Slide 1

An Overview of the

Freedom of Information Act

Procedural Requirements

The Freedom of Information Act

Statutory Definition

Agencies, upon receiving requests for records

which (i) reasonably describes the records sought

and (ii) are made in accordance with published

rules stating the time, place, fees (if any), shall

make records promptly available.

The Freedom of Information Act

The FOIA pertains to federal

agency records that exist and

can be located in agency files.

The Freedom of Information Act

Who May Make A FOIA Request?

 “Any person” – regardless of

citizenship

 Includes individuals, corporations,

associations, state and local

governments, foreign government, etc.

The Freedom of Information Act

Who May Make A FOIA Request?

The Exceptions

 Fugitives from Justice, if the requested

records relate to the requester’s

fugitive status

 Foreign governments requesting

information from intelligence agencies

What records are subject to the FOIA?

Agency records

The factors:

 Two-part test:

• Created or obtained by agency

• Under agency control when request

received

The Freedom of Information Act

What records are subject to the FOIA?

Agency records

The factors:

 Four factors:

• Creator’s intent to control

• Ability of the agency to use

• Extent to which personnel have read/relied

• Degree of integration into agency files

The Freedom of Information Act

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:

• When expedited processing is requested

• When a fee waiver is requested

The Freedom of Information Act

A Proper FOIA Request?

 Request for agency records submitted

in writing

 Request reasonably describes records

requested

 Request complies with agencies

regulations for making requests

The Freedom of Information Act

Receipt and Acknowledgment

 Receipt of the request starts the time

clock

 If the request will take longer than ten

days to process, agency must assign an

individual tracking number to the

request

The Freedom of Information Act

Receipt and Acknowledgment

 Agencies must establish either “a telephone line or

internet service that provides information about

the status of a request to the person making the

request using the assigned tracking number”

 Status information to be provided includes the date

of receipt and an estimated date of completion

The Freedom of Information Act

Receipt and Acknowledgment

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.

The Freedom of Information Act

Routing Requirement

 This rule addresses the situation where a FOIA

request is inadvertently 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 10

day the

20-day response time period begins . . . even if the

proper component has yet to receive the request.

The Freedom of Information Act

Time Limits for Responding to a Request

 20 working days to respond

 In “unusual circumstances” agency may

extend time limit by giving written notice

to requester

 If time period is extended beyond ten

working days agency must provide

requester with opportunity to narrow scope

of request and must make FOIA Public

Liaison available

The Freedom of Information Act

Time Limits for Responding to a Request

 “Unusual circumstances” defined:

• 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 or among two

or more components within the agency

The Freedom of Information Act

Time Limits for Responding to a Request

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.

The Freedom of Information Act

Time Limits for Responding to a Request

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 the 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.

The Freedom of Information Act

Time Limits for Responding to a Request

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 a 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.

The Freedom of Information Act

Limits on Charging Search Fees

 Agencies are prohibited from charging certain fees if

they do not meet the response time.

 The FOIA 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.

The Freedom of Information Act

Limits on Charging Search Fees

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.

 The pre-existing definitions of “unusual” and

“exceptional” circumstances apply to this search

fee rule.

The Freedom of Information Act

Limits on Charging Search Fees

Exceptions to the Rule

“Unusual Circumstances” exist in three 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 within

the same agency.

The Freedom of Information Act

Limits on Charging Search Fees

Exceptions to the Rule

“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.

The Freedom of Information Act

Time Limits for Responding to a Request

Expedited Processing

 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

The Freedom of Information Act

Time Limits for Responding to a Request

Expedited Processing

Agencies have 10 calendar days to decide

whether to grant or deny requests for

expedition.

The Freedom of Information Act

Time Limits for Responding to a Request

Expedited Processing

Agencies must process requests that have

been granted expedition as soon as

practicable.

The Freedom of Information Act

Time Limits for Responding to a Request

Expedited Processing

Standard of Review

The Freedom of Information Act

Initial Processing

Interpretation and Communication

 Reasonable interpretation of

unclear requests

 Communication with requester

 FOIA Public Liaison

 Multi-track processing encouraged

Definition of Search

To review manually or by automated

means, agency records for the

purpose of locating those records

responsive to a request.

The Freedom of Information Act

 Identify potential locations for

responsive records

 Issue search instructions

 Documentation of search

 Cut-off date for search

Search Review Dup.

Commercial Use Yes Yes Yes

“Favored” No No Yes*

All Others Yes** No Yes*

* “Favored” and All Others requesters receive the

first 100 pages of duplication free of charge per

request.

** All Others requesters receive the first two hours

of search free of charge per request.

Who Pays What?

The Freedom of Information Act

Adequacy of Agency Search

 Agency must conduct search that is “reasonably

calculated 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

The Freedom of Information Act

Reviewing the Documents

Applying the Exemptions, Segregation

 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

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.

Coordination

– When records contains sensitive law

enforcement or national security information.

The Freedom of Information Act

Response to the Requester

What information should appear in the final response letter?

 Identification of responsive records

 Volume estimate of information withheld

 Identification of exemptions asserted

 Administrative appeal rights

 Must provide records in any form requested “if

readily reproducible”

Administrative Appeal

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.

The Freedom of Information Act

Administrative Appeal

The determination on appeal must notify the

requester of the 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, located at the

National Archives and Records Administration.

The Freedom of Information Act

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.

The Freedom of Information Act