PRACTICE AREAS

Freedom of Information Act ("FOIA")

What is a FOIA Request?

A FOIA request is a request for documents made under the Freedom of Information Act. 5 U.S.C. 552 provides that all federal agency records are accessible to the public unless there exists a specific exemption from the requirement. The request may be made by any person and the Federal Agency must provide the requested documents in a timely fashion. Litigation arises when the federal agency either challenges the request based upon a recognized exception in the law or fails to send the documents in a timely fashion or at all.

What information should be on FOIA request?

Your initial request should be specific enough for the agency to understand as to which materials are sought. The request should not be overly broad. For example, rather than requesting, "all computer records from the U.S. Patent and Trademark Office, while I was employed there," it is better to request, "all computer records pertinent to my employment at the U.S. Patent and Trademark Office, whether generated by myself, supervisor, John Smith, or my co-workers, Frank Jones and Sally Roberts between 2004-2005 that in any way relate to work assignments, evaluations or other work related information. At the same time, it's not a good idea to make the request too narrow, as to exclude materials you may really need.

What is supposed to happen after the agency receives my FOIA request?

A federal agency that receives a FOIA request must make a determination within 20 working days whether to release the requested documents. Although an agency may seek a brief extension of this deadline, it may only to continue to withhold responsive records if they fall within one or more of the nine exemptions to the statute's disclosure mandate.

What are the nine exemptions to a FOIA Request?

1. Matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. These include items such as military plans, weapons systems, foreign government information, intelligence activities, scientific, technological or economic matters relating to national security, vulnerabilities or capabilities of systems, installations, projects or plans relating to national security.
2. Matters related solely to internal personnel rules and practices of an agency.
3. Matters specifically exempted from disclosure by statute other than 5 U.S.C. 552. For example, other laws passed by the federal government in which the United States Congress intended the statue to be a FOIA exemption. Furthermore, the statute must authorize or require withholding of documents; the language of the statute must meet Exemption #3 criteria; and the information requested must fit within a category of information the statute authorizes to be withheld.
4. Trade secrets and commercial or financial information obtained from a person and privileged and confidential.
5. Interagency or intra-agency memorandums or letters which could not be available by law to a party other than an agency in litigation with the agency.
6. Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This generally includes personnel files of co-workers or supervisors.
7. Records or information compiled for law enforcement purposes to the extent that such production; (a) could interfere with enforcement proceedings; (B) may deprive a person of his or her rights to a fair trial or hearing; (C) could result in an unreasonable invasion of privacy; (D) could disclose the identify of a confidential source including a state, local or foreign agency or authority or any private institution which furnished information on a confidential basis and in the case f a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation information furnished by a confidential source; (E) would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (F) could endanger the life or physical safety of any individual.
8. Records contained in or related to examinations, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
9. Geological and geophysical information and data, including maps, concerning wells.

What happens if the agency simply fails to honor my request?

Once the requested records are located and determined to be releasable, the agency must make the records promptly availed. If they do not, then you can bring action in Federal Court to rightfully obtain your records. If the agency contends that one of the nine exemptions enables or prohibits it from releasing the records, then you can first appeal that decision to the agency and then ultimately bring action in Federal Court. You can obtain a court order that directs the agency to produce the records and information sought. You are also entitled to attorney fees if you prevail against the agency.

How does this law firm get involved in FOIA requests?

We get involved on a range of levels, from handling the initial request, to FOIA litigation at the federal level. There are times when clients we have represented in EEOC litigations, will advise us that there are certain documents they need that they've requested through FOIA to which the agency has ignored. We have successfully obtained those documents through discovery demands during their EEOC litigation. Contact our office today for assistance. We can help you obtain your FOIA documents and make sure the agency responds to your needs in a timely manner.