An Overview of Title 5 U S §552 THE FREEDOM OF INFORMATION ACT TITLE 5 U. S. CODE, SECTION 552 (FOIA)

An Overview:

Information Resource Associates at the request of Worthington Group prepared this Overview as a tool for those who have an interest in pursuit of the entire FOIA Act. Please know this is a very brief accounting of FOIA Act, and that the reader will be required to do additional research to fully understand what the FOIA Act is and means.

The goal of the United States Congress was to allow "government in the open," and doing so, allow persons to request and receive copies of virtually anything which would not harm the public interest if it were widely disclosed. The result of this goal was the "Freedom of Information Act."(FOIA)

Unfortunately and regretfully, Congress fell far short of reaching its laudable goal. For the full text of the Freedom of Information Act, one should read in their entirety the "Statutes", cited as Title 5 U. S. Code, Section 552.

FOIA Has Three Different Parts:

1) The first part, 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--

(i) who to call for what, the "line of command" showing which officers report to whom,

(ii) how to obtain information, how to make FOIA requests, and

(iii) 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 generally 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.

2) The second part which FOIA sets out:

(A) all other documents and records are to be released upon request, unless the record or document is within the exceptions. 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.

3) The third 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. 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.

Exemptions To FOIA Information Released

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-- Items which are 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. STATUTORILY EXEMPT MATTERS-- There are two separate types of exemptions that are recognized by this exemption.

(a) Case one-- a statute says "don't release it"! There are laws that Congress has passed which require that people sending in information, for example, for the census, patent applications, their tax returns, this kind of information is required by law 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--

(a) be sure that if you provide trade secret information to the government that you have a contractual promise in writing from the governmental agency you are dealing with,

(b) 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, someone's 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 judicially 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! (What a deal).

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 and maybe to keep the bidders in the dark!

HOW TO DO IT, SUBMIT A FOIA REQUEST:

First of all, as stated in the beginning, 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) of pages on "how to do it."

Each agency gets to make its own rules, this means then that you must first read the rules. In order to do this you will need to find a Federal Depository Library, or anyone who has a set of "CFR," the Code of Federal Regulations. First locate in the CFR, the agency in question.

Title 5 U S Code/Regulations MUST contain the title and address of the office to which FOIA requests are to be sent. Ordinarily there will not be massive problems, however, there is some chance that the information you requested will not be forthcoming because of an area of exemption, etc..

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 prepayment. Some of the agencies do not consider a request to be complete until payment arrangements are made, and this is of course not the law.

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, you can rewrite 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 or they may have a law firm on retainer.

3. Don't forget to call your Congressman or Senator they work for you, maybe they will even help!

Happy hunting! FOIA is not easy. But with some persistence and research time in The CFR (Code of Federal Regulations) you can find the right office to reach and the right forms to use.

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