The Federal Freedom of Information Act (FOIA)

The Freedom of Information Act (FOIA), 5 USC 552 (1988), and the Privacy Act, 5 USC 552a

Are the two general federal statutes governing access to government data. There are many other specialized statutes (like the Internal Revenue Code at Title 26 USC) which govern specific areas and types of records. The law in this area is dynamic and complex .

This summary touches only upon some of the main principles of interest to those seeking access to government data.

Published Data: The easiest federal data to access is the mountain of officially published data.

Five types of public data access are provided for officially published data.

1. Agency Reading Rooms or libraries open to the public: These are generally found in the Washington, DC, area. The biggest and best is the Library of Congress. The National Archives also maintain public reading rooms. Their nearest branch office is in the Seattle, Washington area at the Federal Records Center in Auburn, Wash. Some of these federal libraries are available via computer data links or other services, such as certain data of the Securities and Exchange Commission and of the Patent Office. Individual agencies have to be contacted for information on these services, as well as some general federal data services found in the Washington, DC area and elsewhere in the country.
2. Federal Depository Libraries : Across the Nation, many larger libraries have signed contracts to act as federal depository libraries, receiving free federal publications in exchange for agreeing to make them available to the public. In the Portland area, the Portland State University Library is the handiest federal depository library.
3. The Government Printing Office bookstores: Portland has one in the downtown area around 1^st and Jefferson. These stores stock and sell popular and topical federal publications on a wide range of subjects.
4. Government Contract Publishers: Congress and the federal courts, both of whom are exempt from the FOIA, have chosen to make some federal records available only from private publishers at relatively high prices. The worst examples of this are those federal courts who publish their decisions exclusively through private publishers.
5. Mailing lists: Most federal agencies maintain mailing lists for specific types of data, some of which are free and some of which require paid subscriptions. If one is interested in a particular area and a particular agency, it is always worth checking to see if and how one might get on a particular mailing list. Some of the above data is required to be made available under the FOIA and some is made available under other statutes or regulations.

Non Published Federal Records

The most commonly sought records under the FOIA are the non published records maintained by federal agencies. A requester must know two things: What one is looking for, and who has it.

Agencies are not required to create or compile records. Moreover agencies generally charge for both the search time and the copying cost. (Members of the press are entitled to reduced costs in non-commercial situations.) Thus the more a requester knows about what one is looking for and where it is, the cheaper the request will be. Agencies are not required to look for records that are not defined with reasonable specificity.

Requesting Data Under the FOIA

1. Call the agency you think has information of interest to you and inquire generally about the following:
   1. WHO (name, office address, office phone number) is the official agency FOIA contact point;
   2. WHO (same data again) at the agency might be able to tell you something about agency records you may be interested in; and
   3. WHERE one can find and read a copy of the agency’s FOIA regulations, since any appeal of FOIA matters must be based on compliance with agency FOIA regulations to avoid being rejected in court for failure to exhaust administrative remedies, i.e. follow agency appeal procedures.
2. Contact the official contact or other referenced official and just ask for general information about what types of records they might have that meet one’s needs, and how and where one might inspect, copy, or get copies of the records.
3. Before filing an official written FOIA request, discuss the request with the persons who will have to answer it. While some persons may be uncooperative, generally FOIA officials will try to help focus the request to something available readily (reduce search costs), something relatively small in size (reduce copying costs), and something releasable without additional agency review (avoid disputes over exempt materials).

These practical rules can in most cases allow the requester to obtain a minimum number of pages, focused on one’s need, with a small or no fee (fees are waived below certain dollar amounts).

Even if a request does involve disputes and appeals over releasability or involve huge numbers of documents, prior coordination with agency FOIA officials will still speed the processing of the request and keep costs to a minimum.

Vaughn Indices and Disputes and Appeals Over Exemptions

The usual procedure when FOIA requests are pursued on exempt documents which the agency opposes releasing is to create an index of the documents (known as a Vaughn index) and to prepare two copies of the documents, one copy which is identical to the original and another copy which has the exempt materials blacked out or whited out or otherwise removed. This excised copy represents what the agency will turn over without dispute, upon prepayment of the appropriate fees. The copies are then forwarded through agency channels to the senior

officials with authority to make final agency FOIA decisions.

What happens next depends upon the agency and the current policy. Agency and federal policy on what exempt materials are released without protest after review varies with each administrator and Presidential Administration.

Once the requester has a final agency denial (which occurs after one or more layers of review), the matter can be pursued in US District Court if desired. Even in federal court, the Justice Department may decide to release something that the agency refused to release. At other times, for critical policy reasons, the government may fight the release all the way to the United States Supreme Court.

As a practical matter, it is advised to negotiate a release agreement at the lowest agency level possible. Both significant time and cost can be saved by doing so.

Exemptions to FOIA

The nine statutory exemptions are the most complex part of the FOIA, because they include a rainbow range of policies and concerns. Some exemptions are purely discretionary. Some exemptions are based upon other federal law protecting data against release. Some exemptions are waived with minor impacts and inconvenience. Other exemptions protect the lives of

federal informers and classified military and security operations personnel or the most sensitive of national secrets. Sometimes a requester can be given data under the FOIA and still be subject to federal criminal prosecution or civil action if the requester uses it or further discloses it.

Exemption Zero Data Not Covered by the FOIA

Generally only records of the executive branch agencies are covered by the FOIA. Records of Congress, the President, the courts, state governments, municipal corporations (local governments), and private citizens are not covered by FOIA. Agency records generally include only those records properly part of the agency’s record system, established under federal law, and do not include personal notes of government officials that are not part of or required to be part of the official agency records.

Agencies do not have to create records, create compilations, or do anything more than search for and copy existing records.

Exemption One -National Security

Matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. This exemption protects classified data and special sensitive data.

Exemption Two – Internal Personnel Rules and Agency Practices

Matters that are related solely to the internal personnel rules and practices of an agency. This exemption protects things like agency exams and tests.

Exemption Three – Special Statutory Exemptions

Matters that are specifically exempted from disclosure by statute (other than 552b of this title), provided such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld. This exemption covers many types of data covered by other laws.

Exemption Four – Confidential Commercial, Financial, and Trade Secret Data

Matters that are trade secrets and commercial or financial information obtained from a person and privileged or confidential.

Exemption Five – Privileged Agency Memoranda

Matters that are inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. Executive privilege, attorney-client privilege, and attorney work-product privilege documents are included here.

Exemption Six – Unwarranted Invasion of Personal Privacy Data

Matters that are personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption is related to the Privacy Act and to generally recognized case-law privacy rights.

Exemption Seven – Law Enforcement Data

Matters that are records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose

the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

Exemption Eight – Financial Institution Regulatory Data

Matters that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

Exemption Nine -Geological Data

Matters that are geological and geophysical information and data, including maps concerning wells. In processing FOIA requests, it is common that more than one exemption may apply to a document, in which case each exemption must be reviewed and claimed or waived by the agency. Since the latest published Justice Department FOIA Guide (September, 1993) runs to over 500 pages, it should be noted that this summary is extremely limited and general. The case law is a constant tug-of-war between release and publication and non-release and secrecy.

Pre-Notification Procedures for Exemption Four

The one major new development affecting private parties is President Reagan’s Executive Order that sets up pre-notification procedures for release of data covered by Exemption Four (Exec. Order 12,600, 3 CFR 235 (1988)). The effect of this order is to allow reverse FOIA suits to bar release of data to competitors.

Comparison of FOIA and Litigation Discovery Procedures

FOIA is a one-sided discovery mechanism against the Government, and gives the Government no comparable rights against other parties.

FOIA is limited to official agency records and subject to the exclusions and exemptions provided by law.

Discovery procedures are two-sided mechanisms that provide roughly equal rights to all parties and generally cover all available non-privileged information, regardless of its official or unofficial nature.

Time-wise , FOIA is available anytime, whereas discovery is limited to a specific time frame within formal litigation procedures.

Data-wise, the FOIA exemptions and exclusions are far broader than discovery procedures limits, absent the granting of special protective orders, which are often sought in litigation. FOIA provides for no protective orders, although misuse of certain data may subject a party to criminal prosecution or civil damages.

Cost-wise, FOIA can be far more expensive because, once invoked with its payment guarantee, a party can be deluged with copies of documents as well as very large searchÐtime bills. In discovery parties can generally only charge for the copies, not the search time.

Purpose-wise, FOIA has no limitations, although commercial searches are subject to more challenges and greater costs. Discovery is limited by the scope of the litigation and civil and criminal procedural rules.

THE PRIVACY ACT

The Privacy Act has developed into a regulated release of information act. The Justice Department manual describes the act as giving individuals protection against disclosure, rights of access, and rights of correction. In addition the act provides for uniform fair information practices.

For those systems of records that it applies to, it prescribes publication of periodic listings of agencies system of records in the Federal Register, along with a description of routine uses. It also requires government agencies requesting information to provide a Privacy Act notice. In addition to the routine uses, the statute lists permitted government uses of the data, including matching programs to cross-check various government programs. One such matching use is the cross checking of tax refunds for other debts and child support payment debts.

The statute also provides for review and correction of records by the persons whose names or other personal identifiers are used to index the records. The statute was also amended to provide for agency record integrity boards and procedures.

Exemptions and Exceptions

There are important exceptions and exemptions to the act. Besides criminal investigatory and personnel use exceptions, the most important exclusion to the act is that it applies ONLY to SYSTEMS of records in which the indexing system is by personal name or identifier.

It has NO APPLICATION to record systems in which other, non-personal-name or identification numbers are used to index the files.

The reason for this exclusion is the fact that, if a system of files is not indexed by personal names, theoretically no one, government or otherwise, can readily access data by name or personal identifier.

This is true for paper files, but not necessarily true for electronic files subject to electronic word searches. The practical impact of this exclusion is that there are a lot of places where personal data may be recorded in government files and records not covered by the act.

Routine Destruction of Records

Most government records are routinely destroyed, with only a small number of determined historical interest preserved. Each agency is required to establish as part of its record management program a routine destruction schedule. The usual procedure for most government records of no lasting value is to keep the records in an active file somewhere, while in use; then to retire them for a while to archive storage; then to destroy them a set number of years after placing them in archive storage. The time periods vary with the type of record and use. Most accounting data is disposed of within a year or two simply because the huge volume

of intermediary records and checks and balances are not required to be saved. Government contract files are routinely destroyed about three or four years after a contract is closed.

Even litigation files usually are destroyed around 10 years after the close of the litigation, once all applicable statutes of limitations have expired.

Unofficial Records

Private notes and copies of documents kept by government employees solely for their personal use and not required to be kept as official records and not actually kept as official records are NOT covered by the FOIA or the Privacy Act.

Electronic Records

The official copies of electronic records and systems of records are subject to the same rules as official paper records and systems of records. However the nature of computer systems and electronic records is such that EÐMail and other systems tend to create a lot of extra unofficial copies in readable and unreadable electronic media. The rapidity of change in both software and hardware, as well as in communication systems, has precluded the same level of control and management of electronic records as paper records, largely because of the automatic backup features of many software systems. Destruction of these records is also complicated by the various types of delete file commands and file restoration programs.

Data security is also more of a challenge with electronic data, as a number of well publicized incidents have demonstrated.

It should be recognized as a practical reality that the challenges of new technology will always be a step ahead of laws and regulations, and that no amount of law and regulation can make a perfect federal information system.

For More Information: Each agency has designated FOIA, Privacy Act, computer systems, and records management officials. These persons should be contacted for more information about a given area as it applies to a particular agency. These persons are usually known to the agency’s lawyers or are agency lawyers themselves.

Free Consultation

Our free consultation will help you understand all of your options and what legal defenses you may have. If you or a loved one has been arrested or is being questioned regarding a criminal matter contact our offices to speak to one of our experienced Denver, Colorado criminal trial lawyers. H. Michael Steinberg is available for consult 24 hours a day 7 days a week. In addition all clients are given H. Michael’s cell phone number so they have access when needed

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