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United States Department of Justice Office of Information Policy

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1 United States Department of Justice Office of Information Policy
An Overview of the Freedom of Information Act Procedures OIP FOIA Module 102

ADDITIONAL RESOURCES DOJ FOIA Guide, 2009 Edition FOIA Counselor Hotline - (202) DOJ Website - OMB - Fees - (202) FOIA Post

3 The 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.

4 Understanding FOIA Sources for guidance in applying the FOIA
Statute itself Agency Regulations Judicial Opinions Government FOIA policies (OIP)

5 OPEN Government Act of 2007 The 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. Routing Tolling Fees

6 BASIC STRUCTURE Subsection (a) – The FOIA Disclosure Provisions
Subsection (b) – The FOIA Exemptions Subsection (c) – The Law Enforcement Exclusions Subsection (d) – FOIA & Congressional Access Subsection (e) – FOIA Annual Report Req.

FOIA’s “Automatic Disclosure Provisions” § (a)( 1) – publish in the Federal Register: agency organization, mission/functions, rules of procedure and general policy statements § (a)(2) – make available for public inspection and copying: (1) final opinions, (2) administrative staff manuals, (3) specific policy statements affecting the public, and (4) records that are the subject of frequent requests.

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 Inspection This 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. Categories Final opinions and orders rendered in the adjudication of administrative cases Specific agency policy statements Certain 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 Transparency As 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.

9 Third Form of Access ACCESS REQUESTS § (a)(3) – an agency, upon request, which reasonably describes the records sought, shall make its records promptly available, unless exempt/excluded

10 Which 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 agencies NOT 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.

11 Who May Make a FOIA Request?
“Any person” – regardless of citizenship Includes individuals, corporations, associations, state and local governments, foreign governments, etc.

12 Who May Make a FOIA Request? The Exceptions
Fugitives from Justice Foreign governments requesting information from intelligence agencies Federal agencies Heads of Congressional committees (For purposes of an investigation)

13 What 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

14 What records are subject to the FOIA?
Some Rules Does not include tangible objects Must provide records in any form requested if “readily reproducible” Must make reasonable efforts to search for records in electronic form Not personal records

15 What 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 information Disclosure/Non-disclosure (not viewing) Format choice – must provide record in any form requested, if record is readily reproducible in that form

16 The “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 Requests Fee Waivers

17 What Responsibilities Does the Requester Have?
Submit a request in writing for agency records Reasonably describe the requested records Follow agency regulations for making requests

18 The Administrative Process
Receive Request Interpret the Request Send Acknowledgment Search for Responsive Records Review Located Records Assess Fees/Fee Categories Redact Exempt Information Respond to the Request Advise of Administrative Appeal Process

19 Stage 1: Receipt & Acknowledgment
Receipt starts the time clock Acknowledgment letter required - keeps the requester aware of the status Request must be assigned a tracking number – status should be known Agencies must establish either a location on your website or phone number so that requesters may inquire about the status of their request(s).

20 Routing Requirement Agencies 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.

21 Routing Requirement This 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.

* 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 request search for/collect/examine a voluminous amount of separate and distinct records consult with another agency/component

23 Tolling The 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.

24 Tolling When 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.

25 Tolling 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.

26 Tolling: 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.

27 Exceptions to the Rule If 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; or When 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.

30 TIME LIMTS (cont…) Communication with requester FOIA Public Liaison
Multi-track processing required

Compelling need -- imminent threat to the life or physical safety of an individual Urgency 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

32 Stage 2: Ironing out the details
Initial Processing Stage – Interpretation, Search & Fees Reasonable interpretation of unclear requests Identify potential locations for responsive records Issue search instructions Documentation of search Cut-off date for search

33 Stage 2: Ironing out the details
Understand the scope of the request Interpretation of time frame and types of documents Calling the requester Reasonable interpretation of unclear requests

34 Stage 3: Search Adequacy of Agency Search
Agency search must be reasonably described to uncover all relevant documents The fact that the agency did not locate all requested records does not cast doubt on otherwise reasonable search Duty 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

35 Stage 4: Reviewing the Documents Applying the Exemptions
Exemptions are discussed in detail in another lecture Agencies are to clearly identify the exempt information and apply the appropriate exemption beside each redaction Duty to reasonably segregate Attorney General emphasizes agency obligation to segregate and apply foreseeable harm standard

36 Stage 4: Reviewing the Documents Referrals/Consultations
Referral – When records are referred to the originating agency or agency component for FOIA review and direct response to the requester. Consultation – When an agency obtains the opinion of another agency or agency component before responding to the requester.

37 Stage 5: Respond to Requester
What Information Should Appear in the Final Response Letter? Identification of responsive records Page count of records processed Amount of information withheld Identification of exemptions asserted Administrative appeal rights

38 Stage 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.

39 Administrative Appeal Stage
The determination on appeal must notify the requester of his right to seek judicial review. As a matter of good administrative practice, appeal determination letters should also advise requesters of the mediation services offered by the Office of Government Information Services.

40 Judicial Review The 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.

41 The 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

42 How 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.

43 Exemption 1 Protecting National Security

44 Exemption 1 Classified Information
Applies to information the disclosure of which could jeopardize national security or foreign policy. Only documents that have actually been classified

45 Exemption 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.

46 Exemption 1 Executive 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;

47 Exemption 1 Establishes rule that no records may remain classified indefinitely and provides enforceable deadlines for declassifying information; Requires agencies to conduct classification guidance reviews;

48 Other Classification Issues
Automatic Declassification Provision Mandatory Declassification Review Systematic Declassification Review The “Glomar” Response

49 Other Classification Issues (Cont.)
The Mosaic or Compilation Theory Segregation of Unclassified Info Whose Opinion Matters?

50 Exemption 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.

51 Exemption 2 Internal Rules & Practices
What did Congress mean by “internal rules and practices”? “Low” 2 -- trivial matters “High” 2 -- substantive matters Courts have adopted both aspects

52 “Low 2” No harm would result from release
Information genuinely trivial No public interest in disclosure Ultimate 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”

54 Exemption 2 Internal Rules & Practices
“High” 2 Examples: computer codes, sensitive computer programs, testing materials, applicant evaluation criteria case law about law enforcement materials, e.g. training manuals (“impede process...risk circumvention”) NO SECRET LAW!

55 Exemptions 2 & 7(E) Use High 2 and 7(E) to withhold
internal law enforcement training manuals, techniques and procedures IF disclosure would risk circumvention

56 Exemption 3 – Other Statutes
Protects information specifically exempted by other statutes Why do we need Exemption 3?

57 Two types of Exemption 3 Statutes
Subpart A Type – No discretion - Census Act - Civil Rights Act of 1964 Subpart B Type – Particular criteria - Patent Act - National Security Act

58 Exemption 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).

59 Exemption 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...

60 Exemption 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.

61 Exemption 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, and Is privileged or confidential.

62 Exemption 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...

63 Confidential Commercial Information
Exemption 4: Confidential Commercial Information would likely cause substantial harm to the competitive position or impair the agency’s ability to obtain similar data in the future.

64 Submitter 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 Lawsuit A reverse FOIA lawsuit is when the submitter of the information sues the government to stop a release of information.

66 Exemption 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).

67 Most Common Exemption 5 Privileges
1. Deliberative Process Privilege; 2. Attorney Work-Product Privilege; and 3. Attorney-Client Privilege.

68 The Exemption 5 Threshold Test
Is the document an inter-agency or intra-agency document? The problem of outside consultants: The Klamath decision.

69 Exemption 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

70 Exemption 5 Deliberative Process
TWO BASIC ELEMENTS: 1. Pre-decisional, and 2. Deliberative--makes recommendations and/or expresses opinions (legal or policy)

71 Deliberative Process Privilege
Generally does not cover factual material (some exceptions) Passage of time doesn’t matter Can make discretionary disclosures The “No Decision” situation Draft documents

72 Exemption 5: Attorney Work-Product
Documents and other memoranda prepared by an attorney or at the direction of an attorney in anticipation of litigation Limited to: Litigation, but can include pre-litigation documents

73 Exemption 5: Attorney Work-Product
Attorney work-product materials do not lose protection Once work-product, always work-product Covers the facts

74 Exemption 5: Attorney-Client
Covered information includes: Facts divulged by client to attorney Opinions given by attorney to client based on those facts, and Communications between attorneys that reflect client-supplied information Must be a confidential communication seeking legal advice

75 The Personal Privacy Exemptions
Congress thought it was important enough to create 2 exemptions Legal standard is different for both Exemption 6: “would constitute a clearly unwarranted invasion” Exemption 7(C): “could reasonably be expected to constitute an unwarranted invasion”

76 The Two Privacy Exemptions
All privacy-related information should satisfy one of the threshold tests Why are law enforcement records more sensitive? Both exemptions use the same balancing test

77 The Balancing Test Which threshold is satisfied?
Is there a valid privacy interest? Is there a legitimate public interest? In the balance, which one wins?

78 Exemption 6: Personal Privacy in Non Law Enforcement Records
Threshold Test: “Personnel, Medical, and Similar Files” Clearly Unwarranted Invasion of Personal Privacy Identifiable to a Specific Individual

79 Exemption 6: Personal Privacy
Balance Public Interest in Disclosure Against Individual’s Privacy Interest in Non-Disclosure No Privacy Interest -- Disclose Public interest, with any privacy interest -- Withhold

80 Exemption 6: Personal Privacy
No Protection for: Companies/Corporations Some Protection for: Deceased Persons/Survivor Privacy What about famous people, infamous people and gov’t employees?

81 The 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)

82 The Exemption 7 Threshold
Records or information, Compiled for, Law enforcement purposes

83 Threshold Much Broader than Just Criminal Law
Civil, criminal, administrative, regulatory Personnel investigations involving specific allegations of misconduct National security/terrorism investigations Every agency has some law enforcement mission

84 Exemption 7(C) Personal Privacy
“…an unwarranted invasion of personal privacy…” in law enforcement records Lesser burden of proof than (b)(6) Same balancing test as (b)(6)

85 Exemption 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).

86 Two Elements to Exemption 7(A)
On-going or Pending Investigation/Proceeding Articulate harm in release

87 Exemption 7(B) …Fair Trial
Purpose: Prevent Pretrial Publicity that could Impair a Court Proceeding Withhold if Disclosure would: deprive person to a right to a fair trial or impartial adjudication

88 Exemption 7(D) Protecting Confidential Sources
Confidential informants are critical to law enforcement Statute has two parts to protect: 1. Identity of informant/source 2. Information provided by the informant/source.

89 Exemption 7(D) Confidential Source
Purpose: Ensures that Confidential Sources are not Lost through Retaliation (Physical, Employment, etc.), because of Past Information or Fear of Future Disclosure

90 Exemption 7(E) Techniques/Procedures
Law Enforcement Records Withhold if Disclosure Could Reasonably be Expected to Risk “Circumvention of Law” Use in conjunction with “High 2”

91 Exemption 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 required show only a reasonable likelihood show nexus

92 Exemption 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).

93 Exemption 9 Wells Protects “geological and geophysical information and data, including maps, concerning wells.” 5 U.S.C. § 552(b)(9).

94 Attorney General Holder’s FOIA Memorandum
The Attorney General strongly encourages agencies to make discretionary disclosures Presumption of disclosure applies to all FOIA decisions Agencies need to work “proactively” to post information online in advance of FOIA requests

95 Attorney 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

96 Foreseeable Harm Standard
Universal Factors to Consider: The sensitivity of the document’s content The age of the document Consult with author of document or program office

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