The InterNet Connection/TheInterNetConnection.cdr/general/guide7-3.exe/LHARC6.EXE/FOIA.TUT

Text File | 1991-06-27 | 10.6 KB | 215 lines

#help.tut EXTRA HELP
#define.stb On line dictionary
#foia.stb Full text of the Federal Freedom of Information Act
    TUTORIAL ON THE FEDERAL FREEDOM OF INFORMATION ACT (FOIA)


     The goal of the United States Congress was to allow
"government in the open," to allow persons to get copies of
virtually anything which wouldn't harm the public interest if it
were widely disclosed. The result of this goal was the "Freedom
of Information Act." Unfortunately and regretfully, Congress fell
far short of reaching its laudable goal. The full text of the
Freedom of Information Act is available from the "Statutes" menu,
or you may press "S" at any time to open a window containing the
full text. (Press "O" to toggle back and forth.)

     FOIA has three different parts. The first is what must be
assembled and provided to the public. Under FOIA, each government
agency in the executive branch (the Act does not apply to private
contractors or non-executive branch entities; curiously Congress
exempted itself!) must compile:

A.) Agency organization information-- who to call for what, the
"line of command" showing which officers report to whom, how to
obtain information, how to make FOIA requests, and how to obtain
decisions

B.) Final decisions by the agency

C.) Rules which the agency must or may promulgate by law

D.) Forms

E.) Rules of general applicability (this includes directives to
the staff on how to do their jobs, or how to process or grant
requests)

F.) The agency's rules of procedure

G.) Formal and informal procedures which will affect the public

H.) Statements of policy

Such materials must be gathered and indexed from 4/4/67; a new
index must be prepared at least quarterly. FOIA provides that if
an agency does not publish and index something which it is
required to do under the first part of FOIA a person or company
cannot be held to the rule if they do not know about it.

     Agencies comply with the first part of the rule in a number
of ways. Some have reading rooms where the materials are kept
(usually in Washington, D.C.- too bad for the person living in
Los Angeles) and others publish books that contain the material.
All such material must be published in the Federal Register.
Therefore, if you can find a federal depository library
(virtually all Universities and law schools are depositories) you
can go through the indexes and read the materials- although it
will take a while.

     The second rule which FOIA sets out is that all other
documents and records are to be released upon request, unless
the record or document is within the exceptions (discussed in the
next point.) Of course, not every tangible object possessed by
the government is a subject of disclosure. For example, computer
tapes, motion picture films and written material are covered by
FOIA. Rifles, chemicals and vehicles are not covered. Whether or
not an object other than a written one or a close substitute is
covered by FOIA is ultimately up to the agency, subject to review
by the Courts.

     The final part of the act are the exemptions. If a document
is exempt from disclosure, then it may be withheld from
disclosure. However, it is not mandatory that a government agency
withhold that which it has a right to keep secret. In fact, most
agencies will consider requests for otherwise exempt material
provided that a detailed explanation accompany the request of why
disclosure will be in the public interest. Further, the agencies
are required, according to judicial interpretations of the law,
if a document may be redacted (sanitized, abridged) then it must
be released in the sanitized form. Of course, if a document is in
fact released, even if it exempt, then it is to be released to
the public. There is yet another way that documents which may be
within the class of exempt materials may be subject to disclosure
anyway- that is if the government activity is illegal. More on
how "to do it" follows. First let's have the exemptions.

     Here are the exemptions:

1. NATIONAL SECURITY AND FOREIGN POLICY MATTERS-- A statute and
in the recent past, an executive order (that is an edict from the
President). Such documents must be properly classified. Presently
this exception is construed narrowly.

2. INTERNAL AGENCY PERSONNEL RULES AND PRACTICES-- Things that it
is simply too burdensome to compile, and in which the public has
no legitimate interest are exempt. For example, the work
schedules of janitors is probably exempt. This is an area which
is to be very narrowly construed. That is, if there is any
reasonable way that the public would be interested, then it is
not exempt.

3. STATUTORIALY EXEMPT MATTERS-- There are two separate types of
exemptions that are recognized by this exemption. Case one-- a
statute say don't release it! There are laws that Congress has
passed which require that people send in information, for
example, the census, patent applications, tax returns which
information is required to be kept private.

4. TRADE SECRETS AND PRIVILEGED INFORMATION-- Occasionally a
company provides products to the United States with trade
secrets. Trade secrets are defined as confidential information
which gives someone a commercial advantage. A good example of a
trade secret would be the recipe for Coca Cola, or mailing lists
that businesses have developed. This exception is only allowed
when there is a legitimate contract or implied promise that the
information be kept secret. Advice to those who are dealing with
the government-- be sure that if you provide trade secret
information to the government that you have a contractual promise
in writing (!) that the trade secret data that you provide to the
government will be kept secret. Incidentally, governmental
developed information is not a trade secret.

5. INTER-AGENCY or INTRA-AGENCY DATA-- This refers to notes or
memoranda that are prepared in anticipation of making decisions
or awarding contracts. Thus, if you are unfortunately ever cited
for an administrative violation, by let's say OSHA, the notes
that are taken by the Judge or the investigators are exempt from
disclosure. The test that is applied in general is the same as is
applied for the attorney client privilege. In addition, if a bid
is put out, the notes taken by the contract negotiators are
exempt. Once the decision has been made, or the contract is
awarded, the information will probably no longer be exempt.

6. PERSONNEL, MEDICAL or PERSONAL DATA-- If there is for example,
someones medical records on file (let's say for social security
or for worker's compensation) then such data is not allowed to be
released. The details must be intimate. This exemption has been
judically construed to mean that the data must be derogatory or
intimate.

7. LAW ENFORCEMENT INVESTIGATORY REPORTS-- For obvious reasons
the federal government has exempted data that is part of an
ongoing investigation from disclosure. However, once the data is
no longer useful for an criminal investigation, it is subject to
disclosure. In addition, the disclosure of confidential sources
or information or information concerning the witness protection
program are not disclosable.

8. REPORTS REQUIRED FROM FINANCIAL INSTITUTIONS-- The Congress,
in its wisdom, or perhaps the lack thereof (your choice) has
decided that reports which are required to be filed by banks or
other seemlier financial institutions are exempt from disclosure,
so that you will "protected" from the knowledge that the bank may
be failing! Ouch.

9. GEOLOGICAL and GEOPHYSICAL DATA REGARDING THE LOCATION OF OIL
WELLS-- The government also excludes disclosure of the location
of oil wells. This is particularly to protect the government when
people bid for oil well drilling rights-- keep the bidders in the
dark!

     WELL, NOW HOW TO DO IT-----

     First of all, as stated in the beginning of this tutorial it
is clear that the government of the United States has horribly
missed on FOIA. FOIA has generated a few thousand (yes, 10 to the
third power) pages of "how to do it."

     Each agency gets to make its own rules. That means you must
first read the rules. Ok, to do that, you need to find a Federal
Depository Library or anyone who has a set of "CFR," the Code of
Federal Regulations. Then, find the agency in question. The
regulations MUST contain the title and address of the office to
send FOIA requests, and perhaps even forms! Ordinarily, there
won't be massive problems, but, there is some chance that you may
be declined the information you request. The governmental agency
must answer within ten business days, but, if there are unusual
circumstances, then the time to respond may be enlarged for a
further ten days. Always be sure and ask if the agency requires
either a promise to pay the charges caused by copying, or, if
they require pre-payment. Some of the agencies do not consider a
request to be complete until payment arrangements are made.

     If you have made a request, and the request is denied you
must be provided with your appeal rights in the denial. Each
agency is required to have a procedure for the filing of appeals
within the agency. Follow through on the appeals process. You may
automatically appeal if there is no reply within ten business
days. After appeals are exhausted you may sue to compel
disclosure. Such litigation is specialized, and requires
specialized counsel with experience in the labyrinthine process
of FOIA. A few suggestions if you can't get what you want:

1. Request under FOIA an opportunity to see all of the FOIA
requests-- maybe one has been granted in the past that is
seemlier or identical to yours. In that case, re-write your
request.

2. Find an organization that has similar interests. For example,
if you are Veteran and want to find out about some military
documents or Veterans rights, then call an organization which is
for the protection of Veterans. They may have access to or have
on staff a FOIA specialist (yes, there are such folks) or they
may have a law firm on retainer.

3. Don't forget calling your Congressman or Senator. They work
for you. Maybe they can help!

Happy hunting! FOIA is not easy. But with some persistence and
research time in CFR you can find the right office to reach and
the right forms to use! In supplements of the Computer Home and
Business Legal Encyclopedia we will provide information on how to
do FOIA requests for the largest agencies. Also see the tutorial
on privacy rights for more information on access to your own
personal records held by the federal government.