#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. STATUTORILY 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, 
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 is prohibited.

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 similar 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 prepayment. 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, 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 (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.