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Your Right To Federal Records

Questions and Answers

The Freedom of Information Act
And The Privacy Act

At the time this article was written, the Electronic Freedom of Information Act Amendments of 1996 became Public Law 104-231. P.L. 104-231 amends the Freedom of Information Act to provide for public access to information in an electronic format, and for other purposes. For details on how this amendment may affect your search for information, please contact the Freedom of Information Act Officer at the agency in which the records are being sought.

Introduction This article provides basic guidance about the Freedom of Information Act (FOIA) and the Privacy Act of 1974, to assist members of the public in exercising their rights. It uses a question-and-answer format to present information about these laws in a clear, simple manner. The article is not intended to be a comprehensive treatment of the complex issues associated with the FOIA and the Privacy Act. It also does not discuss the availability of federal agency information electronically, although many federal agencies maintain Internet World Wide Web sites at which a wide range of information is readily available.

The questions answered in this article are those frequently asked by persons who contact the Federal Information Center (FIC) for information on the FOIA and the Privacy Act. The answers were compiled by the FIC and the Consumer Information Center (CIC) of the U.S. General Services Administration. They were reviewed by the Department of Justice, the agency responsible for coordinating the administration of the FOIA and encouraging agency compliance with it.

The Office of Management and Budget (OMB), which has a similar responsibility for the Privacy Act, reviewed the answers to questions on that act. The FOIA, enacted in 1966, provides that any person has the right to request access to federal agency records or information. Federal agencies are required to disclose records upon receiving a written request for them, except for those records that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court. The Privacy Act is another federal law regarding federal government records or information about individuals.

The Privacy Act establishes certain controls over how the executive branch agencies of the federal government gather, maintain, and disseminate personal information. The Privacy Act also can be used to obtain access to information, but it pertains only to records that the federal government keeps about individual U.S. citizens and lawfully admitted permanent resident aliens. The FOIA, on the other hand, covers all records in the possession and control of federal executive branch agencies. This article contains information about the most significant provisions of the FOIA and the Privacy Act. We hope you find it helpful.

Table of Contents

The Freedom of Information Act
What the Freedom of Information Act is and how to use it

The Privacy Act
What the Privacy Act is and how to use it

A Comparison of the Freedom of Information Act and the Privacy Act
Relationship between the two acts and deciding which to use

Other Sources of Information

Federal Information Center

Text of the Freedom of Information Act

The Freedom of Information Act

What information is available under the FOIA? The FOIA provides access to all federal agency records (or portions of those records), except for those records that are protected from disclosure by nine exemptions and three exclusions (reasons for which an agency may withhold records from a requester).

The exemptions cover (1) classified national defense and foreign relations information, (2) internal agency rules and practices, (3) information that is prohibited from disclosure by another law, (4) trade secrets and other confidential business information, (5) inter-agency or intra-agency communications that are protected by legal privileges, (6) information involving matters of personal privacy, (7) certain information compiled for law enforcement purposes, (8) information relating to the supervision of financial institutions, and (9) geological information on wells. The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security matters.

Even if information is exempt from disclosure under the FOIA, the agency still may disclose it as a matter of administrative discretion when that is not prohibited by any law and would not cause any foreseeable harm. The full text of the FOIA is printed beginning on page 15 of this article.

The FOIA does not apply to Congress, the courts, or the immediate office of the White House, nor does it apply to records of state or local governments. However, nearly all state governments have their own FOIA-type statutes. You may request information about a state's records access law by writing to the office of the attorney general of that state.

The FOIA does not require a private organization or business to release any information directly to the public, whether it has been submitted to the federal government or not. However, information submitted to the federal government by such organizations or companies can be available through a FOIA request if it is not protected by a FOIA exemption, such as the one covering trade secrets and confidential business information.

Under the FOIA, you may request and receive by mail a copy of any record that is in an agency's files and is not covered by one of the exemptions or exclusions. For example, suppose you have heard that a certain toy has been recalled as a safety hazard and you want to know the details. The Consumer Product Safety Commission could help you by providing copies of the recall documents. Perhaps you want to read the latest inspection report on conditions at a nursing home certified for Medicare. Your local Social Security office keeps such records on file. Or you might want to know whether the Department of Veterans Affairs has a file that mentions you. In all of these examples, you could use the FOIA to request information from the appropriate federal agency. (See the discussion below on how to find the right agency office and address.)

When you make a FOIA request, you must describe the records that you want as clearly and specifically as possible. If the agency cannot identify and locate records that you have requested with a reasonable amount of effort, it will not be able to assist you. While agencies strive to handle all FOIA requests in a customer-friendly fashion, with no unnecessary bureaucratic hurdles, the FOIA does not require them to do research for you, to analyze data, to answer written questions, or in any other way to create records in order to respond to a request.

Whom do I contact in the federal government with my request? How do I get the right address? No one office of the federal government handles all FOIA requests. Each FOIA request must be made to the particular agency that has the records that you want. For example, if you want to know about an investigation of motor vehicle defects, write to the Department of Transportation. If you want information about a work-related accident at a nearby manufacturing plant, write to the Department of Labor (at its office in the region where the accident occurred). Most of the larger federal agencies have several FOIA offices. Some have one for each major bureau or component; others have one for each region of the country.

You may have to do a little research to find the proper agency office to handle your FOIA request, but you will save time in the long run if you send your request directly to the most appropriate office. For assistance, you can contact the Federal Information Center (FIC). The FIC is specially prepared to help you find the right agency, the right office, and the right address. The FIC is administered by the U.S. General Services Administration. Information on how to contact the FIC begins on page 14.

The U.S. Government Manual, the official handbook of the federal government, may also be useful. It describes the programs within each federal agency and lists the names of top personnel and agency addresses. The Manual is available at most public libraries and can be purchased from the Superintendent of Documents. (Ordering instructions are on page __.) Additionally, each agency publishes FOIA regulations in the Code of Federal Regulations (CFR) that contain the mailing addresses of its FOIA offices. (For example, the Department of Justice's FOIA regulations can be found in Volume 28 of the CFR, Part 16.) The CFR is available at most public libraries.

How do I request information under the FOIA? All you have to do to make a FOIA request is write a letter to the agency. (For the quickest possible handling, mark both your letter and the envelope "Freedom of Information Act Request.") Although you do not have to give a record's name or title, you should identify the records that you want as specifically as possible to increase the likelihood that the agency will be able to locate them. Any facts or clues you can furnish about the time, place, authors, events, subjects, and other details of the records will be helpful to the agency in deciding where to search and in determining which records respond to your request, saving you and the government time and money.

As a general rule, FOIA requesters are not required to state the reasons why they are making their requests. You may do so if you think it might help the agency to locate the records. If you are not sure whether the records you want are exempt from disclosure, you may request them anyway. Agencies often have the legal discretion to disclose exempt information and, in line with the government's openness policy, they are encouraged to do so whenever possible.

A sample request is shown below. Keep a copy of your request. You may need to refer to it in further correspondence with the agency.

Sample FOIA Request Letter

Date


Freedom of Information Act Request
Agency Head or FOIA Officer
Name of agency or agency component
Address (see discussion above on whom to contact)


Dear __________:

Under the Freedom of Information Act, 5 U.S.C. subsection 552, I am requesting access to [identify the records as clearly and specifically as possible].

If there are any fees for searching for or copying the records, please let me know before you fill my request. [Or, please supply the records without informing me of the cost if the fees do not exceed $______, which I agree to pay.]

If you deny all or any part of this request, please cite each specific exemption you think justifies your refusal to release the information and notify me of appeal procedures available under the law.

Optional: If you have any questions about handling this request, you may telephone me at ___________ (home phone) or at ___________ (office phone).

Sincerely,

Name
Address

What about costs for getting records under the FOIA? The FOIA permits agencies to charge fees to FOIA requesters. For noncommercial requesters, an agency may charge only for the actual cost of searching for records and the cost of making copies. Search fees usually range from $10 to $30 per hour, depending upon the salary levels of the personnel needed for the search. The charge for copying documents can be as little as 10 cents per page at some agencies, but may be considerably more at other agencies.

For noncommercial requests, agencies will not charge for the first two hours of search time or for the first 100 pages of document copying. Agencies also will not charge if the total cost is minimal. An agency should notify you before proceeding with a request that will involve large fees, unless your request letter already states your willingness to pay fees as large as that amount. If fees are charged, you may request a waiver of those fees if you can show that the records, when disclosed to you, will contribute significantly to the public's understanding of the operations or activities of the government.

How long will it take to answer my request? Under the FOIA, federal agencies are required to respond to your request within 10 working days of receipt (excluding Saturdays, Sundays, and federal holidays). If you have not received a response by the end of that time (allowing for mailing time), you may telephone the agency or write a follow-up letter to ask about the status of your request. Sometimes an agency may need more than 10 working days to find the records, examine them, possibly consult other persons or agencies, decide whether to disclose all of the information requested, and prepare the records for disclosure. Agencies may extend this 10-day period up to 10 more working days, with written notice to you.

Some agencies, particularly law enforcement agencies, receive large numbers of requests, many of which involve voluminous records or require exceptional care to process. If an agency has a backlog of requests that were received before yours and has assigned a reasonable portion of its staff to work on the backlog, the agency ordinarily will handle requests on a first- come, first-served basis and may not respond to all requests within the statutory time period.

What happens if the agency denies my request? If the agency locates records in response to your request, it can withhold them (or any portion of them) only if they are exempt from disclosure. If an agency denies your request, in whole or in part, it must tell you the reason(s) for the denial in writing and inform you of your right to appeal to a higher decisionmaking level within the agency.

How do I appeal a denial? All that is necessary to appeal a denial is to promptly send a letter to the agency. Most agencies require that appeals be made within 30 to 45 days after you receive notification of a denial. The denial letter should tell you the office to which your appeal letter should be addressed. For the quickest possible handling, you should mark both your request letter and the envelope "Freedom of Information Act Appeal."

To appeal, simply ask the agency to review your FOIA request and its denial decision. It is a good idea also to give your reason(s) for believing that the denial was wrong. Be sure to refer to any pertinent communications you have had with the agency on the request and include any number the agency may have assigned to your request. It can save time in acting on your appeal if you include copies of your FOIA request and the agency's denial letter. You do not need to enclose copies of any documents released to you. Under the FOIA, the agency has 20 working days (excluding Saturdays, Sundays, and federal holidays) to decide your appeal. Under certain circumstances, it may also take an extension of up to 10 working days. At some agencies, as with initial requests, some appeals may take longer to decide.

What can I do if my appeal is denied? If the agency denies your appeal, or does not respond within the statutory time period, you may take the matter to court. The agency's denial letter should tell you that you can file a FOIA lawsuit in the U.S. District Court where you live, where you have your principal place of business, where the documents are kept, or in the District of Columbia. In court, the agency will have to prove that any withheld information is covered by one of the exemptions listed in the act. If you win a substantial portion of your case and your lawsuit is found to be a matter of public interest, the court may require the government to pay court costs and reasonable attorney's fees for you.


 
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