Introduction to the Freedom

of Information Act
Adam A. Marshall
Knight Foundation Litigation Attorney
Reporters Committee for Freedom of the Press
 Protecting & supporting journalists
since 1970
 Amicus Briefs
 24/7 Hotline
 Litigation
 Publications & resources
Welcome to the jungle...
 FOIA is a complicated web of statutes, caselaw,
regulations, written and unwritten policies, and luck
The Federal Freedom of
Information Act
 The statute: 5 U.S.C. § 552
 Provide a right of access to existing “records” held by federal
executive branch “agencies” (for the most part)
 Does not apply to legislative or judicial branches
FOIA: what is it good for?
How to start
 First, discuss your idea/plan with your editor(s)
How to start
 Second: throughout the FOIA process, if you need
information or have questions, go to the FOIA Wiki (foia.wiki)
How to start
 The basic process of filing a FOIA request is
easy.
 Three requirements:
 Written request
 “Reasonably describe” the records sought
 Follow agency regulations
 Look at the agency regulations/website –
you never know what might be there
 How do you know where the agency
regs/website are?
 foia.wiki!
RCFP’s iFOIA.org
What can you ask for?
 FOIA applies to “records” that already exist.
 Cannot ask for the creation or compilation of information
 This includes all types of documentary information, such as
papers, reports, letters, email, films, computer tapes,
photographs and sound recordings.
 Physical objects that cannot be reproduced are not “records”
 More info: foia.wiki/wiki/Records_Subject_to_FOIA
How to get what you want
 Your request must be specific enough so that a government
employee familiar with the subject area can locate the
records with reasonable effort
 foia.wiki/wiki/Making_a_FOIA_Request
 You may want to consider specifying systems/places for the
agency to search
 Example: FBI has a multitude of information systems. If you don’t
specify, they only search one database.
 Consider FOIA Mapper—
 Gives rundown on agency record systems & what’s in
them
 Links to each agency’s page are on foia.wiki or go
directly to www.foiamapper.com
Targeted Requests
 Asks for something specific that you already
know exists.
 Provide all detail you have
 If possible, provide title, date, author, office, etc.
Exploratory Requests
 Asks for records about a particular subject in the hopes of
finding something interesting
 Must still satisfy the “reasonably describes” requirement
 Words to avoid:
 “all documents pertaining to” X
 “all documents related to” Y
 ”all documents concerning” Z
 CAN use keyword searches
Examples
 The targeted request
 "The memorandum titled [X], from J. Edgar Hoover to the FBI's
Deputy Director, dated April 13, 1937."
 The exploratory request
 "All emails from the Mayor to the Deputy Mayor that were sent
between June 1, 2015 and July 30, 2015.”
 "All emails to or from the Mayor that contain the words “octopus” or
“octopuses”.
Expedited Processing?
 FOIA authorizes agencies to use multitrack processing
 Trends in processing time
DOJ FY 2013–2016
200

180

160

140

120

100

80

60

40

20

0
Average days, simple Average days, complex Average days, expedited

2013 2014 2015 2016

Expedited Processing:
What do you have to show?
 First: consult your editor/in-house counsel
 Statute: “with respect to a request made by a person
primarily engaged in disseminating information, urgency to
inform the public concerning actual or alleged Federal
Government activity.”
 Regulations (DOJ): “A matter of widespread and exceptional
media interest in which there exist possible questions about
the government's integrity that affect public confidence.”
 If you do request expedited processing, you must include a
statement that the reasons for the need are certified to be
true and correct to the best your knowledge and belief.
It’s up to you
 Not many requests for expedited processing are granted, but
most are denied in a short period of time
 Look at the data (available at www.foia.gov and foia.wiki)
determine what your needs are, talk to your editor/in-house
counsel
Fees
 Agencies may charge “reasonable” fees for
the “direct” costs of searching for and
copying the records you request, unless
you are entitled to a fee benefit or a fee
waiver.
 It’s probably a good idea to include a
statement in your request of how much you
are willing to pay, and ask the agency to
contact you if it will exceed that amount
before proceeding
 Again, talk to your editor
Fee categorization
 If you are a representative of the news media, and the
records are not sought for commercial use, fees are limited
cost of duplication.
 You also get first 100 pages free, then ~$0.05 - $0.15/page after
that, or the actual direct cost of the copy (e.g., if in electronic
form)
 Be sure you identify yourself as a representative of the news
media!
Fee waiver
 Agency must grant fee waiver “if disclosure of the information
is in the public interest because it is
 likely to contribute significantly
 to public understanding
 of the operations or activities of the government
 and is not primarily in the commercial interest of the requester.”
Sending it in
 Check the agency website!
 Some accept via email/electronic portal, some by fax, some by
snail mail
 If mailing/faxing, be sure to CLEARLY mark it as a FOIA request
on the outside/cover sheet
 Consider iFOIA/other online tools
 DOCUMENT EVERYTHING!
 This will make you and your lawyers happy later on
 iFOIA has built-in features for this
What happens next?
 For normal FOIA requests, the agency must make a
“determination” within 20 business days
 That includes: (i) gathering and reviewing the documents; (ii)
determining and communicating the scope of the documents the
agency intends to produce and withhold, and the reasons for
withholding any documents; and (iii) informing the requester that
it can appeal whatever portion of the “determination” is adverse.
 This does not mean you have a right to the records themselves
within 20 days.
 An agency can extend this time if “unusual circumstances”
apply, such as if voluminous records must be searched, if
records must be retrieved from various offices or if several
agencies must be consulted.
 This happens a lot
What happens next?
 For submissions that request expedited processing, the
agency must make a determination as to whether or not to
grant the request for expedited processing within 10 calendar
days
 After that, they must process the request “as soon as practicable”
 Unfortunately, the statutory deadlines for FOIA requests are
rarely followed
Following up
 Agency acknowledgement
 NOT a determination
 Tracking number
 Estimated date of completion
 Agency’s Public Liaison/Chief FOIA Officer
 Consider negotiating/limiting request
 Contact info in foia.wiki & agency webpages
 Office of Government Information Services (OGIS)
 Talk to your editor/in-house counsel!
The Determination
 (1) You get everything. Done!
 (2) You get something but not everything. Not done.
 (3) You get nothing. Not done.
 (4) The agency refuses to let you know what’s going on. Not
done?
Exemptions – the (b)’s

 (b)(1) – Classified information

 (b)(2) – Internal personnel rules and practices of an agency
 (b)(3) – Specifically exempted by other statute
 (b)(4) – Trade secrets/commercial information
 (b)(5) –
 Deliberative process
 Attorney-client privilege
 Attorney work product privilege
Exemptions – the (b)’s
 (b)(6) – personal privacy
 (b)(7): exempts records compiled for law enforcement
purposes, but only to the extent that their release
 (A): could reasonably be expected to interfere with enforcement
proceedings,
 (B): would deprive a person of a right to a fair trial or an impartial
adjudication
 (C): could reasonably be expected to constitute an unwarranted
invasion of personal privacy
 (D): could reasonably be expected to disclose the identity of a
confidential source....
 (E): would disclose techniques and procedures for law
enforcement investigations or prosecutions...
 (F): could reasonably be expected to endanger the life or
physical safety of any individual
Exemptions – the (b)’s
 (b)(8) – Agency records related to supervision/etc. of financial
institutions
 (b)(9) – geological and geophysical information and data,
including maps, concerning wells
Foreseeable Harm & b5 Sunset
 2016 amendments to FOIA added a foreseeable harm
standard
 An agency can only withhold information if:
 (1) it reasonably foresees that disclosure would harm an interest
protected by an exemption; OR
 (2) disclosure is prohibited by law
 Applies to each record
 Also added a 25 year sunset to deliberative process privilege
under Exemption 5
Exemptions – the not-(b)’s
 Glomar
 5 U.S.C. § 552(c)
 Agencies can treat records as not
falling under FOIA when
 (1) they are law enforcement
records & subject is not aware of
investigation
 (2) confidential informant records
 (3) FBI records related to
intelligence/terrorism matters
Administrative Appeals
 Keep everything related to your request!
 You will need this for the appeal.
 What can you appeal?
 Sufficiency of Search
 Exemptions
 Segregability
 Failure to respond to statutory deadline
 How long do you have to appeal?
 Agency must give minimum of 90 days after determination
 Do a draft yourself, then send to in-house counsel
 Timing of agency response?
 20 business days (theoretically)
 Office of Government Information Services (OGIS)
Hopefully you win, otherwise…
FOIA Lawsuits & Administrations
State public records laws
 Every state has also adopted its own public records law,
sometimes called a sunshine law, public records act, open
records act, etc.
 These laws vary widely
 Some provide access to judicial and legislative, as well as
executive branch records
 Response time is almost always much shorter
 Often have less-developed access procedures
 Detailed information available on the free
RCFP Open Government Guide:
rcfp.org/open-government-guide
 (Big update coming soon!)
Citizenship requirements (maybe,
sometimes)
 Alabama
 Arkansas
 Delaware
 Missouri
 New Jersey
 Tennessee
 Virginia
If you have questions:
 Call/email the RCFP hotline:

 Contact your in-house counsel

 Post on the foia.wiki forum
 foia.wiki/wiki/Special:WikiForum (link also on sidebar)
Resources

 foia.wiki
 www.ifoia.org
 RCFP Open Government Guide (rcfp.org/open-government-
guide )
 OGIS (https://www.archives.gov/ogis)
Q&A