Freedom of Information Act Overview (lite) FOIA PROCESS 5 FOIA Authorities FOIA History FOIA Exemptions Assisting with a FOIA

Freedom of Information Act Overview (lite) FOIA History FOIA Created 1974 FOIA and the Privacy Act The Sunshine Act 1976 Exec. Order Electronic FOIA Act Open Government Act Open Government Act amendments 2009

Freedom of Information Act Overview (lite) FOIA History President Johnson signs FOIA into law

Freedom of Information Act Overview (lite) FOIA AUTHORITIES 5 Reference & Cite Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No , 121 Stat The Sunshine Act, 5 U.S.C. § 552 (b) Electronic Freedom of Information Act Amendments (E-FOIA), Public Law No: ; See also 7 CFR Part 1; 65 Fed. Reg (July 28, 200) Open Government Act of 2007, Pub. L. No , 121 Stat Open Government Act of 2009, Pub. L. No , 123 Stat. 2142, 2184 Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg (Jan. 21, 2009) Attorney General Holder’s FOIA Guidelines, available at march2009.pdfhttp:// march2009.pdf Executive Order U.S. Department of Justice, Office of Information Policy 2009 Guide to the Freedom of Information Act

Freedom of Information Act Overview (lite) FOIA RECEIVED Do you believe it’s likely that your agency/office will have responsive material? Does another agency/office have responsive material in its possession? Transfer request to USDA agency(ies) and notify requester of transfer(s) N No records denial: Close the request Send acknowledgement letter to requester If applicable, contact requester to clarify or narrow scope of request, and address any fee related issues with the requester. Search for responsive material Compile responsive material Review and redact responsive material as needed BEGIN PROCESS Send final determination and, if applicable, responsive material to the requester. Close request Y FOIA PROCESS 5 N Y Is the agency/office within USDA Y No records denial: Close the request direct requester to agency with responsive material N

Freedom of Information Act Overview (lite) EXEMPTIONS 6 (1) Executive Order: Prohibits from disclosure all national security information concerning national defense or foreign policy that has been properly classified in accordance with substantive and procedural requirements of the current executive order. (2) Internal Practices of Agency: Prohibits the disclosure of agency records related solely to the internal personnel rules and practices of an agency. (3) Laws: Incorporates the disclosure prohibitions contained in various other federal statutes. (4) Trade Secrets: Protects trade secrets and commercial or financial information obtained from a person and privileged or confidential. (5) Interagency Correspondence: Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. (6) Personal Information: Prohibits disclosure of personnel, medical and similar files which would constitute a clearly unwarranted invasion of personal privacy. (7) Law Enforcement: Prohibits disclosure of records or information compiled for law enforcement purposes that cause some sort of harm. (8) Financial Institutions: Protects information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. (9) Wells: Protects geological and geophysical information and data, including maps, concerning wells.

Freedom of Information Act Overview (lite) EXEMPTION 3 7 FOIA Exemption 3 incorporates the disclosure prohibitions that are contained in various other federal statutes. To assist agencies in properly processing FOIA requests and in preparing their Annual FOIA Reports, the Department of Justice/Office of Information Policy has compiled a list of statutes that courts have found to qualify as Exemption 3 statutes. Commonly used statutes in USDA’s FOIA Annual Report: 7 U.S.C. § (Food Stamp Act): Names and other personally identifiable information of SNAP (Food Stamps) recipients and firms participating in program. 7 U.S.C. §2276(a)(2) (Food Security Act of 1985): Respondents’ identity and unaggregated survey data. 15 U.S.C. §3710(a)(c) (Federal Technology Transfer Act): Trade secrets or commercial or financial information that pertain to cooperative research and development agreements for the purpose of technological and industrial innovation. 16 U.S.C. §470 (h)(h) (Archeological Resources Protection Act of 1979): Archaeological site maps, cultural resources and historic sites. 35 U.S.C. §122 (Patent Act): Information in connection with the application of patents 7 U.S.C. §8791A(2)(a), (Food, Conservation and Energy Act of 2008): Information provided by an agriculture producer or owner of agricultural land in connection with participation in a USDA program and concerning agricultural operations, farming or conservation practices or the land itself; information contained in any type of USDA geospatial information system where producer provided information about agricultural land or operations Please contact your agency FOIA Officer for the most recent list of USDA statutes.

Freedom of Information Act Overview (lite) EXEMPTION 5 8 FOIA Exemption 5 prohibits the disclosure of inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. In addition, exemption 5 prohibits the disclosure of several privileges. The most common privileges cited by USDA are deliberative process, attorney-client and attorney work product. Attorney Work-Product Privilege: prohibits disclosure of material prepared by an attorney in contemplation of litigation Attorney Client Privilege: prohibits disclosure of confidential communication between attorneys and their clients Deliberative Process Privilege: prohibits disclosure of material that would (1) discourage open discussions on policy/business decisions (2) cause premature disclosure of proposed policies or (3) cause public confusion from disclosure. Examples of Protected Material: Draft Material, Recommendations on policy and/or procedures, etc. Note: This exemption is applied on a discretionary basis. Your agency’s/office’s FOIA officer will make a determination on its application.

Freedom of Information Act Overview (lite) EXEMPTION 6 9 FOIA Exemption 6 prohibits from disclosure personnel and medical files and similar files of which would constitute a clearly unwarranted invasion of personal privacy. Similar files cover government files applying to a particular person. The term “similar files” should be interpreted broadly as it has been found to cover:  Names and addresses of individuals and employees;  Audio and videotapes identifying individuals; and,  Investigative materials. To determine whether the release of agency records would constitute an unwarranted invasion of personal privacy, the FOIA professional will balance the interest of the public’s right to disclosure versus the interest of the affected individual’s right to privacy.

Freedom of Information Act Overview (lite) EXEMPTION 6 Protected Under Exemption 6  Social Security Numbers  Age  Dates of Birth  Residential Addresses  Personal Telephone Numbers  Personal Financial Information  Information about Unsuccessful Job Applications Not Protected Under Exemption 6  Job Titles  Federal Employee Grades/Salaries  Business Contact Information  Personal Information about the Deceased 10

Freedom of Information Act Overview (lite) EXEMPTION 7 11 FOIA Exemption 7 prohibits from disclosure records or information compiled for law enforcement purposes that cause some sort of harm to one of the following: (A) Law Enforcement Proceedings; (B) Fair Trial; (C) Invasion of Personal Privacy; (D) Confidential Source; (E) Investigation/Prosecution Technique and Procedures; (F) Physical Safety; The term “compiled” means any materials collected and assembled from various sources or other documents. “Law enforcement” for purposes of this exemption means that the agency is authorized to enforce law or regulation or the agency’s function is to enforce law or regulation. Tip I: Information need not have been originally compiled for law enforcement purposes in order to qualify for the law enforcement exemption so long as it was compiled for law enforcement at the time the FOIA request was made. Tip II: Ask yourself -- Does the agency have the power to initiate an investigation or proceeding that could potentially result in some sort of adjudication action (i.e. judgment, penalty, sanction, jail sentence etc.)?

Freedom of Information Act Overview (lite) IF ASSISTING WITH A FOIA 12 1.If receiving a FOIA or ask to compile records, immediately consult with your agency’s FOIA officer for instruction. Click here for the link of USDA agency FOIA Officers.Click here for the link of USDA agency FOIA Officers 2.If required to conduct a search for responsive agency records, document your search efforts. Conclusory statements are not sufficient to satisfy the agency burden to prove that it performed a reasonable search. Convey the scope of the mission and the manner in which the agency records are kept. A.Identify the system/files searched. B.Identify the criteria used for the search. i.Time frame ii.Key words (statement what is acceptable will do) 3.Remember – your agency must respond to a FOIA request with responsive agency records if available. The statutory language of the FOIA defines the term record as “any information that would be an agency record…when maintained by an agency in any format, including an electronic format.” The criteria for determining an agency record is as follows: A.Either created or obtained by an agency and B.Under agency control at the time of the FOIA request. 4. Keep in mind that each FOIA is unique and therefore reviewed on a case by case basis. Pay particular attention to the scope of the request and consult with your agency’s FOIA officer if questions should arise.