FREEDOM OF INFORMATION ACT
The federal Freedom of Information Act, originally passed by Congress in 1966 but amended periodically since, allows any citizen or any foreign national resident in the United States to request any records from the executive branch of the federal government.
It does not cover Congress or the federal courts or state or local governments. All Cabinet agencies, independent agencies, regulatory commissions and government-owned corporations are covered.
The president and his immediate staff are exempt but the Executive Office of the president and the Office of Management and Budget are covered.
Records include all documents, papers, reports, letters, in the government’s possession. The term “record” also has been ruled to cover films, photographs, sound recordings and computer tapes, but not physical objects that cannot be reproduced.
A 1996 law expanded the FOIA to require federal agencies, whenever possible, to share data in a specific format, such as on computer diskette or CD-ROM. The Electronic FOIA also broadened citizen access to government by placing more information online.
There are nine exemptions in the act that agencies may — but are not obliged to — claim as a basis for withholding records. Those exemptions have generated voluminous litigation.
Different agencies have responded in different ways to FOIA requests based on issues ostensibly already settled in court.
If you want an item, ask for it. Let the government decide whether it has any grounds or willingness to deny your request. Even an exempt document can be released at the government’s discretion.
Because of the various exemptions and a lack of manpower assigned to implement the act, there are often long delays in getting documents, which often contain large blacked-out portions.
Here are a few elementary steps, among many available, that might help avoid those problems:
—Call the public information office of the federal agency you believe has the records before filing your request to make sure you have the right agency and the right address for filing it. Ask them whether they will release what you are seeking without an FOIA request.
—Be as specific as possible about what you want. Give the dates, titles, authors and addresses for documents and letters if you know them. In your letter, provide your telephone number and offer to supply any other information which might help narrow the search.
—Even if you are using the letterhead stationery of a news organization, state specifically that you are a reporter for that organization and plan to use the material in news stories. The act does not require you to state your purpose, but disclosures in the public interest are eligible for fee waivers, exemption waivers and in some cases expedited handling.
—Request a waiver of search and copying fees. In case the waiver is denied, set a limit on the amount you will pay, such as $100, without the agency’s obtaining your prior, specific consent.
—If you want field office files checked as well as those at headquarters, be sure to specifically request that. Some agencies, such as the FBI, will not do that unless asked.
—Request that the agency cite specific exemptions for each item or portion of an item if it decides to deny any part of the requested release.
—If your initial request is denied, file an administrative appeal. Some agencies take a very different view on appeal. The denial letter will specify to whom the appeal must be sent.
—In appeal letters, argue the case for public benefit from disclosure; several exemptions require a balancing effort between privacy and public interests, and appellate reviewers may be more likely to exercise their right to waive an exemption if a good case is made.
These are only a few examples of the steps that will improve your chances of success. You may want to consult FOIA experts or manuals before proceeding.
An FOI Service Center is maintained by The Reporters Committee for Freedom of the Press, 1735 Eye Street, N.W., Suite 504, Washington, D.C. 20006. The committee publishes a 32-page pamphlet with sample FOIA letters and appeal forms as well as analyses of the act. The committee also maintains a toll-free hotline (1-800-F-FOI-AID), 24 hours a day, seven days a week, with attorneys available to provide FOIA advice.
The U.S. Department of Justice publishes an annual “Freedom of Information Case List,” which reviews recent cases, contains up-to-date copies of the relevant statutes and, most important, the “Justice Department Guide to the FOIA,” which gives the current government understanding of what is covered and not covered by each exemption. This document, published each September, is available for purchase from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.
Another view of current law on each exemption as well as a step-by-step guide to the process, with sample request and appeal letters, is contained in “Litigation Under the Federal Freedom of Information Act and Privacy Act,” 14th edition, edited by Allan Adler and published by The American Civil Liberties Union Foundation. Individual copies are available for $40 from: Publications Department, American Civil Liberties Union Foundation, 122 Maryland Avenue, N.E., Washington, D.C. 20002.
It is advisable to check on specific state freedom of information laws.