 FOIA Tutorial

    * What is the FOIA
    * What documents can you request under FOIA
    * Tips for preparing your FOIA letter
    * Agency response obligations
    * Why records may be denied
    * Fees and fee waivers
    * FOIA exclusions
    * Administrative & judicial appeals
    * Recent FOIA Developments
    * FOIA-WareTM User Guide
    * Best & Worst Agency FOIA Programs

What is the FOIA?

The Freedom of Information Act establishes a presumption that
records in the possession of agencies and executive departments
of the U.S. Government are accessible to the people. The FOIA
sets standards for determining which records must be disclosed
and which records can be withheld. The law provides
administrative and judicial remedies for those denied access to
records. Above all, the statute requires Federal agencies to
provide the fullest possible disclosure of information to the
public.

Together with the Privacy Act, the FOIA restricts the improper
disclosure of personal information and provides for civil
remedies where an individuals rights have been violated.

The Freedom of Information Act applies to documents held by
agencies in the executive branch of the Federal Government. The
executive branch includes:
  * Cabinet departments
  * Military departments
  * Government corporations
  * Government controlled corporations
  * Independent regulatory agencies
  * Other establishments in the executive branch.

The FOIA does not apply to the following:
  * Elected officials of the Federal Government, including the
    President, Vice President, Senators, and Congressmen
  * Federal judiciary
  * Private companies; persons who receive Federal contracts or
    grants; tax-exempt organizations; or State or local
    governments.

All States and some localities have passed "Open Records" laws
which, like the FOIA and Privacy Act, permit individuals access
to records.

What documents can you request under the FOIA?

The FOIA provides that a requester must ask for existing records
rather than information. This means that an agency is only
required to look for an existing record or document in response
to your FOIA request. The agency is not obliged to create a new
record, collect information it does not possess, perform
research or analyze data for a requester. Under the FOIA, any
item containing information that is in the possession, custody,
or control of an agency is usually considered to be an agency
record. The form in which a record is maintained by an agency
does not affect its availability. A request may seek a printed
or typed document, tape recording, map, photograph, computer
printout, computer tape or disk, or a similar item.

Tips for preparing your FOIA letter

Your FOIA request should be carefully written in order to obtain
the desired information. Sometimes, an agency will help you
identify a specific document that contains the information being
sought. Other times, you may need to be creative while drafting
when the FOIA request in order to identify an existing document
or set of documents continuing the desired information.

The law requires that each request must reasonably describe the
records being sought. This means that your request must be
specific enough to permit a professional employee of the agency
who is familiar with the subject matter, to locate the record in
a reasonable period of time. Because agencies organize and index
records in different ways, one agency may consider a request to
be reasonably descriptive while another agency may reject the
same request as being too vague.

Make your requests as specific as possible. If a particular
document is required, it should be identified precisely,
preferably by date and title. However, sometimes this is not
always possible. If you are unable to identify a specific
record, than you should clearly explain to the agency your
information needs.

     EXAMPLE: Assume that you want to obtain a list of
     toxic waste sites near your home. A request to the
     Environmental Protection Agency for all records on
     toxic waste would cover many more records than are
     needed. The fees for such a request might be very high
     and it is possible that the request might be rejected
     as too vague. A request for all toxic waste sites
     within 2 miles of a particular address is very
     specific. However, it is not likely that the EPA would
     have an existing record containing data indexed or
     maintained in that manner. As a result, your request
     might be denied because there is no existing record
     containing the information. Therefore, you might do
     better to ask for a list of toxic waste sites in your
     city, county, or State. It is more likely that
     existing records will contain this information.
     Although you are not required to explain the purpose
     for the inforomation, you might want to tell the
     agency in the request letter exactly what information
     is desired. This additional explanation may help the
     agency to find a record that satisfies your need.

You should include your telephone number with the request(s).
Some questions about the scope of a request can be resolved
quickly when an agency employee and the requester talk. This is
an efficient way to resolve questions that arise during the
processing of FOIA requests.

Remember, it is to everyone is advantage if your request is
precise, and as narrow as possible. You benefit because the
request can be processed faster and cheaper. The agency benefits
because it can do a better job of responding to the request. The
agency will also be able to use its resources to respond to a
greater volume of requests. The FOIA works best when both the
requester and the agency act cooperatively.

Requirements For Agency Responses

Each agency is required to determine within 10 days (excluding
Saturdays, Sundays, and legal holidays) after the receipt of a
request whether to comply with the request. This is rarely, if
ever, accomplished. The actual disclosure of documents is
required to follow promptly thereafter. If a request is denied
in whole or in part, the agency must tell the requester the
reasons for the denial. The agency must also tell the requester
that there is a right to appeal any adverse determination to the
head of the agency.

The FOIA permits an agency to extend the time limits up to 10
days in unusual circumstances. These circumstances include the
need to collect records from remote locations, review large
numbers of records, and consult with other agencies. The agency
is supposed to notify the requester whenever an extension is
invoked.

Most agencies assign inadequate resources to FOIA offices.
Congress does not condone the failure of any agency to meet the
law's time limits. However, as a practical matter, there is
little that a requester can do about it. The courts have been
reluctant to provide relief solely because the FOIA's time
limits have not been met.

The best advice to requesters is to be patient. The law allows a
requester to consider that his or her request has been denied if
it has not been decided within the time limits. This permits the
requester to file an administrative appeal or file a lawsuit in
Federal District Court. However, this is not always the best
course of action. The filing of an administrative or judicial
appeal will not necessarily result in any faster processing of
the request.

Each agency generally processes requests in the order of
receipt. Some agencies will expedite the processing of urgent
requests. Anyone with a pressing need for records should consult
with the agency FOIA officer about how to ask for expedited
treatment of requests.

Reasons why records may be denied under the FOIA

An agency may refuse to disclose, in whole or on part, an agency
record that falls within any of the FOIA's nine statutory
exemptions. The exemptions protect against the disclosure of
information that would harm national defense or foreign policy,
privacy of individuals, proprietary interests of business,
functioning of the government, and other important interests. A
document that does not qualify as an agency record may be denied
because only agency records are available under the FOIA.

An agency may withhold exempt information, but it is not always
required to do so. For example, an agency may disclose an exempt
internal memorandum because no harm would result from its
disclosure. However, an agency is not likely to agree to
disclose an exempt document that is classified or that contains
a trade secret.

When a record contains some information that qualifies as
exempt, the entire record is not necessarily withheld. Instead,
the FOIA specifically provides that any reasonably segregable
portions of a record must be provided to a requester after the
deletion of the portions that are exempt. This is a very
important requirement because it prevents an agency from
withholding an entire document simply because one line or one
page is exempt.

EXEMPTION l - Classified Documents.

The first FOIA exemption permits the withholding of properly
classified documents. Information may be classified in the
interest of national defense or foreign policy. Nevertheless,
classified documents may be requested under the FOIA. The agency
is required to review the documents to determine if it still
warrants protection. If a requested document is declassified, it
can be released in response to a FOIA request.

EXEMPTION 2 - Internal Personnel Rules And Practices.

The second FOIA exemption covers matters that are related solely
to an agency's internal personnel rules and practices. As
interpreted by the courts, there are two separate classes of
documents that are generally held to fall within this exemption.
Generally, information relating to personnel rules or internal
agency practices is exempt if it is trivial administrative
matter of no genuine public interest, (e.g. A rule governing
lunch hours for agency employees). Second, an internal
administrative manual can be exempt if disclosure would risk
circumvention of law or agency regulations. In order to fall
into this category, the material will normally have to regulate
internal agency conduct rather than public behavior.

EXEMPTION 3 - Information Exempt Under Other Laws.

The third FOIA exemption incorporates into the FOIA other laws
that restrict the availability of information. To qualify under
this exemption, a statute must require that matters be withheld
from the public in such a manner as to leave no discretion to
the agency. Alternatively, the statute must establish particular
criteria for withholding or refer to particular types of matters
to be withheld.

EXEMPTION 4 - Confidential Business Information.

The fourth FOIA exemption protects from public disclosure two
types of information: Trade secrets and confidential business
information.

A trade secret is a commercially valuable plan, formula,
process, or device. This is a narrow category of information.

The second type of protected data is commercial or financial
information obtained from a person and privileged or
confidential. The courts have held that data qualifies for
withholding if disclosure by the government would be likely to
harm the competitive position of the person who submitted the
information. Detailed information on a company's marketing
plans, profits, or costs can qualify as confidential business
information. Information' may also be withheld if disclosure
would be likely to impair the government's ability to obtain
similar information in the future.

Agencies should notify the submitter of business information
that disclosure of the information is being considered. However,
our experience has found that in many cases the agencies fail to
provide adequate, if any, predisclosure notification to the
submitter of the information. Therefore, contractors should
regularly monitor the agency FOIA log. [See: "Reverse FOIA" at
FOIA Group home page] The submitter then has an opportunity to
convince the agency that the Information qualifies for
withholding. A submitter can also file suit to block disclosure
under the FOIA. Such lawsuits are generally referred to as
"reverse" FOIA lawsuits-because the FOIA is being used in an
attempt to prevent rather than to require the disclosure of
information. A reverse FOIA lawsuit may be filed when the
submitter of documents and the government disagree whether the
information is confidential.

EXEMPTION 5 - Internal Government Communications.

The FOIA's fifth exemption applies to internal government
documents. An example is a letter from one government department
to another about a joint decision that has not yet been made.
Another example is a memorandum from an agency employee to his
supervisor describing options for conducting the agency's
business.

The purpose of the fifth exemption is to safeguard the
deliberative policy making process of government. The exemption
encourages frank discussion of policy matters between agency
officials by allowing supporting documents to be withheld from
public disclosure. The exemption also protects against premature
disclosure of policies before final adoption.

Factual information related to the policy process. Factual
information must be disclosed unless it is inextricably
intertwined with protected information about an agency decision.

Protection for the decision making process is appropriate only
for the period while decisions are being made. Thus, the fifth
exemption has been held to distinguish between documents that
are pre decisional and therefore may be protected, and those
which are post-decisional and therefore not subject to
protection. Once a policy is adopted, the public has a greater
interest in knowing the basis for the decision.

The exemption also incorporates some of the privileges that
apply in litigation involving the government. For example papers
prepared by the government lawyers can be withheld in the same
way that papers prepared by private lawyers clients are not
available through discovery in civil litigation.

EXEMPTION 6 - Personal Privacy.

The sixth exemption covers personnel, medical, and similar files
the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy. This exemption protects the
privacy interests of individuals by allowing an agency to
withhold intimate personal data kept in government files. Only
individuals have privacy interests. Corporations and other legal
persons have no privacy rights under the sixth exemption.

The exemption requires agencies to strike a balance between an
individual's privacy interest and the public's right to know.
However, since only a clearly unwarranted invasion of privacy is
a basis for withholding, there is a perceptible tilt in favor of
disclosure in the exemption. Nevertheless, the sixth exemption
makes it harder to obtain information about another individual
without the consent of that individual

EXEMPTION 7 - Law Enforcement.

The seventh exemption allows agencies to withhold law
enforcement records in order to protect the law enforcement
process from interference. The exemption retains six specific
sub-exemptions.

Exemption (7)(A) allows the withholding of a law enforcement
record that could reasonably be expected to interfere with
enforcement proceedings. This' exemption protects an active law
enforcement investigation from interference through premature
disclosure.

Exemption (7)(B) allows the withholding of information that
would deprive a person of a right to a fair trial or-an
impartial adjudication. This exemption is rarely used.

Exemption (7)(C) recognizes that individuals have a privacy
interest in information maintained in law enforcement files. If
the disclosure of information could reasonably be expected to
constitute an unwarranted invasion of personal privacy, the
information is exempt from disclosure. The standards for privacy
protection in Exemption (6) and Exemption (7)(C) differ
slightly. Exemption (7)(C) protects against an unwarranted
invasion of personal privacy while Exemption (6) protects
against clearly a unwarranted invasion. Also, Exemption (7)(C)
allows the withholding of information that "could reasonably be
expected to" invade someone's privacy. Under Exemption (6),
information can be withheld only if disclosure would invade
someone's privacy.

Exemption (7)(D) protects the identity of confidential sources.
Information that could reasonably be expected to reveal the
identity of a confidential source is exempt. A confidential
source can include A State, local, or foreign agency or
authority, or a private institution that furnished information
on a confidential basis. In Addition the exemption protect
information furnished by a confidential source if the data was
compiled by a criminal law enforcement authority during a
criminal investigation or by an agency conducting a lawful
national security intelligence investigation.

Exemption (7)(E) protects from disclosure information that would
reveal techniques and procedures for law enforcement
investigations or prosecutions or that would disclose guidelines
for law enforcement investigations or prosecutions if disclosure
of the information could reasonably be expected to 'risk
circumvention of the law.

Exemption (7)(F) protects law enforcement information that could
reasonably be expected to endanger the life or physical safety
of any individual.

EXEMPTION 8 - Financial Institutions.

The eighth FOIA exemption protects information that is contained
in or related to examination, operating, or condition reports
prepared by or for a bank supervisory agency such as the Federal
Deposit Insurance Corporation, the Federal Reserve, or similar
agencies.

EXEMPTION 9 - Geological Information.

The ninth FOIA exemption covers geological and geophysical
information, data, and maps about wells. This exemption is
rarely used.

Fees & Fee Waivers

FOIA requesters must be willing to pay fees covering some or all
of the costs of processing their requests. The FOIA establishes
three types of fees that may be charged. Under the FOIA, there
are three categories of requesters. Different fees apply to
different types of FOIA requesters.

FOIA Requester Categories

The first category includes FOIA requesters seeking records for
commercial use. Commercial use is not defined in the law, but it
generally includes profit making activities. A commercial user
can be charged reasonable standard charges for document
duplication, search, and review.

The second category includes FOIA requesters who are
representatives of the news media, and educational or
non-commercial scientific institutions whose purpose is
scholarly or scientific research. A FOIA requester in this
category who is not seeking records for commercial use can be
only billed for reasonable standard document duplication
charges. A FOIA request for information from a representative of
the news media is not considered to be for commercial use if the
request is in support of a news gathering or dissemination
function.

The third category of FOIA requester includes everyone not in
the first two categories. People seeking information for
personal use, public interest groups, and nonprofit
organizations are examples of requesters who fall into the third
group. Charges for these FOIA requesters are limited to
reasonable standard charges for document duplication and search.
Review costs may not be charged. There is no charge for the
first two hours of search time and for the first 100 pages of
documents. A non-commercial requester who limits a request to a
small number of easily found records will not usually pay any
fees at all.

FOIA processing fees may be charged by the agency for search,
review and document duplication, which are all clearly defined
in the law.

FOIA Fees

Document Duplication: Fees can be imposed to recover the cost of
copying documents. All agencies have a fixed per page price for
duplicating maerial using copying machines. A requester is
usually charged the actual cost of copying computer tapes,
photographs, and other nonstandard documents.

Search: Fees can also be imposed to recover the costs of
searching for documents. This includes the time agency personnel
spent looking for material responsive to your request. A
requester can minimize search charges by making clear, narrow
requests for identifiable documents whenever possible.

Review: Fees can be charged to recover review costs. Review is
the process of examining documents to determine whether any
portion is exempt from disclosure. Review charges only include
costs incurred during the initial examination of a document. An
Agency cannot charge for any costs incurred in resolving issues
of law or policy that may arise while processing your request.

FEE Waivers

Fees may be waived or reduced if disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or
activities of the government and is not primarily in the
commercial interest of the requester.

Determinations about fees are separate and distinct from
determinations about fee waivers. For example, a requester who
can demonstrate that he or she is a news reporter may only be
charged duplication fees. But a requester found to be a reporter
is not automatically entitled to a waiver of those fees. A
reporter who seeks a waiver must demonstrate that the request
also meets the standards for waivers.

Normally, only after a requester has been categorized to
determine the applicable fees does the issue of a fee waiver
arise. A requester who seeks a fee waiver should ask for a
waiver in the original request letter. However, a request for a
waiver can be made at a later time. The requester should
describe how disclosure will contribute to public understanding
of the operations or activities of the government. The sample
request letter in the appendix includes optional language asking
for a fee waiver.

Any requester may ask for a fee waiver. Some will find it easier
to qualify than others. A news reporter who is only charged
duplication costs may still ask that the charges be waived
because of the public benefits that will result from disclosure.
A representative of the news media, a scholar, or a public
interest group are more likely to qualify for a waiver of fees.
A commercial user may find it difficult to qualify for waivers.

The eligibility of other requesters will vary. A key element in
qualifying for a fee waiver is the relationship of the
information to public understanding of the operations or
activities of government. Another important factor is the
ability of the requester to convey that information to other
interested members of the public. A requester is not eligible
for a fee waiver solely because of indigence.

FOIA Exclusions

The exclusions allow an agency to treat certain exempt records
as if the records were not subject to the FOIA. An agency is not
required to confirm the existence of three specific categories
of records. If these records are requested, the agency may
respond that there are no disclosable records responsive to the
request. However, these exclusions do not broaden the authority
of any agency to withhold documents from the public. The
exclusions are only applicable to information that is otherwise
exempt from disclosure.

The first exclusion may be used when a request seeks information
that is exempt because disclosure could reasonably be expected
to interfere with a current law enforcement investigation

The second exclusion applies to informant records maintained by
a criminal law enforcement agency under the informant's name or
personal identifier. The agency is not required to confirm the
existence of these records unless the informant's status has
been officially confirmed. This exclusion helps agencies to
protect the identity of confidential informants. Information
that might identify informants has always been exempt under the
FOIA.

The third exclusion only applies to records maintained by the
Federal Bureau of Investigation which pertain to foreign
intelligence, counterintelligence, or international terrorism.
When the existence of these types of records is classified, the
FBI may treat the records as not subject to the requirements of
FOIA.

Administrative Appeal Procedures

Whenever a FOIA request is denied, the agency must inform the
requester of the reasons for the denial and the requester's
right to appeal the denial to the head of the agency. A
requester may appeal the denial of a request for a document or
for a fee-waiver. A requester may contest the type or amount of
fees that were charged. A requester may appeal any other type of
adverse determination including a rejection of a request for
failure to describe adequately the documents being requested. A
requester can also appeal because the agency failed to conduct
an adequate search for the documents that were requested.

A person whose request was granted in part and denied in part
may appeal the part that was denied. If an agency has agreed to
disclose some but not all requested documents, the filing of an
appeal does not affect the release of the documents that are
disclosable. There is no risk to the requester in filing an
appeal.

The appeal to the head of the agency is a simple Administrative
appeal. A lawyer can be helpful, but no one needs a lawyer to
file an appeal. Anyone who can write a letter can file an
appeal. Appeals to the head of the agency often result in the
disclosure of some records that had been withheld. A requester
who is not convinced that the agency's initial decision is
correct should appeal. There is no charge for filing an
administrative appeal.

An appeal is filed by sending a letter to the head of the
agency. The letter must identify the FOIA request-that is being
appealed. The envelope containing the letter of appeal-should be
marked in the lower left hand corner with the words "Freedom of
Information Act Appeal."

Many agencies assign a number to all FOIA requests that are
received. The number should be included in the appeal letter,
Along with the name and address of the requester. It is a common
practice to include a copy of the agency's initial decision
letter as part of the appeal, but this is not required. It can
also be helpful for the requester to include a telephone number
in the appeal letter.

An appeal will normally include the requester's arguments
supporting disclosure of the documents. A requester may include
any facts or any arguments supporting the case for reversing the
initial decision. However, an appeal letter does not have to
contain any arguments at all. It is sufficient to state that the
agency's initial decision is being appealed. Appendix 1 includes
a sample appeal letter.

The FOIA does not set a time limit for filing an administrative
appeal of an FOIA denial. However, it is good practice to file
an appeal promptly. Some agency regulations establish a time
limit for filing an administrative appeal. A requester whose
appeal is rejected by an agency because it is too late may
refile the original FOIA request and start the process again.

A requester who delays filing an appeal runs the risk that the
documents could be destroyed. However, as long as an agency is
considering a request or an appeal, the agency must preserve the
documents.

An agency is required to make a decision on an appeal within 20
days (excluding Saturdays, Sundays, and Federal holidays). It is
possible for an agency to extend the time limits by an
additional 10 days. Once the time period has elapsed, a
requester may consider- that the appeal has been denied and may
proceed with a judicial appeal. However, unless there is an
urgent need for records this may not be the best course of
action. The courts are not sympathetic to appeals based solely
on an agency's failure to comply with the FOIA's time limits.

Recent FOIA Developments

In 1996, Congress passed the Electronic Freedom of Information
Improvement Act which will significantly affect FOIA processing.
Agencies will be required to receive and disseminate records
electronically, and meet strict processing guidelines.

We will assess the impact in the future months after agencies
have had a chance to implement their regulatory response.

New Prohibition governing release of winning proposals: Section
821 of the National Defense Authorization Act for Fiscal Year
1997, P.L. 104-201, contains a prohibition against the release
of any proposal under the Freedom of Information Act submitted
by a contractor in response to a solicitation for a competitive
procurement, unless the proposal was specifically set forth or
incorporated by reference into the contract.

               1090 Vermont Avenue, N.W. Suite 800
                      Washington, D.C. 20005
              TEL: (202) 408-7028 FAX (202) 347-8419

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