FEDERALOPENGOVERNMENTGUIDE10th Edition
If you have questions about your state’s open records or open meetings laws, we have answers.          OPEN GOVERNMENT GUI...
Federal Open Government Guide        Federal    Open Government                       Introduction. .........................
Vice President Joe Biden      looks on as President       Barack Obama signs executive orders during       a meeting with ...
A New Orleans resident walks                                                                      through the floodwaters ...
The Federal Freedom of Information ActHow FOIA works                                                        Liaison. Under...
President Bush, left,   walks down the steps of  the Treasury Department       with former Treasury            Secretary H...
difficult given the delays that accompany       “record,” assume it is and request it.                                    ...
The Act also requires agencies to make      means. The government may agree to sup-available for inspection or copying fin...
to field offices that may have records you       information for a commercial use, agen-                                  ...
The Smithsonian Institution’s Board of Regents conducts its first open public meeting Nov.                                ...
lations, the Justice Department issued a lengthy and controver-        exercising “due diligence” in getting responses out...
Seth Rosenfeld, an investigative                                                                                          ...
Former Archivist of the            U.S. Allen Weinstein,               center, testifies on         Capitol Hill on Feb. 2...
Senate Judiciary                                                                                                     Commi...
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
Federal Open Government Guide (FOIA and Other Federal Access Laws)
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Federal Open Government Guide (FOIA and Other Federal Access Laws)

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Federal Open Government Guide (FOIA and Other Federal Access Laws)

  1. 1. FEDERALOPENGOVERNMENTGUIDE10th Edition
  2. 2. If you have questions about your state’s open records or open meetings laws, we have answers. OPEN GOVERNMENT GUIDE WHAT EVERY NEWSROOM IN AMERICA NEEDS The fifth edition of our state Open Government Guide, formerly called Tapping Officials’ Secrets, is a comprehensive and up-to-date guide to open government laws in the 50 states and the District of Columbia. Each state outline is written by an open government expert whose law practice regularly handles access issues. New in this compendium is an emphasis on accessing certain information hidden by privacy and national security concerns in the post-9/11 era. View it online at www.rcfp.org/ogg. If you like it, go to our order form — www.rcfp.org/orderform — and buy one for the newsroom. It’s available as a complete compendium for $100, or as individual state booklets for $10. LEGAL ASSISTANCE HOTLINE Think of it as 911... for journalists. TUV OPER OPER DEF DEF MNO 1 8 0 0 3 3 6 GHI ABC GHI DEF 4 2 4 3 The Reporters Committee toll-free hotline provides free emergency legal advice on libel, subpoenas, stateand federal freedom of information laws, access to courts and public meetings, prior restraints and gag orders. The Reporters Committee for Freedom of the Press 1101 Wilson Blvd, Suite 1100, Arlington, Va. 22209
  3. 3. Federal Open Government Guide Federal Open Government Introduction. .................................................................................................................. 2 . Guide The Federal Freedom of Information Act. ................................................................... 4 . How FOIA works...................................................................................................... 4 10th Edition Filing a request.......................................................................................................... 4 formerly titled Agencies covered under FOIA.................................................................................. 5 How to Use the Federal FOI Act Asking for records..................................................................................................... 6 . _________ When filing a request is required.............................................................................. 6 Eligible FOIA requesters.......................................................................................... 7 . Editor Try the informal approach first................................................................................. 7 Corinna J. Zarek Making a formal request........................................................................................... 7 . Paying fees................................................................................................................. 8 Contributors Fee waivers. ............................................................................................................... 8 . Gregg P Leslie . Response times........................................................................................................ 10 Kathleen Cullinan Expedited processing and fast-tracking your request............................................. 10 Hannah Bergman Personally inspecting records. ................................................................................ 10 . Scott Albright Appealing an initial denial....................................................................................... 11 Stacey Laskin How to file a FOIA lawsuit..................................................................................... 12 Jason Wiederin Exemptions to disclosure under FOIA................................................................... 13 _________ 1. National security............................................................................................ 13 . 2. Internal agency rules...................................................................................... 14 . Funding for this guide 3. Statutory exemption....................................................................................... 15 provided by: 4. Trade secrets................................................................................................... 17 5. Internal agency memos. ................................................................................. 19 . Sigma Delta Chi 6. Personal privacy.............................................................................................. 20 Foundation of the Society of 7. Law enforcement records............................................................................... 22 Professional Journalists 8. Bank reports.................................................................................................... 23 9. Oil and gas well data....................................................................................... 23 The Gannett Foundation Major U.S. Supreme Court FOIA cases................................................................. 24 _________ Sidebars: Frequently asked questions....................................................................................... 6 Published by Mandatory declassification review.......................................................................... 14 The Reporters Committee for Freedom A tale of two releases.............................................................................................. 16 of the Press Commonly requested records. ................................................................................. 18 . Lucy A. Dalglish Federal Open Meetings Laws...................................................................................... 26 Executive Director The Federal Advisory Committee Act.................................................................... 26 How FACA works............................................................................................... 26 Special thanks to Editor Emeritus Where FACA applies.......................................................................................... 26 Rebecca Daugherty How to enforce FACA........................................................................................ 26 _________ The Government in the Sunshine Act.................................................................... 26 How the Sunshine Act works............................................................................. 26 © 2009 The Reporters Committee for Definition of agency........................................................................................... 27 Freedom of the Press Definition of meeting......................................................................................... 28 How to enforce the Sunshine Act...................................................................... 28 Individual copies and bulk orders of Exemptions to open meetings under the Sunshine Act..................................... 28 this guide are available through the Reporters Committee. Contact us for The Privacy Act............................................................................................................ 29 pricing information. How the Privacy Act works..................................................................................... 29 How Privacy Act lawsuits affect journalists............................................................ 29 The Reporters Committee for Freedom of the Press Endnotes....................................................................................................................... 30 1101 Wilson Blvd., Suite 1100 Arlington, Va. 22209 Sample materials. ......................................................................................................... 31 . (703) 807-2100 FOIA Request Letter.............................................................................................. 31 . FOIA Appeal Letter................................................................................................ 32 E-mail: FOIA Complaint..................................................................................................... 33 publications@rcfp.org Vaughn Motion. ...................................................................................................... 34 . hotline@rcfp.org Request for your own files under FOIA and the Privacy Act................................. 35 Web: Statutes......................................................................................................................... 36 www.rcfp.org Freedom of Information Act................................................................................... 36 Government in the Sunshine Act. .......................................................................... 40 .Federal Open Government Guide 1
  4. 4. Vice President Joe Biden looks on as President Barack Obama signs executive orders during a meeting with their senior staff, Jan. 21, 2009. At the meeting, Obama issued memos on government transparency and FOIA. “For a long time now, there’s been too much secrecy in this city,” Obama said. “The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over.”AP Photo by J. Scott ApplewhiteIntroduction All significant aspects of civic life in the United States are 11, 2001, both the mayor of New York City and the Environ-affected by the federal government. The news media — includ- mental Protection Agency administrator had declared the areaing print, online and broadcast journalists — regularly inform a low risk for environmental dangers. But the EPA’s responsesthe public about the policies and actions of government. to FOIA requests from a New York Daily News reporter helped The public’s ability to receive information about government him demonstrate, months after the collapse, that “Ground Zero”has been significantly enhanced by the federal Freedom of Infor- was contaminated with asbestos and other chemicals. Manhattanmation Act, passed in 1966; the Federal Advisory Committee residents, rescue workers and others were victims of a “web ofAct, passed in 1972; and the Government in the Sunshine Act, environmental deception,” the Daily News reported.passed in 1976. In 2003, the Dayton Daily News reported the results of dozens of By making all records of federal agencies presumptively avail- FOIA requests to the Peace Corps on the risks corps volunteers,able upon request, FOIA guarantees the public’s right to inspect a especially women, have faced abroad from violence, accidents,storehouse of documents. Likewise, FACA presumes the right to disease and suicide. The responses, in tandem with the newspa-attend meetings of federal advisory committees and the Sunshine per’s reporting through interviews and travels, showed that theAct opens meetings held by federal agencies. The Privacy Act, agency’s own statistics masked the dangers to which the volun-passed in 1974, also affects the way journalists obtain information teers were exposed.from the federal government about themselves and others. The newspaper had previously used FOIA to show that women Journalists and scholars have used FOIA, FACA and the Sun- in the U.S. military endured cavalier responses to rape chargesshine Act to investigate a variety of news stories and historical brought against enlisted men and officers, many of whom hadevents. Their discoveries, based on documents they received been accused before. It also used FOIA to obtain Occupationalor discussions they witnessed, have often brought about crucial Safety and Health Administration databases and identify thechange to many aspects of public life. most dangerous work places in the country. FOIA has been used to reveal to the public vital information on Other reporters have used FOIA to identify wasteful govern-health and safety. ment spending. Five days after the collapse of the World Trade Center on Sept. Several reports have spotlighted the mismanagement of funds2 The Reporters Committee for Freedom of the Press
  5. 5. A New Orleans resident walks through the floodwaters left by Hurricane Katrina on Sept. 4, 2005. Days later, Times-Picayune reporter Mark Schleifstein filed a FOIA request with the EPA to learn whether any toxins or chemicals were found in its tests of the sometimes waist- high water that victims, rescue workers and journalists waded through. Although he was granted expedited processing, Schleifstein’s request still had not been filled as of early 2009. AP Photo by Rick Bowner and put to use. The documents received by the public interest group Citizens for Responsibility and Ethics in Washington also showed the U.S. declined the free use of cruise ships from Greece and instead later paid Carnival Cruise Lines $249 million to use its ships for hotels or hospitals — and then let those ships sit empty for several weeks. FOIA has been used for many other purposes, uncovering important information about the 1950s-era Rosenberg spy trials; FBI harassment of civil rights leaders; surveillance of authors, scientists and composers; international smuggling operations; environmental impact studies; the salaries of public employees; and sanitary conditions in food processing plants. Reporters have successfully used FOIA to learn about crimes committed in the United States by foreigners with diplomatic immunity, cost overruns of defense contractors, and even ter- rorist activities — including a plan to assassinate Israeli Prime Minister Menachem Begin during a trip to this country. Although FOIA is an important source of information, report- ers should recognize its limitations. Information obtained through a FOIA request is rarely the story itself. Rather, it can be used to verify other sources and information. Sometimes information obtained from a request can simply identify leads or sources for a story that the reporter later can follow up on in per- son. Some journalists who cover a specific agency routinely make requests to that agency in order to watch for emerging trendsintended for those affected by Hurricanes Katrina and Rita in the and to develop a checklist for story ideas. Some journalists evenGulf Coast region in 2005. Eventually, as audits and investiga- review FOIA requests that have been filed by others. Followingtions were made public, there were reports of debit cards issued up on these, either by filing identical requests or interviewing theas part of the Federal Emergency Management Agency’s emer- original requester, can trigger new story ideas.gency cash assistance program being distributed to individuals Despite Congress’ intent, records are not always released bywho submitted falsified information. Later, reports surfaced agencies within the 20-day time frame, and often are withheld,that more than 10,000 unused trailer homes ordered by FEMA sometimes improperly, under one of the law’s exemptions. Asand intended for those displaced by the storms were sitting in a result, journalists often plan long-term projects and reportsArkansas fields. More recently, CNN found that 121 truckloads around the information sought, allowing for delays should theyof basic household goods, including dishes and linens, that were occur. Diligent follow-up with the agencies can boost a jour-donated or purchased with government funds were being re-sold nalist’s chance of having the request filled. Also, if a request isto federal and state agencies, rather than distributed to individu- denied, persistence in appealing the denial may help pry theals still in need of aid. requested records loose. A 2007 Washington Post article used FOIA to find that only $40 Reporting can be greatly enhanced through use of FOIA, FACAmillion of $854 million in cash and oil intended to be sold to and the Sunshine Act — and that starts with understanding howraise money for the hurricane victims had actually been collected each law works.Federal Open Government Guide 3
  6. 6. The Federal Freedom of Information ActHow FOIA works Liaison. Under amendments to the law in 2007, the request is to be assigned a tracking number, which allows requesters to later The federal FOIA1 provides access to all records of all federal check the status of their requests online or over the phone andagencies in the executive branch, unless those records fall within provides them with an estimated date by which action on theone of nine categories of exempt information that agencies are request will be completed.permitted (but generally not required) to withhold. The agency must respond to your written FOIA request within On President Barack Obama’s first full day in office — Jan. 21, 20 working days; however, as a practical matter, agencies fre-2009 — he issued two memos addressing government transpar- quently disregard that deadline without penalty.ency and FOIA. Announcing that his administration is “com- The amendments offer the agencies a potential “out” in meet-mitted to creating an unprecedented level of openness in Gov- ing that deadline by allowing them one clarification request thaternment,” Obama’s Memorandum on Transparency and Open stops the clock, either for fee assessment purposes or for addi-Government pledged that the White House would work with tional information about the request.the public “to ensure the public trust and establish a system of A “response” to a request is a grant or denial of the recordstransparency, public participation, and collaboration.” sought. A simple acknowledgment by an agency that it has With regard to FOIA, the Memorandum on the Freedom of received your request does not count as the response to whichInformation Act directed his incoming attorney general to rees- you are entitled under FOIA.tablish the presumption of disclosure for government records. Should an agency fail to issue a response within the statu-This memo was almost certainly meant to address the previous tory 20-day deadline, it may also be allowed additional timestandard established in 2001 by former U.S. Attorney General without violating the law if there are “unusual or exceptionalJohn Ashcroft. The Ashcroft standard encouraged federal agen- circumstances” associated with the request. A routine backlogcies to thoroughly consider reasons for invoking exemptions to of requests at the agency would not qualify as an unusual orFOIA, and assured agency personnel that the Justice Department exceptional circumstance. Despite this requirement, few FOIAwould fully support denials of exempt material so long as they requests are fulfilled in 20 days.were legally defensible and would not jeopardize the govern- If you have an urgent need for the information, you should askment’s ability to continue to withhold other information.2 for “expedited processing.” You are entitled to expedited pro- Obama’s Day One memorandum brought the administration’s cessing if you can show “compelling need” to the agency. Thisinterpretation of FOIA back in step with the 1993 memorandum is most often granted if health and safety are at issue or if youissued by then-Attorney General Janet Reno. She had instructed are a person primarily engaged in disseminating informationagencies to use their discretion to release documents. Even and there is an urgency to inform the public about an actual orif requested information arguably or technically fell within an alleged governmental activity. Agencies may also decide that theyexemption, agencies were not to invoke that exemption unless will grant expedited processing for other categories of records.they could point to a “foreseeable harm” that would come from For instance, the Justice Department grants expedited processingdisclosure.3 for requests concerning issues of government integrity that have The January 2009 Obama directive is even more proactive, already become the subject of widespread national media inter-ordering agencies to take “affirmative steps to make information est. That agency also grants expedited processing if delay mightpublic. They should not wait for specific requests from the pub- cause the loss of substantial due process rights.lic. All agencies should use modern technology to inform citizens An agency may charge you the reasonable costs of providing theabout what is known and done by their Government.” Finally, documents, unless you are entitled to reduced fees or fee waivers.it urges timely disclosure — a long-standing barrier to filling For instance, agencies cannot charge representatives of the newsrequests. media for costs of searching for records. To minimize delay, the The new attorney general is expected to further formalize the 2007 amendments provided agencies with a disincentive to dallyadministration’s approach to interpreting FOIA through his or — if an agency fails to comply with any time limit of the law, ither own memorandum, presumably in the first 120 days in office. may not charge the requester search fees for that request, even if the requester is a commercial entity. For requesters not requiredFiling a request to pay search fees, such as the news media, the amendments for- bid the agency from charging any duplication fees, no matter the You may try to make an informal telephone request to an agency volume of the request.to obtain documents. However, agencies frequently require that If an agency refuses to disclose all or part of the information,requests be made in writing. In fact, you establish your legal or does not respond within 20 working days to a written FOIArights under FOIA only by filing a written request. (See page request, you may appeal to the agency’s FOIA Appeals Officer.31 for a Sample FOIA Request Letter.) Once you have filed a You may avoid the agency appeal and go directly to court only ifFOIA request, the burden is on the government to release the the agency does not respond within the required time period. Andocuments promptly or to show that they are covered by one of appropriate agency response is a grant or denial of the requestedthe FOIA exemptions. information. The agency may also appropriately respond that it is At all agencies, the request is received by the office designated extending its time limit for granting or denying the informationto receive FOIA requests, and then processed in a FOIA Ser- by up to 10 additional working days if voluminous records mustvice Center overseen by a Chief FOIA Officer and FOIA Public be searched, if records must be retrieved from various offices or4 The Reporters Committee for Freedom of the Press
  7. 7. President Bush, left, walks down the steps of the Treasury Department with former Treasury Secretary Henry Paulson after the House of Representatives passed the $700 billion financial bailout bill Oct. 3, 2008. Some news organizations attempting to obtain Treasury Department records on the issue have filed lawsuits after their FOIA requests were denied. AP Photo by Charles Dharapakif several agencies must be consulted. government is not automatically an “agency” subject to FOIA.5 If you file an administrative appeal that is denied or not However, some entities that receive federal funds but are notresponded to within 20 working days, you can then file a law- subject to FOIA, such as the Smithsonian Institution, voluntarilysuit in a federal court convenient to you. (See the Sample FOIA adopt disclosure policies very similar to FOIA. While assertingComplaint reproduced on page 33.) If you can demonstrate the its need to protect certain financial and donor data throughneed for prompt consideration, you may ask that the court expe- exemptions that are broader than the Act’s, the Smithsoniandite your case. If you win in court, a judge will order the agency has adopted the presumption of disclosure present in FOIA andto release the records and may award you attorney’s fees and many other provisions in the law.court costs. FOIA does not apply to Congress, the federal courts, private corporations or federally funded state agencies. Because the mil-Which agencies are covered? itary court system was created through Department of Defense regulations and not by the U.S. Constitution, military branches FOIA applies to every “agency,” “department,” “regulatory often argue FOIA applies to military court records includingcommission,” “government controlled corporation,” and “other court dockets, which can render access to those records veryestablishment” in the executive branch of the federal govern-ment. This includes cabinet offices, such as the departments ofDefense, State, Treasury, Interior, and Justice (including the Fed-eral Bureau of Investigation and the Bureau of Prisons); indepen- When an agency isn’t an agencydent regulatory agencies and commissions, such as the FederalTrade Commission, Federal Communications Commission and Many federal government entities are not subject to FOIAthe Consumer Product Safety Commission; “government con- because they don’t fit the law’s definition of an “agency.”trolled corporations” such as the U.S. Postal Service and Amtrak; However, these entities — like the Smithsonian and theand presidential commissions. FOIA also applies to the Executive Corporation for Public Broadcasting — often follow theirOffice of the President and the Office of Management and Bud- own FOIA-like policies. While these policies don’t endowget, but not to the President, his immediate staff, the Office of requesters with the same rights in court, they often pro-the Vice President or the Office of Administration, which advises vide access to records and a method of appeal. The policiesthe president. should be available by contacting the entity or on its Web Not all entities that receive federal funds are covered by FOIA. site.For example, entities such as the Corporation for Public Broad- In addition, entities such as Freddie Mac and Fannie Maecasting and the American Red Cross — both of which receive have significant reporting requirements to the agencies thatfederal funds but are neither chartered nor controlled by the fed- supervise them. The Securities and Exchange Commission’seral government — are not covered.4 records can provide a wealth of information on those enti- The Supreme Court also has ruled that a private organization ties.that is established for the sole purpose of carrying out govern-ment research contracts and is totally funded by the federalFederal Open Government Guide 5
  8. 8. difficult given the delays that accompany “record,” assume it is and request it. most FOIA requests.6 Court documents An agency’s mere “possession” of docu- Frequently asked are public because of a First Amendment- ments is sometimes not enough to make questions based right of access — which also applies them subject to disclosure under FOIA. to military courts documents. In determining if a record is an agency While the Federal Reserve Board of record, courts have looked at whether Q: Can I get access to the Governors in Washington, D.C., is cov- the agency also created, controlled, used, calendars or schedules of ered by FOIA, the 12 regional banks of relied upon or filed the documents in its government officials? the Federal Reserve are not considered possession. For example, appointment government agencies and FOIA does calendars and phone message slips of A: Yes, you generally can so long as not apply to them. Records held by the agency officials that serve some official the calendar is an agency record regional banks — like many of those agency purpose are considered agency and not a private document which recently sought in connection with the records if they are not created solely for the government official keeps government’s private-sector financial personal convenience.7 On the other confidential. Consumer Federation bailout packages — are not subject to hand, transition team reports prepared of America v. Department of FOIA unless also filed with Washington’s by advisers of the president-elect recom- Agriculture, 455 F.3d 283 (D.C. Cir. Federal Reserve Board. mending agency priorities are not agency 2006). Similarly, documents generated by these records even when copies of the report groups, other branches of the federal gov- are physically located at the agency.8 Q: Can I use FOIA to request ernment and the states that are filed with When requesting records, you must access to a settlement agreement executive branch agencies of the federal “reasonably describe” the material you the government has entered into? government become subject to disclosure want. This does not mean you need to under FOIA, just as if they were docu- know an exact document or docket num- ments created by the agencies. Congres- ber, but your request should be specific A: Settlement agreements should sional agencies such as the Library of enough so that a government employee be disclosed under FOIA, although Congress and the General Accounting familiar with the subject area can locate some information contained within Office follow their own records disclo- the records with reasonable effort, either them may be withheld under sure rules and procedures patterned after by physically inspecting files or by using various exemptions. The Justice FOIA. computerized index and retrieval systems. Department has long had a policy The federal FOIA also does not apply to Your request should be made for exist- supporting release of settlement state or local governments. All states have ing records only. FOIA cannot be used agreements. Title 28, part 50.9 of their own “open records” laws that provide as a way to compel an agency to answer the Code of Federal Regulations access to state and local records. Informa- specific questions you might have, and states the Department’s policy to tion on how to use these state laws is avail- agencies will be very quick to tell you promote open judicial proceedings able from The Reporters Committee for that they do not have to “create” records generally. Freedom of the Press through its “Open under FOIA.9 However, if it seems more Government Guide” — a compendium of practical for both you and the agency, you Q: Can I use FOIA to get copies of open records and meetings laws for each may offer to accept the information you government officials’ e-mail? state and the District of Columbia. The seek in a list or other abbreviated response compendium is available as a one-volume rather than receive copies of every related book, as a CD-ROM or online at www. individual document. A: E-mail messages are public rcfp.org/ogg. Separate booklets on the records, covered by FOIA. However, open government laws of each state are Do you actually have just like any other correspondence also available. from government officials, one to file a request? of the exemptions to FOIA may prevent the content of the e-mail Asking for records Most people think of FOIA in terms of from being disclosed. requesters: people writing to agencies in FOIA is very broad. It covers all search of information. But the Act goes “records” in the possession or control of further to make information public. It Q: Can I get the FOIA log and a federal agency. Under the 2007 amend- requires the agencies to make documents copies of recent FOIA requests to ments, this also includes records main- available on their Web sites and in physi- a government agency? tained by entities outside government cal “reading rooms.” under a government contract. The term FOIA requires agencies to publish in the A: Yes, you should be allowed “records” is defined expansively to include Federal Register any regulations or gen- access to logs and requests made all types of documentary information, eral policy statements. For instance, each under FOIA. Exemption 6 of FOIA such as papers, reports, letters, e-mail, agency must publish its regulations tell- allows an agency to withhold films, computer tapes, photographs and ing the public what rules it will follow in information only if releasing the sound recordings in any format, including processing FOIA requests. Final regula- information “would constitute a electronic. But physical objects that can- tions are published in the Code of Federal clearly unwarranted invasion of not be reproduced, such as water quality Regulations available at law libraries. The personal privacy.” There is nothing samples kept by the Environmental Pro- Government Printing Office Electronic inherently private about FOIA tection Agency, are generally not consid- Information Enhancement Act of 1993 requests or logs. ered “records” under the Act. If in doubt requires GPO to make these materials as to whether the material you want is a available online as well.106 The Reporters Committee for Freedom of the Press
  9. 9. The Act also requires agencies to make means. The government may agree to sup-available for inspection or copying final ply all or part of them on the spot. Assum- Q: I submitted my FOIA requestopinions, staff instructions and other ing you know with reasonable specificity awhile ago and it hasn’t beeninformation that would affect a member which records you want and which agency granted or denied. When can Iof the public. This is often called the has them, call the public information or sue?“reading room” requirement — meaning press officer at the agency involved, iden-those documents need to be available to tify yourself as a news reporter, researcherthe public in a physical reading room. or scholar, and ask for the information. It A: If an agency doesn’t comply with The Electronic FOIA Amendments of might be helpful to offer some explana- the time limits in FOIA — generally1996 greatly expanded the requirements tion of why you want the documents but answering the request in 20 days —that the government take affirmative steps you are not required to give one. then a requester can sue. However,to make information available. It requires If you are turned down, try the agency’s it can often be a good idea togovernment agencies to post online any FOIA officer, who may tell you how to exhaust all appeal remedies beforeinformation created after November 1996 obtain the documents you want without suing in court.that would have formerly been required filing a formal FOIA request. If necessary, If an agency denies a requestto be placed in physical reading rooms. use your right to make a formal FOIA within the time limit, then thereThe law further requires that responses request as leverage in your efforts to per- has to be an administrative appealto requests likely to be repeated be made suade the agency to release the informa- before a court will allow a lawsuitavailable online as well as in paper form. tion you are seeking informally. Make a for the information to go forward.The agencies must index these records for point of telling any officials with whomthe public and make both the index and you speak that you intend to make a for-the documents available electronically. mal request. Remember that only a writ- Agencies must also develop reference ten FOIA request — not an informal, oralguides to help the public access agency request — will place the agency under a Q: How can I obtain the FBI filesinformation. These must be available legal duty to act on it. of a notable person who hasboth in the physical reading rooms and recently died?online. Make a formal request: A: Request them directly from theWho may use FOIA? FBI. When someone dies, his FBI A simple letter is file becomes subject to release A FOIA request may be made by “any all you need pursuant to the Freedom ofperson.” This means that all U.S. citizens, Information Act. If the informal approach does not suc-as well as foreign nationals, can use the According to the FBI, it does not ceed, exercise your rights under FOIAAct to request information from govern- maintain an FBI file on every citizen to make a formal request. To preservement agencies. A request can also be made in the country. For those on whom all your rights under the Act, your for-in the name of a corporation, partnership it does have a file, the Privacy Act mal request must be made in writing.or other entity, such as a public interest can prevent its release until the Any reporter should be able to preparegroup or news organization. Members subject dies. a request letter on his or her own. (Forof the news media have no more and no The file contains reports on a Sample FOIA Request Letter, seefewer rights to information under FOIA FBI investigations as well as page 31, or use our online generator at.than other requesters, although the law documents such as rap sheets. A www.rcfp.org/foia_letter.)gives journalists some rights to fee ben- rap sheet is a list of information Each federal agency subject to FOIAefits and expedited processing. To obtain taken from fingerprint cards, has a designated FOIA Service Centerinformation, you do not need to tell the arrests, federal employment, and a Chief FOIA Officer responsible foragency why you are making a request. naturalization, or military service. managing information requests. LargeHowever, advising the FOIA officer that An individual may obtain a copy cabinet agencies, such as Defense andyou are a journalist or author and intend of his or her own rap sheet by Agriculture, have separate FOIA Serviceto publish some or all of the requested requesting it directly from the FBI. Centers for their various subdivisions andinformation may encourage prompt con- regional offices. If you are sure which Just because someone has died,sideration of your request and entitle you subdivision of an agency has the records it does not mean you will receiveto fee benefits. you want, send your request letter directly everything contained in his FBI to that FOIA officer. If you are uncer- file. The bureau may still assert aTry the informal tain, send your request to the agency or basis independent from privacy forapproach first departmental FOIA officer, who will then withholding information contained forward it to the appropriate division. You in the file. For example, the FBI Anyone seeking information from gov- will save time by calling the agency first withheld files on former Beatlesernment documents should first try to to determine where the records you seek band member John Lennon for aobtain the documents through informal are located and where you should direct quarter-century after his death, your request. (See our online guide at. claiming their release could cause For a comprehensive list of www.rcfp.org/fogg for an updated list of “military retaliation against the executive branch agencies and agency FOIA officers and their contact United States.” their FOIA contact information, see information.) www.rcfp.org/fogg. Sometimes it is advisable to send sepa- rate requests to agency headquarters andFederal Open Government Guide 7
  10. 10. to field offices that may have records you information for a commercial use, agen- want. The FBI, for example, searches cies may not charge you for the time they Q: What if a criminal defendant its field offices for records only when spend examining files to determine what says the release of documents requests are made directly to those offices; individual documents should be exempt under FOIA will impair the a request to the bureau in Washington, from disclosure or for deleting material defendant’s right to a fair trial? D.C., will lead only to a search of its cen- in those documents. News media requests tral files. If you are unsure which federal are not considered “commercial” uses. A: Exemption 7(b) prevents the agency or office has the records you want, A “representative of the news media” is release of information that “would send the same request to several of them. a person or entity that gathers and dis- deprive a person of a right to a fair Address your request letter to the FOIA seminates information of current interest trial or an impartial adjudication.” officer at the appropriate agency or sub- to the public. In addition to traditional division. Agencies will accept a request broadcasters and periodicals, it encom- by hand delivery, mail or e-mail. If you passes freelance journalists and some- mail your request, mark the outside of the times bloggers if they “can demonstrate a Q: What documents are reporters envelope “FOIA Request.” If you send solid basis for expecting publication” with who are covering a major natural the request by registered mail with return a particular news-media entity, which disaster in their communities receipt requested, you may be able to track might include a blog. legally entitled to, and what the request if you should later need to do Agencies may not require advance pay- information, if any, can legally be so. Keeping a photocopy of your letter ment of any fee under $250 unless the shielded from them? and your receipt will also help you later if requester has previously failed to make you need to make an appeal. Some agen- timely payment. Despite this, many A: The Federal Emergency cies, like the National Oceanic and Atmo- agency regulations require that you agree Management Agency may have spheric Administration and the National to pay any anticipated fees in excess of $25 the most important records on Aeronautics and Space Administration, before they process your request. the federal response to a disaster, have built FOIA request generators into On rare occasions, some agencies have including financial assistance. their Web sites to receive requests elec- “aggregated” multiple requests by a FEMA, however, has historically tronically. All agencies are required to requester or group of related requesters, been slow to release information in accept FOIA requests via e-mail. defining them as a single request in order the wake of disaster. Generally, a request letter should con- to limit fee benefits. Agency regulations Federal officials have, in the past, tain the elements included in the Sample permitting this practice require that the restricted media access to disaster- FOIA Request Letter on page 31. How- requests clearly be related. struck areas. However, news ever, any written request is covered by Before making your FOIA request you organizations — notably CNN — FOIA. In most cases, you should be able may want to obtain an estimate of the have challenged these restrictions, to draft a simple request letter by your- search and duplication fees. These will including after Hurricane Katrina, self. The Reporters Committee pro- vary based on the category of requester and won in court. vides an online FOIA letter generator. you fit into (discussed below). In some Experts have suggested reporters (www.rcfp.org/foialetter) that asks a cases, the agency’s FOIA officer can give may consider negotiating coverage requester to simply fill in the required you this information by telephone. As an and access with officials, for information, and produces a request letter. alternative, state in your request letter example by agreeing not to publish If you are a journalist and need assistance, your willingness to pay fees up to a certain names of disaster victims until their you can call the Reporters Committee’s limit and ask to be contacted by telephone families have been notified of the FOIA attorneys on our toll-free hotline or letter if the fees are likely to exceed that circumstances. at 1-800-336-4243 or send e-mail to . amount. (See Sample FOIA Request Let- Other records experts suggest hotline@rcfp.org. ter, page 31.) looking at the Storm Events FOIA requires agencies to publish in Database from the National Paying fees the Federal Register uniform schedules for Climactic Data Center — a search and reproduction fees. You may government database of storm Agencies may charge “reasonable” fees also obtain a fee schedule by contacting events around the country, for the “direct” costs of searching for and the agency FOIA officer. including hurricanes and floods. copying the records you request, unless Fields in the database include: date you are entitled to fee benefits or waiv- Fee waivers and time the storm event began; ers. (For instance, representatives of the event type; states and counties news media do not pay search fees; see You may ask the agency to waive or hit; latitude and longitude of the below.) Search fees generally range from reduce search and copy fees if you think location; property and crop damage $11 to $28 per hour, based on the salary the fees are too high, or if the fees are fair values; and injuries and fatalities. and benefits of the employee doing the but the total charges make the request For information about cleanup, search. Fees for computer time, which are prohibitively expensive. The law provides experts suggest using the Individual described in each agency’s FOIA regula- that the agency “shall” waive or reduce Contract Action Reports created by tions, vary greatly. They may be as high fees if you meet the public interest test the Government Services Agency. as $270 per hour. Photocopying costs are described below. And you may be entitled This could be relevant as FEMA and normally between 3 and 25 cents per page. to fee benefits if you fall within a certain other agencies contract with local Search fees may be charged even if few category of requester. businesses in cleanup and repair. or no documents are located in response The FOIA Reform Act of 1986 set out to your request. Unless you are requesting specific fee provisions for four catego-8 The Reporters Committee for Freedom of the Press
  11. 11. The Smithsonian Institution’s Board of Regents conducts its first open public meeting Nov. 17, 2008, at the Museum of Natural History in Washington. The Smithsonian Institution receives government funds but is not an agency subject to FOIA. However, bowing to pressure for increased transparency, in January 2009 the Smithsonian adopted a FOIA-like policy providing public access to some of its records and has begun holding public meetings. AP Photo by Manuel Balce Cenetaries of requesters: (1) commercial use requesters must pay fees freelance determination.for document search, duplication and review; (2) non-com- Educational institutions also qualify for free search time andmercial requesters from educational or scientific institutions copies of 100 pages of documents at no charge. This benefit ispay no search fees and receive 100 pages of free duplication;. available only to requesters from schools with scholarly research(3) representatives of the news media pay no search fees and programs and when disclosure will serve “a scholarly researchreceive copies of 100 pages free; (4) all other requesters receive goal of the institution, rather than an individual goal.”two hours of search time and copies of 100 pages free.11 Similar treatment is given to requests from scientific institu- The Office of Management and Budget issued guidelines for tions when information is requested “solely for the purposefederal agencies to use in writing fee schedules, defining each of conducting scientific research, the results of which are notcategory of requester.12 intended to promote any particular product or industry.” You will be considered a representative of the news media if you All other non-commercial requesters, such as nonprofit organi-are actively gathering “news” for an organization that publishes zations, pay for document-search time in excess of two hours andor broadcasts news to the public. That may include bloggers, duplication in excess of 100 pages.depending on the manner of publication. An appeals court has Commercial-use requesters must pay all costs, including theruled that a book author who culls and edits information from salaries and benefits of personnel while they decide whether todocuments is entitled to the fee benefits due to representatives release information. OMB says these fees are chargeable if dis-of the news media.13 closure “furthers the commercial, trade, or profit interests of the The guidelines attempt to define “news” as information about requester.” An agency will consider the identity of the requestercurrent events or of current interest to the public. Your request in deciding if the request is for commercial use. Remember, newsshould explain how information sought would meet this defini- dissemination is not a commercial use.tion. Whether or not you are in a category of requesters who receive News organizations using new technologies to distribute infor- fee benefits, you may be entitled to a waiver or reduction of feesmation qualify if they “perform an active rather than passive role if disclosure of information is “in the public interest.”in dissemination” of news. Newsletters generally are included in Under language added to FOIA in 1986, a requester is entitledthis category. to a waiver or reduction of fees where “disclosure of the infor- The guidelines specifically exclude libraries, which store infor- mation is in the public interest because it is likely to contributemation and make it available on request, from the definition of significantly to public understanding of the operations or activi-“news media.”14 ties of the government and is not primarily in the commercial A freelancer may qualify as a representative of the news media interest of the requester.”by demonstrating a solid basis for expecting publication. A begin- Congressional authors of this language said in floor statementsning freelancer might have to show a reasonable expectation that that they intended that this provision make more requesters eli-a story will be published, perhaps evidenced by a publication gible for fee waivers.contract. Past publication also may assist the agency in making a However, while federal agencies were preparing new fee regu-Federal Open Government Guide 9
  12. 12. lations, the Justice Department issued a lengthy and controver- exercising “due diligence” in getting responses out to requesters.sial memorandum saying that the public interest standard under The new amendments do not allow agencies to count routinethe 1986 amendments would be more difficult for requesters to delays as “exceptional circumstances.”meet.15 It outlined six criteria agencies should consider before More generally, after the 1996 amendments, members of Con-granting fee waivers. You may wish to address these criteria in gress expressed a hope that heightened day-to-day accessibilityyour request for a fee waiver. to the public of more government databases would diminish the A waiver may be granted if: need for FOIA requests. Unfortunately, for the most part, data- • The subject of the requested records concerns government base accessibility has not reached the levels hoped for. But underoperations and activities. the 2007 amendments, agencies that do not respond to requests • The disclosure is likely to contribute to understanding of within the statutory time period are now precluded from charg-these operations or activities. ing search fees (or copying fees for requesters such as the news • Disclosure will likely result in public understanding of the media, who are not subject to search fees).subject. • The contribution to public understanding of government Expedited processing andoperations or activities will be significant. • The requester has a limited commercial interest in the dis- fast-tracking your requestclosure. In some circumstances, defined either by the statute or by • The public interest in disclosure is greater than the request- agency regulations, you are entitled to expedited processing ofer’s commercial interest. your FOIA request. The last two factors concern the commercial value of the If you ask for expedited processing, an agency must grant orrequest to the requester. The memo says dissemination of news deny you faster processing within 10 calendar days. If the agencyto the public is not a commercial activity, so news media request- grants you expedited processing, it will take your request out ofers need to address only the first four criteria if they are seeking order and process it before other requests.more than 100 pages. To support your request you should describe the circumstances Experience shows that requesters seeking a relatively modest that you feel make it eligible for expedited processing. You shouldnumber of documents are more likely to be granted fee waiv- also “certify” to the agency that the reasons you give for seekingers than those whose requests encompass thousands of pages. In expedited processing are true with a declaration such as, “I certifythis regard, you may want to show that you have narrowed your that my statements concerning the need for expedited processingrequest as much as possible and therefore are not unduly burden- are true and correct to the best of my knowledge and belief.”ing the agency. The statute allows agencies to require certification, although as a You may appeal any agency decision regarding fee categories practical matter many agencies have agreed in their FOIA regu-or waivers just as you would an agency’s decision to withhold lations to waive this requirement.information. If you are a journalist, call the Reporters Commit- An agency will honor a request for expedited processing if youtee for assistance. have a life-threatening need for the information or if delayed dis- A fee waiver request and a request for consideration as a rep- closure could threaten the physical safety of any individual. It willresentative of the news media are included in the Sample FOIA also grant a request for expedited processing if you are a reporterRequest Letter on page 31. or a person who is otherwise “primarily engaged in disseminating information” and your request concerns a matter of “compellingResponse times need.” Of more importance to reporters, the Justice Department also The law requires that agencies grant or deny your request provides for expedited processing if your request concerns a mat-within 20 working days unless an “unusual circumstance” of a ter of “widespread and exceptional media interest in which theresort specifically described in the statute occurs. exist possible questions about the government’s integrity which Time and again, requesters find that their greatest obstacle affect public confidence.” Requests to the Justice Department forto successfully using FOIA is delays in processing requests. expedited processing under this last standard should be directedAlthough the statute has always required agencies to respond to not to the FOIA officer but to the department’s Office of PublicFOIA requests by granting or denying them (not just acknowl- Affairs.16edging them) within a short time frame, few agencies have con- The law allows agencies to separate requests into differentsistently adhered to the time limits. queues depending upon how much work or time it will take to For journalists, the nearly routine failure of agencies to provide fulfill the request. It also allows agencies to give requesters antimely access to records has triggered the need to go outside the opportunity to narrow their requests to fit the fastest track.Act and get information from sources who may have seen the Simply splitting up your request into smaller segments is prob-records in question. ably not sufficient to gain a spot on the faster tracks. The law The Electronic FOIA Amendments of 1996 addressed delays in allows agencies to “aggregate” requests that are clearly relatedthree specific ways: and treat them as a single, larger request. • They established expedited processing for some requesters in If an agency offers to negotiate, you should work with it tospecial circumstances. narrow your request. Ultimately if you sue the agency over its • They provided for multi-track processing, allowing agen- delays, a court will consider your efforts to cooperate or to nego-cies to divide simple and more complex requests into different tiate in determining whether the agency is acting “reasonably” to“tracks” and to process each set in order. exercise diligence in fulfilling your request. • They changed the standards under which delay could be con- You can learn which “track” your request is placed on and whensidered acceptable. it is anticipated to be filled once the agency provides you with a The law permits courts to allow agencies additional time for tracking number. You can check online or over the phone to seeresponse in “exceptional circumstances” provided the agency is when your request was received and where it falls in the queue.10 The Reporters Committee for Freedom of the Press
  13. 13. Seth Rosenfeld, an investigative and legal affairs reporter for the San Francisco Chronicle, poses at his desk in 2005. Rosenfeld holds the dubious record of having the “longest pending FOIA request,” according to the National Security Archive, a nonprofit research center focused on declassified documents. He filed his request — seeking information on the FBI’s 1960s- era investigation, infiltration and surveillance of student political groups in the San Francisco Bay area — in November 1981 with the Justice Department and still has not received the records he was seeking. AP Photo by Jeff ChiuPersonally inspecting records and others. Other agencies where long delays may be anticipated include the State Department, the Justice Department and the If you think the time or expense involved in having documents CIA.copied by the agency would unduly delay your story or be too Because of the size of the backlogs, courts have been reluctantexpensive, many agencies will permit you to visit their offices and to strictly enforce the Act’s time limits so long as agencies areinspect documents in person. Some agencies may let you do a processing requests in a reasonable manner.17 Unless you believemodest amount of copying without charge. The FOIA Service that is not the case, it may be best to wait for the agency toCenter at the agency may assist you. complete the processing of your request — especially because of the 2007 provision precluding the agencies from chargingAppealing an initial denial fees in these cases. However, it is wise to keep in touch with the agency while your request is pending so the agency will not If your request is wholly or partially denied, you have the right think you have lost interest in the documents. You can also trackto appeal to the head of the agency in what is called an adminis- your request on your own, either online or over the phone, bytrative appeal. You may also appeal the delay of a response, the using the tracking number the agency is required to provide you.failure of the agency to conduct an adequate search, a prohibi- Agencies must log the date on which they received the requesttively high fee levy, or other matters that could effectively inter- and the estimated date they will complete action on the request,fere with your ability to receive records. and link that to the tracking number. Even if your request is only partially denied, you may want to Before making a formal appeal, it is often helpful to call thetake the documents you are offered and appeal the rest. You also agency’s FOIA officer to try to negotiate for release of at leasthave the right to appeal if your request was granted but you think some of the documents that were denied. By agreeing to narrowthe fees you were charged are too high. A FOIA appeal can be the scope of your request or permitting some information thefiled by a simple letter. See the Sample FOIA Appeal Letter on agency considers particularly sensitive to be redacted, you maypage 32. be able to persuade the FOIA officer to give you most of the If 20 business days have elapsed since the date your request documents you originally wanted.should have been received, and you still have not received a If your negotiations are unsuccessful, however, you shouldreply from the agency, you also have the right to appeal. (An generally make a formal appeal. Appeals are made to the headadditional 10 days may be available to the agency in “unusual of the agency involved (for example, the attorney general or thecircumstances,” which are defined as cases involving voluminous secretary of defense). If possible, file your appeal within 30 daysrequests or requests requiring a search of field files or consulta- after the denial, even though agencies generally permit a longertion between components of an agency. The agency must notify time to appeal. In some cases, appeals are reviewed by agencyyou in advance of the expected delay if such circumstances exist.) personnel better trained in FOIA matters than the employee who Certain agencies regularly fail to meet the Act’s time require- initially denied your request. Regardless, making a written appealments. For example, the FBI and the Department of Homeland imposes a legal duty on the agency to re-evaluate your requestSecurity have an average processing rate of one year, although and establishes your right to bring a FOIA lawsuit if your appealmany requests have lingered for several years at both agencies is denied.Federal Open Government Guide 11
  14. 14. Former Archivist of the U.S. Allen Weinstein, center, testifies on Capitol Hill on Feb. 26, 2008, before the House Committee on Oversight and Government Reform hearing on electronic records preservation at the White House. In 2007, government transparency advocates discovered that more than 1,000 days of e-mail messages were missing from the White House archives. The groups have sued to recover the messages. AP Photo by Manuel Balce Ceneta Your appeal can be made in a brief letter to the agency admin- standard.19istrator asking that he or she review your previous request and Although there are immediate financial costs for filing anydenial, and stating your belief that the denial was improper. complaint in federal district court, filing a FOIA complaintAttach copies of any correspondence. If the agency cited one or should be relatively inexpensive and simple. Sometimes, as soonmore exemptions as the reason for denying your request, con- as a complaint is filed, the government will capitulate and releasesider arguing in your appeal that the requested documents do documents without further litigation. Federal courts allow non-not fall within those exemption categories and, even if they do, lawyers to file complaints against the government without thethat the public would benefit from release of the information. assistance of an attorney. If your case is a routine denial of docu-You may also want to state your intent to take your case to court ments that you think are clearly covered by FOIA, you may wishif the denial is upheld. to draft and file your own “short-form” complaint using the You may also make appeals relating to the agency’s handling of Sample FOIA Complaint on page 33.your request. For instance, you can appeal the failure to grant fee Also consider filing a “Motion for Vaughn Index” using thebenefits or waivers, or the denial of a request for expedited pro- Sample Vaughn Motion on page 34. This is a formal requestcessing. If you feel that the agency has not adequately searched asking the court to order the government to give you an indexfor the records you request, you may appeal. describing the documents it is withholding and the justification it Again, keep a photocopy of your appeal letter, mark the outside claims for withholding each piece of information.20of the envelope “FOIA Appeal,” and consider sending the appeal However, while a Vaughn index is extremely useful in establish-letter by registered mail, return receipt requested. ing your case, it may not be granted immediately by the court You may also want to include some legal or practical arguments if you ask for it along with your complaint. You must often waitin your appeal letter. For assistance in framing these arguments, until the government has answered your complaint before thejournalists can contact the Reporters Committee’s FOIA attor- court will consider your motion for a Vaughn index.neys for cost-free help, or consult a private attorney. Generally, If your case appears to be complex or to involve special prob-however, an appeal letter will be sufficient if it contains the ele- lems, you might want to obtain the services of a private attorney.ments included in the Sample FOIA Appeal Letter on page 32. Journalists can contact the Reporters Committee to help you decide if an attorney would be helpful.How to file a FOIA lawsuit After you file your complaint, the burden is on the government to come forward and justify the withholding of the information. If your appeal is denied, or if the agency fails to respond to your Courts often demand that the government show precise andappeal within 20 working days, you may file a FOIA lawsuit in detailed reasons why it refuses to release the information. Whenthe United States District Court most convenient to you, nearest the government replies, you will obtain a fairly good indicationthe agency office where the records are kept or in the District of of how strong or weak its case is and how much it will cost toColumbia. Though technically you have up to six years after the continue the lawsuit.date on which your appeal was denied to file a lawsuit, you should FOIA provides for the payment of your attorneys fees and courttry to file the suit as soon as possible in order to demonstrate to costs if you have “substantially prevailed” in your lawsuit. Priorthe court your need for the information.18 to the 2007 amendments this required a court order declaring The Federal Courts Improvement Act removed the automatic release of the information. Now, should an agency voluntarilyexpedited judicial review provisions from a number of statutes, release information — at any stage of the litigation or becauseincluding FOIA. However, under that law expedited processing of a court order — you are considered to have “substantially pre-will still be given by a court whenever “good cause” can be shown. vailed” and may recover fees.The statute does acknowledge that in FOIA cases the need for Some courts will not award you attorney’s fees if you havetimely release of information will qualify under the “good cause” argued your case yourself.12 The Reporters Committee for Freedom of the Press
  15. 15. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., left, shakes hands with Associated Press President and CEO Tom Curley prior to the start of a hearing on reforms to the Freedom of Information Act on March 14, 2007. Leahy was instrumental in passing the 2007 FOIA reforms. AP Photo by Susan WalshExemptions to disclosure under FOIA1. National security weapons or operations; foreign government information; intel- ligence sources, methods or cryptology; scientific, technological This exemption is designed to prevent disclosure of properly or economic matters relating to national security; U.S. govern-classified records, release of which would cause some “damage” ment programs for safeguarding nuclear materials or facilities;to the national security. vulnerabilities or capabilities of systems, installations or projects It covers records that are: relating to national security; or weapons of mass destruction. (A) specifically authorized under criteria established by an Records in these areas can be classified if “the unauthorized executive order to be kept secret in the interest of national disclosure of the information reasonably could be expected to defense or foreign policy and (B) are in fact properly classified result in damage to the national security, which includes defense pursuant to such an executive order. against transnational terrorism, and the original classification authority is able to identify or describe the damage.” In 1995, President Bill Clinton issued an executive order Still, the proper classification of just a few pages of a reportintended to limit the circumstances under which government does not mean that the remaining non-sensitive portions can beagencies can classify information and to hasten the declassifica- cloaked in secrecy. The government must justify the withholdingtion of records for which classification has become unnecessary of each document, and within each document it must justify theafter the passage of time or a change in circumstances.21 withholding of every paragraph, sentence, word and phrase. Just In 2003, President George W. Bush amended the Clinton because information is in the possession of the Central Intelli-order, eliminating its instruction that agencies should not clas- gence Agency or the Department of Defense or Department ofsify records if there was “significant doubt” that disclosure could State does not necessarily mean it is classified.harm national security. The Bush order also called for automatic In 2006, the U.S. District Court in Manhattan held thatclassification of foreign government information when disclosure Exemption 1 protected past and present photographs of inmatesis not authorized, under a presumption that disclosure would housed at the military base at Guantanamo Bay, Cuba, because ofdamage national security.22 the safety risks to the detainees and their families from terrorist Bush’s Executive Order 12,958 allows for the classification organizations.23of records in certain categories. If the records you seek do not In addition, a category of information often referred to asfit into any of the categories, they should not have been classi- “sensitive but unclassified” and related to homeland security hasfied at all. Records that are classifiable concern military plans, burgeoned since Sept. 11, 2001. This information may still, inFederal Open Government Guide 13

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