The Freedom of Information Act and How To Use It

Reclaim The Net  |  Dan Frieth

On a sweltering day in July, 1966, a historic event unfolded in the hallowed halls of power in Washington, D.C. A monumental law was signed, one that would change the landscape of American governance and redefine the relationship between the people and their government. The law was called the Freedom of Information Act (FOIA), and its birth was no accident, but a result of years of tireless advocacy and momentous shifts in the social and political fabric of the nation.

Let’s take a step back and embark on a journey to the tumultuous 1960s, when America was riding on waves of rapid change. It was an era of escalating Cold War tensions, a protracted conflict in Vietnam, and groundbreaking civil rights movements that were shaking the very core of society. With growing uncertainties on all fronts, there was an increasing disillusionment amongst the citizenry about the lack of transparency in the government’s dealings. This sentiment was particularly prevalent in the press, who were often met with opaque responses and bureaucratic walls when they attempted to pierce the veil of secrecy around governmental affairs.

The spark that lit the flame of FOIA began in the unlikely form of John Moss, a Congressman from California. For Moss, the quest for governmental transparency was personal. He had faced repeated stonewalling while investigating the dismissal of a federal employee and was frustrated by the impenetrable shroud of secrecy that engulfed the government’s inner workings. Fueled by this personal experience, he decided to dedicate himself to ensuring such obfuscation would never occur again.

Moss spent over a decade on his mission, championing the cause for transparency and accountability in the halls of Congress, pushing for a law that would give citizens the right to access federal records. His vision was not universally accepted, and he faced significant pushback. Several critics, especially those within the government, were concerned that such transparency would compromise national security and hamper administrative efficiency. However, Moss was unwavering. He believed in a democracy where citizens had a fundamental right to scrutinize their government’s activities. After years of persistent effort, his bill finally saw the light of day.

After rigorous debates and revisions, the FOIA was passed by the Congress in 1966. The law was revolutionary in that it established the presumption of public access to government information. For the first time in American history, the burden of proof was shifted onto the government to justify why certain information should be kept confidential. It was no longer enough for the government to simply claim that the information was “classified”. Now, they had to demonstrate how its disclosure would harm national security or disrupt governmental operations.

President Lyndon B. Johnson, although reportedly ambivalent about the bill, signed it into law on July 4th, 1966 – a symbolic date for a law championing democratic transparency. With a stroke of a pen, he ushered in a new era of open government.

Since then, the FOIA has been a powerful tool in the hands of journalists, researchers, and ordinary citizens, enabling them to hold their government accountable and fostering a culture of transparency that has seeped into every layer of public administration. It has undergone several amendments, further strengthening the public’s right to information and keeping pace with the ever-evolving societal and technological landscape.

The journey of the Freedom of Information Act stands as a testament to the tireless work of advocates like Moss and their firm belief in the pillars of democracy: transparency, accountability, and the right of the people to know. This monumental legislation is an enduring reminder that, in a functioning democracy, information is not a privilege, but a right.

Who Can You Send A FOIA Request To?

Under the FOIA, an “agency” is defined as any executive department, military department, government corporation, government-controlled corporation, or other establishment in the executive branch of the government, including the Executive Office of the President. Additionally, it also applies to any independent regulatory agency.

To break it down, the FOIA essentially covers all federal departments, which includes but is not limited to the Department of State, Department of Defense, Department of Health and Human Services, Department of Homeland Security, Department of Justice, and Department of Education. Each of these departments, alongside others, is required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.

On a more granular level, the FOIA also encompasses a myriad of government agencies and offices within these departments. These range from the Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA) within the Department of Justice, to the Federal Emergency Management Agency (FEMA) within the Department of Homeland Security, or the Food and Drug Administration (FDA) within the Department of Health and Human Services.

Moreover, the Act applies to government-controlled corporations and independent regulatory agencies such as the Environmental Protection Agency (EPA), Securities and Exchange Commission (SEC), and Federal Communications Commission (FCC). Each of these entities is subject to FOIA requests and obligated to comply, ensuring a level of accountability across a broad swath of governmental functions.

However, it’s important to note that the FOIA only applies to federal agencies. State and local governments, courts, Congress, private corporations, and non-profit organizations are not subject to FOIA requests. Many states, though, have their own versions of the FOIA, often called “sunshine” or “public records” laws, which provide similar access to state and local records.

In conclusion, the FOIA’s reach is extensive, encompassing a wide array of departments, agencies, and offices within the federal government’s executive branch. From environmental regulations to defense initiatives, and from financial oversight to public health measures, the FOIA provides a critical tool for transparency and accountability across the vast machine of federal governance.

FOIA Exemptions

However, the Act is not without its limitations. Within the FOIA, there are certain exemptions designed to protect sensitive information.

To maintain a delicate balance between transparency and the protection of certain essential interests, the FOIA stipulates nine exemptions that restrict the types of information that can be requested or released. Let’s explore these in more detail:

National Security: Information that is classified to protect national security or foreign policy is exempt from disclosure. This includes sensitive information related to the defense sector or diplomatic relations with foreign countries.

Internal Personnel Rules and Practices: This exemption covers internal matters of an agency such as employee relations and human resources issues. The goal is to prevent the disruption of routine agency operations.

Specifically Exempted by Other Statutes: If another federal law prohibits the release of certain information or requires it to be confidential, such records are exempt from FOIA requests.

Trade Secrets and Commercial or Financial Information: Confidential business information that could harm a company’s competitive stance if disclosed falls under this exemption. This includes trade secrets, proprietary data, and other commercially sensitive information.

Privileged Agency Memoranda: Often referred to as the ‘deliberative process privilege,’ this exemption safeguards the decision-making processes within government agencies. It includes inter-agency or intra-agency memoranda or letters that are part of the agency’s decision-making processes.

Personal Privacy: This exemption protects individuals’ personal privacy rights. Any information that, if disclosed, could constitute a clearly unwarranted invasion of personal privacy, is exempted.

Law Enforcement: This exemption is designed to prevent the impairment of law enforcement efforts. It protects certain kinds of information compiled for law enforcement purposes, like information that could interfere with enforcement proceedings or endanger the life or physical safety of individuals.

Regulated Financial Institutions: This exemption covers information about financial institutions that are regulated by the government.

Geological Information: The last exemption pertains to geological and geophysical information, including maps and data concerning wells.

These exemptions help maintain a delicate equilibrium. While the FOIA is built on the premise of transparency, these exceptions acknowledge that some spheres of government operation require confidentiality to function effectively and to protect individual rights.

However, it’s important to note that these exemptions are not absolute. There is a mechanism for appealing a decision when a FOIA request is denied based on these exemptions. Such appeals often necessitate a case-by-case evaluation, with courts playing a key role in determining whether an exemption legitimately applies.

If a FOIA request is made for information that falls within the scope of the Privacy Act of 1974 – in other words, personal information about a specific individual – the information cannot be disclosed without that individual’s written consent. In such a scenario, the Privacy Act effectively limits the scope of FOIA.

The intersection of these two laws often comes into play when FOIA requests are made for information about public officials or when journalists are investigating issues where private lives intersect with public duties. For instance, when a FOIA request is made for information that pertains to an identifiable federal employee, the requested information could potentially be withheld under the Privacy Act if its disclosure would constitute a clearly unwarranted invasion of the individual’s personal privacy.

It’s important to note, however, that the Privacy Act doesn’t make personal data entirely inaccessible. An individual can access their own records held by federal agencies and request correction of any inaccurate data. The Act, thus, gives individuals a measure of control over their information without impeding the general principle of governmental transparency endorsed by the FOIA.

FOIA FEES

It’s important to note that requesting information under the Freedom of Information Act isn’t always free of charge.

At the most basic level, the FOIA allows federal agencies to charge certain fees for processing requests. However, it’s crucial to note that these fees are not designed to be a deterrent to public access, but rather to offset a portion of the administrative costs incurred by the agency in complying with the request.

The fee structure for FOIA requests is primarily divided into three categories: search, review, and duplication.

Search fees refer to the costs associated with searching for and retrieving the requested records. This includes the time spent looking for relevant records in electronic and physical files, and even the time spent to transport physical files to the location where they will be reviewed.

Review fees, on the other hand, involve the cost of examining the documents located in response to a request to determine whether any portion of them is exempt from disclosure. This also includes the time spent to redact or otherwise prepare the documents for release.

Finally, duplication fees are the costs of making a copy of the document once it has been cleared for release. The FOIA permits agencies to charge for copies of documents, whether they are provided in print or electronically.

These fees, however, can be waived or reduced in certain circumstances. For instance, agencies must provide the first two hours of search time and the first 100 pages of duplication free of charge. Furthermore, if the information being requested is in the public interest and is not primarily in the commercial interest of the requester, the FOIA provides that fees should be waived or reduced.

Additionally, different categories of requesters are treated differently when it comes to fees. Commercial requesters may be charged for search time, review time, and duplication. News media, educational institutions, and non-commercial scientific institutions are charged only for duplication, and not for the first 100 pages. All other requesters are charged for search and duplication, but not for the first two hours of search time or the first 100 pages of copies.

How Agencies Are Supposed To Respond To Requests

Firstly, it’s important to note that federal agencies are mandated by law to respond to FOIA requests. Once a request has been made, agencies are obligated to acknowledge its receipt and provide information about the agency’s FOIA processing procedures.

A critical aspect of this process is the time frame. Federal agencies are generally required to respond to a FOIA request within twenty business days from the day they receive the request, excluding Saturdays, Sundays, and legal public holidays. However, in some circumstances, due to the volume of records requested or the need to consult with another agency, this response time might be extended.

When it comes to the contents of the response, there are essentially three possibilities. The agency may grant the request fully, deny it fully, or grant it in part and deny it in part.

If the agency grants your request fully, it means you will receive all the records that you asked for, either in a physical form or digitally, depending on your preference and the agency’s capacity.

However, in certain cases, agencies might deny your request fully or in part. This usually happens when the information sought falls under one of the nine exemptions stipulated in the FOIA.

If your request is denied, in full or in part, the agency is required to tell you the reasons for the denial. It must also inform you of your right to appeal the denial and provide you with the necessary instructions on how to make such an appeal. In essence, if an agency decides to withhold all or some of the information you requested, they must indicate which exemption it believes justifies this action.

Another crucial aspect to be aware of is the possibility of incurring fees in processing your request. The agency should notify you if there are any fees involved and provide you with an opportunity to narrow your request in order to reduce the fees.

Freedom of information act requests around the world.

Transparency in government is a vital facet of democratic societies worldwide. Much like the United States’ Freedom of Information Act, the United Kingdom, Canada, and various countries in Europe have established similar laws to promote open access to government-held information.

United Kingdom

The UK’s Freedom of Information Act came into full effect in 2005, allowing the public to access information held by public authorities. Similar to the US FOIA, any person, regardless of nationality, can make a request. Grounds for submitting a request are essentially the same, in that the requester does not need to provide a reason or demonstrate any particular interest in the information.

However, a key difference lies in the breadth of the UK’s act. In addition to central government, the UK’s Act extends to a wide array of public bodies, including local government, National Health Service bodies, schools, and publicly owned companies.

Canada

The Access to Information Act in Canada, enacted in 1983, also shares similarities with the US FOIA. It allows Canadian citizens, permanent residents, and corporations present in Canada to access federal government records. Unlike the US and UK, non-residents cannot file requests, marking a significant divergence.

Also, Canada’s Act is a bit more restrictive in scope. It only applies to federal government institutions, with each province having separate legislation for provincial and municipal bodies.

Europe

European countries have a variety of information access laws, often referred to as ‘Right to Information’ (RTI) laws. The Council of Europe Convention on Access to Official Documents, ratified in 2009, is the first binding international legal instrument recognizing a general and enforceable right to official documents held by public authorities.

Like the US FOIA, these laws promote transparency, allowing any person to access public documents without demonstrating a specific interest. However, the applicability of these laws varies significantly among countries.

One major difference is in the protection of personal data. European countries place a high emphasis on privacy, and the General Data Protection Regulation (GDPR) can significantly limit the scope of information available under RTI laws.

In the United States, the FOIA is unique in its inclusiveness. It allows any person – U.S. citizen or not – to request access to federal agency records. This universality extends even beyond individual humans. Corporations, universities, and other entities, whether foreign or domestic, can file FOIA requests. In this aspect, the FOIA adheres to its core mission of promoting openness and accountability in government, irrespective of nationality or geographic location.

This provision makes the US FOIA distinct from similar laws in some other countries. For example, Canada’s Access to Information Act limits such requests to Canadian citizens, permanent residents, and corporations present in Canada.

Any person, regardless of their nationality or place of residence, can make a request in the UK also. This means you do not need to be a UK citizen or a resident to exercise this right. This universal right to access extends to individuals, companies, and organizations worldwide, embodying the principle of maximum openness.

In Europe, the situation is a bit more complex due to the diversity of national laws. The European Union itself has regulations ensuring transparency and the public’s right to access documents. Under Regulation 1049/2001, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right to access documents of the Union’s institutions.

However, when it comes to individual countries, the laws can vary significantly. For example, in Germany, the Federal Freedom of Information Act allows any person to access federal government information, regardless of nationality or place of residence. In contrast, in countries like France, while everyone has the right to access administrative documents, only citizens have the right to access personal data about themselves.

Much like the US, the UK, many countries in Europe provide a fairly inclusive approach to the filing of Freedom of Information requests. However, in certain instances, eligibility may be limited to citizens or residents. It’s always advisable to refer to the specific laws in each country for a comprehensive understanding of who can access government-held information.

Crafting Your Freedom of Information Act Request: A Step-By-Step Guide

Understanding how to draft your request efficiently can expedite the process and increase the chances of getting the information you need. Here is a step-by-step guide to help you compose an effective FOIA request.

How to submit a freedom of information act request

1. Pinpoint the Right Agency:

The first crucial step is determining the federal agency that is likely to have the information you’re seeking. This may seem obvious, but FOIA requests often misfire due to being sent to the wrong agency.

Tip: Dig into the missions and responsibilities of different agencies. If you’re looking for environmental data, for example, your request would likely be best directed to the Environmental Protection Agency.

2. Grasp the Agency’s FOIA Guidelines:

Once you’ve identified the appropriate agency, delve into its specific FOIA procedures. Agencies have their own set of regulations that supplement the federal FOIA laws, and understanding these can be critical to the success of your request.

Tip: Utilize resources like the agency’s website or FOIA.gov to gain insights into their specific FOIA procedures. This can inform you about whether you should submit your request via email, online portal, fax, or mail.

3. Clearly Define the Records You Seek:

When describing the records you seek, be as specific and concise as possible. Ambiguous requests can lead to misinterpretation and delays in receiving the desired information.

Tip: Think like an archivist! Provide details such as the type of document (email, memorandum, report, etc.), subjects, specific dates or time ranges, and the names of people or offices involved. Precision in your description will help the agency locate your records quickly.

4. State Your Position on Fees:

The FOIA allows agencies to charge fees for search time, duplication, and in some cases, review of documents. Be clear about your willingness to pay these fees or request a fee waiver if you believe the information serves the public interest.

Tip: Explicitly state the maximum fee you’re willing to pay. This can prevent surprises and ensure your request isn’t put on hold due to fee-related misunderstandings.

5. Provide Your Contact Information:

To ensure smooth communication, include your full name, mailing address, email, and phone number. The agency will use this information to send you updates or clarifications about your request.

6. Proofread and Revise:

Don’t underestimate the power of proofreading. Ensure that your request is clear, comprehensive, and free of errors. A well-drafted request will make the agency’s job easier and increase your chances of getting a positive response.

Tip: Have a friend or colleague read your request. A fresh pair of eyes can spot potential ambiguities or missing details.

7. Submission:

With your well-crafted request in hand, it’s time to submit. This can usually be done via the agency’s website, email, fax, or mail.

Tip: Keep a record of your submission. This includes saving a copy of your request and making a note of when it was submitted. This information can be useful if you need to follow up on your request or file an appeal later.

Crafting a FOIA request takes time and attention to detail. Each step has its significance, from identifying the right agency to submitting a well-drafted request. But with these tips in mind, you’re well on your way to retrieving the information you seek.

Here is a template for a freedom of information act request:

Subject: Freedom of Information Act Request

[Your Name]
[Your Address]
[City, State, Zip Code]
[Your Email Address]
[Date]

Freedom of Information Act Officer
National Institutes of Health
9000 Rockville Pike
Bethesda, Maryland 20892

Dear FOIA Officer,

Under the provisions of the Freedom of Information Act (5 U.S.C. §552), I am requesting access to and copies of all records of communication between the National Institutes of Health (NIH) and Facebook or Meta Platforms Inc. pertaining specifically to the topic of vaccine misinformation. This would include but not be limited to emails, letters, memos, notes from phone calls, and meeting minutes dated from January 1, 2021, to the present.

I am particularly interested in any records that highlight discussions or collaborative efforts between NIH and these entities in addressing, monitoring, and mitigating vaccine misinformation on their platforms.

As this request is made in the public interest, primarily for the purpose of disseminating the information gathered to the public, I kindly request that any associated fees be waived. However, should such fees arise and if they do not exceed [$50 – or any amount you’re willing to pay], I accept to pay them. If the fees are expected to exceed this limit, kindly inform me first.

Please provide the requested records in electronic format if possible. If you require any further clarification to expedite this request, I can be reached at [Your Phone Number] or [Your Email Address].

I look forward to your prompt response within the 20 business days as stipulated by the FOIA statute.

Thank you for your attention to this matter.

Sincerely,

[Your Full Name]

Original Article: https://reclaimthenet.org/the-freedom-of-information-act-and-how-to-use-it