How
can I obtain agency records without using the FOIA?
Older material dated before the mid-1970s may be available at the National
Archives and Records Administration in Washington, DC or College Park,
MD, or at one of the Presidential libraries. These archives are great
places to do research using readily available documents. If the documents
you seek are not yet publicly available, a requester may also file a
Mandatory Declassification Review (MDR) request rather
than a Freedom of Information Act request. The laws are similar, but
have some key differences.
Benefits
to submitting an MDR request instead of a FOIA -
- Under
mandatory declassification review, there is a two-appeal system. The
first appeal is to the agency denying the records and, if the agency
continues to deny records, there is an opportunity for a second appeal
to the Interagency Security Classification Appeals Panel (ISCAP) for
a decision.
- In its
report to the president on its 2002 activities, ISCAP noted that it
had reversed agency classification of information in 75 percent of
the documents it reviewed. The President of the United States is empowered
to overrule ISCAP decisions.
Benefits
to submitting a FOIA request instead of an MDR -
FOIA requests
are more appropriate if you have a large or imprecise request that covers
many different kinds of classified and unclassified documents. Only
classified documents are subject to MDR. FOIA covers both classified
and unclassified material.
" FOI requesters appeal denials of their requests within the agency
and then to court. For the duration of the processing of an MDR request,
the requester loses the opportunity to argue in court for the release
of the records.
" Also, under the mandatory declassification review, agencies are
allotted a longer time to respond to requesters, do not have to abide
by expedited review requirements and are not authorized to waive fees.
Under the FOIA agencies have specific time requirements, as well as
opportunities for expedited review and fee waivers.
Requesters should seek mandatory declassification review only if they
have a very clear idea of the records they are seeking (for example,
knowing a specific document by name), if they also know that the records
are 10+ years old, and that the records are probably still classified.
Otherwise a FOIA request is a requester's best bet.
What
does it cost to make a FOIA request?
Agencies
are authorized to charge certain fees associated with the processing
of requests. Some categories of requesters cannot be charged these fees
and in some cases fees can be reduced or waived.
FEE CATEGORIES
Under the
FOIA, solely for fee purposes, an agency is required to determine the
projected use of the records sought by the FOIA request and the type
of requester asking for the documents. As the FOIA was intended to promote
the public's access to information, news media organizations and educational
institutions are excused from certain fees.
Fee categories
for FOIA are:
1) Commercial
- Companies that or people who seek information for a use or purpose
that furthers commercial, trade, or profit interests, including for
use in litigation. Commercial requesters are required to pay for search,
review and duplication costs.
2) Educational
Institution - Preschools, public or private elementary or secondary
schools, and institutions of graduate higher education, undergraduate
higher education, professional education, or vocational education
that operate a program(s) of scholarly research. Educational requesters
are required to pay duplication costs, but are entitled to the first
100 pages without charge.
3) Non-Commercial
Scientific Institution - Non-commercially operated institutions
that conduct scientific research not intended to promote any particular
product or industry. Non-commercial requesters are required to pay
duplication costs, but are entitled to the first 100 pages without
charge.
4) Representative
of the News Media - People who actively gather news for entities
organized and operated to publish or broadcast news to the public.
News Media requesters are required to pay for duplication, but are
entitled to the first 100 pages without charge.
5) Other
Requesters - Requesters who do not fit into any of the above categories.
These requesters are persons who are not commercial, news media, scientific
or educational requesters and are required to pay search costs for
more than 2 hours and duplication costs for more than 100 pages.
To demonstrate
that you belong in an educational, news media or non-commercial fee
category, provide information about the intended professional scholarly
or journalistic uses of the information you receive. List any relevant
previous or pending publications, including books, articles, dissertations,
publication contracts or letters of intent or interest, or similar information
that shows your ability to disseminate the information you receive from
the agency. State that the materials are not requested solely for a
private, profit-making commercial purpose. You should request that,
to the extent any fees are assessable, the agency notify you if those
fees will exceed an amount you specify. For a court decision interpreting
the fee provisions of the FOIA, see National Security Archive v.
Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989).
Actual
search, review and duplication fees vary by agency. Search/Review fees
can be anywhere $8.00 to $45.00 per hour and duplication fees can be
from $.10 to $.35 per page. Agencies cannot require a requester to make
an advance payment unless the agency estimates that the fee is likely
to exceed $250 or the requester previously failed to pay proper fees.
FEE WAIVERS
Under the
FOIA it is possible to have all fees, including copying, waived by the
agency if the material requested "is likely to contribute significantly
to public understanding of the operations or activities of government
and is not primarily in the commercial interest of the requester."
If your request fits this statutory criterion, you should make your
case for a fee waiver in your request letter as strongly as possible.
Be sure to describe the scholarly, historical, or current public interest
in the material requested, identify specific operations or activities
of government to which the request relates, why the information will
contribute to an understanding of those activities and operations, why
the public in general would be interested, and why the disclosure would
be significant.
What
happens after I make a FOIA request?
Ideally, the agency will promptly release everything you requested.
More common agency responses (and suggested actions you can take) include
the following:
- You
receive an acknowledgment of your request and a statement that the
request has been placed in the queue and will be processed in its
turn. Agencies are allowed to process requests on a first-come, first-served
basis, and may also process requests in separate queues depending
on their complexity. If the agency has a backlog of requests (and
most do), you may have to wait some time before you receive the materials
you seek. Call or write the FOIA office to follow up on requests that
have been pending for an unreasonable period of time. Get the names
of specific FOIA personnel you can contact about your request. If
agencies fail to meet the twenty-business day response time provided
by the FOIA, you are entitled to file an administrative appeal or
a lawsuit. Please keep in mind that if your request is complex and
of a sensitive nature the agency will require a significant amount
of time to search and review the responsive records. It can take years
to get a response to a FOIA request.
- Your
request for a fee waiver is acknowledged but more information is sought
before the agency will begin processing the request. Sometimes the
agency asks a series of questions, sometimes a multi-page questionnaire
may be enclosed for you to fill out and return. The best way to avoid
this response is to provide as much information as possible in your
initial letter to support your request for a fee waiver.
- The
agency says that no records were found in response to your request,
or informs you that your request is too broad. Call or write the FOIA
office and ask what additional information is needed from you to make
your request more specific. Explain why you believe the agency has
material responsive to your request and inquire about other places
in the agency's files where relevant records might be found. If no
records were found you may send an appeal questioning the agency's
adequacy of search.
- Information
relevant to your request is found, but the agency withholds all or
part of it. The FOIA allows an agency only nine exemptions from its
obligation to provide information in response to a request. The citation
of these exemptions, found at 5 U.S.C. Section 552(b) and listed above,
can be appealed.
How
can I appeal an adverse response?
It is worthwhile to file an administrative appeal if the agency's response
is unsatisfactory. Appeals can be effective to successfully challenge
excessive processing delays, fee waiver denials, and the improper full
or partial withholdings of responsive documents. Agency regulations
governing appeals vary; take careful note of the instructions for filing
an appeal in the agency's response to ensure that your appeal is timely.
An appeal letter should state the grounds for appeal and reasons why
the agency's response to the request was improper, request a more precise
explanation of the agency's decision (if the reasons for the initial
determination were unclear), and say that you expect a final ruling
on the appeal within the 20-day statutory time limit. [See the sample
FOIA appeal below.]
What
else should I know?
Don't be discouraged if the agency is less than fully responsive to
your request. Contact the agency's FOIA office to check on the status
of your request and to see if additional information is needed to expedite
processing or to clarify what you want. Keep copies of all your correspondence
and notes of all phone calls. Always file an appeal letter if the initial
response is inadequate. If the agency fails to respond satisfactorily,
you may wish to seek the assistance of a member of Congress to contact
the agency on your behalf. If all else fails, you have the right to
go to court to force the agency to release the documents.
What
unexpected problems might I encounter during the FOIA process?
(1) Delays,
delays, delays - For a variety of reasons most agency FOIA offices
suffer from a backlog of requests which can amount to an enormous delay
for a FOIA requester. Keep your request as targeted and concise as possible
and do as much research as you can on where the documents requested
could be located within the agency. Finding aids are great tools. If
you have the agency's box number, file or document number, your request
will be processed faster. Keep in contact with the FOIA office to make
sure your request has not fallen through the cracks.
(2) Operational
Files Exemption - A 1984 law allowed the CIA to exempt its operational
files from the search and review requirements of the Freedom of Information
Act. Similar operational files exemptions exist for the National Reconnaissance
Office (NRO), the National Geospatial-Intelligence Agency (NGA) - formerly
the National Imagery and Mapping Agency (NIMA) - and the National Security
Agency (NSA). This allows these agencies or certain components of these
agencies to exempt their working files from the search and review requirements
of the Freedom of Information Act (FOIA).
(3) Glomar
- Agencies can avoid a decision on the release of records if the fact
of the existence of the records is in itself classifiable. In a FOIA
case involving a request for records pertaining to the submarine retrieval
ship the Glomar Explorer, an appeals court allowed the CIA to neither
confirm nor deny the existence of the requested records. The "Glomar"
response has been routinely invoked since if an agency wishes to withhold
disclosing the existence or lack of existence of records.
(4) Dubious
Secrecy - Although the FOIA has standardized language and there
exist specific guidelines for redaction processes, there can be differences
in decisions to withhold information, both between and within agencies.
In the appeal process these discrepancies should be worked out, but
some mistakes may follow through to a final decision. As a last resort
you can always seek judicial review in court. See the National Security
Archive's briefing book on Dubious Secrets http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB90/index.htm
Sample
FOIA Request - Template
Agency
Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom
of Information Act Request
Dear [The
Name of the FOIA Officer as listed on the agency's Web site]:
This is
a request under the Freedom of Information Act 5 U.S.C. § 552.
I request that a copy of the following documents [or documents containing
the following information] be provided to me: [identify the
documents or information as specifically as possible.]
In order
to help to determine my status to assess fees, you should know I am
[insert a suitable description of the requester and the purpose
of the request.]
[For example,
In order to help to determine my status to assess fees, you should know
I am]
a representative
of the news media affiliated with the ____ (newspaper, magazine, describe
publication contract or describe past publication history), and this
request is made as part of a news gathering and not for commercial
use.
affiliated
with _____, an educational or noncommercial scientific institution,
and this request is made for a scholarly or scientific purpose and
not for commercial use.
an individual
seeking information for personal use and not for commercial use.
affiliated
with a private corporation and am seeking information for use in the
company's business.
I am willing
to pay fees for this request up to a maximum of $____. If you estimate
that the fees will exceed this limit, please inform me first.
[Optional]
I request a waiver of all fees for this request. Disclosure of the requested
information to me 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 my commercial interest.
[Include a specific explanation.]
If you
deny any part of this request, please cite each specific reason that
you think justifies your refusal to release the information and notify
me of appeal procedures available to me under the law.
If you
have any questions processing this request, you may contact me at the
following telephone number or e-mail address : [number and address].
Thank you for your consideration of my request.
Sincerely,
Name
Address
City, State, Zip Code
Telephone Number [Optional]
Sample
FOIA Request - From the National Security Archive
VIA FACSIMILE
Wednesday, April 28, 2004
Will Kammer
Directorate for Freedom of Information
Room 2C757
1155 Defense Pentagon
Washington, DC 203101155
Dear Mr.
Kammer :
Pursuant
to the Freedom of Information Act (FOIA), I hereby request disclosure
of the following documents
for inspection and possible copying:
Any documents
that may be found in file "A-471.6 29 August 1961," in box
3 of accession 65-A-3464, Records of the Secretary of Defense for 1961,
held at the Washington National Records Center.
Please
note: some of this collection has been transferred to NARA but it does
not have box 3 in its possession.
As the
FOIA requires, please release all reasonably segregable non exempt portions
of documents. To permit me to reach an intelligent and informed decision
whether or not to file an administrative appeal of any denied material,
please describe any withheld records (or portions thereof) and explain
the basis for your exemption claims.
As you
know, the National Security Archive qualifies for a waiver of search
and review fees as a representative of the news media. This request
is made as part of a scholarly and news research project and not for
commercial use. For details on the Archive's research and publication
activities, please see our Web site at the address above. Please notify
me before incurring in photocopying costs over $100.
To expedite
the release of the requested documents, please disclose them on an interim
basis as they become available to you, without waiting until all the
documents have been processed. If you have any questions regarding the
identity of the records, their location, the scope of the request or
any other matters, please call me at (202) 994-7000. I look forward
to receiving your response within the twenty day statutory time period.
Sincerely,
William
Burr
Senior Analyst
Sample Appeal (Template)
Agency
Head or Appeal Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Appeal
Dear [The Name of the FOIA Appeal Contact as listed on the agency's
Web site]
This is
an appeal under the Freedom of Information Act 5 U.S.C. § 552..
On [date],
I requested documents under the Freedom of Information Act. My request
was assigned the following identification number:________. On [date],
I received a response to my request in a letter signed by [name
of official]. I appeal the denial of my request.
[Optional]
The documents that were withheld must be disclosed under the FOIA because....
[Optional]
I appeal the decision to deny my request for a waiver of fees. I believe
that I am entitled to a waiver of fees. Disclosure of the documents
I requested is in the public interest because the information is likely
to contribute significantly to public understanding of the operations
or activities of government and is not primarily in my commercial interest.
[Provide details]
[Optional]
I appeal the decision to require me to pay review costs for this request.
I am not seeking the documents for commercial use. [Provide
details]
[Optional]
I appeal the decision to require me to pay search charges for this request.
I am a reporter seeking information as part of a news gathering and
not for commercial use.
If you have any questions processing this request, you may contact me
at the following telephone number or e-mail address : [number
and address]. Thank you for your consideration of this appeal.
Sincerely,
Name
Address
City, State, Zip Code
Telephone Number [Optional]
Sample Appeal Letter - From the National Security Archive
VIA FACSIMILE
December 12, 2003
RE: FOIA
Appeal
National Security Archive File Number - 20030019DOS001
Department of State File Number - 200300103
Chairman,
Appeals Review Panel
c/o Appeals Officer
A/RPS/IPS/PP/IA
Room 6001, SA-2
Department of State
Washington, DC 20522-6001
To the
Appeals Review Panel at the Department of State:
This letter constitutes an administrative appeal under the Freedom of
Information Act, 5 U.S.C. Sec. 552, of a determination by Margaret P.
Grafeld, Director, Office of IRM Programs and Services on a FOIA request
filed by Mr. William Ferroggiaro via facsimile on January 8, 2003 for
State Department records concerning the March 19, 2002 memorandum to
departments and agencies from White House Chief of Staff Andrew Card
on Weapons of Mass Destruction information (hereinafter, 'Card Memo').
By letter
dated November 14, 2003, received on November 19, 2003, the Department
of State Office of IRM Programs released one document in its entirety,
but denied another document in full citing exemptions (b)(5) and (b)(2)
of the FOIA (Enclosure A).
For your
reference, I have enclosed a copy of Mr. Ferroggiaro's original 1/8/03
request (Enclosure B).
With respect
to the material withheld on the basis of (b)(5), I ask that you review
these records in the appeal process to release factual portions found
responsive to the request. Post-decisional, factual information unless
inextricably intertwined with other information, is not protected under
the fifth exemption.
Additionally,
the Department of State, like other departments or agencies, has concluded
its review of its information systems and practices and should have
reported back to the White House, as instructed by the Card Memo. The
Department of State should therefore be able to release this initially
withheld information due to the fact that the very policy development
activities for which deliberative process protection has been claimed
are now completed. Correctly applied, exemption five protects deliberative
material during the deliberative process. As the policy has been decided,
there is likely no deliberative rationale remaining to properly withhold
this material. Indeed, a number of agencies have released material concerning
the Card Memo. For your consideration, I enclose two documents provided
by the Nuclear Regulatory Commission (NRC), one a summary of an April
16, 2002 meeting, the other a draft of NRC's formal response to the
Card Memo (Enclosures C and D); an April 23, 2002,
Department of the Interior (DOI) memorandum from the Counselor to the
Secretary to DOI's division heads on implementation of the Card Memo
(Enclosure E); and the Environmental Protection Agency's
June 18, 2002 formal report to Gov. Tom Ridge, then-Director of the
White House's Office of Homeland Security (Enclosure F).
In regards
to those portions of the withheld document determined exempt under (b)(2),
I request reexamination for additional, releasable material, in light
of the public interest in the subject of the document. Routine, internal
rules are properly withheld under (b)(2), however personnel matters
of greater general public interest are not protected. As this FOIA request
concerns a topic of prevalent public interest, I ask that you consider
the example that may be afforded by the maximum release of this information,
as it readily affects the public's understanding of the Federal government's
role in safeguarding Weapons of Mass Destruction and the implementation
of the FOIA.
I look
forward to receiving your decision on this appeal. Please contact me
at (202) 994-7000 with any questions you may have. Thank you.
Sincerely,
Barbara
Elias
FOI Coordinator
On Behalf of Mr. William Ferroggiaro
Enclosures
