The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment. ~Robert M. Hutchins, Great Books, 1954
QUESTIONS AND ANSWERS ON THE FREEDOM OF INFORMATION ACT
AND THE PRIVACY ACT [current as of 1992]
The FOIA, enacted in 1966, generally provides that any person has a right of access to federal agency records. This right of access is enforceable in court except for those records that are protected from disclosure by the nine exemptions to the FOIA, which are discussed in the text.
Closely related to the Freedom of Information Act is the Privacy Act, another federal law regarding federal government records. The Privacy Act establishes certain controls over how the executive branch agencies of the federal government gather, maintain, and disseminate personal information. The Privacy Act can also be used to obtain access to information, but it pertains only to records the federal government keeps on individual citizens and lawfully admitted resident aliens. The FOIA, on the other hand, covers all records under the custody and control of federal executive branch agencies.
What information is available under the FOIA?
The FOIA provides access to all federal agency records (or portions of those records) except those which are protected from release by nine specific exemptions (reasons an agency may withhold records from a requester). The exemptions cover such material as (1) classified national defense and foreign relations information, (2) internal agency personnel rules and practices, (3) material prohibited from disclosure by another law, (4) trade secrets and other confidential business information, (5) certain inter-agency or intra-agency communications, (6) personnel, medical, and other files involving personal privacy, (7) certain records compiled for law enforcement purposes, (8) matters relating to the supervision of financial institutions, and (9) geological information on oil wells. The Freedom of Information Act, as most recently amended in 1986, is printed in its entirety later in the text.
The FOIA does not apply to Congress or the courts, nor does it apply to records of state or local governments. However, nearly all state governments have their own FOIA-type statutes. You may request information about a state's law by writing the attorney general of the state.
The FOIA does not require a private organization or business to release any information directly to the public, whether it has been submitted to the government or not. However, information submitted by private firms to the federal government may be available through a FOIA request provided that the information is not a trade secret, confidential business information, or protected by some other exemption.
Under the FOIA, you may request and receive a copy of any record that is in an agency's official files and is not covered by one of the exemptions. For example, suppose you have heard that a certain toy is being investigated as a safety hazard and you want to know the details. In this case, the Consumer Product Safety Commission could probably help you. Perhaps you want to read the latest inspection report on conditions at a nursing home certified for Medicare. Your local Social Security office keeps such records on file. Or, you might want to know if the Federal Bureau of Investigation has a file that includes you. In all these examples, you may use the FOIA to request information from the appropriate federal agency. (See discussion below on how to find the right agency and address.) When you make a FOIA request, you must describe the material you want as specifically as possible. If the agency cannot identify what you have requested with a reasonable amount of effort, it is under no obligation to you. The FOIA does not require agencies to do research for you, to compile or analyze data, or to answer questions.
Whom do I contact in the federal government with my request? How do I get the right address?
No one office handles all FOIA requests. Each request for information must be made to the particular agency that has the records sought. For example, if you want to know about an investigation of motor vehicle defects, write to the Department of Transportation. If you want information about a work-related accident at a nearby job site or manufacturing plant, write to the Department of Labor (at its office in the region where the accident occurred). Some of the larger departments and agencies have several Freedom of Information offices. Some have one for each major bureau or component; others have one for each region of the country.
You may have to do a little research to find the proper office to handle your inquiry, but you will save time in the long run if you send your request directly to the appropriate office. For assistance, you can contact the Federal Information Center (FIC). With telephone numbers throughout the country, the FIC is specially prepared to help you find the right agency, the right office, and the right address. The FIC is administered by the U.S. General Services Administration. See later text for information on how to contact the FIC. Also, a booklet called the Consumer's Resource Handbook tells what federal agencies are responsible for specific consumer problems and where to write for assistance. (The Handbook is free; to order, send your name and address to: Handbook, Pueblo, CO 81009). The U.S. Government Manual, the official handbook of the federal government, may also be useful. It describes the programs within each federal agency and lists the names of top personnel and agency addresses. The Manual is available at most public libraries or can be purchased from the Superintendent of Documents. (Ordering instructions appear later in the text).
How do I request information under the FOIA?
When you get the agency's name and address, write a letter of request to the agency's Freedom of Information Office. (Note on the envelope and at the top of the letter "Freedom of Information Act Request.") Identify the records you want as accurately as possible. Although you do not have to give the document's name or title, your request must reasonably describe the records sought. Any facts or clues which you can furnish about the time, place, persons, events, subjects, or other details of the information or records you seek will be helpful to agency personnel in deciding where to search and in determining which records pertain to your request. This can save you and the government time and money and also improve your prospects for getting what you want.
Keep a copy of your request. You may need it in the event of an appeal or if your original request is not answered.
If you are not sure whether the information you want falls under one of the nine exemptions, you may request it anyway. It might help your case to state your reason(s) for such a request, even though the FOIA does not require you to do so. (A requester should, however, always provide the reason(s) for requesting a waiver of fees.) Agencies usually have discretion to release material that falls under these exemptions. Stating your reason(s) for a request may persuade an agency to give you access to records it might otherwise deny as legally exempt. In addition, giving reasons for a request might help the agency to locate information which is useful to you.
What about costs for getting records under the FOIA?
An agency may charge only for the actual cost of searching for the material and the cost of making copies for you. Search fees usually range from $10 to $30 per hour; the rates generally reflect salary levels of the personnel needed for the search. The charge for copying letter-size and legal-size pages can be as much as 25 cents apiece, but 10 cents per page is common in most agencies. Actual costs can vary from agency to agency.
For noncommercial requests, agencies will not charge for the first two hours of search time or for the first 100 pages of photocopies. Agencies also will waive further charges if the total cost is minimal. If fees are charged, you may receive a waiver or reduction of fees if you request it and can show that the information you are seeking will, when released, contribute significantly to the public understanding of the operations or activities of the government.
How long will it take to answer my request?
Federal agencies are required to answer your request for information within 10 working days of receipt (excluding Saturdays, Sundays, and holidays). If you have not received a reply by the end of that time (be sure to allow for mailing time), you may write a follow-up letter or telephone the agency to ask about the delay. Sometimes an agency may need more than 10 working days to find the records, examine them, possibly consult other persons or agencies, and decide whether it will disclose the records requested. If so, the agency is required to inform you before the deadline. Agencies have the right to extend this period up to 10 more working days. A few agencies, particularly law enforcement agencies, receive large numbers of requests, some of which involve massive numbers of pages or require particular care to process correctly. If an agency has a backlog of requests that were received before yours and has assigned a reasonable portion of its staff to work on the backlog, the agency usually will handle requests on a first-come, first-served basis and may not respond to all requests within the statutory period.
What happens if the agency refuses to give me the information?
An agency ordinarily will deny a FOIA request, in whole or in part, only if it has a serious practical problem with granting it, supported by a legal reason for denial (an exemption). If an agency denies your request, it must be able to prove that the information is covered by one of the nine exemptions listed in the Act. The agency must give you the reason (the exemption) for denial in writing and inform you of your right to appeal the decision.
How do I appeal a denial?
You should promptly send a letter notifying the agency that you want to appeal. Most agencies require that appeals be made within 30 to 45 days after you get a notification of denial. The denial letter should tell you to whom your appeal letter should be addressed. To appeal, simply ask the agency to review your FOIA request and change its decision. It is a good idea also to give your reason(s) for believing that the denial was wrong. Be sure you refer to all communications you have had on the matter. It will save time in acting on your appeal if you include copies of the original request for information and the agency's letter of denial. You do not need to enclose copies of any documents released to you.
The agency has 20 working days after it receives your appeal letter to respond. Under certain circumstances, it may also take an extension of up to 10 working days. If, however, an agency took 10 extra days to deny your initial request, it would not be entitled to an extension on the appeal.
What can I do if my appeal is rejected?
If you are willing to invest the time and money, you may take the matter to court. You can file a FOIA lawsuit in the U.S. District Court where you live, where you have your principal place of business, where the documents are kept, or in the District of Columbia. In court, the agency will have to prove that the withheld records, or the withheld portions of them, are covered by one of the exemptions listed in the Act. If you win a substantial portion of your case, the court may require the government to pay court costs and reasonable attorney's fees for you.
THE PRIVACY ACT
What is the Privacy Act?
The federal government compiles a wide range of information on individuals. For example, if you were ever in the military or employed by a federal agency, there should be records of your service. If you have ever applied for a federal grant or received a student loan guaranteed by the government, you are probably the subject of a file. There are records on every individual who has ever paid income taxes or received a check from Social Security or Medicare.
The Privacy Act, passed by Congress in 1974, establishes certain controls over what personal information is collected by the federal government and how it is used. The Act guarantees three primary rights: (1) the right to see records about yourself, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see your records unless specifically permitted by the Act.
It also provides for certain limitations on agency information practices, such as requiring that information about a person be collected from that person to the greatest extent practicable; requiring agencies to ensure that their records are relevant, accurate, timely, and complete; and prohibiting agencies from maintaining information describing how an individual exercises his or her First Amendment rights unless the individual consents to it, a statute permits it, or it is within the scope of an authorized law enforcement investigation.
What information may I request under the Privacy Act?
The Privacy Act applies only to documents about individuals maintained by agencies in the executive branch of the federal government. It applies to these records only if they are in a "system of records," which means they are retrieved by an individual's name, social security number, or some other personal identifier. In other words, the Privacy Act does not apply to information about individuals in records that are filed under other subjects, such as organizations or events, unless the agency also indexes and retrieves them by individual names or other personal identifiers. Like the FOIA, the Privacy Act mainly applies to records held by federal agencies.
There are 10 exemptions to the Privacy Act under which an agency can withhold certain kinds of information from you. Examples of exempt records are those containing classified information on national security or those concerning criminal investigations. Another exemption often used by agencies is that which protects information that would identify a confidential source. For example, if an investigator questions a person about your qualifications for federal employment and that person agrees to answer only if his identity is protected, then his name or any information that would identify him can be withheld. The 10 exemptions are set out in the Act.
If you are interested in more details, you should read the Privacy Act in its entirety. Though the Act is too lengthy to publish as part of this brochure, it is readily available. It is printed in the U.S. Code (Section 552a of Title 5), which can be found in many public and school libraries. You may also order a copy of the Privacy Act of 1974, Public Law 93-579, from the Superintendent of Documents. (Ordering instructions appear later in the text.)
Whom do I contact in the federal government with my request? How do I get the right address?
As with the FOIA, no one office handles all Privacy Act requests. To locate the proper agency to handle your request, follow the same guidelines as for the Freedom of Information Act.
How do I know if an agency has a file on me?
If you think a particular agency has a file pertaining to you, you may write to the Privacy Act Officer or head of the agency. Agencies are generally required to inform you, upon request, whether or not they have files on you. In addition, agencies are required to report publicly the existence of all systems of records they keep on individuals. The Office of the Federal Register publishes a listing of each agency's systems of records notices, including exemptions, as well as its Privacy Act regulations. The multi-volume work, Privacy Act Issuances Compilation, is updated every two years and can be found in most large reference and university libraries.
How do I request information under the Privacy Act?
Write a letter to the agency that you believe may have a file pertaining to you. Address your request to the Privacy Act Officer or head of the agency, such as "Secretary, Department of Health and Human Services." Be sure to write "Privacy Act Request" clearly on both the letter and the envelope.
Most agencies require some proof of identity before they will give you your records. Therefore, it is a good idea to enclose proof of identity (such as a copy of your driver's license) with your full name and address. Do not send the original documents. Remember to sign your request for information, since your signature is a form of identification. (A notarized signature is better and is required by many agencies.) If an agency needs more proof of identity before releasing your files, it will let you know.
Give as much information as possible as to why you believe the agency has records about you. The agency should process your request or contact you for additional information.
What about costs for getting records under the Privacy Act?
Under the Privacy Act, an agency can charge only for the cost of copying records for you, not for time spent locating them.
How long will it take to answer my request?
Under the terms of the Privacy Act, the agency is not required to reply to a request within a given period of time. However, most agencies have adopted the 10-day period in their regulations. If you do not receive any response within 4 weeks or so, you might wish to write again, enclosing a copy of your original request.
What if I find that a federal agency has incorrect information about me in the files?
The Privacy Act requires agencies maintaining personal information about individuals to keep complete, accurate, timely, and relevant files. If, after seeing your file, you believe that it contains incorrect information and should be amended, write to the agency official who released the record to you. Include all pertinent documentation for each change you are requesting. The agency will let you know if further proof is needed. The Act requires an agency to notify you of the receipt of such an amendment request within 10 working days of receipt. If your request for amendment is granted, the agency will tell you precisely what will be done to amend the record. You may appeal any denial. Even if an agency also denies your appeal, you have the right to submit a statement explaining why you think the record is wrong and the agency must attach your statement to the record involved. The agency must also tell you of your right to go to court and have a judge review the denial of your appeal.
What can I do if I am denied information requested under the Privacy Act?
There is no required procedure for Privacy Act appeals, but an agency should advise you of its own appeal procedure when it makes a denial. Should the agency deny your appeal, you may take the matter to court. If you win your case, you may be awarded court costs and attorney's fees.
A COMPARISON OF THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT
What is the relationship between FOIA and the Privacy Act?
Although the two laws were enacted for different purposes, there is some similarity in their provisions. Both the FOIA and the Privacy Act give people the right of access to records held by agencies of the federal government. The FOIA's access rights are given to "any person," but the Privacy Act's access rights are only for the individual who is the subject of the records sought. The FOIA applies to all records of federal agencies. However, the Privacy Act applies only to federal agency records in "systems of records" which contain information about an individual and are retrieved by the use of a name or personal identifier. Each law has a somewhat different set of fees, time limits, and exemptions from its rights of access. If you request records about yourself under both laws, federal agencies may withhold the records from you only to the extent the records are exempt under both laws.
If the information you want pertains to the activities of federal agencies or of another person, you should make your request under the FOIA, which covers all agency records. If the information you want is about yourself and you wish to avoid possible search fees, you should make the request under the Privacy Act, which covers most records of agencies that pertain to individuals. Sometimes you can use the FOIA to help you get records about yourself that are not in a Privacy Act "system of records." However, if the records you seek are covered only by the FOIA, you must "reasonably describe" them and you may be charged search fees. If you are in doubt about which law applies or would better suit your needs, you may refer to both in your request letter.
Can I request information about other people?
The FOIA contains a very important provision concerning personal privacy: Exemption 6. It protects you from others who may seek information about you, but it also may block you if you seek information about others. The FOIA's Exemption 6 permits an agency to withhold information about individuals if disclosing it would be a "clearly unwarranted invasion of personal privacy." This includes, for example, almost all of the information in medical files and much of the information in personnel files.
The FOIA's Exemption 6 cannot be used to deny you access to information about yourself, only to deny you information about other persons. To be covered by Exemption 6, the information requested must be (1) about an identifiable individual, (2) an invasion of the individual's privacy if disclosed to others, and (3) "clearly unwarranted" to disclose. Release of information about an individual is considered an invasion of privacy if he or she could reasonably object because of its personal nature or its possible adverse effects upon himself or herself or family. But such information is not protected by Exemption 6 if the injury to the individual is outweighed by a public interest favoring disclosure. For example, home addresses are generally exempt from release for unspecified or random uses such as commercial solicitation, but are not exempt from release to state income tax authorities for state law enforcement. If you were seeking information about a federal employee's working status, an agency usually would disclose at least his or her name, grade, salary, job title, and permanent work location, but an agency will not usually disclose similar information about an employee of a private business. However, federal employees do receive some privacy protection. For example, if you want to see the details of an investigative report which led to an employee's demotion, an agency might decide that disclosure of these details is not justified on public interest grounds. This would be so even though the information generally would be available to the demoted employee.
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