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Obtaining Information from the Government –

FOIA 1012012 ABA Young Lawyers Division

October 19, 2012

Talmadge Simpson, Balch & Bingham LLP

An Explosion of Government Information

644,165 information requests from the public in FY 2011

Over 77 million decisions to classify information as “secret” or “top secret” in 2011

142 terabytes of electronic data and 10 billion pages of text in the National Archives

Why Should Lawyers Care?

We deal with federal agencies all the time in a variety of settings

Litigators Need information to argue a case Discovery disputes

Transactional lawyers Need information on a site or facility Information on competitors, sellers, or buyers

Compliance counselors Regulatory statutes have provisions allowing agencies to

collect information from regulated (and other) parties This may involve confidential business information or

other sensitive information

Freedom of Information Act (“FOIA”)

Simple Concept: Federal executive departments and agencies must make records available upon request … unless the records qualify for an exemption

or exclusion (5 U.S.C. § 552)

Plus a few wrinkles: What is an “agency”?

What are “records”?

Who can request agency records?

Who is Subject to FOIA?

FOIA only applies to Federal “agencies” Administrative Procedure Act definition

APA definition refined by FOIA definition

Includes: Executive departments

Military departments

Government-controlled or –owned corporations

“any other establishment of the Executive branch”

“any independent regulatory agency”

Who is Subject to FOIA?

Excluded from definition of “agency” Congress

Congressional agencies

Judiciary

What about the President and the White House? Excluded: President, Vice President, VP’s Office, Chief of

Staff, Council of Economic Advisors

Included: Council on Environmental Quality, OMB, U.S. Trade Office, Office of Administration

Executive Privilege can come into play

What is a Record?

A record is basically anything documentary Broader than the Federal

Records Act definition (44 U.S.C. § 3301)

An agency record provides a bit more drama Made or received by agency;

In the agency’s control

NOTE: Private documents can become agency records!

Who Can Request Records under FOIA?

any “person” as defined under the APA excludes other Federal

agencies

Requester’s identity and motivation is irrelevant . . . except: fugitives, first party

requests, privacy info

NOTE: an Attorney can file a FOIA request “on behalf” of a Client

Making a Successful FOIA Request

First exhaust other avenues for the information Think about how your request is worded Know where to send the request Follow up Specify your preferred format – you are entitled to

receive the records in the form or format that you want if “readily reproducible” by the agency

Position for litigation and don’t be afraid of it

Do Your Homework First

Check agency’s website before filing your request – every agency must have its own FOIA regulations and must publish FOIA contact info for its various offices

Making a Successful FOIA Request

Other Considerations Agency fees:

am I eligible for a fee waiver or reduction?

how much to pre-authorize?

Timeline and expedited processing

How quickly do you need this information?

Is there a compelling need for expediting?

Method of delivery – something with receipt confirmation

Contact Info – be ready to answer questions

Agency Response to a FOIA Request

Why 20 days does not equal 20 days “Unusual circumstances”

Starts when appropriate office receives request but no more than 10 days after any office within agency receives the request

Tolling the clock

If no response or notification within 20 days requester has “exhausted administrative

remedies” and can sue in Federal district court

Agency cannot charge search fees

“Unusual Circumstances” – agency can unilaterally extend its deadline by 10 working days upon written notification to the requester if: Need to search for and collect records from field facilities

or separate offices; or

A “voluminous amount of separate and distinct records”

Need to consult with another agency (or component within the agency) with a substantial interest in the subject matter of the request

Agency Response to a FOIA Request

Tracking your request FOIA now requires agencies to assign a tracking number

to any request expected to take over 10 days to process

Agencies also must provide a system for inquiring (usually a page on the agency website)

Beware of multi-track processing “Simple” requests are put on one track

“Complex” requests put on another

Requests are processed on a first-come-first-serve basis within each track

Agency Response to a FOIA Request

An agency’s response to a FOIA request must include certain information Whether agency located responsive records

Whether agency is releasing or withholding records

Reason(s) for withholding responsive records

“Reasonable effort” to estimate volume of withheld information unless doing so would harm protected interest

Name / title of person responsible for withholding

Notice of requester’s right to appeal / how to appeal

Best possible reproduction of released records

Agency Response to a FOIA Request

FOIA Fees

FOIA allows agencies to charge “reasonable” fees for searching for, reviewing, and duplicating records responsive to a FOIA request

4 fee categories Commercial: search + duplication + review

Education / Non-commercial scientific institutions: only duplication if used for non-commercial purpose

Media: only duplication if non-commercial use

Default: search + duplication

FOIA provides for discretionary fee waivers and reductions (2 part test) Disclosure would “contribute significantly” to public’s

understanding of agency operations

AND Disclosure primarily for a non-commercial interest

Agencies must publish fee schedules and procedures (another reason to check the website)

NOTE: Fee determinations are subject to judicial review!

FOIA Fee Waivers and Reductions

Bases for Withholding Records

Nine exemptions – most are discretionary 5 U.S.C. § 552(b)(1) – (9)

Agencies are not bound by their initial choice of exemption

Agency must release any “reasonably segregable portion of a record”

“The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record. . . .”

FOIA Exemption 1

Exemption 1: Classified information Power to classify derives from executive branch power

under the Constitution and is exercised through Executive Order Dept. of Navy v. Egan, 484 U.S. 518 (1988):

Presidential authority to classify and control access to “information bearing on national security” “flow primarily” from the constitution and “exists quite apart from any explicit congressional grant.”

No federal statute governs the classification procedure Patchwork of federal statutes provides for enforcement Classification process is its own animal with procedures

for challenges and appeals

FOIA Exemption 2

Covers information “related solely to the internal personnel rules and practices of an agency.”

For 30 years, Exemption 2 included a “Low 2” and a “High 2” prong

Milner v. Department of the Navy, 562 U.S. ___, 131 S. Ct. 1259 (2011): there is no “high 2” prong to Exemption 2

NOTE: Use of Exemption 2 fell by 62% in Fiscal Year 2011

FOIA Exemption 3

Covers information “specifically exempted from disclosure by statute” if the other statute: “leave[s] no discretion on the issue” and

Establishes particular criteria or types of matters to be withheld

Dozens of “Exemption 3” statutes covering all sorts of information like financial information, victim identities, honey producer information, archeological maps, etc.

If statute enacted after October 28, 2009, it must also specifically reference 5 U.S.C. 552(b)(3)

FOIA Exemption 4

“Trade secrets and commercial or financial information obtained from a person and privileged or confidential”

Confidential business information (“CBI”)

Backstopped by Trade Secrets Act

Submitters of information entitled to certain procedural rights under agency regulations

Sets up “reverse FOIA” lawsuit

FOIA Exemption 5

“[I]nter-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” Attorney client privilege, attorney work product,

deliberative process privilege, presidential communications privilege

DPP: “advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated” “Pre-decisional” and “deliberative” Not factual information / no “final opinions” of agency

FOIA Exemption 6

“[P]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”

Most frequently used exemption Backstopped by the Privacy Act—if information falls

within Ex. 6, agency is prohibited from disclosing Balancing of privacy interest v. public interest in

disclosure

FOIA Exemption 7

“[R]ecords or information compiled for law enforcement purposes, but only” if it would: (A) Interfere with enforcement proceeding

(B) Deprive individual of fair trial

(C) Invade personal privacy

(D) Disclosure confidential informant

(E) Disclosure law enforcement techniques

(F) Endanger life or physical safety

What is “compiled for law enforcement”?

FOIA Exemptions 8 and 9

Exemption 8 – information used or prepared by agencies responsible for regulation or supervision of financial institutions

Exemption 9 – geological and geophysical information and data, including maps, concerning wells

FOIA Exclusions

Three Exclusions – removes certain records from statutory coverage altogether (5 U.S.C. § 552(c)) (1) records related to a criminal investigation and the

agency has reason to believe the suspect does not know about the investigation and disclosure would tip off

(2) records related to information about informants that the agency has not yet confirmed

(3) classified records maintained by the FBI relating to foreign intelligence, counterintelligence, or international terrorism and the existence of the record is classified

NOTE: agency decisions regarding the applicability of an exclusion are subject to administrative and judicial review

Some FOIA Statistics (Fiscal Year 2011)

644,165 total FOIA requests received

631,424 total FOIA requests processed

236,474 requests granted in full (37.5%)

171,795 requests granted in part (27.2%)

30,369 requests denied in full (4.8%)

87,577 no responsive records (13.6%)

More FOIA Statistics (Fiscal Year 2011)

Top 5 Request Receivers

§Dept of Homeland Security (175,656)

§Dept of Defense (74,117)

§Dept of Health and Human Services (67,431)

§Dept of Justice (63,103)

§Social Security Administration (32,456)

More FOIA Statistics (Fiscal Year 2011)

Top 5 Stingiest Agencies

(lowest % of grants in full, min. 100 requests received)

1.Court Services and Offenders Supervision Agency – 4.7%

2.Equal Employment Opportunity Commission – 5.2 %

3.Office of the Director of National Intelligence – 9.7%

4.National Science Foundation – 14.4%

5.Department of Homeland Security – 15.4%

I Really Like Statistics (Fiscal Year 2011)

FOIA Costs and Fees Collected (all agencies) Incurred $412.6 million in FOIA request processing

Incurred $23.4 million in FOIA litigation expenses

Total = $436 million in FOIA costs

Collected only $6.19 million in FOIA fees from requesters

Only 1.4% of costs recovered

Only 6,488 fee waiver requests received

Roughly 1% of all FOIA requests

3,624 (55.9%) were denied

FOIA Appeals and Litigation

FOIA request denials may be appealed

FOIA administrative appeal decisions are judicially reviewable in federal district court

Court reviews records in camera to determine applicability of agency’s reason(s) for withholding

FOIA plaintiff has venue choices Requester resides

Requester principal place of business

Where records are situated

D.C. District Court

Litigating a FOIA Case

File administrative appeal and exhaust other administrative remedies

Consider where to file; know your court Discovery is the exception, not the rule Use DOJ FOIA Guide against the government The odds are you will lose in challenging an

exemption, but act like you should win Rethink what “victory” is. Attorney fee landscape has changed

The “Reverse FOIA” Lawsuit

General concept: suing to protect confidential information from being disclosed to the public “Person” submits confidential information to agency

3d party requests the information under FOIA

Agency determines the information should be released over the submitter’s objections

Submitter sues agency in Federal court to prevent it from releasing the information to 3d party

Use FOIA as a discovery tool against agency and request certified copies

Court protective order can trump FOIA!

Additional Resources

Department of Justice Guide to the FOIAhttp://www.justice.gov/oip/oip-guidance.html

FOIA.gov

And, Finally, a Shameless Promotion

Buy the book!

The Federal Information Manual (ABA 2006)

2d edition in the works

www.amazon.com

www.abanet.org