UNDERSTANDING THE  FREEDOM OF INFORMATION ACT

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Undisputed Legal | Process Service

The  Freedom of Information Act allows the complete or selective dissemination of previously unreleased information and documentation controlled by the United States government and federal freedom of information law. The Act renders department information liable to transparency, establishes required disclosure policies, and specifies nine exemptions to the statute. 

The Act was designed to cause U.S. government agencies’ operations to be increasingly accessible. The American public might more readily find government functioning deficiencies and clamp down on their representatives to resolve these issues. The Freedom of Information Act refers to information maintained by Federal departments inside the executive branch. The executive branch comprises cabinet offices, military departments, government companies, independent administrative organizations, and independent regulatory commissions.

The Freedom of Information Act does not cover elected members of the nation, including the president, vice president, judges, and delegates. The FOIA does not extend to the Federal judiciary. The FOIA primarily extends to entities. It does not extend to private corporations, companies that accept Federal grants, non-profits, or state or municipal governments.

Although the public is aware of the media’s usage of FOIA for garnering information for journalistic purposes, companies, law firms, and individuals are often far more regular requesters of personal details. It has been noted that the fundamental aim of the FOIA is to ‘open … up the workings of government to public scrutiny.’ One of the principles of that mission is the conviction that ‘an informed electorate is vital to the proper operation of a democracy.’ A more precise intention implied in the aforementioned ideals is to provide people access to knowledge on the basis on which government institutions make their decisions, thus equipping the people to analyze and critique those choices.

EXCLUSIONS

By amending the Freedom of Information Act in 1986, Congress essentially shielded sensitive law enforcement matters. The Congress offered special safeguards for three narrow divisions of law enforcement and national security documentation. The restrictions governing these documents are classified as ‘exclusions.’  These exclusions are particular in their scope and the circumstances in which they function, expressly authorizing federal law enforcement agencies under these circumstances to “treat the records as not subject to the requirements of the FOIA.”

The first exclusion safeguards an open federal law enforcement inquiry wherein the investigation’s target is ignorant that the investigation is underway and disclosure of the investigation would fairly be likely to conflict with the operation. 

The second exclusion is restricted to criminal law enforcement authorities, which covers informant data when the informant’s status is ambiguous. 

The third exclusion is restricted to the FBI, which covers the presence of global intelligence or counterintelligence, or international terrorism documents when the existence of those records is protected. Records excluded by statute are not subject to the provisions of the Freedom of Information Act.

SCOPE OF THE FREEDOM OF INFORMATION ACT

The Act explicitly applies only to executive branch government agencies. These agencies are under several mandates to comply with public solicitation of information. Coupled with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously concerning the withholding, Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.”

It must be noted at this juncture that if disclosure of the information is in the public interest and is imminent in significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester, then the documents are furnished at either a lower cost or no cost at all. 

In this way, there is recourse for one seeking information to go to a federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions to the FOIA, addressing issues of sensitivity and personal rights. 

  1. Exemption 1  of the Freedom of Information Act prevents publication of information that has already been considered confidential “under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” It is “in fact properly classified under such Executive order.” The Supreme Court has acknowledged that the President bears liability for securing national security, including developing policy that establishes what information must be classified to prevent harm to national security. The first exception covers all parts of the FOIA which are correctly labeled. . This exemption is specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, and Exemption (B) is, in fact, properly classified under such Executive order; 
  2. Exemption  2   of  the  Freedom  of  Information  Act  exempts  from  mandatory  disclosure records that are “related solely to the internal personnel rules and practices of an agency.”  The Supreme Court has held that agencies must look to Exemption’s plain language to determine its scope. Based on Exemption 2’s text, and as set forth by the Supreme Court in Milner v. Department  of  the  Navy,  three  elements  must  be  satisfied  for  information  to  fit  within Exemption 2, being [A.] that the information must be related to ‘personnel’ rules and practices, [B.]  that the information must relate “solely” to those personnel rules and practices and [C.] that the information must be “internal”‘ meaning that ‘the agency must typically keep the records to itself for its own use.’
  3. Exemption 3 is specifically exempted from disclosure by statute (other than section 552b of this title). This is under the mandate that either [A.] the matters be withheld from the public in such a manner as to leave no discretion on the issue, or [B.] a particular criterion is established for withholding or refers to particular types of matters to be withheld. Exemption 3 of the Freedom of Information Act incorporates certain nondisclosure provisions into the FOIA provisions in other federal statutes.  Exemption  3  allows for the withholding of information prohibited from disclosure by another federal statute provided that one of two disjunctive requirements are met. Each year, agencies must list all  Exemption  3  statutes that they relied upon during the year’s Annual FOIA Reports. 
  4. Exemption 4  covers two distinct categories of information in federal agency records:  [A.’ trade secrets, and [B.]  information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential. 
  5. Exemption  5  of  the  Freedom  of  Information  Act  protects  “inter-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.”  Interpretations of the statute have been vague, courts believing the statute to specify the “exemption of  those  documents,  and  only  those  documents  that  are  normally  privileged in the civil discovery context.” The Supreme Court has since clarified that the coverage of Exemption 5 is quite broad, encompassing both statutory privileges and those commonly recognized by case law and that it is not limited to those privileges explicitly mentioned in its legislative history. This exemption hence covers all civil discovery mechanisms.  
  6. Exemption 6 protects personal privacy interests alongside and  7(C). Exemption  6  protects  information  about  individuals in “personnel and medical files and similar files” when the disclosure of such information  “would  constitute  a  clearly  unwarranted  invasion  of  personal  privacy.” A four-step procedure is laid down in this regard, the exemption requiring [A.] determination of whether the information at  issue  is personnel,  medical,  or  “similar”  file; [B.] determination of whether there is a  significant  privacy interest in the  requested  information, [C.] an evaluation of the requester’s asserted FOIA public interest in disclosure; and [D.], if there is a significant privacy interest in nondisclosure and a FOIA public interest in disclosure, balancing of those competing interests is imperative to determine whether disclosure  “would constitute a  clearly unwarranted invasion of personal privacy.
  7. Exemption 7 addresses records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [A.] could reasonably be expected to interfere with enforcement proceedings; [B.]  would deprive a person of a right to a fair trial or an impartial adjudication, [C.] could reasonably be expected to constitute an unwarranted invasion of personal privacy, ([D.] could reasonably be expected to disclose the identity 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 of 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 reasonably be expected to endanger the life or physical safety of any individual; 
  8. Exemption 8 pertains to the information contained in or related to examination, 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. Exemption 9 provides a basis for the exemption of geological and geophysical information and data, including maps, concerning wells

The Postal Reorganization Act exempts the United States Postal Service (USPS) from the disclosure of “information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed.” Significantly, courts have held that the requirements of the FOIA do not begin to apply until an agency receives a proper FOIA request – one that reasonably describes the records sought and complies with published rules regarding procedures to be followed

REQUIREMENTS OF AGENCIES 

Each agency is mandated to reveal to the Federal Register the public information as to descriptions of its central and field organization and the established place, methods, and employees from whom the public may obtain information, make submittals or requests, or obtain decisions. It is also necessitated in this regard for statements of functions of the agency and the nature and requirements of all formal and informal procedures available. This means rules of procedure, forms, or instructions at which papers could be made accessible under this act’s umbrella.

Under the FOIA Act, an agency is mandated to release substantive rules of general applicability adopted as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by the same. 

Each agency should maintain and render available for public inspection a record of each member’s final votes in every agency proceeding. Under the FOIA Act, a time limit of twenty days is provided to notify the requestor of whether the request will comply. It is necessary to enumerate to the requester [A.] such determination and the reasons therefore; [B.] the right to seek assistance from the FOIA Public Liaison of the agency; and in the case of an adverse determination [C.] the right of such person to appeal to the head of the agency not less than ninety days after the date of such adverse determination with an option to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services

Of course, the twenty-day period is extendable if the agency reaches out to the requester for more information or fee assessment. However, the twenty-day window may also be extended by ‘unusual circumstances’ specified in a written notice to the requestor. These circumstances must be specified and an extension to be reasonably communicated. The agency must notify the individual about their request’s status if it was unable to be processed within the time limit. 

To make matters easier for the requester, each agency must make its FOIA Public Liaison available, be responsible for addressing any disputes between the requester and the agency, and notify the requester of the requester’s right to seek dispute resolution services from the Office of Government Information Services. 

THE IMPACT OF THE FREEDOM OF INFORMATION ACT 

The FOIA specifies the protocols and methods for deciding the information that must be released and which documents should be excluded. Under the statute, there are administrative and judicial options for persons who are refused access to documents. The primary aim is to provide the public with as much knowledge as practicable. The background of this act ideates its nature as a disclosure statute. It expects that the requested documents are to be disclosed, and the agency must actively justify its withholding of information given the act’s exemptions from disclosure. Implementing the act’s exemptions is a permissive statute; if the requested information requires protection, disclosure is optional.   Therefore, when deciding whether FOIA covers a document, a document or collection of records must be retained in situations when the department legitimately assumes the publication will be detrimental to an interest shielded by an exemption. When a requestor applies for a series of records, the organization must disclose all the documents, not just a list or subsection of these files. Contrary to the Department of Justice’s October 12, 2001 guidelines, the standard to withhold information should not be to withhold information whenever there is a sound legal basis for doing so.

INDIVIDUAL PRIVACY IN THE CONTEXT OF THE FOIA

The Privacy Act of 1974 is a counterpart of the Freedom of Information Act. The Act controls how the Federal Government treats sensitive records in the context of recordkeeping and disclosure practices. The act offers a simple way for citizens to review records of themselves maintained by Federal agencies. Federal legislation mandates that personal records be correct, full, appropriate, and timely about agency files. The focus of the record is empowered to question the authenticity of the information maintained.

The Act demands that the subject be aware of how their information will be utilized and that the information was obtained from the individual themselves. The Privacy Act offers people legal redress where their privacy rights have been breached. A further critical provision of the Privacy Act is that agencies are required to publish a chronicle regarding any system of documents they retain that includes any personally identifying details. This prohibits organizations from maintaining or concealing secret documents.

The Privacy Act further forbids Federal agencies from releasing personally identifying details that have been collected. Together under the Freedom of Information Act, the Privacy Act provides that personal files may be revealed to the subject individual. The two rules keep personal information private, where exposure would breach the privacy rights of the individual.

Although the Freedom of Information Act and the Privacy Act encourage disseminating department records, they also shield information that should remain confidential. Thus, agencies can withhold information appropriately classified according to the needs of national security and foreign policy investigations. Other forms of information could be omitted as well, depending on the agency that governs it.

The key aspect of both laws is that they retain Government Agencies’ obligation to disseminate records. The Freedom of Information Act and the Privacy Act establish the ability to submit a request and access documents and respond to the request. If the documents do not qualify for publication,  the requester is supplied to justify why publication is impossible. The requester is further entitled to an appeal and, if necessary, brings a suit appealing the rejection. The foregoing privileges add meaning to the legislation and render it workable. To avoid unreasonable and unreviewable, Federal Government acts, arbitrary or unreviewable actions cannot control a disclosure.

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Sources

1. Freedom of Information Act (FOIA), 5 U.S.C. § 552

2. To understand the role of the Special Counsel: 

(F(i)Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously concerning the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. After investigation and consideration of the evidence submitted, the Special Counsel shall submit his findings and recommendations to the agency’s administrative authority and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

(ii)The Attorney General shall—

(I)notify the Special Counsel of each civil action described under the first sentence of clause (i); and

(II)annually submit a report to Congress on the number of such civil actions in the preceding year.

(iii)The Special Counsel shall annually submit a report to Congress on the Special Counsel’s actions under clause (i).

(G)In the event of noncompliance with the court’s order, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

3. 5 U.S. Code § 552 – Public information; agency rules, opinions, orders, records, and proceedings

4. Milner v. Dep’t of the Navy, 562 U.S. 562, 569-70 (2011)

5. As used in this subparagraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests—

(I)the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(II)the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(III)the need for consultation shall be conducted with all practicable speed, with another agency having a substantial interest in determining the request or among two or more components of the agency having substantial subject-matter interest therein.

6. Although No such notice shall specify a date that would result in an extension for more than ten working days

7. MEMORANDUM FOR HEADS OF ALL FEDERAL DEPARTMENTS AND AGENCIES, The Freedom of Information Act, John Ashcroft, Attorney General

“…Our citizens have a strong interest as well in a government that is fully fun.

I encourage your agency to carefully consider protecting all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

In making these decisions, you should consult with the Department of Justice’s Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.

This memorandum supersedes the Department of Justice’s FOIA Memorandum of October 4, 1993, and it likewise creates no substantive or procedural right enforceable at law.”

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