: firstname.lastname@example.org
Equal Employment Opportunity Commission
Stephanie D. Garner
Assistant Legal Counsel/FOIA
1801 L Street, N.W., 6th Floor
Washington, D.C. 20507
telephone number: (202) 663-4640
Deputy Treasurer Controller
811 Vermont Avenue, N.W., Room 1053
Washington, D.C. 20571
telephone number: (202) 565-3241
fax number: (202) 565-3294
Federal Aviation Administration
Acting FOIA Program Director, ARC-40
800 Independence Avenue, S.W.
Washington, D.C. 20591
telephone number: (202) 267-9165
fax number: (202) 493-5032
e-mail address: 7-AWA-ARC-FOIA@faa.gov
Federal Bureau of Investigation
Record Information Dissemination Section
Service Request Unit, Room 6359
935 Pennsylvania Avenue, N.W.
Washington, D.C. 20535
telephone number: (202) 220-1122
Federal Communications Commission
Shoko B. Hair
445 12th Street, S.W.
Washington, D.C. 20554
telephone number: (202) 418-1379
fax number: (202) 418-0521
Federal Election Commission
Acting Press/FOIA Officer
999 E Street, N.W.
Washington, D.C. 20463
telephone number: (202) 694-1220
fax number: (202) 501-3283
Federal Emergency Management Agency
FOI/PA Specialist, Room 840
500 C Street, S.W.
Washington, D.C. 20472
telephone number: (202) 646-4115
fax number: (202) 646-4536
Federal Maritime Commission
Bryant L. VanBrakle
Secretary of the Commission
800 North Capitol Street, N.W., Room 1046
Washington, D.C. 20573
telephone number: (202) 523-5725
Federal Trade Commission
6th Street and Pennsylvania Avenue, N.W.
Washington, D.C. 20580
telephone number: (202) 326-2013
fax number: (202) 326-2477
e-mail address: email@example.com
Food and Drug Administration
Betty B. Dorsey
Director, FOI Staff
5600 Fishers Lane (HFI-30)
Rockville, MD 20857
telephone number: (301) 827-6567
fax number: (301) 443-1726
General Services Administration
Sharon V. Lighton
Information Management and Administrative Policy Division
1800 F Street, N.W.
Washington, D.C. 20405
telephone number: (202) 501-2262
fax number: (202) 501-2727
e-mail address: firstname.lastname@example.org
Health and Human Services, Department of
Director, FOIA/Privacy Division
Room 645F, HHH Building
Washington, D.C. 20201
telephone number: (202) 690-7453
fax number: (202) 690-8320
Department of Homeland Security
Director, Departmental Disclosure
Washington, D.C. 20528
telephone number: (202) 772-9848
fax number: (202) 772-5036
Department of Housing and Urban Development
Acting Assistant General Counsel, Room 10248
451 7th Street, S.W.
Washington, D.C. 20410
telephone number: (202) 708-3866
fax number: (202) 401-7901
e-mail address: email@example.com
Internal Revenue Service
FOIA Disclosure Manager
Office of Disclosure
1111 Constitution Avenue, N.W.
Washington, D.C. 20224
telephone number: (202) 622-6200
Department of the Interior
Departmental FOIA Officer (MS-5312 MIB)
Office of Information Resources Management
1849 C Street, N.W.
Washington, D.C. 20240
telephone number: (202) 208-5342
fax number: (202) 501-2360
e-mail address: firstname.lastname@example.org
Department of Justice
Patricia D. Harris, Management Analyst
FOIA/PA Mail Referral Unit
Department of Justice
Room 1070, National Place Building
Washington, DC 20530-0001
Department of Labor
Miriam McD. Miller
Office of the Solicitor, Room N-2428
200 Constitution Avenue, N.W.
Washington, D.C. 20210
telephone number: (202) 693-5500
fax number: (202) 693-5539
National Aeronautics and Space Administration
FOIA Officer (Code PS)
300 E Street, S.W.
Washington, D.C. 20546
telephone number: (202) 358-0068
fax number: (202) 358-4345
e-mail address: email@example.com
National Archives and Records Administration
Office of the General Counsel
8601 Adelphi Road
College Park, MD 20740-6001
telephone number: (301) 837-2024
National Labor Relations Board
Jacqueline A. Young
Assistant General Counsel
1099 14th Street, N.W.
Washington, D.C. 20570
telephone number: (202) 273-3825
National Science Foundation
Leslie A. Jensen
FOIA Officer, Room 1265
Office of the General Counsel
4201 Wilson Boulevard
Arlington, VA 22230
telephone number: (703) 292-8060
fax number: (703) 292-9041
e-mail address: firstname.lastname@example.org
National Security Agency
Pamela N. Phillips
Chief, FOIA/PA Services
Office of Information Policy, DC321
Ft. George G. Meade, MD 20755-6248
telephone number: (301) 688-6527
fax number: (301) 688-6198
Doris M. Lama
Head, DONPA/FOIA Policy Branch
2000 Navy Pentagon
Washington, D.C. 20350-2000
telephone number: (202) 685-6545
fax number: (202) 685-6580
e-mail address: email@example.com
Office of Management and Budget
6025 New Executive Office Building
Washington, D.C. 20503
telephone number: (202) 395-5715
fax number: (202) 395-3952
Manager, Records Office
475 L'Enfant Plaza West, S.W.
Washington, D.C. 20260-5202
telephone number: (202) 268-2608
fax number: (202) 268-5353
Prisons, Bureau of
Freedom of Information Act/Privacy Act Section
Office of General Counsel, Room 841
Federal Bureau of Prisons
320 First Street, N.W.
Washington, DC 20534
Latita M. Huff
Suite 3000, 950 H Street, N.W.
Washington, D.C. 20223
telephone number: (202) 406-5838
fax number: (202) 406-5154
Securities and Exchange Commission
FOIA/Privacy Act Branch Chief
6432 General Green Way
Alexandria, VA 22312-2413
telephone number: (202) 942-4320
fax number: (703) 914-1149
e-mail address: firstname.lastname@example.org
Selective Service System
Rudy G. Sanchez
Legal Affairs Officer
1515 Wilson Boulevard
Arlington, VA 22209-2425
telephone number: (703) 605-4012
fax number: (703) 605-4006
Small Business Administration
Chief, Office of FOI/PA
409 3rd Street, S.W.
Washington, D.C. 20416
telephone number: (202) 401-8203
fax number: (202) 205-7059
e-mail address: email@example.com
State, Department of
Margaret P. Grafeld
Director, Office of IRM Programs and Services, SA-2
Washington, D.C. 20522-6001
telephone number: (202) 261-8300
fax number: (202) 261-8579
Department of Transportation
Office of General Counsel (C-12/5432)
400 7th Street, S.W.
Washington, D.C. 20590
telephone number: (202) 366-4542
fax number: (202) 366-8536
Department of the Treasury
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
telephone number: (202) 622-0930
fax number: (202) 622-3895
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.