Transcript Obtaining Information from the Government – FOIA 101

Obtaining Information from the
Government – FOIA 101
2012 ABA Young Lawyers Division
October 19, 2012
Talmadge Simpson, Balch & Bingham LLP
Copyright © 2010. Balch & Bingham LLP. All rights reserved
1
An Explosion of
Government Information
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644,165 information
requests from the
public in FY 2011
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Over 77 million
decisions to classify
information as “secret”
or “top secret” in 2011
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142 terabytes of
electronic data and 10
billion pages of text in
the National Archives
Why Should Lawyers Care?
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We deal with federal agencies all the time in a
variety of settings
Litigators
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Transactional lawyers
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Need information to argue a case
Discovery disputes
Need information on a site or facility
Information on competitors, sellers, or buyers
Compliance counselors
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Regulatory statutes have provisions allowing agencies to
collect information from regulated (and other) parties
This may involve confidential business information or
other sensitive information
Freedom of Information Act (“FOIA”)
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Simple Concept: Federal executive
departments and agencies must make
records available upon request
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… unless the records qualify for an exemption
or exclusion (5 U.S.C. § 552)
Plus a few wrinkles:
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What is an “agency”?
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What are “records”?
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Who can request agency records?
Who is Subject to FOIA?
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FOIA only applies to Federal “agencies”
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Administrative Procedure Act definition
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APA definition refined by FOIA definition
Includes:
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Executive departments
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Military departments
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Government-controlled or –owned corporations
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“any other establishment of the Executive branch”
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“any independent regulatory agency”
Who is Subject to FOIA?
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Excluded from definition of “agency”
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Congress
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Congressional agencies
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Judiciary
What about the President and the White House?
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Excluded: President, Vice President, VP’s Office, Chief of
Staff, Council of Economic Advisors
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Included: Council on Environmental Quality, OMB, U.S.
Trade Office, Office of Administration
Executive Privilege can come into play
What is a Record?
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A record is basically
anything documentary
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Broader than the Federal
Records Act definition
(44 U.S.C. § 3301)
An agency record provides
a bit more drama
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Made or received by agency;
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In the agency’s control
NOTE: Private documents can become agency records!
Who Can Request Records
under FOIA?
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any “person” as
defined under the APA
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excludes other Federal
agencies
Requester’s identity
and motivation is
irrelevant . . . except:
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fugitives, first party
requests, privacy info
NOTE: an Attorney can file a FOIA request “on behalf” of a Client
Making a Successful FOIA Request
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First exhaust other avenues for the information
Think about how your request is worded
Know where to send the request
Follow up
Specify your preferred format – you are entitled to
receive the records in the form or format that you
want if “readily reproducible” by the agency
Position for litigation and don’t be afraid of it
Do Your Homework First
Check agency’s website before filing your
request – every agency must have its own
FOIA regulations and must publish FOIA
contact info for its various offices
Making a Successful FOIA Request
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Other Considerations
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Agency fees:
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am I eligible for a fee waiver or reduction?
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how much to pre-authorize?
Timeline and expedited processing
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How quickly do you need this information?
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Is there a compelling need for expediting?
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Method of delivery – something with receipt confirmation
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Contact Info – be ready to answer questions
Agency Response to a FOIA Request
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Why 20 days does not equal 20 days
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“Unusual circumstances”
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Starts when appropriate office receives request
but no more than 10 days after any office within
agency receives the request
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Tolling the clock
If no response or notification within 20 days
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requester has “exhausted administrative
remedies” and can sue in Federal district court
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Agency cannot charge search fees
Agency Response to a FOIA Request
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“Unusual Circumstances” – agency can unilaterally
extend its deadline by 10 working days upon
written notification to the requester if:
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Need to search for and collect records from field facilities
or separate offices; or
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A “voluminous amount of separate and distinct records”
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Need to consult with another agency (or component
within the agency) with a substantial interest in the
subject matter of the request
Agency Response to a FOIA Request
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Tracking your request
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FOIA now requires agencies to assign a tracking number
to any request expected to take over 10 days to process
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Agencies also must provide a system for inquiring
(usually a page on the agency website)
Beware of multi-track processing
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“Simple” requests are put on one track
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“Complex” requests put on another
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Requests are processed on a first-come-first-serve basis
within each track
Agency Response to a FOIA Request
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An agency’s response to a FOIA request must
include certain information
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Whether agency located responsive records
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Whether agency is releasing or withholding records
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Reason(s) for withholding responsive records
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“Reasonable effort” to estimate volume of withheld
information unless doing so would harm protected interest
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Name / title of person responsible for withholding
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Notice of requester’s right to appeal / how to appeal
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Best possible reproduction of released records
FOIA Fees
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FOIA allows agencies to charge “reasonable” fees
for searching for, reviewing, and duplicating
records responsive to a FOIA request
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4 fee categories
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Commercial: search + duplication + review
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Education / Non-commercial scientific institutions: only
duplication if used for non-commercial purpose
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Media: only duplication if non-commercial use
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Default: search + duplication
FOIA Fee Waivers and Reductions
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FOIA provides for discretionary fee waivers
and reductions (2 part test)
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Disclosure would “contribute significantly” to public’s
understanding of agency operations
AND
Disclosure primarily for a non-commercial interest
Agencies must publish fee schedules and
procedures (another reason to check the website)
NOTE: Fee determinations are subject to judicial review!
Bases for Withholding Records
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Nine exemptions – most are discretionary
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5 U.S.C. § 552(b)(1) – (9)
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Agencies are not bound by their initial choice of
exemption
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Agency must release any “reasonably segregable
portion of a record”
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“The amount of information deleted, and the
exemption under which the deletion is made,
shall be indicated on the released portion of the
record. . . .”
FOIA Exemption 1
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Exemption 1: Classified information
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Power to classify derives from executive branch power
under the Constitution and is exercised through Executive
Order
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Dept. of Navy v. Egan, 484 U.S. 518 (1988):
Presidential authority to classify and control access
to “information bearing on national security” “flow
primarily” from the constitution and “exists quite
apart from any explicit congressional grant.”
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No federal statute governs the classification procedure
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Patchwork of federal statutes provides for enforcement
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Classification process is its own animal with procedures
for challenges and appeals
FOIA Exemption 2
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Covers information “related solely to the internal
personnel rules and practices of an agency.”
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For 30 years, Exemption 2 included a “Low 2” and
a “High 2” prong
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Milner v. Department of the Navy, 562 U.S. ___,
131 S. Ct. 1259 (2011): there is no “high 2” prong
to Exemption 2
NOTE: Use of Exemption 2 fell by 62% in Fiscal Year 2011
FOIA Exemption 3
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Covers information “specifically exempted from
disclosure by statute” if the other statute:
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“leave[s] no discretion on the issue” and
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Establishes particular criteria or types of matters to be
withheld
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Dozens of “Exemption 3” statutes covering all sorts
of information like financial information, victim
identities, honey producer information,
archeological maps, etc.
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If statute enacted after October 28, 2009, it must
also specifically reference 5 U.S.C. 552(b)(3)
FOIA Exemption 4
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“Trade secrets and commercial or financial
information obtained from a person and privileged
or confidential”
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Confidential business information (“CBI”)
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Backstopped by Trade Secrets Act
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Submitters of information entitled to certain
procedural rights under agency regulations
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Sets up “reverse FOIA” lawsuit
FOIA Exemption 5
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“[I]nter-agency or intra-agency memorandums or
letters which would not be available by law to a
party other than an agency in litigation with the
agency”
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Attorney client privilege, attorney work product,
deliberative process privilege, presidential
communications privilege
DPP: “advisory opinions, recommendations and
deliberations comprising part of a process by which
government decisions and policies are formulated”
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“Pre-decisional” and “deliberative”
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Not factual information / no “final opinions” of agency
FOIA Exemption 6
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“[P]ersonnel and medical files and similar files the
disclosure of which would constitute a clearly
unwarranted invasion of personal privacy”
Most frequently used exemption
Backstopped by the Privacy Act—if information falls
within Ex. 6, agency is prohibited from disclosing
Balancing of privacy interest v. public interest in
disclosure
FOIA Exemption 7
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“[R]ecords or information compiled for law
enforcement purposes, but only” if it would:
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(A) Interfere with enforcement proceeding
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(B) Deprive individual of fair trial
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(C) Invade personal privacy
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(D) Disclosure confidential informant
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(E) Disclosure law enforcement techniques
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(F) Endanger life or physical safety
What is “compiled for law enforcement”?
FOIA Exemptions 8 and 9
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Exemption 8 – information used or prepared by
agencies responsible for regulation or supervision
of financial institutions
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Exemption 9 – geological and geophysical
information and data, including maps, concerning
wells
FOIA Exclusions
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Three Exclusions – removes certain records from
statutory coverage altogether (5 U.S.C. § 552(c))
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(1) records related to a criminal investigation and the
agency has reason to believe the suspect does not know
about the investigation and disclosure would tip off
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(2) records related to information about informants that
the agency has not yet confirmed
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(3) classified records maintained by the FBI relating to
foreign intelligence, counterintelligence, or international
terrorism and the existence of the record is classified
NOTE: agency decisions regarding the applicability of an
exclusion are subject to administrative and judicial review
Some FOIA Statistics (Fiscal Year 2011)
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644,165 total FOIA requests received
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631,424 total FOIA requests processed
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236,474 requests granted in full (37.5%)
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171,795 requests granted in part (27.2%)
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30,369 requests denied in full (4.8%)
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87,577 no responsive records (13.6%)
More FOIA Statistics (Fiscal Year 2011)
Top 5 Request Receivers
1.
Dept of Homeland Security (175,656)
2.
Dept of Defense (74,117)
3.
Dept of Health and Human Services (67,431)
4.
Dept of Justice (63,103)
5.
Social Security Administration (32,456)
More FOIA Statistics (Fiscal Year 2011)
Top 5 Stingiest Agencies
(lowest % of grants in full, min. 100 requests received)
1.
Court Services and Offenders Supervision Agency – 4.7%
2.
Equal Employment Opportunity Commission – 5.2 %
3.
Office of the Director of National Intelligence – 9.7%
4.
National Science Foundation – 14.4%
5.
Department of Homeland Security – 15.4%
I Really Like Statistics (Fiscal Year 2011)
FOIA Costs and Fees Collected (all agencies)
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Incurred $412.6 million in FOIA request processing
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Incurred $23.4 million in FOIA litigation expenses
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Total = $436 million in FOIA costs
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Collected only $6.19 million in FOIA fees from requesters
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Only 1.4% of costs recovered
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Only 6,488 fee waiver requests received
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Roughly 1% of all FOIA requests
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3,624 (55.9%) were denied
FOIA Appeals and Litigation
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FOIA request denials may be appealed
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FOIA administrative appeal decisions are judicially
reviewable in federal district court
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Court reviews records in camera to determine
applicability of agency’s reason(s) for withholding
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FOIA plaintiff has venue choices
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Requester resides
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Requester principal place of business
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Where records are situated
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D.C. District Court
Litigating a FOIA Case
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File administrative appeal and exhaust other
administrative remedies
Consider where to file; know your court
Discovery is the exception, not the rule
Use DOJ FOIA Guide against the government
The odds are you will lose in challenging an
exemption, but act like you should win
Rethink what “victory” is.
Attorney fee landscape has changed
The “Reverse FOIA” Lawsuit
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General concept: suing to protect confidential
information from being disclosed to the public
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“Person” submits confidential information to agency
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3d party requests the information under FOIA
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Agency determines the information should be released
over the submitter’s objections
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Submitter sues agency in Federal court to prevent it from
releasing the information to 3d party
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Use FOIA as a discovery tool against agency and
request certified copies
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Court protective order can trump FOIA!
Additional Resources
Department of Justice Guide to the FOIA
http://www.justice.gov/oip/oip-guidance.html
FOIA.gov
And, Finally, a Shameless Promotion
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Buy the book!
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The Federal
Information Manual
(ABA 2006)
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2d edition in the works
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www.amazon.com

www.abanet.org