Presentation on theme: "United States Department of Justice Office of Information Policy"— Presentation transcript:
1United States Department of Justice Office of Information Policy An Overview of theFreedom of InformationAct ProceduresOIP FOIA Module 102
2FREEDOM OF INFORMATION ACT PROCEDURAL OVERVIEW ADDITIONAL RESOURCESDOJ FOIA Guide, 2009 EditionFOIA Counselor Hotline - (202)DOJ Website -OMB - Fees - (202)FOIA Post
3The Freedom of Information Act The Freedom of Information Act generally provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protectable from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.
4Understanding FOIA Sources for guidance in applying the FOIA Statute itselfAgency RegulationsJudicial OpinionsGovernment FOIA policies (OIP)
5OPEN Government Act of 2007The OPEN Government Act of 2007 was signed into law by the President on December 31, Several procedural provisions of the new Act were effective immediately.RoutingTollingFees
6BASIC STRUCTURE Subsection (a) – The FOIA Disclosure Provisions Subsection (b) – The FOIA ExemptionsSubsection (c) – The Law Enforcement ExclusionsSubsection (d) – FOIA & Congressional AccessSubsection (e) – FOIA Annual Report Req.
7BASIC STRUCTURE: THREE FORMS OF ACCESS FOIA’s “Automatic Disclosure Provisions”§ (a)( 1) – publish in the Federal Register: agencyorganization, mission/functions, rules of procedureand general policy statements§ (a)(2) – make available for public inspection andcopying: (1) final opinions, (2) administrative staffmanuals, (3) specific policy statements affectingthe public, and (4) records that are the subject offrequent requests.
8THREE FORMS OF ACCESS (cont…) This area now has great potential for positive change. Under President Obama’s Memorandum and Attorney General Holder’s Guidelines, agencies should be using this provision of the FOIA to make “proactive disclosures.” In other words, agencies should be reviewing their records looking for areas where they can make their records publicly available without waiting for specific requests from the public. This has always a vital part of keeping an “informed citizenry,” which is the central purpose of the FOIA, but now proactive disclosures are in the spotlight like never before.In fact the President has directed agencies to “take affirmative steps to make information public” without waiting for specific requests, and to “use modern technology to inform citizens about what is known and done by their Government.”In light of this, agencies should now do more than what is required by the statute. All proactively disclosed records should, to the extent practicable, be posted online on agency websites. This will ensure compliance with the FOIA’s proactive disclosure provision and with the President’s and Attorney General’s mandate for the expanded use of proactive disclosures to create “an unprecedented level of openness.”Making Records Available for Public InspectionThis subsection applies to 4 categories of agency records that don’t fall under (a)(1) but must routinely be made “available for public inspection and copying.” The “public inspection” requirement is satisfied by providing the public with access to the designated documents automatically and without waiting for a FOIA request. Agencies are obligated to not only maintain, but to continuously updated, the records in each of the 4 categories designated by (a)(2).An exception: records that are published and offered for sale by an agency are not required to be proactively disclosed.CategoriesFinal opinions and orders rendered in the adjudication of administrative casesSpecific agency policy statementsCertain administrative staff manuals “that affect a member of the public”Records which have been released under (a)(3) that “the agency determines have become, or are likely to become, the subject of subsequent requests for substantially the same records” - what we deem “hot topics” – for instance at OIP, documents concerning the Patriot Act was of significant public interest, or during an election year, documents pertaining to the candidates, if your agency is involved in a Presidential policy that is of heightened interest such as health care form, or certain financial or budgetary interest. [Very recently, agencies, including the Department of Justice, in conjunction with the White House and the Office of Government Ethics, have made certain ethics material of political officials publicly available. This was seen as an area where agencies could anticipate, and in some instances had already received, FOIA requests, so the documents were proactively sought, and processed under the FOIA, as well as the Privacy Act where needed.]The trigger is the receipt or the anticipation of the 3rd request.Remember the records in their FOIA-processed form become the “reading room” records.Please note: any subsequent FOIA requests received for such records posted here has to be responded to in the typical FOIA request, if the requester chooses – but let the requester know of the availability on the web.Disclosing Records Proactively to Achieve TransparencyAs I mentioned before, the President has stressed that agencies should take “affirmative” and “innovative” steps in achieving transparency; and the Attorney General directed agencies to “post information online in advance of any public interest. So, now, agencies should seek out and identify records, which may not fall into one of the four categories of (a)(2), but are of sufficient public interest to warrant automatic disclosure on an agency’s website.To do so agencies should implement systems and establish procedures by which records of interest to the public are routinely identified and systematically posted. At OIP each analyst now has an additional affirmative step they take when processing records. They consider whether there is sufficient public interest in a document and if so its identified for possible posting. We then have personnel are tasked with ensuring these documents are posted and are updated accordingly.Agencies can typically accomplish the electronic availability requirement of President’s Obama’s transparency message, but posting the documents in their “electronic reading room.” Agencies should, however, first and foremost consider the needs of the community of individuals or entities that visit and use their websites in determining the most effective means by which make these documents available electronically.Indexing requirement: (1) agencies must index or otherwise organize the records they proactively disclosure in order to facilitate the public’s convenient access to them; (2) agencies are required to maintain a general index of the FOIA-processed records in the proactive disclosure provision’s fourth category – frequently requested records – and to make the index available on their websites. This is typically satisfied by simply providing a distinct “link” to each document in this category.The idea is customer service based – make the site easy to use.See FOIA Update, Vol. XVIII, No. 1, at 3-4 (advising on processes for exercise of agency judgment under fourth “reading room” category)(a)(2) “Proactive Disclosures”President’s message: “take affirmative steps to make information public” without waiting for requests and “use modern technology to inform citizens”FOIA “hot topics” -- records which have become or are likely to become the subject of subsequent requests shall be added to the FOIA reading room.
9Third Form of AccessACCESS REQUESTS§ (a)(3) – an agency, upon request, which reasonably describes the records sought, shall make its records promptly available, unless exempt/excluded
10Which Agencies Are Subject to the FOIA? All agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agenciesNOT SUBJECT TO THE FOIA –State governments, municipalities, the courts, Congress, and private citizens or corporations.Offices within the Executive Office of the President whose functions are limited entirely to advising and assisting the President.
11Who May Make a FOIA Request? “Any person” – regardless of citizenshipIncludes individuals, corporations, associations, state and local governments, foreign governments, etc.
12Who May Make a FOIA Request? The Exceptions Fugitives from JusticeForeign governments requesting information from intelligence agenciesFederal agenciesHeads of Congressional committees (For purposes of an investigation)
13What records are subject to the FOIA? The rule: Agency Records – Those either created or obtained by an agency, and those under agency control at the time of the FOIA request.Very broad: Includes paper documents, tapes, photos and electronic records generally in the possession and control of an agency
14What records are subject to the FOIA? Some RulesDoes not include tangible objectsMust provide records in any form requested if “readily reproducible”Must make reasonable efforts to search for records in electronic formNot personal records
15What records are subject to the FOIA? Agencies are not required to answer questions posed as FOIA requests;Agencies are not required to create records or compile information in response to a request;Add explanatory materials to any records disclosed;Records - Not informationDisclosure/Non-disclosure (not viewing)Format choice – must provide record in any form requested, if record is readily reproducible in that form
16The “why” behind the request FOIA requesters generally do not have to justify or explain their reasons for making requests. The why is important in two circumstances:Expedited RequestsFee Waivers
17What Responsibilities Does the Requester Have? Submit a request in writing for agency recordsReasonably describe the requested recordsFollow agency regulations for making requests
18The Administrative Process Receive RequestInterpret the RequestSend AcknowledgmentSearch for Responsive RecordsReview Located RecordsAssess Fees/Fee CategoriesRedact Exempt InformationRespond to the RequestAdvise of Administrative Appeal Process
19Stage 1: Receipt & Acknowledgment Receipt starts the time clockAcknowledgment letter required - keeps the requester aware of the statusRequest must be assigned a tracking number – status should be knownAgencies must establish either a location on your website or phone number so that requesters may inquire about the status of their request(s).
20Routing RequirementAgencies must “route”/ “forward” misdirected requests to the proper office.The 20-day time period begins on the date the request is first received by the appropriate component of the agency, but in any event not later than 10 working days after the request is first received by any component of the agency that is designated in the agency’s regulations to receive requests.
21Routing RequirementThis new rule addresses the situation where a FOIA request is mistakenly addressed to a component that is designated to receive FOIA requests for the agency, but is not itself the proper component of the agency to process the request.The receiving/ “wrong” component has 10 working days to route the request to the proper component within the agency. On the 10th day the 20-day response time period begins whether or not the proper component has received it yet.
22TIME LIMITS FOR RESPONDING TO A REQUEST * 20 working days to respond* One time extension of up to working days for the following unusual circumstances:search for/collect records from facilities separate from the office processing the requestsearch for/collect/examine a voluminous amount of separate and distinct recordsconsult with another agency/component
23TollingThe number of times the agency can toll the response time is limited.Tolling can only occur if the request is properly made and the clock already started.
24TollingWhen a proper FOIA office receives a request, it determines whether or not the request is reasonably described and meets the other requirements for making a proper request. If necessary, the office then communicates with Requester to resolve any issues.The 20-day clock begins to run upon receipt of a proper request.It is only after this point that the issue of tolling/stopping would even arise.
25Tolling Limit to number of times tolling allowed Toll the 20-day clock in only two situations:- One time when the agency is waiting for general information it has reasonably requested from Requester.- Agencies are allowed to toll the 20-day clock as many times as necessary in order to clarify any issues with Requester regarding fee assessment. Fee-related issues often arise sequentially over the course of processing a request, and cannot always be resolved at one given point in time.In either case, tolling ends (clock re-started) when the agency receives a response from Requester.
26Tolling: Charging Search Fees Agencies are prohibited from charging certain fees if they do not meet the response time.The new law prohibits agencies from assessing search fees (or duplication fees if Requester is an educational or non-commercial, scientific institution, or representative of the news media) if the agency fails to meet the 20-day response time limit, unless unusual or exceptional circumstances apply to the processing of the request.
27Exceptions to the RuleIf either “unusual” or “exceptional” circumstances apply to the processing of the request, the exceptions to the rule apply and agencies can assess fees as they have normally done before the change in the law.The pre-existing definitions of “unusual” and “exceptional” circumstances apply to this new search fee rule.
28“Unusual Circumstances” exist in 3 situations: When there is a need to search for and collect records from separate offices;When there is a need to search for, collect, and examine a voluminous amount of records; orWhen there is a need for consultations with another agency or among two or more components with the same agency.
29“Exceptional Circumstances”: The FOIA states that exceptional circumstances cannot include a “delay that results from a predictable workload of requests unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.”In other words, exceptional circumstances exist if the agency has a backlog of pending requests and is making reasonable progress in reducing that backlog.
30TIME LIMTS (cont…) Communication with requester FOIA Public Liaison Multi-track processing required
31TIME LIMITS (cont…) EXPEDITED PROCESSING Compelling need -- imminent threat to the life or physical safety of an individualUrgency to inform the public concerning actual/alleged Federal Government activity (with respect to a request from one engaged primarily in disseminating information)Agencies may add other grounds for granting expedited processing
32Stage 2: Ironing out the details Initial Processing Stage – Interpretation, Search & FeesReasonable interpretation of unclear requestsIdentify potential locations for responsive recordsIssue search instructionsDocumentation of searchCut-off date for search
33Stage 2: Ironing out the details Understand the scope of the requestInterpretation of time frame and types of documentsCalling the requesterReasonable interpretation of unclear requests
34Stage 3: Search Adequacy of Agency Search Agency search must be reasonably described to uncover all relevant documentsThe fact that the agency did not locate all requested records does not cast doubt on otherwise reasonable searchDuty to search – must make reasonable efforts to search for records in electronic form unless significant interference with the operations of agency’s automated information system
35Stage 4: Reviewing the Documents Applying the Exemptions Exemptions are discussed in detail in another lectureAgencies are to clearly identify the exempt information and apply the appropriate exemption beside each redactionDuty to reasonably segregateAttorney General emphasizes agency obligation to segregate and apply foreseeable harm standard
36Stage 4: Reviewing the Documents Referrals/Consultations Referral – When records are referred tothe originating agency or agencycomponent for FOIA review and directresponse to the requester.Consultation – When an agency obtains the opinion of another agency or agency component before responding to the requester.
37Stage 5: Respond to Requester What Information Should Appear in the Final Response Letter?Identification of responsive recordsPage count of records processedAmount of information withheldIdentification of exemptions assertedAdministrative appeal rights
38Stage 6: Administrative Appeal Stage Requesters may appeal an adverse determination to the designated agency official if for example, all or part of a request is denied, or no responsive records are located.The agency’s administrative appeal authority will review the initial action taken on the request and can direct that further actions be taken.
39Administrative Appeal Stage The determination on appeal mustnotify the requester of his right toseek judicial review.As a matter of good administrativepractice, appeal determinationletters should also adviserequesters of the mediationservices offered by the Office ofGovernment Information Services.
40Judicial ReviewThe FOIA provides requesters with the right to challenge an agency’s decision in federal court.Agencies have the burden of proof and must demonstrate to the court that no record has been improperly withheld.
41The purpose of the FOIA? The FOIA is a DISCLOSURE statute! However, Congress recognized that the disclosure of certain types of information will lead to harm
42How to prevent these harms? Congress created nine specific exemptions to cover the types of information most likely to cause harm to an individual, a business, a financial institution, national security, or the government’s ability to effectively govern.
44Exemption 1 Classified Information Applies to information the disclosure of which could jeopardize national security or foreign policy.Only documents that have actually been classified
45Exemption 1 Classifying Records On December 29, 2009, President Obama signed a new Executive Order on classification, Executive Order 13526, which replaces Executive Order 12,958, as amended.
46Exemption 1Executive Order is effective June, 2010, except for sections 1.7, 3.3, and 3.7 which are effective now.Some major changes in the new Executive Order are:Establishes the National Declassification Center at NARA;
47Exemption 1Establishes rule that no records may remain classified indefinitely and provides enforceable deadlines for declassifying information;Requires agencies to conduct classification guidance reviews;
49Other Classification Issues (Cont.) The Mosaic or Compilation TheorySegregation of Unclassified InfoWhose Opinion Matters?
50Exemption 2 Internal Rules & Practices Exemption 2 protects records that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2).The threshold test is broad.
51Exemption 2 Internal Rules & Practices What did Congress mean by “internal rules and practices”?“Low” 2 -- trivial matters“High” 2 -- substantive mattersCourts have adopted both aspects
52“Low 2” No harm would result from release Information genuinely trivialNo public interest in disclosureUltimate consideration: What would be the cheapest thing to do?
53“High 2” “High” 2: Internal information Substantive nature Disclosure would interfere with operations OR “risk circumvention of law”
54Exemption 2 Internal Rules & Practices “High” 2 Examples:computer codes, sensitive computer programs, testing materials, applicant evaluation criteriacase law about law enforcement materials, e.g. training manuals (“impede process...risk circumvention”)NO SECRET LAW!
55Exemptions 2 & 7(E) Use High 2 and 7(E) to withhold internal law enforcement training manuals, techniques and proceduresIF disclosure would risk circumvention
56Exemption 3 – Other Statutes Protects information specifically exempted by other statutesWhy do we need Exemption 3?
57Two types of Exemption 3 Statutes Subpart A Type – No discretion- Census Act- Civil Rights Act of 1964Subpart B Type – Particular criteria- Patent Act- National Security Act
58Exemption 4: Trade Secret or Confidential Commercial Information Exemption 4 protects trade secrets and commercial or financial information obtained from a person which is privileged or confidential. See 5 U.S.C. § 552(b)(4).
59Exemption 4: Trade Secret A “Trade Secret” is narrowly defined as “any secret, commercially valuable plan, formula, process or device that is used for making, preparing, compounding, or processing of trade commodities,continued...
60Exemption 4: Trade Secret that can be said to be the end product of either innovation or substantial efforts.”There must be a direct relationship between the trade secret and the production process.
61Exemption 4: Confidential Commercial Information The information must be commercial or financial data or information which is used in the course of one’s business and,Obtained from a person, andIs privileged or confidential.
62Exemption 4: Confidential Commercial Information If the information was:Submitted voluntarily, it must be the type of data that is not customarily disclosed to the public; or,If not voluntarily submitted, is information which, if disclosed continued...
63Confidential Commercial Information Exemption 4:Confidential Commercial Informationwould likely cause substantial harm to the competitive position or impair the agency’s ability to obtain similar data in the future.
64Submitter Notice – Executive Order 12,600 Agency must notify the submitter of the request and allow it to file objections to release of the information.The agency will then determine whether the harm shown is sufficient to support withholding the information pursuant to Exemption 4.
65"Reverse” FOIA LawsuitA reverse FOIA lawsuit is when the submitter of the information sues the government to stop a release of information.
66Exemption 5: Privileged Information Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5).
67Most Common Exemption 5 Privileges 1. Deliberative Process Privilege;2. Attorney Work-Product Privilege; and3. Attorney-Client Privilege.
68The Exemption 5 Threshold Test Is the document an inter-agency or intra-agency document?The problem of outside consultants: The Klamath decision.
69Exemption 5: The Deliberative Process Privilege What does the Deliberative Process Privilege Protect?- Quality of Agency Decisions- Encourages Frank Agency Discussion- Prevents Premature Disclosure Before Decision is Adopted
70Exemption 5 Deliberative Process TWO BASIC ELEMENTS:1. Pre-decisional, and2. Deliberative--makes recommendations and/or expresses opinions (legal or policy)
71Deliberative Process Privilege Generally does not cover factual material (some exceptions)Passage of time doesn’t matterCan make discretionary disclosuresThe “No Decision” situationDraft documents
72Exemption 5: Attorney Work-Product Documents and other memoranda prepared by an attorney or at the direction of an attorney in anticipation of litigationLimited to:Litigation, but can include pre-litigation documents
73Exemption 5: Attorney Work-Product Attorney work-product materials do not lose protectionOnce work-product, always work-productCovers the facts
74Exemption 5: Attorney-Client Covered information includes:Facts divulged by client to attorneyOpinions given by attorney to client based on those facts, andCommunications between attorneys that reflect client-supplied informationMust be a confidential communication seeking legal advice
75The Personal Privacy Exemptions Congress thought it was important enough to create 2 exemptionsLegal standard is different for bothExemption 6: “would constitute a clearly unwarranted invasion”Exemption 7(C): “could reasonably be expected to constitute an unwarranted invasion”
76The Two Privacy Exemptions All privacy-related information should satisfy one of the threshold testsWhy are law enforcement records more sensitive?Both exemptions use the same balancing test
77The Balancing Test Which threshold is satisfied? Is there a valid privacy interest?Is there a legitimate public interest?In the balance, which one wins?
78Exemption 6: Personal Privacy in Non Law Enforcement Records Threshold Test: “Personnel, Medical, and Similar Files”Clearly Unwarranted Invasion of Personal PrivacyIdentifiable to a Specific Individual
79Exemption 6: Personal Privacy Balance Public Interest in Disclosure Against Individual’s Privacy Interest in Non-DisclosureNo Privacy Interest -- DisclosePublic interest, with any privacy interest -- Withhold
80Exemption 6: Personal Privacy No Protection for:Companies/CorporationsSome Protection for:Deceased Persons/Survivor PrivacyWhat about famous people, infamous people and gov’t employees?
81The Exemption 7 Threshold Exemption 7 protects “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information” could be expected to cause one of the harms outlined in one of the subparts. 5 U.S.C. § 552(b)(7)
82The Exemption 7 Threshold Records or information,Compiled for,Law enforcement purposes
83Threshold Much Broader than Just Criminal Law Civil, criminal, administrative, regulatoryPersonnel investigations involving specific allegations of misconductNational security/terrorism investigationsEvery agency has some law enforcement mission
84Exemption 7(C) Personal Privacy “…an unwarranted invasion of personal privacy…” in law enforcement recordsLesser burden of proof than (b)(6)Same balancing test as (b)(6)
85Exemption 7(A) Pending or Prospective Proceedings Exemption 7(A) allows agencies to withhold information compiled for law enforcement purposes if disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. §552(b)(7)(A).
86Two Elements to Exemption 7(A) On-going or Pending Investigation/ProceedingArticulate harm in release
87Exemption 7(B) …Fair Trial Purpose: Prevent Pretrial Publicity that could Impair a Court ProceedingWithhold if Disclosure would:deprive person to a right to a fair trial or impartial adjudication
88Exemption 7(D) Protecting Confidential Sources Confidential informants are critical to law enforcementStatute has two parts to protect:1. Identity of informant/source2. Information provided by the informant/source.
89Exemption 7(D) Confidential Source Purpose: Ensures that Confidential Sources are not Lostthrough Retaliation (Physical, Employment, etc.),because of Past Information or Fear of Future Disclosure
90Exemption 7(E) Techniques/Procedures Law Enforcement RecordsWithhold if Disclosure Could Reasonably be Expected to Risk “Circumvention of Law”Use in conjunction with “High 2”
91Exemption 7(F) Endanger Life or Physical Safety Records or information compiled for law enforcement purposes“endanger life or physical safety of any individual”Broader than (b)(7)(C)no balancing test requiredshow only a reasonable likelihoodshow nexus
92Exemption 8 Financial Institutions Protects records “contained or relating to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for regulation or supervision of financial institutions.” 5 U.S.C. § 552(b)(8).
93Exemption 9 WellsProtects “geological and geophysical information and data, including maps, concerning wells.” 5 U.S.C.§ 552(b)(9).
94Attorney General Holder’s FOIA Memorandum The Attorney General strongly encourages agencies to make discretionary disclosuresPresumption of disclosure applies to all FOIA decisionsAgencies need to work “proactively” to post information online in advance of FOIA requests
95Attorney General Holder’s FOIA Memorandum Discretionary releases are possible with a number of FOIA exemptions, including Exemptions 2, 5 and 7, but will be most applicable under Ex. 5.“Foreseeable Harm Standard” should be applied in making discretionary disclosures
96Foreseeable Harm Standard Universal Factors to Consider:The sensitivity of the document’s contentThe age of the documentConsult with author of document or program office