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FOIA: The Freedom of Information Act

The notion of freedom of information is one widely held around the globe. At present there are over 85 countries with freedom of information legislation in effect. The concept of freedom of information relates to the Fair Information Practice Principle of access which states that individuals have the right to view the records an entity maintains about them. However, due to security reasons it is impractical and dangerous to allow the public to access all federal records. In the United States, the Freedom of Information Act, passed in 1966 attempted to resolve the public’s right to access with the necessity of keeping certain records secret.

What Information is Viewable Under the Freedom of Information Act?

All records maintained by the Executive branch are viewable except those that meet one or more of the following exceptions:

  • The information is classified for national defense or foreign relations
  • The information relates only to internal personnel rules and procedures
  • The information is prohibited from disclosure by other legislation
  • The information contains trade secrets, commercial or financial information that must remain confidential
  • The information relates only to communications within the agency or between agencies
  • Contain personally identifiable information or personal health information that would violate personal privacy
  • Used for law enforcement purposes that may:
    • interfere with law enforcement proceedings
    • interfere with a person’s right to a fair trial
    • constitute an invasion of privacy
    • disclose the identity of a confidential source
    • disclose techniques or procedures used by law enforcement
    • present danger to the life or safety of any individual
  • Relate to the supervision of financial institutions
  • Relate to geological information on oil wells

It should be note that the Freedom of Information act specifically applies only to the Federal Government and only pertains to the Executive branch. The judicial and legislative branches have different procedures for the release of information to the public. Many states have enacted similar laws to the Freedom of Information Act to provide the same protection on a state level.

How to Obtain Information Under the Freedom of Information Act?

1)  A FOIA request must be submitted in writing to the appropriate agency. In order to protect individual privacy, a request may require authentication of identity through the completion of Form DOJ-361; or submitting an authorized signature.

2)  After the request has been received, the individual will usually receive a confirmation response within a few weeks. Under the FOIA an agency must be respond within 20 working days after receipt at the correct agency.

3)  If the request has been granted, an agency may contact the requester to narrow the scope of the request or discuss fee status. Once all issues are resolved an agency will: release all documents; release parts of the documents; withhold documents; not find any responsive documents.

4)  If the request is denied, the requester may submit an appeal (see below).

Response Times

 

Though the FOIA requires agencies to grant or deny requests within 20 working days, there are a number of “unusual circumstances” which permit an extension of 10 days for  the granting or denying of a request as long as the requester receives notice of the extension and the reasons behind it such as:

  • Need to search and collect requested records
  • Need to search, collect and examine a large amount of records demanded in a single request
  • Need for consultation with another agency for determination of the request.

Though the FOIA requires timely response, due to the enormous backlog of requests this is not always enforced. The receipt of requested documents may take anywhere from one week to several years.

Some individuals have attempted speed up processing times by submitting multiple requests or submitting several, separate, narrow requests. This may not always effect processing time as the FOIA allows related requests made by the same individual or for similar purposes to be aggregated together.

Expedited processing may occur if:

  • Timely receipt of the material is needed to prevent imminent threat to the life or physical safety of an individual
  • the information is being used to disseminate information to the public about government activities

Fees

 

To cover the costs of materials and resources used in completing an FOIA request, a fee may be issued to be paid by the requester. An FOIA request should include a maximum amount the requester is willing to pay in order to be processed. Currently reproduction fees are $0.10 per page plus the hourly search and review fee which depends on the administrative level of the employee required to complete the search (usually between $16 and $80 an hour). If the fee is likely to exceed $250, the agency may request advance payment, otherwise payments should be paid in a timely manner upon receipt of the bill.

Fees may be waived on a case by case basis if the records are considered “likely to contribute significantly to the public understanding of the operations or activities of the government and not primarily in the commercial interest of the requester.” Reduced fees are also available for educational and media related purposes.

 

Redaction/Segregations

 

If a requested document contains information that falls under one of the 9 exemptions but also contains information permitted disclosure under FOIA, all information that may disclosed must be released to the requester.The document must use a “black out” or other visible marking of the document to conceal the redacted information so that the requester may see how much information was not released and where if falls in the document. The exemption causing the segregation must also be noted on the document.

Appeals

A requester may appeal if:

  • They were denied access to the requested records
  • They were partially denied access to the requested records
  • They believe the fee to be too high
  • They did not receive a response within 20 days.

If a requester seeks to appeal a denial, they must submit the appeal within a timely manner (usually 30-90 days after receipt of the denial.) Agencies should respond within 20 working days, however appeals are known to take much longer. If an appeal ends in a second denial, an individual may file a lawsuit with a U.S. District Court to access their information. Unfortunately the Federal Government may sometimes use denials as a stall tactic or because they know many people will not follow through with an appeal or litigation. Due to the backlog of requests and appeals, some requests are denied when they rightfully should be granted. Pursuing an appeal or filing a complaint often quickly resolves the issue.

Reports

The Freedom of Information Act requires government agencies to file an annual report on the FOIA requests they receive. The Report must contain:

  • The number of request received
  • Whether the requests were granted or denied
  • The processing time for each request
  • The number of appeals received
  • Whether the appeals were granted or denied

The reports are used to evaluate the effectiveness of the system and to provide citizens with the assurance that their requests are processed fairly.

The Electronic Freedom of Information Act Amendment

 

The Electronic FOIA Amendment was passed in 1996 to incorporate the use of new technologies such as computers and the Internet into the effective implementation of the Freedom of Information Act. The amendment required that all government agencies make matters of public record available online. Furthermore it allowed the submitting of FOIA requests electronically to help ensure compliance with response times.

Summary

 

One of the most important tools in making intelligent decisions regarding personal privacy is having access to the information an entity has on record. The Freedom of Information Act protects U.S. citizen’s right access information maintained about themselves by the Federal Government and allows citizens to monitor government activity to discover misconduct and prevent abuse.

CIPP/G Candidate Preparation

In preparation for the Certified Information Privacy Professional Government exam, a privacy professional should be comfortable with topics related to this post including:

  • The Freedom of Information Act (I.C.a.i-vii.)
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