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Freedom of Information Act : How to use it, sample requests and methods of appeal. http://web.archive.org/web/20010530042838/http://newnetizen.com/archives/foia.htm

sample FOIA requests and appeals - FOIAdvocates - Freedom of ...

www.foiadvocates.com/samples/1.html Sample FOIA request letter (specific example). III. ... Sample FOIA appeal letter (specific example) ... This is a request under the Freedom of Information Act. ... and this request is made as part of news gathering and not for a commercial use. ...

Georgetown Law Library: Using the Federal Freedom of Information ...

www.ll.georgetown.edu Research Jump to Making a FOIA Request: FOIA requests take considerable time to process and can be ... Therefore, before you make a FOIA request you should exhaust more traditional research methods. ... and clearly labeled as a Freedom of Information Act request. ... Sample appeal letters can be found in each of the ... [PDF]

A GUIDE TO THE ILLINOIS FREEDOM OF INFORMATION ACT LISA MADIGAN ...

www.ag.state.il.us/government/FOIA_guide.pdf File Format: PDF/Adobe Acrobat - Quick View The Freedom of Information Act is a pro-disclosure law embedded in the fundamental ... an incident to the common law right to inspect and use public

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..... 1988), the court held that water sample data compiled by the District to ...... (b) A brief description of the methods whereby the public may request information ...

Freedom of Information Act (FOIA) Guidelines

www.irs.gov/foia/article/0,,id=211443,00.html Apr 19, 2011 Sample CAF Client Listing Request ... The Freedom of Information Act applies to records either created or obtained by an agency and ... statements of the general course and method of IRS operations including the nature .... Different fees apply to: commercial requesters; representatives of the news media; ...

FCIC - Your Right to Federal Records

publications.usa.gov/epublications/foia/foia.htm What the Freedom of Information Act is and How to Use it .... For example, for requests that will require more than 10 days for the agency to process, .... Agencies may also establish other ways for requesters to obtain expedited processing. ... mark both your appeal letter and the envelope Freedom of Information Act Appeal. ...

sample FOIA letters - National Freedom of Information Coalition

www.nfoic.org/sample-foia-letters Freedom of Information Act Request Letter; Freedom of Information Act Appeal Letter ... Privacy Act Request for Access Letter; Privacy Act Denial of Access Appeal ... affiliated with a private corporation and am seeking information for use in the ...

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STEP-BY-STEP GUIDE to using the Freedom of Information Act by ...

www.skeptictank.org/files/aclu/foia.htm INTRODUCTION ------------ The Freedom of Information Act (FOIA) is a law that ... and the requester's right to appeal and seek judicial review of any denied request ... combined with a set of simple instructions and sample letters, should make the ..... Look in the Code of Federal Regulations (CFR), and point out the ways your ...

A Citizen's Guide on Using the Freedom of - Committee Reports ...

thomas.loc.gov THOMAS Home Committee Reports HOW TO USE THIS GUIDE V. WHICH ACT TO ... A. THE SCOPE OF THE FREEDOM OF INFORMATION ACT B. WHAT ... APPENDIX 1- SAMPLE REQUEST AND APPEAL LETTERS ... Stay Connected with the Library All ways to connect ...

Committee on Open Government

www.dos.state.ny.us/coog/freedomfaq.html Who is subject to the Freedom of Information Law? ... What happens if an agency fails to respond to my appeal? ... Here is a sample request and here is another sample request made via email. ... them via email and doing so will not involve any effort additional to an alternative method of responding, it is required to do so. ... [PDF]

THE COAST GUARD FREEDOM OF INFORMATION (FOIA) AND PRIVACY ACTS MANUAL
www.uscg.mil/directives/cim/5000-5999/cim_5260_3.pdf

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File Format: PDF/Adobe Acrobat - Quick View CH-3 incorporates amendments to the Freedom of Information Act (FOIA) ... an appeal. Describes responsibilities of G-CIM and the recordholder in the appeal process. ..... ENCLOSURE (4) Sample Letter for using FOIA to respond to PA ...... method of complying with a request. 1. Reasonable Description of Records. (See ...

TABLE OF CONTENTS Introduction

FOIA Basics
How does FOIA work? What is an Agency? What are Agency Records You Can Get a Wide Variety of Information About the Privacy Act FOIA Exemptions Access to Agency Records Any Person Can Make a FOIA Request Response Times Cost

Making Your FOIA Request

Describing What You Want

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Planning a Strategy Make Requests Specific Drafting Letters, Keeping Records of Correspondence A Bad FOIA Letter Understanding the Agency Response A Good FOIA Letter Fees and Waivers

Making an Appeal
Sample Letter Appealing Exemption Sample Letter Appealing Fee Waiver Request

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Court: The Last Resort Working with Lawyers: Timeframes, Fees Low- or No-Cost Advice

Federal Government Agency Addresses

Free Information for Our Free Country

"A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy - or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives." - James Madison An informed electorate "must stand ready to sound the alarm when necessary to point out the actions in any pernicious project." - Alexander Hamilton The ACLU has long argued that government secrecy about its operations endangers individual liberty. For example, in 1954 the government denied that lethal radiation had resulted from nuclear bomb tests in the South Pacific. News media that attempted to discover the truth about the tests ran into a wall of government silence. In response to this impasse, the ACLU commissioned a report, "The People's Right to Know: A Report

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on Government News Suppression" which urged that increased media access to government records was necessary to protect democracy. During the next decade, the ACLU continued its campaign to pass laws that would enable citizens to "know what their government is up to." The culmination of the fight was the passage of the Freedom of Information Act. The Freedom of Information Act (FOIA) was passed by Congress in 1966 and amended in 1974. Based on the premise argued by Madison and Hamilton that openness in government will assist citizens in making the informed choices necessary to a democracy, FOIA creates procedures whereby any member of the public may obtain the records of the agencies of the federal government. The purpose of this Guide is to help you exercise your right to "open agency action to the light of public scrutiny." This publication contains detailed information, instructions and sample letters designed to help you make an effective FOIA request. We hope that this step-by-step guide will serve you well, and we invite you to learn more about the ACLU and its mission to defend the Bill of Rights for all our nation's people. We hope you will visit our website at http://www.aclu.org to see up-to the-moment information, news briefs and other resources on civil liberties issues. Or call ACLU Publications at (800) 775-ACLU for more information about other resources that may be of interest to you. If you would like more information about the ACLU, including membership information, please write us at ACLU, 125 Broad Street, New York, NY 10004.

FOIA BASICS
How Does FOIA Work?
Section 552 (a) of FOIA directs government agencies to disclose certain types of records and describes the manner of disclosure required. Subsection (a) (1) lists records that must be published in the Federal Register. These include Description of the agency's organizational structure - central office and field offices Description of the procedures that are set up to give the public access to the agency records - including where the records are located and the name of the custodian of the records General description of how the agency functions and its decisionmaking process The agency's rules of procedure - including a description of agency forms and where you can get them The agency's general policies
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Subsection (1) (2) lists records that must be made available for public inspection and copyingFinal decisions in particular administrative cases Policy statements that the agency uses, but hasn't published in the Federal Register Internal manuals written for the agency's staff that affect members of the public An index of the kinds of information that must be made public

Subsection (1) (3) contains a catch-all provision requiring disclosure of records not covered by (a) (1) or (a) (2). Courts have held that these provisions are to be interpreted broadly to achieve Congress' goal of full disclosure.

What is an "agency" ?
FOIA defines an agency as The agencies, offices and departments of the Executive branch of the federal government such as the Defense Department, the Office of Management and Budget, and the National Security Council The independent federal regulatory agencies such as the Federal Trade Commission or the Environmental Protection Agency and the Federal Communications Commission Federal government-controlled corporations such as the U.S. Postal Service, the Tennessee Valley Authority, the Smithsonian Institution, the National Railroad Passenger Corporation (Amtrak) and others

Additional independent federal regulatory agencies are the Nuclear Regulatory Commission and the Federal Communications Commission. Although FOIA applies only to agencies of the federal government, every state has laws guaranteeing citizens access to the records of state agencies.

What are "agency records"?

A few examples of the wide variety of records that citizens have sought under FOIA include requests from the Food and Drug Administration for health and safety reports on silicone breast implants; from the Immigration and Naturalization Service for information that would help locate and help insure the safety of Haitian refugees who had been deported; from the Department of Commerce for statistics on boycotts; from the Atomic Energy Commission for the names and addresses of military service members who participated in nuclear weapons testing; from the Department of the Navy for an inventory of Native Hawaiian graves; and from the FBI and the CIA for records on the assassination of President Kennedy.

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You Can Get a Wide Variety of Information

Two basic types of information are available under FOIA. First, you can get information about how the agency operates, what actions it has been taking, how it has been spending its money, and what statistics and other information it has collected on any subject. Citizens routinely request and receive records relating to public health, environmental hazards, consumer product safety, government spending, labor relations, business decisions, taxes, history, foreign policy, national defense and the economy. The second type of information that citizens often request is any records that the government has about them.

ABOUT THE PRIVACY ACT

Requests for agency records about yourself can also be made under the Privacy Act of 1974. You should make requests for personal records under both the FOIA and the Privacy Act. The Privacy Act not only allows you to obtain your own records, it also gives you the right to correct, amend or delete information about you that is inaccurate, irrelevant, outdated or incomplete. In fact, the Privacy Act gives you the right to sue the agency if it refuses to correct or amend your record, or if it refuses to give you access to it. Nevertheless, there are several important distinctions between the FOIA and the Privacy Act. For this reason, you should request access to your records under both statutes. The Privacy Act may be used only by U.S. citizens or permanent resident aliens, and only to obtain access to records that can be retrieved from a "system of records" by your name, or by a number, symbol or other identifying particular that is assigned to you. The FOIA, on the other hand, allows any person to obtain access to any records, as stated above. The Privacy Act carries broader exemptions than the FOIA does - particularly where law enforcement records are concerned. Some agencies may routinely refuse your FOIA request for that reason. The Privacy Act permits an agency to charge requesters for copying, but not for search costs. The statute of limitations for filing a lawsuit is only two years under the Privacy Act, but under the FOIA, it is six years.

There are two other Federal Open Government Laws: The Government in the Sunshine Act of 1976, which gives us the right to attend meetings of the

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governing boards of fifty federal agencies and to obtain the records of these meetings; and the Federal Advisory Committee Act of 1972, which allows individuals to attend federal advisory committee meetings.

But You Can't Get All Kinds of Information

Although the goal of FOIA is full disclosure of government records, Congress concluded that some confidentiality is necessary for the government to function. The FOIA does not apply to the following federal entities: Congress The Federal Courts Executive Office staff such as the White House Chief of Staff and others whose sole function is to advise and assist the president

Requests cannot be made under the FOIA to the following, as the Act only applies to federal government agencies.

State and local government agencies Private businesses Schools Private organizations Private individual records

FOIA Exemptions
A federal agency can refuse to release certain types of information. There are nine legal categories that are exempted from FOIA under section 552(b) of the law. The FOIA requires an agency to provide you with a "reasonably segregable" (easy to excerpt) portion of a record after the portions which are exempt have been deleted from it. This means an agency can't withhold an entire document just because some portions of the document are exempt. Exemption One National Security Agency records which "reasonably could be expected to cause damage to the national security" if disclosed, are exempt.This kind of data usually includes

Military plans Weapons Scientific and technology data that relates to national security

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CIA records

Exemption Two Internal Agency Rules Information related solely to the internal personnel rules and practices of the agency. This is not usually of great interest to the general public, but in some instances the courts have ruled it is of interest to the general public, and has ordered its release. Examples of this have included Air Force handling of honor code violations, and training manuals for Occupational Safety and Health Administration compliance officers. Exemption Three Governed By Other Statutes Information that is specifically exempted from disclosure by another statute. Laws have been passed making personal tax data, CIA structure, charges of employment discrimination, identifiable census data and other types of information confidential. The agency ought to specify which statute they are referring to when they give this reason for denying a FOIA request. Exemption Four Business Information Trade secrets, commercial or financial information, confidential information, and information obtained from a person. An agency must prove the information involves Trade secrets including sales statistics, inventories, customer lists, scientific or manufacturing processes or formulas, material protected by attorney-client, doctor-patient or lender-borrower privileges, etc. Privileged or confidential information, the disclosure of which would make it difficult for the government to obtain necessary information in the future

-orWould substantially harm the person from whom the original information was obtained. The government agency usually has to pledge that the person who provided the information asked for it to remain confidential, and prove that the information you want is not customarily available to the public Information obtained from a person (or corporation or organization) as opposed to from a government agency

Sometimes Exemption 4 leads to what's called a "reverse FOIA" lawsuit. This means the person or organization that provided the original information will seek to prevent the federal agency from releasing the information to you.
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Exemption Five Internal Government Memos These are interagency or intra-agency memos or letters that concern confidential communications between an attorney and a client, or information compiled in preparation for a trial. Materials involving advice on recommendations or opinions which are part of the process of government decision-making. Exemption Six Private Matters Personnel files, medical files, and other files that would lead to an invasion of personal privacy if released, are exempted. Exemption Seven Law Enforcement Investigations Any data that is compiled for law enforcement purposes, if releasing it would Interfere with enforcement proceedings Deprive a person of the right to a fair trial or an impartial jury Constitute an unwarranted invasion of personal privacy Disclose the identity of a confidential source such as a state, local or foreign agency, or a private institution which had provided information on a confidential basis Disclose investigative techniques or legal procedures Endanger the life or physical safety of an individual

In order to claim any of these exemptions, the agency must prove that the records were compiled for law enforcement purposes. Almost all FBI files are exempt because the courts have generally ruled that they are compiled for law enforcement purposes. Exemption Eight Regulation Of Financial Institutions This exemption pertains to records related to the examination, operation or condition of certain financial institutions which are subject to federal regulation. Examples of such institutions include

Commercial, savings, and investment banks Trust companies The Office of the Comptroller of the Currency The Federal Reserve System The Federal Home Loan Bank Board

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This exemption does not apply to organizations, such as the Stock Exchange, which are not federal agencies. Exemption Nine Oil Wells Geological and geophysical information concerning oil well locations. Examples include maps or charts, and files belonging to the Department of the Interior's Bureau of Land Management and the Department of Energy's Federal Power Commission. Oil well information is also protected by Exemption 4. It is important to remember that these exemptions are not mandatory, but discretionary. That means an agency can choose to release records to you even after it has determined the records fall within one or more of the above exemptions.

Access To Agency Records

The FOIA provides access to all "agency records," except those which are specifically exempted (see "Exemptions" section of this guide for more information). The FOIA does not define the term "agency record," but the courts have interpreted it to mean printed documents or other information-bearing materials - such as photographs, computer tapes, or databases that satisfy the two following conditions The agency record must already exist and have been created or obtained by a federal agency; FOIA does not require an agency to create a record just to satisfy your request. The record must be within both the possession and the control of the federal agency at the time you make your FOIA request. An agency does not have to retrieve a requested record it doesn't possess at the time your request is made.

An agency has "control" over a record if it has the power to dispose of it. You have the right to obtain this information from these agencies even if they can be collected from another source.

Any Person Can Make A FOIA Request

The FOIA permits "any person" to request access to agency records. "Any person" includes

U.S. citizens Permanent resident aliens Foreign nationals Corporations and unincorporated associations Universities

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State and local governments and members of Congress

A Quick Response Required

The FOIA requires an agency to decide within ten working days whether to comply with a FOIA request and to inform the person making the request of the decision and of the person's right to appeal a refusal to provide information to the head of the agency. An agency has 20 days to respond to an administrative appeal. If it upholds the decision to refuse to provide the information, it must inform the person requesting it of the right to appeal to a federal court. An agency may take an additional ten days to respond to the initial request or the appeal in "unusual circumstances." This usually means the agency has to get the records from its field offices, or has to process a large volume of separate records, or it has to consult with another agency or two or more of its components in order to satisfy your request.

And If It Takes Longer Than That...

Unless the agency shows that "exceptional circumstances" exist, and that it is actively trying to meet your request, you have the right to pursue your request in federal court. Even though this is the law, in practice, the courts usually allow the agency to take more time to fill your request provided they take all requests on a first-come, first-served basis. If this happens, the agency will usually write to you within two weeks telling you your request has been placed in line and will be processed after a delay. (See "Understanding the Agency Response: The Agency Tells You to Wait," p. 19.)

How Much A FOIA Request Costs

Three types of fees may be charged for FOIA requests The costs of searching for the documents The costs of reviewing the documents to decide if they should be included in the response to your request The costs of duplicating the documents

Your fee will depend on what kind of request you are making If you are making a request for "commercial use," you can be charged all three types of costs If your request is not for "commercial use," you will only pay the search and duplication costs If your request is on behalf of "an educational or non-commercial scientific institution" or as a "representative of the news media," you will
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only pay duplication costs. Any person or organization which regularly publishes or gives out information to the public can be considered as "news media." Many public service organizations, therefore, meet this definition. Before you make your FOIA request, be moneywise - Ask the agency's FOIA office for the current agency fee schedule. It will explain the cost of different types of searches (manual versus computer, clerical versus professional, and the like). It will also tell you the cost per page for photocopying. Fees can vary widely from agency to agency, and even within the same agency, for similar or identical requests. Let the agency know in advance how much you are willing to pay for the requested information. Sometimes an agency will waive the fee. This will happen on a case-by-case basis if the request is considered to be in the public interest, which means the information will significantly help the public understand the operations or activities of the government agency. (See sample FOIA request letter, p. 17, for more information.) In any event, fees for the first two hours or first one hundred pages of duplication in noncommercial FOIA requests are waived. And unless you have failed to pay a previous FOIA request, your advance payment cannot exceed $250.

Making Your FOIA Request

Where To Write
The first thing you need to do is decide which agency you are going to send your request to. If you are not certain about which agency has the information you are seeking, you should go to the library and check the descriptions of the various agencies in publications like the United States Government Organization Manual (US Government Printing Office), or call the local office of your representative in Congress. The most common agencies are listed at the end of this guide. Once you have narrowed down the possibilities, you might want to call the FOIA or the public affairs office of those agencies for more specific information. If you think you know which agency has the records you are interested in, get the specific mailing address for its FOIA office. A few of the major agencies' FOIA offices are listed at the end of this guide, but any agency's FOIA office can be easily found. Just call the agency or look up the agency's FOIA regulation in a book called the Code of Federal Regulations (CFR) which you can find at any law library and many public libraries, and on the Internet at: http://www://law.house.gov/cfraddr.htm.

Describing What You Want

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Your request must "reasonably describe" the records you are seeking. This means the description must be specific enough that a government employee familiar with the agency's files will be able to locate the records within a reasonable amount of time and without an unreasonable amount of effort. You don't have to explain why you want the information you are seeking - but this explanation might be necessary if you want the agency to waive its fees or comply more fully with your request. The more precise and accurate your request, the more likely you are to get a prompt and complete response, of course, and the lower the search fees will be. An agency will contact you if it needs more clarification.

Planning Your Strategy

Here are some tips for planning your FOIA request Try to limit your request to what you really want. If you simply ask for "all files relating to" a particular subject (including yourself), you may give the agency an excuse to delay its response, and you risk needlessly running up search and copying costs. If you know that your request involves a great volume of records, try to state both what your request includes and what it does not include. Be as specific as possible. Cite relevant newspaper clips, articles, congressional reports, etc. If the records have already been released, let the agency know the date, release number, and name of the original requester. Let the agency know if you'd like to receive information in a particular order. Materials could be reviewed and released to you in chronological or geographical order - or you may simply not want to wait for all the records to be reviewed before any are released.

Make Requests For Personal Files As Specific As Possible

Be sure to include

Your date and place of birth Social Security number or other identifier Any previous names or nicknames Any previous addresses or places and dates of foreign travel

It can also be helpful to mention the nature of your relationship with the agency (former employee, participant in an agency program, etc.) Include the dates of your involvement.

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You may want to state where you lived and/or were active - some files will only be available from an agency's field office. In this case, you should ask the agency to check the relevant field office's records. Write a separate letter requesting a field check. Some agencies do not systematically carry out these field checks, even when asked. For the FBI headquarters, for example, separate letters must be written to each field office. Remember to make the request under both the FOIA and the Privacy Act.

Drafting Your Request Letter

Now we are going to look at some sample letters and some helpful tips for writing your request letter.

Keep Records Of Your Verbal And Written Correspondence

Be sure to keep a copy of all correspondence to and from the agency. You'll need it if you write an appeal or go to court later. Take notes during all phone conversations - their date, what was said, who you spoke to, etc. Follow phone conversations up with a letter addressed to the official you spoke with. Confirming phone conversations in writing will help ensure there are no misunderstandings, and it is also useful if your request needs to be forwarded to another office or agency. Written notes can also clear up any misunderstandings that might arise. In general, it can be useful to establish a regular contact in the agency's FOIA office who you can ask for by name, if this is possible.

A Bad FOIA Request Letter

Dear Sir1, My name is Mrs. Gigi Smith2 and when I was in college in Michigan in the late 1980's we had a lot of protests against American involvement in Nicaragua and South Africa.
1. Should be addressed to specific agency's office 2. Should include personal identifying information including address, SSN, date of birth 3. Indicating the name of the paper, or at least the town, would help

I was written up in the local paper3 and 4. Specify which branch -- Army? Air Force? I think there are probably files of me at 5. Should specify the documents requested. the Defense Department.4 Is there a 5 (N.B. CIA records are exempt CIA file on me? I don't want to pay a lot of money so I hope you can help me out.6
6. Give a reason for requesting a waiver or else avoid such language 7. Does not indicate the purpose for which the

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Sincerely7 Gigi Farmer Smith8

information is requested 8. Was she Gigi Farmer then?

A Good FOIA Request Letter

Your envelope should be marked: "Attention, Freedom of Information/Privacy Act Unit." If your request is made solely under the Privacy Act, state on the envelope, as is appropriate: "Privacy Act Request" or "Privacy Act Correction Request." Request letters without such markings are frequently held in an agency's mailroom. A list of commonly used addresses appears at the end of this guide. Agency Head [or Freedom of Information Officer]1 Name of Agency Address of Agency City, State, Zip Code Re: Freedom of Information Act Request Dear: This is a request under the Freedom of Information Act, 5 U.S.C. Sec. 552. I request that a copy of the following documents [or documents containing the following information] be provided to me: __________________________________. In order to help determine my status to assess fees, you should know that I am2 (choose the appropriate description from the five that follow)
1. Addresses letter to FOIA offices of agency 2. Specifies law under which the request is being made; specifies documents requested; specifies use to which information will be put 3. Establishes familiarity with FOIA rules 4. Makes the argument for a waiver of fees

A representative of the news media affiliated with ____________ and this request is made as part of news gathering and not for a commercial use. A representative of a public interest organization that publishes or disseminates information and this request is made as part of news gathering and not for a commercial use. Affiliated with an education or non-commercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use. An individual seeking information for personal use

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and not for a commercial use. Affiliated with a private corporation; and seeking information for use in the company's business. [this category will not qualify you for a lower fee]

I am aware I an entitled to make this request under the Freedom of Information Act, and if your agency response is not satisfactory, I am prepared to make an administrative appeal. Please indicate to me the name of the official to whom such an appeal should be addressed. I am aware that if my request is denied I am entitled to know the grounds for this denial. I am aware that while the law allows your agency to withhold specified categories of exempted information, you are required by law to release any segregable portions that are left after the exempted material has been deleted from the data I am seeking.3 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. [or] 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, nor a business trying to get information on industrial competitors.4 If possible, I would prefer to see the original documents in person rather than having costs made, in order to avoid copying fees. Because subsequent requesters may also want copies of these documents, I do not consider it fair that as the first requester, I should bear the full cost of the initial search for this material. Sincerely, Name Address City, State, Zip Code

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Telephone Number [Optional]

Understanding the Agency Response

It is possible that the agency will promptly release all of the information you are seeking. But it is more likely that you will receive one of the following responses. 1.THE AGENCY TELLS YOU TO WAIT As we've already mentioned, government agencies are required to fill your request within ten working days unless they qualify for an "unusual circumstances" extension. Many agencies meet their deadlines, but others are notoriously slow. When dealing with a backlogged agency, you could wait up to three months before you hear anything, and they may occasionally take years before a final response is made. An agency may initially acknowledge one or several of the following things

Your request has been received and is being processed A search for the records you've requested has begun The fees for your request are being calculated

Some agencies may warn you that there is an administrative backlog of requests, and ask you to wait your turn. Even though this delay violates the Act's time restrictions, it's best to try to wait patiently; the agency will assign you a wait number. If you experience a wait, here's what you should do After you receive your wait number, call or write the agency's FOIA office and try to get them to commit to a release date for your information - within four to six weeks. Tell them that if there is no action by this date, you will interpret their "non-denial" as being an outright denial, and you will appeal. Whatever the cause of the delay, don't hesitate to inquire about the status of your request or about the agency's filing and search procedures in general. If your follow-up inquiries are ignored, send an appeal letter. According to the FOIA, an excessive delay in complying with a request constitutes what's called a "denial in effect." Keep records of your written and phone correspondence with the agencies. These can be useful if you have to write an appeal or go to court - you will be able to show you did everything you could to comply with the law. Technically, the FOIA entitles you to go straight to court if the agency does not produce the records you want within the proper time limit, but unless you have a pressing need for the data, you should send a letter of appeal first. (See the "Appeals" section for full information on this process.)

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2. "YOUR DESCRIPTION OF THE REQUESTED DOCUMENTS IS INADEQUATE" If you get this response, it means you probably did not give enough specific identifying information. Give the agency the benefit of the doubt and rewrite your request. You can try to call or make an appointment with the official processing your request to get more help. 3. "THE REQUESTED MATERIAL DOES NOT EXIST" If you are reasonably certain the records you've requested do exist, and if your request letter was clear and informative, you should try to do more research. Are there news reports, congressional hearings or court records that describe the information you want more clearly? Rewrite your request, giving the agency more guidelines and clues for where they might find it. Try to be as patient and understanding as you can; some agencies are short staffed or have disorganized filing systems. 4. "SOME OR ALL THE MATERIALS ARE EXEMPT FROM DISCLOSURE" You should keep certain aspects of FOIA in mind as far as exemption claims are concerned. FOIA exemptions are discretionary, not mandatory - an agency is not required to withhold information. Agency officials can choose to waive the exemptions and release the material, unless another statute specifically restricts that disclosure. The agency can't withhold an entire document or file because some portion(s) of it is exempt from disclosure. The agency must release any non-exempt material which can be reasonably extracted from the exempt portion(s). The agency must explain its reasons for determining that an exemption applies to any particular information. You have the right to contest any exemption claim. You can file an administrative appeal to a higher agency official. And if this fails, you can file a lawsuit. The federal court must conduct a full judicial review of the agency's claims and it is up to the agency to justify its denial of your request. The exemptions must be narrowly applied, since the FOIA was created to maximize public access to agency records Even if the agency releases substantial portions of the material you've requested, you can appeal the decision to "sanitize" the rest. You can also request a detailed justification for each deletion.

Fees And Waivers

If you are charged an excessive fee, write the official who responded to your request and ask for an itemization of the charges.

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If you are denied a waiver, or if the agency gives you an unsatisfactory fee reduction, press the agency official to justify these actions by requesting a full explanation of the reasons why this decision has been made. You can also file an appeal and later go to court if you are not satisfied with your fee reduction.

MAKING AN APPEAL
Whatever the problem with an agency's response, you have the right to file an administrative appeal to higher agency officials. There is a good chance your appeal letter will get results because for one thing, senior officials are often less anxious than their subordinates about making decisions to disclose agency records. They are also usually in a better position to take matters of policy into consideration.

Sample Letter Appealing An Exemption

Agency Head [or Freedom of Information Officer] Name of Agency Address of Agency City, State, Zip Code Re: Freedom of Information Act Appeal Dear _________________________: This is an appeal under the Freedom of Information Act, 6 U.S.C. Sec. 552(a). On [date] I requested documents under the Freedom of Information Act. My request was assigned the following identification number: [000 000-000]. On [date], I received a response to my request in a letter signed by [official's name.] I am writing to obtain a precise determination of why my request has been denied. The documents that were withheld must be disclosed under the FOIA because ___________________________________________________: I expect a final ruling on my appeal within twenty working days, the time specified in the statute. Thank you for consideration of this appeal.

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Sincerely,

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Name Address City, State, Zip Code Telephone Number [Optional] Like your FOIA request letter, the appeal letter can be written by yourself, but a lawyer's advice may be useful. Furthermore, a lawyer's signature may convince the agency that your are serious about going to court to pursue your request. Many more specific sample letters are found in the ACLU handbook, Your Right to Government Information. Call ACLU Publications at 1-800-775 ACLU to order a copy of this useful resource.

Sample Letter Appealing Fees Or Waivers:

Agency Head [or Freedom of Information Officer] Name of Agency Address of Agency City, State, Zip Code Re: Freedom of Information Act Appeal Dear: This is an appeal under the Freedom of Information Act, 6 U.S.C. Sec. 552(a). On [date] I requested documents under the Freedom of Information Act. My request was assigned the following identification number: [000 000-000]. On [date], I received a response to my request in a letter signed by [official's name] stating my waiver of fees was denied. 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 the government, and the information I am requesting is not primarily in my commercial interests. [or] I appeal the decision to require me to pay review costs for this request. I am not seeking the documents for commercial use. [or] I appeal the decision to require me to pay search charges for this request. I am a reporter seeking information as part of news gathering, and it is not for commercial use.

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I expect a final ruling on my appeal within twenty working days, the time specified in the statute. Thank you for consideration of this appeal. Sincerely, Name Address City, State, Zip Code Telephone Number [Optional]

GETTING HELP FROM CONGRESS

If your appeal is ignored or conclusively denied, you may want to try to apply some outside official pressure on the agency before the last resort - a lawsuit. Your U.S. Representative or Senators may, for example, be willing and able to assist you, but there is no guarantee of this. Members of Congress have no greater legal rights under the FOIA than any other person, however, they can generally be more successful in obtaining the attention and cooperation of agency officials. Your cover letter to them should include a concise summary of your request, the problem with the agency's response, and the specific help you are seeking from them. Send one or more of these elected officials copies of your correspondence with the agency and ask them to write or call the agency on your behalf.

ADDRESSES
The Honorable _______________ U.S. House of Representatives Washington, D.C. 20515 (Switchboard number: (202) 224-3121) The Honorable _______________ U.S. Senate Washington, D.C. 20510 (Switchboard number: (202) 225-3121) You may also inform the two congressional committees that oversee the administration of the FOIA; again, enclose copies of your correspondence with the agency.

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Subcommittee on Government Information Justice and Agriculture Committee on Government Operations U.S. House of Representatives Washington, D.C. 20515 (202) 225-3741 Subcommittee on Technology and the Law Committee on the Judiciary U.S. Senate Washington, D.C. 20510 (202) 224-3406

Court - The Last Resort

After you have exhausted the administrative appeals process, your last recourse is to force the agency to release the documents by filing a lawsuit. If you are determined to file a FOIA lawsuit, there is a lot of information you will need. The ACLU handbook, Your Right to Government Information, provides very useful preliminary information about FOIA lawsuits. Another ACLU publication, LItigation Under the Federal Open Government Laws, is a resource you or your lawyer will want to consult. (See p. 16.) In addition, there are some law firms, public interest groups, and law schools that may assist you, and even represent you in court for a nominal fee or no fee at all. (See "Low Cost or No Cost Representation," p. 26.)

Take A Deep Breath And Count To Ten

You should probably wait until your request has been ignored or excessively delayed before filing a suit. Although the law says an agency has ten working days to respond to your request, judges do not look favorably on lawsuits that are filed in haste - send an appeal letter first, to be sure you've exhausted your administrative remedies. There is a six-year statute of limitations for suing under the FOIA. This means that you have to file a lawsuit within six years of the date you made your request - even if you have received an incomplete response from the agency. For the Privacy Act, the statute of limitation is two years.

How Long Will A Lawsuit Take?

Although the law requires federal courts to give priority to FOIA suits, they can still take about a year, and maybe two or three years if a lower court decision is appealed to higher courts. Be warned, the government may use all kinds of courtroom maneuvers to delay or prevent mandatory disclosure - you have to decide how far you want to take your request.

Lawyer? No Lawyer?

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You will probably want to consult with a lawyer to see what your chances are of winning a lawsuit. While you can file the suit pro se (for yourself), it's probably wise to have a lawyer represent you because FOIA suits involve complex, highly technical interpretations of the law. When you are seeking legal assistance, all correspondence, notes and other background material concerning your FOIA request should be in good order. Attorneys filing suit in federal court are required to certify, under risk of sanctions, that the reasons for the suit are well-grounded in both fact and law, and that the action is not being taken for improper purposes, such as harassment or delay. Look for an attorney who has experience in federal practice, and in the FOIA in particular. If you do want to represent yourself, the ACLU's invaluable technical manual and reference book, Litigation Under the Federal Open Government Laws, can help you. Call ACLU Publications at (800) 775-ACLU for information on ordering this resource.

Who Pays The Attorney Fees?

The FOIA permits a judge to order the federal agency to pay attorney fees and court costs if you, the plaintiff, "substantially prevail" in the lawsuit. This means you must win the release of some significant portion of information that has been withheld, or at least a ruling that forces the agency to comply with some requirement of the law. But you must keep in mind that the judge can use discretion and decide to deny any award of attorney fees even when you have "substantially prevailed."

Low-Cost Or No-Cost Advice Or Legal Representation

Such groups are invariably understaffed, underfunded, and over-committed, so don't expect immediate or certain attention. Remember, although you may attach great importance to the documents you seek, it is up to the attorneys (who are being asked to take the case for little or no money) to decide whether the case raises issues that are sufficiently important to justify committing their organizations' limited resources. Public interest groups like the ACLU, the Freedom of Information Clearinghouse, and others may nonetheless be able to provide information and encouragement through the request and administrative appeal stages, and may be able to refer you to a private attorney if you need representation. You can contact these organizations in writing for information about court decisions, the exemption provisions, trial strategy, legal representation and other aspects of the FOIA. AMERICAN CIVIL LIBERTIES UNION Your local ACLU affiliate nearest you can provide assistance with your FOIA or Privacy Act request. These ACLU offices may also give you information about state FOIA or "open records" laws, if you are seeking state or local government records. Be advised that a response may take several weeks.

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The National ACLU office can give you the address and phone number of the nearest affiliate. Check our website at http://www.aclu.org or write us at ACLU 125 Broad Street New York, N.Y. 10004 ACLU 122 Maryland Avenue, N.E., Washington, D.C. 20002 THE CENTER FOR NATIONAL SECURITY STUDIES (CNSS) (sponsored by the Fund for Peace) has had much experience with the FOIA, mostly in matters relating to national security and intelligence records. 2130 H Street, NW, Suite 701 Washington, D.C. 20037 (202) 994-7060 http://www.fundforpeace.org/cnss.htm THE FOIA SERVICE CENTER The FOIA Service Center is a joint project of the Reporters Committee for Freedom of the Press and the Society of Professional Journalists, Sigma Delta Chi. The Center primarily assists journalists with FOIA questions and is located at 1735 "I" Street, N.W. Washington, D.C. 20006 FREEDOM OF INFORMATION CLEARINGHOUSE The Freedom of Information Clearinghouse, a project of Ralph Nader's Center for the Study of Responsive Law, gives legal and technical assistance to public interest groups, journalists, and individual citizens using the laws granting access to government-held information. Please write to P O. Box 19367 Washington, D.C. 20036 FUND FOR OPEN INFORMATION AND ACCOUNTABILITY, INC. Publishes pamphlets and a newsletter and assists individuals and organizations with FOIA matters 239 Waverly Place New York, N.Y. 10012 THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION The NPP offers a comprehensive outline for prisoners seeking pre-sentence

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investigation reports, prison files, medical records and personal files held by the Federal Bureau of Prisons and the U.S. Parole Commission. NPP does not provide individual representation but will refer prisoners to local legal aid groups where requests for information from state authorities are involved 1875 Connecticut Avenue, N.W. Suite 410, Washington, D.C. (202) 234-4830 Law schools around the country have clinics which may provide legal services. One example is INST. FOR PUBLIC INTEREST REPRESENTATION, GEORGETOWN UNIV. LAW CENTER This program is a public interest law firm that operates out of Georgetown University's law school. It is staffed by several full-time attorneys and law students. Although frequently involved in FOIA issues, the institute cannot give individual advice to those writing request or appeal letters. It will, however, provide representation (usually charging for court costs only) to individuals or groups involved in a significant FOIA dispute with an agency. The decision on whether to take a case will be based on the nature and significance of the documents sought and the importance and novelty of the legal issues 600 New Jersey Avenue, N.W. Washington, D.C. 20001 (202) 662-9535 FEDERAL GOVERNMENT AGENCY ADDRESSES If the agency you're interested in does not appear here, you will be able to find the correct address by contacting either the local office of that agency or by contacting headquarters in Washington, D.C. Included here are the Code of Federal Regulations (CFR). The CFR lists the policies for each agency and may be helpful in your research. The CFR can be found in any law library and many public libraries. The Department of Justice provides an updated listed of FOIA Administrative Contacts by agency at http://www.usdoj.gov/foia/att_a.htm, as well as a collection of links to agency FOIA sites at http://www.usdoj.gov/foia/other_age.htm AGRICULTURE DEPARTMENT Office of Information Room 536A, Admin. Bldg. Washington, D.C. 20250-1300 (202) 720-8164 http://www.usda.gov/news/foia/main.htm APPEALS Agriculture Department Office of the General Counsel USDA-OTGC, Room 2043 S 14th and Independence S.W. Washington, D.C. 20250-1400 (202) 720-3351

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Agriculture Department Office of the Inspector General, Room 117 W 12th and Independence, S.W. Washington, D.C. 20250 (202) 720-2791 7 CFR Part 1 ARMY Dep't. of Army Chief, FOIA Division USAIFC - P(ASQNS-OP-F) Crystal Square II, Suite 201 1725 Jefferson Davis Parkway Arlington,VA. 22202 http://www.army.mil http://www.rmd.belvoir.army.mil CENTRAL INTELLIGENCE AGENCY Information and Privacy Coordinator Office of Information Services Washington, D.C. 20505 (703) 351-2770 http://www.foia.ucia/gov CIVIL RIGHTS COMMISSION Solicitor's Office, Room 632 624 9th street, N.W. Washington, D.C. 20425 (202) 376 8351 http://www.usccr.gov COMMERCE DEPARTMENT FOIA Officer, Room 6020 14th and Constitution NW Washington, D.C. 20230 (202) 482-4115 http://www.doc.gov CONSUMER PRODUCT SAFETY COMMISSION Freedom of Information Office 4330 East West Highway Bethesda, MD 20207 (301) 504-0862 http://www.cpsc.gov/library/foia/foia.html APPEALS same address 32 CFR Part 286

APPEALS same address 32 CFR Part 1900

APPEALS same address 45 CFR Part 704

APPEALS Office of the General Counsel Room 5882-C 14th and Constitution Ave., N.W. Washington, D.C. 20230 (202) 377-5384 15 CFR Part 4 APPEALS Chairman of Commission Consumer Product Safety Commission Washington, D.C. 20207 16 CFR Part 1016

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DEFENSE DEPARTMENT (all branches except Army) Office of the Secretary of Defense Director, Freedom of Information Room 2C757, Pentagon Arlington, VA 20301-1400 (202) 697-1180 ENVIRONMENTAL PROTECTION AGENCY Freedom of Information Office, A-101 401 M Street, N.W. Room 227 W Tower Washington, D.C. 20460 (202) 260-4048 http://www.epa.gov EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Legal Services 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4669 http://www.eeoc.gov FEDERAL BUREAU OF INVESTIGATION Chief FOIA & Privacy Act Section Room 6296 JEH 935 Pennsylvania Avenue, N.W. Washington, D.C. 20535 (202) 324-5520 http://www.fbi.gov APPEALS same address 40 CFR Part 2

APPEALS Chairman, EEOC same address 29 CFR Part 1610

APPEALS Attorney General, Ofc. of Legal Policy Department of Justice Room 2238 10th and Constitution Ave NW Office of Information and Privacy Washington, D.C. 20530 (202) 514-3642 28 CFR Part 16 http://www.usdoj.gov/foia APPEALS Freedom of Information Appeals FOIA Office of General Counsel 6th and Pennsylvania Avenue, N.W. Washington, D.C. 20580 16 CFR Section 4.11 APPEALS same address 22 CFR Part 6

FEDERAL TRADE COMMISSION FOIA Branch Room 682 6th and Pennsylvania Ave., N.W. Washington, D.C. 20580 (202) 326-2431 http://www.ftc.gov FOOD AND DRUG ADMINISTRATION 5600 Fishers Lane, (HF 1 - 35) Rockville, MD 20857

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(301) 443-6310, ext. 111 http://www.fda.gov/foi/foia2.htm HEALTH & HUMAN SERVICES DEPARTMENT Director, FOIA/Privacy Act Division 200 Independence Avenue, S.W., Room 645 F Washington, D.C. 20201 (202) 690-7453 http://www.hhs.gov/about/infoguid.html INTERNAL REVENUE SERVICE Chief FOIA/Privacy Section Ben Franklin Station Washington, D.C. 20044 (202) 662-5164 http://www.irs.gov NATIONAL SECURITY COUNCIL Director, Information Disclosure Washington, D.C. 20506 (202) 456-9201 http://www.whitehouse.gov NUCLEAR REGULATORY COMMISSION Chief, FOIA/Privacy Act LPDR Branch USNRC Mail Stop 6DA Washington, D.C. 20555-0001 (301) 415-7169 http://www.nrc.gov/NRC/FOIA/foia.html SELECTIVE SERVICE SYSTEMS Records Manager 1515 Wilson Blvd. Arlington, VA 22209-2425 (703) 605-4048 http://www.sss.gov SMALL BUSINESS ADMINISTRATION Freedom of Information/Privacy Act Office 409 3rd Street SW Washington, D.C. 20416 (202) 401-8203 http://www.sba.gov/foia TREASURY DEPARTMENT Disclosure Office, Room 1054 APPEALS Depends on denial; they will tell you to where you should send your appeal APPEALS same address 45 CFR Part 5

APPEALS IRS, Chief Counsel 1111 Constitution Ave, N.W., Room 3704 Washington, D.C. 20024 26 CFR Part 601, subpart G

APPEALS same address 32 CFR Part 1662

APPEALS same address 134 CFR Part 102

APPEALS same address

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1500 Pennsylvania Ave., N.W. Washington, D.C. 20220 (202) 622-0930 http://www.ustreas.gov/foia VETERANS ADMINISTRATION Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 273-6382 http://www.va.gov/foia

31 CFR Part 1

APPEALS Office of General Counsel 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 273-6382 38 CFR Section 1.500

CREDITS
Nadine Strossen President Ira Glasser Executive Director Kenneth B. Clark Chair, National Advisory Council

This publication has been prepared by the American Civil Liberties Union, a nationwide, nonpartisan organization of 275,000 members dedicated to preserving and defending the principles set forth in the Bill of Rights.
Loren Siegel Director of Public Education Rozella Floranz Kennedy Editorial Manager Eve Cary Legal Research Emilia Sherifova Editorial Research
Copyright 1998, The American Civil Liberties Union

Copyright 1999, American Civil Liberties Union Reprinted with permission of the American Civil Liberties Union http://www.aclu.org

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