FREEDOM OF INFORMATION ACT (FOIA)
Delving BEYOND Public Records – Public Records Requests The Freedom of Information Act (FOIA) at the federal levels and public disclosure laws at the state level are EXTREMELY powerful tools that one can use to get any and all sorts of information. This includes information the government has on you including your IRS master file, FBI files, etc. as well as a wide variety of correspondence between public officials and private corporations. The major limit is your imagination, and various rules regarding the confidentiality of information. When in doubt, you can ask first and the agency will respond as appropriate.
It is necessary to know the rules in detail if you suspect they are holding something back inappropriately, in which case you might need to write a follow-up correspondence or even file a lawsuit. If you EVER have a problem with the government, the first thing is carefully wording a public disclosure request to get at the heart of the problem and could be used as evidence or ammunition against public officials gone mad with power.
There is no central clearing house for public records request. You are going to need to contact the relevant agency of government who will have an information officer, which will usually appear on the website of the agency. For a city government, it is likely to be the city clerk's office. For larger agencies like the Department of Ecology, they will have a public disclosure or FOIA officer. You want to word the request very specifically so they know exactly what to look for, and you can submit the request in writing and/or email depending on the agency.
Things to keep in mind:
1. Do not ask questions; ask for documents and documentation. The information officer is not there to answer questions, but to provide documentation. Instead of asking a question you want to frame the requests such that you are looking for specific documentation which would serve to answer the questions that you wish to know the answers to.
2. Always specify a timeframe for the records you want. The longer the timeframe the more inundated with records you are going to get.
3. List each type of record you want. If you want emails, specify it. If you want contracts, specify it. Think of exactly what you want and any type of recorded record or log that might be produced. If you do not mention it, the information officer might not think of it. If you are looking for something in particular and happen to know the system of records that the particular agency is using (published in the Federal Register for each federal agency), you can specify the record number (example for copyright office: http://www.copyright.gov/docs/ml651.pdf ). Similar indices are generally kept at the state level as well as mandated by law.
4. Decide on a strategy to get the records. I like starting with a really broad request (see SAMPLE PRA based on what I recently submitted to the Department of Ecology to a CD with recent climate documents). This is the best way of catching your government doing something that you might not expect. It is harder to filter a request like this as well. The bad thing is you are going to get a LOT of information. You might have to dialogue with the information officer to help them narrow it down. However, if you request a CD or internet link, it makes it easier both in terms of minimizing copy fees and you can use modern search tools to search for keywords. Once you have an idea of exactly what you want, you can ask a much more specific request and perhaps get records that were missed in the first search, and you can use references in the documents from the first search to track down things left out.
5. Do not request copies all up front, if there are a lot. You have a right to go into a reading room and view the records personally before deciding if you want copies. If 95% are useless to you, this is going to save you copy costs, and depending on the agency, the first 100 or so copies could even be free. If they deliver the material electronically as described above, this is less of an issue as you can peruse the records from your own computer.
6. Make sure to notarize any request for personal information about yourself. Such requirements are usually specified at the public disclosure website, stating you need to get your signature notarized, so you are proving you are who you say you are (so your privacy is not violated), as well as your needing to state that you are aware of the penalties for impersonating someone to get their private records. Many times the agency will have a boiler plate form to fill out to that effect. You do not have to have the notarization on that page. To save money on notaries get a generic letter with similar wording saying you are who you say you are and you recognize the penalties using similar if not identical language to a FOIA form referenced above, and have it signed and notified. You can then make copies of this and attach it to any applicable FOIA requests (make reference to it in your written request so they know to look for it) you might make on your personal information. The notary is supposed to be valid for one year, and from what I understand, generally will be accepted much after that period.
7. Give them plenty of time to get the records. Many of these departments are understaffed, and if you have a large request it takes time. In my experience, the public records officers are great advocates for you (their job is to get the information to you and stand up for you against officials who are reluctant to release records, as they are held responsible for complying with the law) and you should give them every courtesy in taking the time to get the records to you.
8. If sending the request by mail, be sure to indicate somewhere on the letter that it is a Freedom of Information or Public Records Act request to expedite processing. There is no need to send certified mail, and some prefer to send via email. Generally, they are going to be good about responding and there is no need to be paranoid about them conveniently losing the request.
9. Ask them to identify the records and index numbers of any records they withheld from you under an exemption. By making sure you have notice of exactly what is being withheld, you can better decide if a legal challenge is necessary. The case law surrounding public records is generally heavily on the side of the public, with courts liberally construing the law towards the public's benefit given a common law right to open government in this country. You can also ask if a document in its entirety is withheld, whether parts of it can be redacted so you can see the remainder of the document.
10. You might have to ask several different agencies to get the right request. Since each office has its own information policies, you might have to try several different locations to find what you are looking for. If you are unsure, you should send letters out to all relevant agencies or offices.
11. State in your request that you intend to pay for any copies that you request. Usually this is included in the wording of any standard public records form. If you do not intend to inspect the records personally, you should put a numeric limit on the amount you are willing to spend copies on and be aware of potential costs before sending in the request (should be posted on the website of the agency). You might even be able to dialogue with the public disclosure officer as far as what information they have so you can send generally those which may or may not be relevant. In certain instances it might be in your best interests to send several more limited requests to the same agency over a period of time (for instance, the IRS allows the first 100 copies for free per request, and if suspect information might be withheld there is also a per request fine if they do not give you the information as per law).
12. EXEMPTIONS: Under recent Law, the federal government does NOT have to give you information that they deem could be a risk to National Security. More specifically, the agencies that are now under the control of or partnered with the Department of Homeland Security may: decline your request (which you can appeal but have to pay fees to do it - with a questionable outcome); or give you no useful or minimal information to your request. (There are over 70 agencies, programs and private businesses now under or partnered with the Department of Homeland Security. For a list, please watch the video: "FEDERAL CONSOLIDATION - DHS BYPASSING CONSTITUTIONAL LAW IN THE NAME OF NATIONAL SECURITY" on YouTube.)
Good resource for getting started with public records requests:
http://sunshinereview.org/index.php/Portal:WikiFOIA
Freedom of Information Act:
Department of Justice FOIA page (links to other agencies FOIA sites are here!):
http://www.justice.gov/oip/index.html
National Security Archives FOIA Basics:
http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html
IRS FOIA Page (good elaboration on 9 exemptions):
http://www.irs.ustreas.gov/foia/article/0,,id=211443,00.html
5 U.S.C., Chapter 5, Subchapter II, Section 552
http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=BROWSE&TITLE=5USCPI&PDFS=YES
Click on section 552. Also see 552a on personal records which deals with the Privacy Act of 1974, one of the most undervalued assets in a citizen's arsenal, particularly with regards to your rights NOT to disclosure your social security number. Also note 552 (d)(2)(B)(i) on your right to remove information that is inaccurate or irrelevant (also see (e)(1)). Search for "trade secret" in this page and you will be taken down to the 9 exceptions to what shall be made available public: 552 (b)(1)-(9) (see IRS information page listed above which is a good elaboration on these). There will also be additional interpretations in the CFR for each relevant agency as far as their procedure for complying with the act (for example CFR Title 28, Part 16 for the Justice Department)
Citizens Guide to using the Freedom Of Information Act
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f:hr226.109
Federal Open Government Guide
http://www.rcfp.org/fogg/index.php?i=pt1
The 9 Exemptions to FOIA:
NATIONAL SECURITY
INTERNAL AGENCY RULES
STATUTORY EXEMPTION
TRADE SECRETS
INTERNAL AGENCY MEMOS
PERSONAL PRIVACY
LAW ENFORCEMENT RECORDS
BANK REPORTS
OIL AND GAS WELL DATA
FOIA LETTER GENERATOR
http://www.rcfp.org/foialetter/index.php
FOIA BASICS
http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html
MODEL RULES ON PUBLIC DISCLOSURE: WASHINGTON STATE
http://foiahelp.blogspot.com/2009/11/model-rules-on-public-disclosure.html
The Freedom of Information Act (FOIA) is the Federal law that provides access to federal agency records, except for certain types of records protected from disclosure under the Act. The law applies only to agency records in existence at the time of a FOIA request.
Any U.S. citizen, foreign national, foreign government, state government, partnership, corporation, or association may make a FOIA request. Agencies are not required to process FOIA requests made by fugitives from justice or by an agency acting on behalf of a fugitive.
Make sure you are as specific as possible in describing the information you seek. If you are seeking specific records from a case file or otherwise, include, whenever possible, the date, title or name, author, or subject matter of the record you are requesting. Referencing specific case or report numbers is also helpful in reducing response time.
It is necessary to know the rules in detail if you suspect they are holding something back inappropriately, in which case you might need to write a follow-up correspondence or even file a lawsuit. If you EVER have a problem with the government, the first thing is carefully wording a public disclosure request to get at the heart of the problem and could be used as evidence or ammunition against public officials gone mad with power.
There is no central clearing house for public records request. You are going to need to contact the relevant agency of government who will have an information officer, which will usually appear on the website of the agency. For a city government, it is likely to be the city clerk's office. For larger agencies like the Department of Ecology, they will have a public disclosure or FOIA officer. You want to word the request very specifically so they know exactly what to look for, and you can submit the request in writing and/or email depending on the agency.
Things to keep in mind:
1. Do not ask questions; ask for documents and documentation. The information officer is not there to answer questions, but to provide documentation. Instead of asking a question you want to frame the requests such that you are looking for specific documentation which would serve to answer the questions that you wish to know the answers to.
2. Always specify a timeframe for the records you want. The longer the timeframe the more inundated with records you are going to get.
3. List each type of record you want. If you want emails, specify it. If you want contracts, specify it. Think of exactly what you want and any type of recorded record or log that might be produced. If you do not mention it, the information officer might not think of it. If you are looking for something in particular and happen to know the system of records that the particular agency is using (published in the Federal Register for each federal agency), you can specify the record number (example for copyright office: http://www.copyright.gov/docs/ml651.pdf ). Similar indices are generally kept at the state level as well as mandated by law.
4. Decide on a strategy to get the records. I like starting with a really broad request (see SAMPLE PRA based on what I recently submitted to the Department of Ecology to a CD with recent climate documents). This is the best way of catching your government doing something that you might not expect. It is harder to filter a request like this as well. The bad thing is you are going to get a LOT of information. You might have to dialogue with the information officer to help them narrow it down. However, if you request a CD or internet link, it makes it easier both in terms of minimizing copy fees and you can use modern search tools to search for keywords. Once you have an idea of exactly what you want, you can ask a much more specific request and perhaps get records that were missed in the first search, and you can use references in the documents from the first search to track down things left out.
5. Do not request copies all up front, if there are a lot. You have a right to go into a reading room and view the records personally before deciding if you want copies. If 95% are useless to you, this is going to save you copy costs, and depending on the agency, the first 100 or so copies could even be free. If they deliver the material electronically as described above, this is less of an issue as you can peruse the records from your own computer.
6. Make sure to notarize any request for personal information about yourself. Such requirements are usually specified at the public disclosure website, stating you need to get your signature notarized, so you are proving you are who you say you are (so your privacy is not violated), as well as your needing to state that you are aware of the penalties for impersonating someone to get their private records. Many times the agency will have a boiler plate form to fill out to that effect. You do not have to have the notarization on that page. To save money on notaries get a generic letter with similar wording saying you are who you say you are and you recognize the penalties using similar if not identical language to a FOIA form referenced above, and have it signed and notified. You can then make copies of this and attach it to any applicable FOIA requests (make reference to it in your written request so they know to look for it) you might make on your personal information. The notary is supposed to be valid for one year, and from what I understand, generally will be accepted much after that period.
7. Give them plenty of time to get the records. Many of these departments are understaffed, and if you have a large request it takes time. In my experience, the public records officers are great advocates for you (their job is to get the information to you and stand up for you against officials who are reluctant to release records, as they are held responsible for complying with the law) and you should give them every courtesy in taking the time to get the records to you.
8. If sending the request by mail, be sure to indicate somewhere on the letter that it is a Freedom of Information or Public Records Act request to expedite processing. There is no need to send certified mail, and some prefer to send via email. Generally, they are going to be good about responding and there is no need to be paranoid about them conveniently losing the request.
9. Ask them to identify the records and index numbers of any records they withheld from you under an exemption. By making sure you have notice of exactly what is being withheld, you can better decide if a legal challenge is necessary. The case law surrounding public records is generally heavily on the side of the public, with courts liberally construing the law towards the public's benefit given a common law right to open government in this country. You can also ask if a document in its entirety is withheld, whether parts of it can be redacted so you can see the remainder of the document.
10. You might have to ask several different agencies to get the right request. Since each office has its own information policies, you might have to try several different locations to find what you are looking for. If you are unsure, you should send letters out to all relevant agencies or offices.
11. State in your request that you intend to pay for any copies that you request. Usually this is included in the wording of any standard public records form. If you do not intend to inspect the records personally, you should put a numeric limit on the amount you are willing to spend copies on and be aware of potential costs before sending in the request (should be posted on the website of the agency). You might even be able to dialogue with the public disclosure officer as far as what information they have so you can send generally those which may or may not be relevant. In certain instances it might be in your best interests to send several more limited requests to the same agency over a period of time (for instance, the IRS allows the first 100 copies for free per request, and if suspect information might be withheld there is also a per request fine if they do not give you the information as per law).
12. EXEMPTIONS: Under recent Law, the federal government does NOT have to give you information that they deem could be a risk to National Security. More specifically, the agencies that are now under the control of or partnered with the Department of Homeland Security may: decline your request (which you can appeal but have to pay fees to do it - with a questionable outcome); or give you no useful or minimal information to your request. (There are over 70 agencies, programs and private businesses now under or partnered with the Department of Homeland Security. For a list, please watch the video: "FEDERAL CONSOLIDATION - DHS BYPASSING CONSTITUTIONAL LAW IN THE NAME OF NATIONAL SECURITY" on YouTube.)
Good resource for getting started with public records requests:
http://sunshinereview.org/index.php/Portal:WikiFOIA
Freedom of Information Act:
Department of Justice FOIA page (links to other agencies FOIA sites are here!):
http://www.justice.gov/oip/index.html
National Security Archives FOIA Basics:
http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html
IRS FOIA Page (good elaboration on 9 exemptions):
http://www.irs.ustreas.gov/foia/article/0,,id=211443,00.html
5 U.S.C., Chapter 5, Subchapter II, Section 552
http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=BROWSE&TITLE=5USCPI&PDFS=YES
Click on section 552. Also see 552a on personal records which deals with the Privacy Act of 1974, one of the most undervalued assets in a citizen's arsenal, particularly with regards to your rights NOT to disclosure your social security number. Also note 552 (d)(2)(B)(i) on your right to remove information that is inaccurate or irrelevant (also see (e)(1)). Search for "trade secret" in this page and you will be taken down to the 9 exceptions to what shall be made available public: 552 (b)(1)-(9) (see IRS information page listed above which is a good elaboration on these). There will also be additional interpretations in the CFR for each relevant agency as far as their procedure for complying with the act (for example CFR Title 28, Part 16 for the Justice Department)
Citizens Guide to using the Freedom Of Information Act
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f:hr226.109
Federal Open Government Guide
http://www.rcfp.org/fogg/index.php?i=pt1
The 9 Exemptions to FOIA:
NATIONAL SECURITY
INTERNAL AGENCY RULES
STATUTORY EXEMPTION
TRADE SECRETS
INTERNAL AGENCY MEMOS
PERSONAL PRIVACY
LAW ENFORCEMENT RECORDS
BANK REPORTS
OIL AND GAS WELL DATA
FOIA LETTER GENERATOR
http://www.rcfp.org/foialetter/index.php
FOIA BASICS
http://www.gwu.edu/~nsarchiv/nsa/foia/guide.html
MODEL RULES ON PUBLIC DISCLOSURE: WASHINGTON STATE
http://foiahelp.blogspot.com/2009/11/model-rules-on-public-disclosure.html
The Freedom of Information Act (FOIA) is the Federal law that provides access to federal agency records, except for certain types of records protected from disclosure under the Act. The law applies only to agency records in existence at the time of a FOIA request.
Any U.S. citizen, foreign national, foreign government, state government, partnership, corporation, or association may make a FOIA request. Agencies are not required to process FOIA requests made by fugitives from justice or by an agency acting on behalf of a fugitive.
Make sure you are as specific as possible in describing the information you seek. If you are seeking specific records from a case file or otherwise, include, whenever possible, the date, title or name, author, or subject matter of the record you are requesting. Referencing specific case or report numbers is also helpful in reducing response time.