# Presentation: 278320

##     PA/FOIA INTERFACE

- FOIA
- ANY PERSON FOR ANY REASON
- AGENCY RECORDS

- PRIVACY
- US CITIZENS/ LEGALLY ADMITTED ALIENS
- FIRST PARTY REQUEST FOR ACCESS TO RECORDS CONTAINED IN A PA SYSTEM OF RECORDS

##           TIME LIMITS

- FOIA
- 20 WORKING DAYS
- SOME AGENCIES ISSUE ACKNOW-LEDGEMENTS

- PRIVACY
- STATUTE DOES NOT SPECIFY TIMEFRAME
- RESPOND WITHIN 20 WORKING DAYS IF POSSIBLE

##                  FEES

- FOIA
- OMB SETS UNIFORM FEE GUIDELINES FOR SEARCH, REVIEW, AND DUPLICATION
- CATEGORY OF REQUESTER DETERMINES KINDS OF FEES CHARGED

- PRIVACY
- DUPLICATION FEES ONLY
- FEES USUALLY WAIVED

##        IS IT PRIVACY?            OR FOIA?

- DEPARTMENT OF JUSTICE SAYS TO PROCESS UNDER BOTH ACTS – NO MATTER WHAT ACT IS CITED

- MANY REQUESTERS DO NOT UNDERSTAND THE DIFFERENCE AND CITE TO ONE OR BOTH ACTS

## THINGS TO CONSIDER

- DOES IT CITE TO AN ACT?
- DOES THE REQUEST REASONABLY DESCRIBE THE RECORDS BEING SOUGHT?

- HOW ARE THE RECORDS FILED?
- IS THIS A FIRST PARTY OR THIRD PARTY REQUEST?

## PRIVACY ACT SYSTEMS         OF RECORDS

- THE SYSTEMS NOTICE IDENTIFIES ANY EXEMPTION RULE
- EXCEPTION: (d)(5) – COMPILED IN ANTICIPATION OF LITIGATION

- MUST BE A FIRST PARTY REQUEST
- IF THE SYSTEM IS EXEMPT, THEN APPROPRIATE DENIAL MADE UNDER PA AND FILE IS THEN PROCESSED UNDER FOIA
- APPEAL RIGHTS GIVEN

##       FOIA PROCESSING

- REVIEW DOCUMENT TO DETERMINE IF ANY INFORMATION REQUIRES WITHHOLDING UNDER ANY OF THE FOIA EXEMPTIONS

- RESPONSE LETTER SHOULD ADDRESS WHAT INFORMATION WAS WITHHELD AND GIVE APPEAL RIGHTS

## PRIVACY ACT SYSTEMS   OF RECORDS NOTICE

- BLUEPRINT FOR THE KINDS OF RECORDS KEPT ON INDIVIDUALS
- RULEMAKING ESTABLISHES WHAT RECORDS ARE KEPT AND WHAT RECORDS QUALIFY FOR WITHHOLDING

- IDENTIFIES THE TIMEFRAME RECORDS ARE KEPT AND HOW THEY ARE RETRIEVED
- IDENTIFIES WHERE INFORMATION IS TAKEN TO COMPILE FILE

##      FOIA REQUESTS

- MUST REASONABLY IDENTIFY RECORDS BEING SOUGHT SO A KNOWLEDGEABLE OFFICIAL OF AGENCY CAN LOCATE RECORDS

- CAN INCLUDE RECORDS CONTAINED IN A PA SYSTEM OF RECORDS

##        WHO RESPONDS?

- FOIA
- RELEASE AUTHORITY/
-    INITIAL DENIAL
-    AUTHORITY

- PRIVACY ACT
- SYSTEMS MANAGER OR PA OFFICIAL

##        EXEMPTIONS

- FOIA
- REVIEW DOCUMENT AND APPLY EXEMPTIONS
- (b)(1) – CURRENTLY AND PROPERLY CLASSIFIED BY EXECUTIVE ORDER
- (I.E., 12958)

- PRIVACY
- EXEMPTIONS ARE ADDRESSED IN PA SYSTEMS NOTICE
- SPECIFIC EXEMPTIONS
- (k)(1) – SAME AS FOIA (b)(1)

##          EXEMPTIONS

- FOIA
- (b)(2):  PERSONNEL RULES AND PRACTICES
- HIGH (b)(2) – CIRCUMVENTION OF AN AGENCY RULE, ETC
- TRIVIAL MATTERS

- PRIVACY
- SIMILAR EXEMPTION IS (k)(6): PROTECTS TESTING OR EVALUATION MATERIALS

##          EXEMPTIONS

- FOIA
- EXEMPTION (b)(3):  PERTAINS TO INFORMA-TION PROTECT-ED BY A STATUTE

- PRIVACY ACT
- EXEMPTION (k)(3) – MAINTAINED IN CONNECTION WITH PROVIDING PROTECTIVE SERVICES TO THE PRESIDENT OF THE UNITED STATES

##           EXEMPTIONS

- FOIA
- EXEMPTION (b)(4):  PERTAINS TO COMMER- CIAL/TRADE SECRET INFORMATION

- PRIVACY
- THERE IS NO SIMILAR EXEMPTION
- EXEMPTION (k)(4) PROTECTS STATISTICAL INFORMATION USED SOLELY AS STATISTICAL RECORDS

##            EXEMPTIONS

- FOIA
- (b)(5):  INTER AGENCY OR INTRA AGENCY MEMOS OR LETTERS THAT WOULD NOT BE MADE AVAILABLE BY LAW TO A PARTY IN LITIGATION WITH THE AGENCY

- PRIVACY
- (d)(5):  DOES NOT HAVE THE FULL BREADTH OF EXEMPTION (b)(5) SINCE IT ONLY PERTAINS TO INFORMATION COMPILED IN ANTICIPATION OF LITIGATION

##            EXEMPTIONS

- FOIA
- (b)(6) – PROTECTS THE PERSONAL PRIVACY OF OTHERS

- PRIVACY
- THERE IS NO PRIVACY EXEMPTION UNDER THE PRIVACY ACT
- FILES SHOULD NOT COMMINGLE PERSONAL INFORMATION
- RELY ON CASE LAW TO WITHHOLD INFORMATION THAT IS NOT ABOUT THE INDIVIDUAL

##            EXEMPTIONS

- FOIA
- (b)(7):  PERTAINS TO RECORDS OR INFORMATION COMPILED FOR LAW ENFORCEMENT PURPOSES

- PRIVACY
- THERE ARE SEVERAL PRIVACY EXEMPTIONS THAT APPLY
- (k)(2):  PERTAINS TO INVESTIGATORY MATERIAL COM-PILED FOR LAW ENFORCEMENT PURPOSES (OTHER THAN EXEMPTION (j)(2))

##            EXEMPTIONS

- (k)(5):  INVESTIGATORY INFORMATION COMPILED SOLELY FOR THE PURPOSE OF DETERMINING SUITABILITY ETC FOR FEDERAL CIVILIAN EMPLOYMENT THAT WOULD REVEAL A CONFIDENTAL SOURCE

- (j)(2) – THIS IS A GENERAL PA EXEMPTION THAT PROTECTS INFORMATION MAINTAINED BY AGENCY OR COMPONENT WHOSE PRINCIPAL FUNCTION  IS THE ENFORCEMENT OF CRIMINAL LAWS

##           EXEMPTIONS

- FOIA
- (b)(8):  FINANCIAL/                BANKING
- (b)(9) OIL WELLS

- PA
- NO SIMILAR EXEMPTIONS

##  OTHER PRIVACY ACTGENERAL EXEMPTION

- (j)(1):  MAINTAINED BY CIA

##              APPEALS/AMENDMENTS

- FOIA
- Requesters can appeal the adequacy of search, no record responses, fees, denial of information

- PRIVACY
- Requesters can appeal adverse determinations
- Can seek amendment of “factual” information (not opinions)

##           PENALTIES

- FOIA
- ATTORNEY FEES AND LITIGATION COSTS

- PRIVACY
- CIVIL AND CRIMINAL PENALTIES FOR MAINTAINING ILLEGAL PA SYSTEM OF RECORDS; WILLFULLY  REQUESTS A RECORD UNDER FALSE PRETENSES; OR WILLFULLY DISCLOSES TO UNAUTHORIZED ENTITY

##       PLAYING THE       FOIA/PA GAME

- IDENTIFY THE REQUESTER
- REVIEW WHAT THE REQUEST IS FOR: AGENCY RECORDS?  PA SYSTEM OF RECORDS?

- IF IT’S FOR AGENCY RECORDS – PROCESS USING FOIA EXEMPTIONS
- IF IT’S FOR RECORDS IN A PA SYSTEM OF RECORDS – REVIEW THE SYSTEMS NOTICE

##       ADMINISTRATIVE              RECORD

- MAKE SURE YOU ADVISE THE REQUESTER UNDER WHAT ACT(S) YOU ARE PROCESSING HIS/HER REQUEST

- DELINEATE ANY EXEMPTIONS CLAIMED
- GIVE APPEAL RIGHTS
- DELINEATE FEES/FEE WAIVER

##          IN SUMMARY

- WHILE BOTH STATUTES ALLOW ACCESS TO INFORMA-TION, ENSURE YOU FOLLOW THEIR RULE-MAKING

- MAKE SURE YOUR SEARCHES ARE COMPLETE
- DON’T HESITATE TO CONTACT THE REQUESTER FOR CLARIFICATION OF HIS/HER REQUEST

## IN SUMMARY - CON’T

- MAKE SURE YOUR RESPONSE IS ACCURATE, TIMELY, AND COMPLETE

- THOROUGH EXPLANATIONS OF EXEMP-TION(S) CLAIMED MANY TIMES ELIMINATE APPEALS

##             FINALLY

- BE A FRIEND FOR FOIA
- REMEMBER YOUR RECORDS DISPOSAL RULES DEFINE HOW LONG RECORDS ARE MAINTAINED

- DEVELOP A PASSION FOR PRIVACY
- REMEMBER THE PA SYSTEMS NOTICE DRIVES THE TRAIN