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The Freedom of Information Act What the Government Doesn’t Want You to Know, and How You Can Find Out. Presentation for: Conservative Political Action Conference Washington, DC February 27, 2009. Agenda. JW: Investigations, Litigation History of FOIA Understanding and Using FOIA - PowerPoint PPT Presentation
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The Freedom of The Freedom of Information ActInformation Act
What the Government Doesn’t Want What the Government Doesn’t Want You to Know, and How You Can Find You to Know, and How You Can Find
OutOut
Presentation for:Presentation for:
Conservative Political Conservative Political Action ConferenceAction Conference
Washington, DCWashington, DCFebruary 27, 2009February 27, 2009
Agenda Agenda
JW: Investigations, LitigationJW: Investigations, Litigation History of FOIAHistory of FOIA Understanding and Using FOIAUnderstanding and Using FOIA Requests, Denials, Appeals & Requests, Denials, Appeals &
Exemptions.Exemptions. Record Analysis & Exploitation.Record Analysis & Exploitation. Examples, What Ifs, Q&A.Examples, What Ifs, Q&A.
Judicial Watch Judicial Watch
Promotes transparency, integrity, Promotes transparency, integrity, accountability.accountability.
In government, politics & the law.In government, politics & the law. As an:As an:
Educational foundation, Educational foundation, Public interest law firm, Public interest law firm, Member of the media.Member of the media.
Use of open records & open meetings Use of open records & open meetings laws.laws.
Fidelity to the Rule of Law.Fidelity to the Rule of Law.
History of FOIAHistory of FOIA
1955-65: John Moss, Donald Rumsfeld1955-65: John Moss, Donald Rumsfeld July 4, 1966: LBJ enacts FOIAJuly 4, 1966: LBJ enacts FOIA 1972-74: Problems, Oversight 1972-74: Problems, Oversight
HearingsHearings 1996: “E-FOIA” amendments1996: “E-FOIA” amendments 2007: OPEN Government Act2007: OPEN Government Act January 2009: Obama’s FOIA January 2009: Obama’s FOIA
memorandummemorandum
FOIA OverviewFOIA Overview
Can be used by anyone, regardless Can be used by anyone, regardless of citizenship.of citizenship.
No requirement to show purpose or No requirement to show purpose or need.need.
Must be in writing, including Must be in writing, including fax/email.fax/email.
FOIA OverviewFOIA Overview
All executive agencies are subject to All executive agencies are subject to FOIA, including EOP & independent FOIA, including EOP & independent regulators.regulators.
NotNot subject to FOIA: subject to FOIA: Congress & the Courts.Congress & the Courts. Personal staff of the President.Personal staff of the President. State & local governments (State laws).State & local governments (State laws). Private entities/corporations.Private entities/corporations.
FOIA OverviewFOIA Overview
A proper request:A proper request: Reasonably describes the records Reasonably describes the records
sought.sought. Complies with the agency’s published Complies with the agency’s published
regulations.regulations. Requester should always clearly state Requester should always clearly state
contact info for clarification.contact info for clarification.
FOIA OverviewFOIA Overview
Who can make a request?Who can make a request? ““Any person.”Any person.” Individuals, corporations, associations, Individuals, corporations, associations,
state & local governments, foreign state & local governments, foreign governments.governments.
Exceptions -- those not permitted:Exceptions -- those not permitted: Federal agencies.Federal agencies. Fugitives.Fugitives. Foreign governments re: intelligence.Foreign governments re: intelligence.
FOIA OverviewFOIA Overview
What is an agency record?What is an agency record? Created or obtained by an agency.Created or obtained by an agency. Under agency control.Under agency control. Includes paper, tapes, digital, photo, Includes paper, tapes, digital, photo,
video, electronic, etc.video, electronic, etc. Must provide in form requested Must provide in form requested ifif
“readily reproducible.”“readily reproducible.”
FOIA OverviewFOIA Overview
Time LimitsTime Limits 20 working days to respond.20 working days to respond. One 10 working day extension for:One 10 working day extension for:
Searching/collecting records from other Searching/collecting records from other offices.offices.
Voluminous responsive records.Voluminous responsive records. Consultation with another Consultation with another
agency/component. agency/component. Agencies can NOT charge fees on Agencies can NOT charge fees on
overdue FOIAsoverdue FOIAs
FOIA OverviewFOIA Overview
New time limit “circumstances”:New time limit “circumstances”: UnusualUnusual -- involves field offices, -- involves field offices,
voluminous records, or consultation voluminous records, or consultation with 2(+) components or an outside with 2(+) components or an outside agency.agency.
ExceptionalExceptional -- involves workload -- involves workload excuses tied to demonstrating backlog excuses tied to demonstrating backlog reduction - OR - requester refusal to reduction - OR - requester refusal to reasonably modify/clarify a request or reasonably modify/clarify a request or time frame. time frame.
FOIA OverviewFOIA Overview
Expedited ProcessingExpedited Processing Compelling need -- imminent threat to Compelling need -- imminent threat to
life or physical safety of an individual.life or physical safety of an individual. Urgency to inform the public Urgency to inform the public
concerning FedGov activity from a concerning FedGov activity from a requester primarily engaged in requester primarily engaged in disseminating information.disseminating information.
Agencies can create other standards.Agencies can create other standards.
FOIA OverviewFOIA Overview
The Search for RecordsThe Search for Records Reasonably calculated to locate Reasonably calculated to locate
responsive records.responsive records. Not locating all requested records does Not locating all requested records does
not cast doubt on an otherwise not cast doubt on an otherwise reasonable search.reasonable search.
Applies to electronic records as well.Applies to electronic records as well. ““Consultations” & “Referrals.”Consultations” & “Referrals.”
FOIA OverviewFOIA Overview
Administrative Appeals.Administrative Appeals. Designated agency official reviews Designated agency official reviews
procedure.procedure. All or part of request denied, or no All or part of request denied, or no
responsive records located.responsive records located. Judicial Review.Judicial Review.
Lawsuit in US District Court.Lawsuit in US District Court. Your locality.Your locality. District of Columbia. District of Columbia.
FOIA OverviewFOIA Overview
FeesFees Agencies may charge reasonable direct Agencies may charge reasonable direct
costs.costs. OMB established a uniform fee schedule.OMB established a uniform fee schedule. Types:Types:
SearchSearch Review (commercial requesters only)Review (commercial requesters only) DuplicationDuplication
Time limit violation voids assessment.Time limit violation voids assessment.
FOIA OverviewFOIA Overview
More re: FeesMore re: Fees News media & non-profits:News media & non-profits:
Acknowledgment of evolution of news Acknowledgment of evolution of news delivery.delivery.
Duplication fees only -- 100 free pages.Duplication fees only -- 100 free pages. ““Other”:Other”:
Search & duplication charges.Search & duplication charges. 2 hours & 100 pages free.2 hours & 100 pages free.
Payment in advance over $250.Payment in advance over $250.
FOIA OverviewFOIA Overview
Resources & ReferencesResources & References Judicial Watch Open Records Project.Judicial Watch Open Records Project. JW Website.JW Website.
www.JudicialWatch.orgwww.JudicialWatch.org Department of Justice FOIA Guide.Department of Justice FOIA Guide.
www.usdoj.gov/oipwww.usdoj.gov/oip Reporters Committee for Freedom of Reporters Committee for Freedom of
the Press.the Press. www.rcfp.orgwww.rcfp.org
Records Analysis & Records Analysis & ExploitationExploitation
You’ve got your records -- now what?You’ve got your records -- now what? Goals of original request met?Goals of original request met? Administrative and/or legal action.Administrative and/or legal action. Public education.Public education.
Reports, newsletters, etc.Reports, newsletters, etc. Media opportunitiesMedia opportunities
The request in hindsight.The request in hindsight. ““Externals” of record production.Externals” of record production.
Records Analysis & Records Analysis & ExploitationExploitation
Claims of Exemption.Claims of Exemption. 9 categories of information that may 9 categories of information that may
lawfully be exempt from disclosure.lawfully be exempt from disclosure. 3 “exclusions” for law enforcement 3 “exclusions” for law enforcement
purposes.purposes. Can be challenged in an appeal.Can be challenged in an appeal. Challenged by judicial review. Challenged by judicial review.
ExemptionsExemptions b(1) -- Classified information (“Glomar”).b(1) -- Classified information (“Glomar”).
b(5) -- “deliberative process” or not available b(5) -- “deliberative process” or not available by law to a party in litigation with the agency.by law to a party in litigation with the agency.
b(6) -- Privacy. “Personnel and medical files b(6) -- Privacy. “Personnel and medical files and similar files” where disclosure “would and similar files” where disclosure “would constitute a clearly unwarranted invasion of constitute a clearly unwarranted invasion of personal privacy.”personal privacy.”
b(7)-- Ongoing law enforcement (LE) b(7)-- Ongoing law enforcement (LE) proceedings.proceedings.
ExclusionsExclusions
c(1)c(1) -- LE “Glomar” -- LE “Glomar” c(2)c(2) -- LE informant, unless officially -- LE informant, unless officially
confirmed -- then releasable. confirmed -- then releasable. c(3)c(3) -- Special category FBI records. -- Special category FBI records.
JW’s “Open Records JW’s “Open Records Project”Project”
Defining requirements & composing Defining requirements & composing records request strategy.records request strategy.
Identifying agencies, components, Identifying agencies, components, activities.activities.
Making the request.Making the request. Record production review and analysis.Record production review and analysis. Handling denials, exemptions & Handling denials, exemptions &
appeals process.appeals process. LitigationLitigation
Discussion PeriodDiscussion Period
ExamplesExamples
What ifsWhat ifs
Q&AQ&A
FOIA “War FOIA “War Stories”Stories”
Contact: Contact:
Tegan MillspawProgram [email protected]
Judicial Watch501 School Street, SW
Washington, DCTel: 202-646-5172Fax: 202-646-5199
www.JudicialWatch.org
