Freedom of Information Act

Freedom of Information ActFlorida State University College of Law Research CenterSpring 2011 Workshop Presented By: Kathryn Crandall

1In our democracy, the Freedom of Information Act, which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government.President Barack Obama

2What is FOIA?The Freedom of Information Act (FOIA) was enacted in 1966Provides that any person has the right to request access to federal agency records or informationAgencies are required to disclose records upon receiving a written requestThere are 9 exemptions and three exclusions from this rule

3FOIA RequiresFOIA also requires information be made available to the public on agency websites.FOIA does NOT require a state or local government or a private organization or business to release any information directly to the public, whether it has been submitted to the federal government or not. Information submitted to the federal government by such entities may be available through a FOIA request if it isnt protected by an exemption.

Agencies are required to make certain information available on the internet. Agency opinions Staff manualsPolicy statementsRecords that are frequently requested created after Nov. 1, 1996

Agencies have also placed their FOIA regulations on their FOIA sites on the Internet.

4Who does FOIA apply to? FOIA covers virtually all records in the possession and control of federal executive branch agencies FOIA doesnt apply to:CongressCourtsCentral offices of the White House Records in custody of state or local governments

5Exemptions Cover:Classified national defense and foreign relations informationInternal agency rules and practicesInformation that is prohibited from disclosure by another lawTrade secrets and other confidential business information

Photos courtesy of: Otago Daily Times; Mental Floss Blog; Washington State University; and the Open Minds Forum 6Exemptions Cover:Inter-agency or intra-agency communications that are protected by legal privileges Information involving matters of personal privacyCertain information compiled for law enforcement purposesInformation relating to the supervision of financial institutions Geological information on wells

Photo Courtesy of yugatech.com7Exclusions Include:There are 3 exclusions, which are rarely used, that pertain to especially sensitive law enforcement and national security matters:Subject of a criminal investigation or proceeding is unaware of the existence of records concerning the pending investigation or proceeding and disclosure of such records would interfere with the investigation or proceedingInformant records maintained by a criminal law enforcement agency and the individuals status as an informant is not known.Existence of FBI foreign intelligence, counterintelligence or international terrorism records are classified fact. 8How to make response time fasterMake simple requests!Agencies have a better response time for simple request involving a small number of recordsDiscuss how to narrow the scope of your request with an agency FOIA OfficerContact an agency FOIA Officer to agree on an alternative time frame for record processing Ask the agency for expedited process of your request Agencies will grant this request only under special circumstances 9Expedited Process SituationsIn order to qualify, you must certify that:There is an imminent threat to the life or physical safety of an individual ORIf you are a person primarily engaged in disseminating information to the public, you must demonstrate that there is an urgency to inform the public about certain federal government activity. Agency must decide within 10 calendar days to grant a request for expedited processing 10What to include in your request?When making a request, you must:Describe the records that you seek clearly and as specifically as possible Comply with the agencys regulations for making requests If the agency cant identify and locate records that you have requested with a reasonable amount of effort, the agency will not be able to assist you. 11Sample Freedom of Information Act Request LetterFrom the GSA Office of Citizen Services and Communications Federal Citizen Information Center

12How to make a FOIA requestWrite a letter to the appropriate agencyMark letter and the envelope Freedom of Information Act RequestSome agencies allow requests via e-mail or fax. Identify records you seek as specifically as possible i.e. time, place, authors, events, subjects, and other record details General Rule: FOIA requesters are NOT required to state the reason why they are making the request. You may do so to if that will help the agency locate your information.If you are not sure if the records you request are exempt from disclosure, request them anyways. Agencies may have discretion to disclose even if exempt You may request records to be in a certain format but that doesnt mean they are available as such. If you request records that are already in an electronic format, the FOIA requires agencies to provide these records to you in that same format. If you request information in electronic format that is in paper format, the agency is obligated to provide the records in electronic format if it can do so with a reasonable amount of effort. Same is true for electronic records to be provided to you in an electronic format in which they do not already exist.

13How are FOIA requests handled?For requests that will require more than 10 days for the agency to process, FOIA requires agencies to assign a tracking number to your request. Each agency must provide a telephone number or website by which a requester can use the assigned tracking number to obtain information about the status of the pending request. Each agency is required to provide a Public Liaison to assist in the resolution of disputes between the requestor and the agency. 14FOIA TimelineThe agency doesnt have to release documents by the last business day but can send a letter with their decision and then send the documents later within a reasonable time.Agencies can extend the 20 day period for up to 10 more working days with written notice. If the agency has a backlog and is handling requests received before yours, it is permissible for an agency to handle requests on first come, first serve. FOIA does NOT allow agencies to set up processing categoriesso that simple requests dont have to wait to be handled because a more complicated request was received by the agency first 15Whom can you contact?There is no single office of the federal government that handles FOIA requests.Each FOIA request is made to the particular agency that has the records you seekAgencies might have more than one FOIA office so find out the appropriate office beforehand to save time! The Federal Citizen Information Center can help you find the right agency, office and address. http://www.pueblo.gsa.gov/

macmagazine.com16Federal Agency FOIA websites may list the necessary contact information. A list of FOIA websites can be found at: www.usdoj.gov/foia Click on Principal FOIA Contacts at Federal AgenciesEach agency publishes FOIA regulations in the Code of Federal Regulations that contain the mailing addresses of its FOIA offices. Online source for the CFR: www.gpoaccess.gov/cfr/

17What dont agencies have to do?FOIA does NOT require agencies to assist you by:Researching Analyzing data Answer written questions In any other way create records in order to respond to the request

18Freedom of Information doesnt mean it is free!Agencies can charge fees for requests Before proceeding with a request, an agency should notify you it substantial fees are involved. However, if your request letter states a willingness to pay any fee amount, agencies do not have to notify If fees are charged, a request for waiver of those fees can be made. To do so, you must show the disclosed records, will contribute significantly to the publics understanding of the operations or activities of the government.

19Commercial RequestersNon-Commercial RequestersAgency may charge only for the: actual cost of searching for records Search fees usually range from $15-$40 Fees may vary considerably by agency the cost of making copies Can be as little as 10 cents or less per page or much moreDepends on the agency Agencies will not charge:For the first 2 hours of search time orThe first 100 pages of document copying Agencies will also not charge if the costs are minimal Who gets charged what?

20FOIA Substitute: The Privacy ActThis law regards federal government records or information about individualsRecords pertain to what federal agencies maintain about individual U.S. citizens and lawfully admitted permanent resident aliens If the records you seek are about yourself, you may request them under both FOIA and the Privacy Act of 1974

21What if your request is not met?Right of access is enforceable by courtA denied request is appealed within an agency and if that is not successful, a suit can e brought in U.S. District Court.

If the agency locates records in response to your request, they can ONLY withhold them (or any portion) if exempt from disclosure or prohibited from release by another law.

Records that contain portions of information that are withheld, the agency should mark those portions with the exemptions.

Photo courtesy of: http://www.flickr.com/photos/70539330@N00/4147387280/If your request is denied, it must provide: an estimate of the amount of material withheld, state the reason(s) for the denial, and inform you of your right to an appeal to a higher decision-making level within the agency.

22Appealing a FOIA decisionTo appeal, immediately send a letter to the agency Most agencies require the appeal to be made 30 to 60 days after the denial

The letter should specifically mention the office whose decision you are appealing Mark the envelope Freedom of Information Act Appeal for the quickest possible handling

23What should the appeal include?Ask the agency to review the FOIA request and its denial decision State reason(s) for believing the denial is wrongRefer to pertinent communications with the agency on the request like the requests tracking numberInclude copies of your FOIA request and the agencys denial letter You do NOT have to include copies of documents released to you 24Appeal Response Time The agency as 20working days(excluding Saturdays,Sundays and federalholidays) to decideyour appealIn some cases, the agency may extend the deadline for responding up to 10 working days

Courtesy of: www.bestalbertarealestateonline.com/page_content-4.html 25

All State Governments have FOIA-Type Statutes; Floridas is the Public Records Act26What are open records?Florida Public Records Law (Ch. 119, F.S.) gives the public access to public records, defined as :all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of the physical form, characteristics, or means of transmission made or received in connection with government agency business. This includes e-mail messages made or received in connection with official business All records, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure27Agencies must provide a copy of public records in the medium requested if the agency maintains the record in that medium. An agency is not required to create a new record to meet a requester's particular needs Agencies are responsible for ensuring access to records electronically maintained and should set up their databases to comply with the Public Records Law.

28Who is subject to the Public Records Law?All units of state, county and local governmentAdvisory bodies, private organizations or independent contractors acting on behalf of any public agency The FL Supreme Court has developed a totality of factors approach as a guide for evaluating whether a private entity is subject to Ch. 119, F.S. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra at 1031. Generally, if the private organization is involved in the decision-making process, it becomes an agency for the purposes of the Public Records Law. In addition, when a private organization enters negotiations with a public agency, records of those negotiations are public records 29What is exempt from the Public Records Law?The Florida Supreme Court ruled that agencies must provide access to public records unless the Legislature has specifically exempted them from disclosure The agency bears the burden of proof Before denying access, a public records custodian must specifically state which part of the law exempts a record There are more than 850 separate records exemptedCh. 119.071, F.S. General ExemptionsExamples:Adoption recordsMedical recordsBirth recordsSSNs within recordsAutopsy photographs and recordings Student educational recordsNursing home adverse incident reportsInfo necessary to secure the integrity of the lottery

Photos courtesy of: Florida Lottery and mytranslationspot.com30Exemption ExceptionsJuvenile RecordsAre generally confidential However:If the juvenile is arrested for a crime that would be a felony if committed by an adult or if the juvenile has committed 3 or more adult misdemeanors, the records are not exemptFed. Statute ReqtsIf state is clearly subject to the federal requirements, then kept confidentialHowever:A FL ct ruled that tenant records of a public housing authority are NOT exempt from the Public Records Law, despite the Fed. Privacy Act 31How do you access records?A person does NOT need to state a purpose, special interest, or present identification to obtain access to a recordIdentify the person within the agency who is the records custodian Public Records requests should be specific! Can be written or verbal requestsShould include the subject matter, location, date, agency in charge and the name or identification of the fileKeep copies of all correspondences When a portion of the material requested is exempt from disclosure, a records custodian must provide the non-exempt material 32Sample Florida Public Records RequestFrom the University of Floridas Brechner Center for Freedom of Information

Courtesy of: http://visibility911.com/blog/?cat=30533What are the fees involved?If you want a copy of a record, the agency may charge only the actual cost of duplication

FL law allows the records custodian to charge higher fees for certain records and when requests require extensive assistance 34Remedies if refused access?Any citizen of the state who reasonably believes that there has been a violation may seek an order from the circuit court to force disclosurePenalties include: fines, injunctive relief and, in extreme cases, incarceration of offenders If a citizen brings suit and the court finds there was a violation, the citizen is entitled to recover reasonable attorneys fees from the agency If the court finds that the suit was filed in bad faith or on frivolous grounds, the agency may recover reasonable attorneys fees from the person filing the suit 35Response TimelineThere is NO specific time limit for compliance with public records requests!Ch. 119.07(1)(c), F.S., only requires that the agency acknowledges requests to inspect or copy records promptly and to respond to such requests in good faith. FL Supreme Court has held that the only delay permitted is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt. Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985). 36"Knowledge will forever govern ignorance. And people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. President James Madison Letter to W.T. Barry (August 4, 1822)

Questions???37