AUGUST 1986 - VOLUME 7 - NUMBER 12
R E S O U R C E
AUGUST 1986 - VOLUME 7 - NUMBER 12
R E S O U R C E
How to Use the Federal FOIAThe public's ability to obtain information about the federal government has been significantly aided by the federal Freedom of Information Act (FOIA), passed in 1966. By making all records of government agencies presumptively available upon request, the Act guarantees the public's right to inspect an enormous storehouse of documents which might otherwise go unnoticed. Over the years, journalists and scholars have used the FOIA to investigate a wide variety of news stories and historical events. In 1972, Jack Taylor of the Daily Oklahoman gleaned enough information through a FOI request to reveal the atrocities of the 1968 U.S. military massacre at My Lai, in Vietnam. The facts for Taylor's story came from a report filed by Lt. Gen. Peers, who documented "individual and group acts of murder, rape, sodomy, maiming and assault on noncombatants and the mistreatment and killing of detainees." In January, 1985, Ralph Nader's Public Citizen Health Research Group used the FOIA to publicize 249 workplaces where the government had identified but not notified some 250,000 workers that they faced increased risk of cancer, heart disease, and other illnesses because of working conditions. Responding to a FOI request, the Department of Defense released information to the public interest group Common Cause, showing that 10 major government contractors had billed taxpayers more than $2 million for lobbying expenses. Under the federal FOIA, any person of any nationality may seek access to all records of all federal agencies-with nine important exceptions. While this sounds good in theory, in practice, obtaining information is often arduous and time-consuming. To seek information from government documents it is best to first try to obtain documents through informal means. Sometimes, a phone call to the public information or FOI officer at the appropriate agency is enough to produce the information needed. Only a written FOI request, however, will place the agency under legal duty to respond. If the informal approach fails, a formal FOI request is in order. Each federal agency subject to the FOIA has a designated FOI officer responsible for handling information requests; and larger agencies, like Defense or Agriculture, have separate FOI officers for their various subdivisions and regional offices. When possible, contact the officer in charge of the subdivision, as this may expedite a request. If possible, an original of the request should be sent to the agency headquarters with copies to divisions that may have records requested. The FBI, for example, searches its field offices for records only when requests are made directly to that office; a request to the Washington bureau will lead only to a search of their central files. Fee Charges Under the law, agencies may charge "reasonable" fees for the "direct" costs of searching for and copying records requested under the Act. The Act requires agencies to publish in the Federal Register uniform schedules for search and reproduction fees. Search fees generally range from $4 to $6 an hour for clerical personnel, and from $10 to $18 an hour for professional personnel, such as lawyers and accountants. Fees for computer time vary widely among agencies, but charges of $60 and above are common. Standard commercial copying fees are no more than $.10 a page; any government charge substantially above this would be questionable. Search fees can be charged even if few or no documents are found as a result of a request. Agencies may not, however, charge for the time spent examining files to determine whether individual documents should be exempt from disclosure, nor for the time spent deleting material in these documents. The FOIA further provides that an agency "shall" waive or reduce fees when it decides that furnishing the information requested would "primarily benefit the general public" and therefore be in the public interest. Some agencies have adopted regulations specifically allowing fee waivers for requests made by indigents, nonprofit groups, and, in a few cases, journalists. Although Congress intended the fee waiver provision to be exercised generously, new government-wide guidelines issued by the Department of justice have made it harder for requestors to obtain fee waivers. The guidelines propose four factors for agencies to consider when deciding if disclosure would "primarily benefit the general public." Agencies must consider:
Experience shows that requestors seeking relatively modest numbers of documents are more likely to be granted fee waivers than those whose requests encompass several thousand pages. If the agency denies a request for a fee waiver, its decision may be appealed. Most agencies will allow personal inspection if the time or expense involved in having documents copied by the agency would cause undue delay or cost. What To Do When a FOI Request Is Denied Any request that is wholly or partially denied can be appealed to the head of the agency. A FOI appeal can be filed with a simple letter; but the best information is often obtained only after repeated appeals. Appeals can also be made if a request is granted, but the fees to process it are prohibitively high. In the same way that it is worth trying informal means before filing a formal FOI request, it can be helpful to try to negotiate the release of at least some of the documents that were denied, before filing a formal appeal. By narrowing the scope of a request or permitting deletion of some information the agency considers particularly sensitive, a FOI officer may be persuaded to release many of the documents requested. Failing this, a formal appeal to the head of the agency involved should be made-for example, the Attorney General or the Secretary of Defense. The appeal should be filed within 30 days after the denial, although some agencies permit a longer delay. Only by making a written appeal can a legal duty be imposed on the agency to re-evaluate an original request, and only by a written appeal can a FOI lawsuit he brought. The FOIA includes nine exemptions that the government can use to refuse to disclose information. These exemptions cover documents relating to:
Since withholding is mandatory only for the "CatchAll" exemption, if the records requested fall into the other eight categories, the government is not required to withhold the information and may release the records at its discretion. In this situation, disclosure is most likely if it can be shown to be "in the public interest." Agencies Covered by the FOIA The FOIA applies to every "agency," "department," "regulatory commission," "government controlled corporation," and "other establishment in the Executive Branch of the federal government." This includes:
The FOIA also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President or the officers within the Executive Office that offer the President advice. The Act does not apply to Congress, federal courts, private corporations or federally funded state agencies. But documents generated by these groups and filed with agencies of the federal government become subject to disclosure under the Act. The United States Government Manual is a useful tool for further information about which agency has what kind of records. It contains an explanation of the functions of all government agencies and is updated yearly. Copies are available from libraries or the Government Printing Office. This article was based upon "How To Use The Federal FOI Act," published by the FOI Service Center. |