Contracting Officer Podcast Slides Knowledge & Insights From Contracting Officers 1

Episode 074 What is a FOIA Request? Original Air Date: 10 April 2016 Hosts: Kevin Jans & Paul Schauer 2

Formatting notes Hyperlinks: Blue font indicates hyperlinks – presentation must be in ‘Slide Show’ mode to activate the linkBlue Red bold font indicates a point of emphasis Green bold font indicates CO’s personal comment or perspective 3

Introduction “Open government” – ish. Per the FOIA page: The Freedom of Information Act (FOIA) is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government.The Freedom of Information Act (FOIA) FOIA requests sound simple enough 4

What is a FOIA request? Statutory right to access of agency records; in short, it is a means for the governed to know what the government is up to Since 1967, the Freedom of Information Act (FOIA) has enabled the public to request access to records from any federal agency. Agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, national security, and law enforcement. FOIA allows for the full or partial disclosure of previously unreleased information and documents controlled by the US government. 5

What is a FOIA request? The Act defines agency records subject to disclosure outlines mandatory disclosure procedures grants nine exemptions to the statute In addition, § 522(a)(3) requires every agency, "upon any request for records which... reasonably describes such records" to make such records "promptly available to any person.” 6

What is a FOIA request? If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden "on the agency to sustain its action," and directs the district courts to "determine the matter de novo." This is the Federal level only, states sometimes have their own, which we are not covering here. 7

What is ‘protected’ from FOIA requests? The nine current exemptions to the FOIA address issues of sensitivity and personal rights: 1)Classified information 2)Related solely to the internal personnel rules and practices of an agency 3)Specifically exempted from disclosure by statute, provided that such statute a.Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or b.Establishes particular criteria for withholding or refers to particular types of matters to be withheld 8

What is ‘protected’ from FOIA requests? 4)Trade secrets and commercial or financial information obtained from a person and privileged or confidential 5)Inter-agency or intra-agency memoranda or letters which general protected in law suits 6)Personnel and medical files (or similar) that risk invasion of personal privacy 7)Compiled for law enforcement purposes and related to investigations or prosecutions, or personal privacy 8)Some banking or financial records 9)Geological and geophysical information and data, including maps, concerning wells. 9

When do FOIA requests happen? Acquisition Time Zones (from Podcast Episode 003)Episode 003 Requirements Zone Market Research Zone RFP Zone Source Selection Zone (or sole source) Execution Zones: Kick Off, Transition (Ramp Up), Performance, Re-compete 10

Why are FOIA requests important? They are very difficult for the federal agency’s workforce to complete, because of the priority, short timeline and volume of information required to duplicate and transmit Not “welcome” events - It’s a view ”inside the process” of the agency People expect to be able to get this info The Center for Effective Government analyzed 15 federal agencies that receive the most FOIA requests. It concluded that federal agencies are struggling to keep up 11

Why are FOIA requests important? In the latest analysis published in 2015 (using 2012 and 2013 data, the most recent years available) ten of the 15 did not earn satisfactory overall grades, scoring less than 70 out of a possible 100 points. DHS (69%) DoT (68%) Treasury (68%) EPA (67%) DoL (63%) VA (64%) DoD (61%) DoState (37%); also had a processing score of 23%! 12

Why are FOIA requests important? Agencies can charge reasonable search, review and duplication fees Make request including a ceiling on what you'll pay Response time Need to give a timetable within 20 days, but it can take longer If they do not respond, it gets messy and costs more time Uses: Competitive intelligence To hold people accountable Sensationalism 13

Why Should Government Care? Other than as a citizen, I’m not sure you do… Full disclosure, this was NOT a priority of all the things I did as a CO The “FOIA Monitor,” like the inspector, is a thankless job Contractors want a copy before the re-compete happens This is not just contracts, we are talking about government 14

Why Should Industry Care? This is how you can get insight on an agency, a contract, etc. It’s also how others can get it on you What’s discoverable for you as a company? Remember, this is open government-ish 15

Summary This is a law that provides more transparency It has been amended, increased, decreased, and expanded over time with politics and lawsuits This is one of the things that makes things take longer It is part of the 80% process so be sure you know how it works and how to use it80% process 16

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