The Freedom of Information Act What the Government Doesn’t Want You to Know, and How You Can Find Out Presentation for: Conservative Political Action Conference Washington, DC February 27, 2009

Agenda JW: Investigations, Litigation JW: Investigations, Litigation History of FOIA History of FOIA Understanding and Using FOIA Understanding and Using FOIA Requests, Denials, Appeals & Exemptions. Requests, Denials, Appeals & Exemptions. Record Analysis & Exploitation. Record Analysis & Exploitation. Examples, What Ifs, Q&A. Examples, What Ifs, Q&A.

Judicial Watch Promotes transparency, integrity, accountability. Promotes transparency, integrity, accountability. In government, politics & the law. In government, politics & the law. As an: As an: Educational foundation, Educational foundation, Public interest law firm, Public interest law firm, Member of the media. Member of the media. Use of open records & open meetings laws. Use of open records & open meetings laws. Fidelity to the Rule of Law. Fidelity to the Rule of Law.

History of FOIA : John Moss, Donald Rumsfeld : John Moss, Donald Rumsfeld July 4, 1966: LBJ enacts FOIA July 4, 1966: LBJ enacts FOIA : Problems, Oversight Hearings : Problems, Oversight Hearings 1996: “E-FOIA” amendments 1996: “E-FOIA” amendments 2007: OPEN Government Act 2007: OPEN Government Act January 2009: Obama’s FOIA memorandum January 2009: Obama’s FOIA memorandum

FOIA Overview Can be used by anyone, regardless of citizenship. Can be used by anyone, regardless of citizenship. No requirement to show purpose or need. No requirement to show purpose or need. Must be in writing, including fax/ . Must be in writing, including fax/ .

FOIA Overview All executive agencies are subject to FOIA, including EOP & independent regulators. All executive agencies are subject to FOIA, including EOP & independent regulators. Not subject to FOIA: Not subject to FOIA: Congress & the Courts. Congress & the Courts. Personal staff of the President. Personal staff of the President. State & local governments (State laws). State & local governments (State laws). Private entities/corporations. Private entities/corporations.

FOIA Overview A proper request: A proper request: Reasonably describes the records sought. Reasonably describes the records sought. Complies with the agency’s published regulations. Complies with the agency’s published regulations. Requester should always clearly state contact info for clarification. Requester should always clearly state contact info for clarification.

FOIA Overview Who can make a request? Who can make a request? “Any person.” “Any person.” Individuals, corporations, associations, state & local governments, foreign governments. Individuals, corporations, associations, state & local governments, foreign governments. Exceptions -- those not permitted: Exceptions -- those not permitted: Federal agencies. Federal agencies. Fugitives. Fugitives. Foreign governments re: intelligence. Foreign governments re: intelligence.

FOIA Overview What is an agency record? What is an agency record? Created or obtained by an agency. Created or obtained by an agency. Under agency control. Under agency control. Includes paper, tapes, digital, photo, video, electronic, etc. Includes paper, tapes, digital, photo, video, electronic, etc. Must provide in form requested if “readily reproducible.” Must provide in form requested if “readily reproducible.”

FOIA Overview Time Limits Time Limits 20 working days to respond. 20 working days to respond. One 10 working day extension for: One 10 working day extension for: Searching/collecting records from other offices. Searching/collecting records from other offices. Voluminous responsive records. Voluminous responsive records. Consultation with another agency/component. Consultation with another agency/component. Agencies can NOT charge fees on overdue FOIAs Agencies can NOT charge fees on overdue FOIAs

FOIA Overview New time limit “circumstances”: New time limit “circumstances”: Unusual -- involves field offices, voluminous records, or consultation with 2(+) components or an outside agency. Unusual -- involves field offices, voluminous records, or consultation with 2(+) components or an outside agency. Exceptional -- involves workload excuses tied to demonstrating backlog reduction - OR - requester refusal to reasonably modify/clarify a request or time frame. Exceptional -- involves workload excuses tied to demonstrating backlog reduction - OR - requester refusal to reasonably modify/clarify a request or time frame.

FOIA Overview Expedited Processing Expedited Processing Compelling need -- imminent threat to life or physical safety of an individual. Compelling need -- imminent threat to life or physical safety of an individual. Urgency to inform the public concerning FedGov activity from a requester primarily engaged in disseminating information. Urgency to inform the public concerning FedGov activity from a requester primarily engaged in disseminating information. Agencies can create other standards. Agencies can create other standards.

FOIA Overview The Search for Records The Search for Records Reasonably calculated to locate responsive records. Reasonably calculated to locate responsive records. Not locating all requested records does not cast doubt on an otherwise reasonable search. Not locating all requested records does not cast doubt on an otherwise reasonable search. Applies to electronic records as well. Applies to electronic records as well. “Consultations” & “Referrals.” “Consultations” & “Referrals.”

FOIA Overview Administrative Appeals. Administrative Appeals. Designated agency official reviews procedure. Designated agency official reviews procedure. All or part of request denied, or no responsive records located. All or part of request denied, or no responsive records located. Judicial Review. Judicial Review. Lawsuit in US District Court. Lawsuit in US District Court. Your locality. Your locality. District of Columbia. District of Columbia.

FOIA Overview Fees Fees Agencies may charge reasonable direct costs. Agencies may charge reasonable direct costs. OMB established a uniform fee schedule. OMB established a uniform fee schedule. Types: Types: Search Search Review (commercial requesters only) Review (commercial requesters only) Duplication Duplication Time limit violation voids assessment. Time limit violation voids assessment.

FOIA Overview More re: Fees More re: Fees News media & non-profits: News media & non-profits: Acknowledgment of evolution of news delivery. Acknowledgment of evolution of news delivery. Duplication fees only free pages. Duplication fees only free pages. “Other”: “Other”: Search & duplication charges. Search & duplication charges. 2 hours & 100 pages free. 2 hours & 100 pages free. Payment in advance over $250. Payment in advance over $250.

FOIA Overview Resources & References Resources & References Judicial Watch Open Records Project. Judicial Watch Open Records Project. JW Website. JW Website Department of Justice FOIA Guide. Department of Justice FOIA Guide Reporters Committee for Freedom of the Press. Reporters Committee for Freedom of the Press

Records Analysis & Exploitation You’ve got your records -- now what? You’ve got your records -- now what? Goals of original request met? Goals of original request met? Administrative and/or legal action. Administrative and/or legal action. Public education. Public education. Reports, newsletters, etc. Reports, newsletters, etc. Media opportunities Media opportunities The request in hindsight. The request in hindsight. “Externals” of record production. “Externals” of record production.

Records Analysis & Exploitation Claims of Exemption. Claims of Exemption. 9 categories of information that may lawfully be exempt from disclosure. 9 categories of information that may lawfully be exempt from disclosure. 3 “exclusions” for law enforcement purposes. 3 “exclusions” for law enforcement purposes. Can be challenged in an appeal. Can be challenged in an appeal. Challenged by judicial review. Challenged by judicial review.

Exemptions b(1) -- Classified information (“Glomar”). b(1) -- Classified information (“Glomar”). b(5) -- “deliberative process” or not available by law to a party in litigation with the agency. b(5) -- “deliberative process” or not available by law to a party in litigation with the agency. b(6) -- Privacy. “Personnel and medical files and similar files” where disclosure “would constitute a clearly unwarranted invasion of personal privacy.” b(6) -- Privacy. “Personnel and medical files and similar files” where disclosure “would constitute a clearly unwarranted invasion of personal privacy.” b(7)-- Ongoing law enforcement (LE) proceedings. b(7)-- Ongoing law enforcement (LE) proceedings.

Exclusions c(1) -- LE “Glomar” c(1) -- LE “Glomar” c(2) -- LE informant, unless officially confirmed -- then releasable. c(2) -- LE informant, unless officially confirmed -- then releasable. c(3) -- Special category FBI records. c(3) -- Special category FBI records.

JW’s “Open Records Project” Defining requirements & composing records request strategy. Defining requirements & composing records request strategy. Identifying agencies, components, activities. Identifying agencies, components, activities. Making the request. Making the request. Record production review and analysis. Record production review and analysis. Handling denials, exemptions & appeals process. Handling denials, exemptions & appeals process. Litigation Litigation

Discussion Period Examples Examples What ifs What ifs Q&A Q&A FOIA “War Stories” FOIA “War Stories”

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