Introduction to Making

Federal Freedom of
Information Act Requests
Adam A. Marshall, Esq.
Jack Nelson Dow Jones Foundation Fellow
Reporters Committee for Freedom of the Press

Welcome to the jungle...

FOIA is a complicated web of statutes, caselaw, regulations,
written and unwritten policies, and luck

The Federal Freedom of

Information Act
The statute: 5 U.S.C. 552
Provide a right of access to existing records held by federal
executive branch agencies (for the most part)
Does not apply to legislative or judicial branches

State public records laws

Every state has also adopted its own public records law,
sometimes called the sunshine law, public records act, open
records act, etc.
These laws vary widely
Some provide access to judicial and legislative, as well as executive
branch records
Response time is almost always much shorter
Often have less-developed access procedures

Detailed information available for free

at the Reporters Committee Open
Government Guide:
http://rcfp.org/open-government-guide

Trends in Federal FOIA 2009-2014

~514k/yr -> ~714k/yr

~75k -> ~160k

Trends in processing time

Processing time at DHS

Trends in access to information

FOIA: what is it good for?

How to start
The basic process of filing a FOIA request is theoretically
easy.
Three requirements:
Written request
Reasonably describe the records sought
Follow agency regulations

Look at the agency regulations/website you never know

what might be there

RCFPs iFOIA.org

What can you ask for?

FOIA applies to records that already exist.
Cannot ask for the creation or compilation of information

This includes all types of documentary information, such as

papers, reports, letters, e-mail, films, computer tapes,
photographs and sound recordings in any format, including
electronic.
You can ask for records in their original form

Physical objects that cannot be reproduced are not records

How to get what you want

Your request must be specific enough so that a government
employee familiar with the subject area can locate the
records with reasonable effort
You may want to consider specifying specific places for the
agency to search
Ex: FBI FOIA both different information systems and physical
locations
If you dont specify, they wont search everywhere
For FBI, Ive come across the following (and more):
The main and cross-reference indices of the Central Records
System (CRS), the electronic surveillance indices (ELSUR), the
"Enterprise Vault" system that archives emails older than 30 days
(for some DOJ components)

To Request Expedited Processing

or Not?
FOIA authorizes agencies to institute multitrack processing

What do you have to show?

28 CFR 16.5(e)(1): Expedited processing is granted at DOJ when
the request involves:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or physical
safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal
Government activity, if made by a person who is primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there
exist possible questions about the government's integrity that affect public
confidence.

Note that under the DOJ regulations, a request for expedited

processing can be made at any time
If you do request expedited processing, you must include a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing.

Its up to you
Not many requests for expedited processing are granted, but
most are denied in a short period of time
Look at the data, determine what your needs are
www.foia.gov

Fees
Agencies may charge reasonable fees for the direct costs
of searching for and copying the records you request, unless
you are entitled to a fee benefits or waiver.
Its probably a good idea to include a statement in your
request of how much you are willing to pay, and ask the
agency to contact you if it will exceed that amount before
proceeding

Fee categorization
If you are a representative of the news media, and the records are
not sought for commercial use, fees are limited to standard
charges for document duplication. 5 U.S.C. 552(a)(4)(A)(ii)(II)
You get first 100 pages free, usually ~$0.05 - $0.15/page after that, or
the actual direct cost of the copy (e.g., if in electronic form)

Whos a representative of the news media?

Statute: any person or entity that gathers information of potential
interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct work, and distributes that work to
an audience.
Cause of Action v. FTC (2005): requester must (1) gather
information of potential interest (2) to a segment of the public; (3)
use its editorial skills to turn the raw materials into a distinct work;
and (4) distribute that work (5) to an audience.

Fee waiver
Statute: 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.
Cause of Action v. FTC (2015)
To qualify for a fee waiver under FOIA, the requested information must:
(1) shed light on the operations or activities of the government; (2) be
likely to contribute significantly to public understanding of those
operations or activities; and (3) not be primarily in the commercial
interest of the requester.
FOIA does not require a requester to reach a wide audience. The
standard is whether the requester will disseminate the disclosed
records to a reasonably broad audience of persons interested in the
subject.

Sending it in
Check the agency website!
Some accept via email/electronic portal, some by fax, some
by snail mail
If mailing/faxing, be sure to CLEARLY mark it as a FOIA/PA
request on the outside/cover sheet
Use iFOIA

What happens next?

For normal FOIA requests, the agency must make a
determination within 20 business days
That includes: (i) gathering and reviewing the documents; (ii)
determining and communicating the scope of the documents the
agency intends to produce and withhold, and the reasons for
withholding any documents; and (iii) informing the requester that
it can appeal whatever portion of the determination is adverse.
CREW v. FEC, 711 F. 3d 180 (D.C. Cir. 2013)
This does not mean you have a right to the records themselves
within 20 days.
However, an agency can extend this time if unusual
circumstances apply, such as if voluminous records must be
searched, if records must be retrieved from various offices or if
several agencies must be consulted.

What happens next?

For submissions that request expedited processing, the
agency must make a determination as to whether or not to
grant the request for expedited processing within 10 calendar
days
After that, they must process the request as soon as practicable

 Unfortunately, the statutory deadlines for FOIA requests are

rarely complied with

Following up
Agency acknowledgement
NOT a determination

Tracking number
Agencys Public Liaison/Chief FOIA Officer
Consider negotiating/limiting request

Office of Government Information Services (OGIS)

https://ogis.archives.gov/

Exemptions the (b)s

(b)(1) Classified information
(b)(2) Internal personnel rules and practices of an agency
(b)(3) Specifically exempted by other statute
(b)(4) Trade secrets/commercial/financial information
(b)(5)
Deliberative process
Attorney-client
Work product

Exemptions the (b)s

(b)(6) personal privacy
...personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.

(b)(7): exempts records/information compiled for law enforcement

purposes, but only to the extent that their release
(A): could reasonably be expected to interfere with enforcement
proceedings,
(B): would deprive a person of a right to a fair trial or an impartial
adjudication
(C): could reasonably be expected to constitute an unwarranted invasion of
personal privacy
(D): could reasonably be expected to disclose the identity of a confidential
source....
(E): would disclose techniques and procedures for law enforcement
investigations or prosecutions...
(F): could reasonably be expected to endanger the life or physical safety of
any individual

Exemptions the (b)s

(b)(8) Agency records related to supervision/etc. of
financial institutions
(b)(9) geological and geophysical information and data,
including maps, concerning wells

Exemptions other
Glomar
5 U.S.C. 552(c)
Agencies can treat records as not falling under FOIA when
(1) they are law enforcement records & subject is not aware of
investigation
(2) confidential informant records
(3) FBI records related to intelligence/terrorism matters

Administrative Appeals
Keep everything related to your request!
You will need this for the appeal.

What can you appeal?

Sufficiency of Search
Exemptions
Segregability

When to appeal?
Check agency regulations.
DOJ = 60 calendar days

Timing of response?
20 business days
DOJ average = 67 days

Sample Administrative Appeal

Do administrative appeals work?

State Public Records Laws

States vary widely in their timing requirements, exemptions,
administrative remedies
Almost always faster than the federal FOIA
RCFP has guides to all 50 states (http://rcfp.org/opengovernment-guide)

Resources
RCFP Federal FOIA Appeals Guide (http://
www.rcfp.org/federal-foia-appeals-guide )
RCFP FOIA Administrative Appeal Samples (
http://www.rcfp.org/federal-foia-appeals-guide/sample-appeal
-letters-and-templates
RCFP Open Government Guide (http://
www.rcfp.org/open-government-guide )
www.ifoia.org
OGIS (https://ogis.archives.gov/)