# Presentation: 741233

## Overview of the Freedom of Information Act

## Background

- FOIA enacted in 1966--5 U.S.C. § 552—and amended several times (EFOIA in 1996)
- Provides statutory right of access to information in federal agencies
- Ensures informed citizenry/prevent secret law
- Records must be disclosed unless exempt, excluded
- Public interest in withholding—e.g., national security, business, privacy, law enforcement exemptions

## Three Forms of Access

- (a)(1):  information that must be published in _Federal Register_: agency organization, functions, procedures, substantive rules, general policy statements
- (a)(2):  information that must be available for public inspection and copying;
- 1) final opinions, administrative staff manuals, specific policy statements;

## Three Forms of Access

- 2) records released under FOIA which are likely to become the subject of subsequent requests; electronic availability for such records created by agency after 11/1/96 (EFOIA)
- (a)(3): agency, upon request, which reasonably describes the records sought and is made in accordance with published rules, shall make its records promptly available, unless information is exempt/excluded:
- 1. Agency--nearly all executive branch entities
- Not personal staff of President

## Three Forms of Access

- 2) Not units within the Executive Office of the President whose sole function is to advise/assist the President
- 3) not courts, Congress, or state governments
- 2.  Request--reasonable description
- 3.  “Published rules”--conform with agency regulations
- 4.  Make records “promptly available”

## Three Forms of Access

- 5.  Any person:  individuals (U.S./foreign), partnerships, corporations, associations, foreign/state/local governments
- a) no federal agencies or fugitives
- b) purpose irrelevant (except for expedited
-        processing)
- 6.  Records--not information
- 	a) disclosure/nondisclosure (not viewing)
- 	b) no need to reorganize, create
- 	c) format choice--must provide record in any form requested, if record is “readily reproducible” in that form

## Three Forms of Access

- d) “agency record” tests:
- 1) created or obtained by agency _and_ under agency control at time of request (_DOJ v. Tax Analysts_, 492 U.S. 136 (1989))
- 2) personal records—control/possession, function/use, circumstances/conditions of creation/transfer (_Bureau of National Affairs, Inc. v. DOJ_, 742 F.2d 1484 (D.C. Cir. 1984))

## Administrative Process

- A.  Initial Request
- 1.  Duty to search:  Must make reasonable efforts to search for records in electronic form (unless significant interference with operation of the agency’s automated information system)
- 2) Referral/consultation
- 3) Time limit--20 working days
-      a) one-time extension of ten working days

## Administrative Process

- b) if more time needed, agency must allow requester opportunity to narrow request or arrange for alternative time for processing
- c) multi-track processing
- d) acknowledgment response
- e) stay of proceedings (_Open America v. Watergate Special Prosecution Force_, 547 F.2d 605 (D.C. Cir. 1976))
- 1) standard: exceptional circumstances exist and agency exercising due diligence

## Administrative Process

- 2) no stay for backlog resulting “from a predictable workload of requests” unless “agency demonstrates reasonable progress in reducing backlog”
- BUT
- Requester’s refusal to reasonably modify the scope of request or arrange an alternative time frame for processing after being given opportunity to do so considered a factor in determining whether exceptional circumstances exist

## Administrative Process

- d) expedited treatment
- (1) Court-recognized reasons
- (2) Compelling need = imminent threat to the life or physical safety of an individual
- OR
- “With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.”

## Administrative Process

- B.  Administrative appeal
- 1. Time limit--20 working days
- 2. Exhaustion of administrative remedies
- 3. Right to judicial review
- _Fees and Fee Waivers:_
- A.  Three types of fees:
- 	1.  Search (looking for responsive information)
-    2.  Review (processing the information)

## Fees and Fee Waivers

-   3.  Duplication (copying releasable information)
- B.  Types of Requesters/Fee Categories:
- 1.  Commercial use:  search, review, duplication fees--nothing free
- 2.  Educational institution/noncommercial scientific institution--duplication fees only/100 pages free
- 3.  News media/freelancers—duplication fees only/100 pages free

## Fees and Fee Waivers

- 4.  “All others”:  search and duplication fees/2 hours and 100 pages free
- C.  _Miscellaneous_:  threshold amount (applies to commercial requesters also), advance payment, nonpayment, special services, aggregation, unsuccessful searches
- D.  _Fee waivers_:  reduce/waive fees if disclosure will significantly increase public understanding about government operations/activities and is not primarily in commercial interest of requester

## Fees and Fee Waivers

- 1.  Indigence alone insufficient
- 2.  Identifying the public interest
- 3.  Based on releasable information
- 4.  Dissemination
- 5.  Public at large
- 6.  “Commercial”--business sense
- 7.  Standard of review