Freedom
of Information Act (FOIA)
Direct link to this page: foia.globe1234.com
General
FOIA Links
- States
have distinct rules and practices
for how you get information from state and local government, including
schools, etc. (NFOIC, RCFP, Muckrock). If local
governments resist, they may respond to group pressure from voters.
- State and local Courts have various methods to access records.
- Using public government data is always faster than FOIA. Each
US agency has an electronic "Reading
Room" with its adjudication orders, policies, manuals, and
commonly requested items. Politico used USAspending.gov to find
the HHS Secretary's use of chartered jets. Oversight.garden has
Inspector General reports. Agency websites have vast information.
- When you get turned down, news stories and other private groups may
have information, as in the New Yorker’s study
of US war crimes
- Help
- RCFP has local help.
NFOIC maps local groups and has
a listserv.
Muckrock has contact info for many
city, state & federal agencies
- MuckRock helps file and
track FOIA requests to all levels of government in the US ($20 for up to
4 requests). They cooperate with FoiaMachine, free, which
lets users track requests, while MuckRock
offers a "full service" which submits requests, follows up, and
posts results online. (If you file an appeal through MuckRock,
file early so if it falls between the cracks, as happened to me on an FBI
appeal, you can file the appeal yourself within the 90-day deadline.
- FOIA group
is a commercial version ($125 or more per FOIA), and they were reported
to have government contracts processing requests.
- A few states have state
agencies to enforce rules. Elsewhere citizens must sue.
- Many other countries have FOIA laws, described by GIJN and RTI
(column titled "Article" has details). Requesters in several
countries use standard (Alaveteli)
software, German and
Austrian software
or other
(FOIAdvocates, FOIAnet).
Most countries have better laws than the US.
- Private businesses and nonprofits are typically not subject to
FOIA. However work under government contract is often available by asking
the government agency and getting a lawyer to insist. For
business-government partnerships, you can ask the government partner. For
example 9 medical groups serving 7 million patients in the Los Angeles
area issued a press release promising "shared-decision making
with patients" at the end of life. They did not release their actual
guidelines. One participant was UCLA, so I got the
guidelines under California's Freedom of Information Act.
- Haggle on fees, which depend on state law and local quirks. If the first price is
high, ask for a lower price. The 67 Florida counties gave wildly different prices for the same requests on election
data, unrelated to size.
- Lawyers
- Individuals don't need a lawyer
at any stage, even going to court, and organizations only need a lawyer
in court. For hard cases many people value advice and representation by a
lawyer, but if you don't want to spend that much, see the sections below
on learning from similar cases and representing yourself in court.
- To find an expert lawyer, you
can search for cases like yours in CourtListener, to see which private lawyers
handle cases like yours, and see their work.
- Reviews by clients: Avvo (background)
- Ratings of lawyers by lawyers;
most aren't rated: Martindale, BestLawyers,
SuperLawyers
- Some companies rate their
outside counsel with Qualmet's brief
questionnaires ($)
- Other search sites for lawyers: Findlaw,
Nolo, Justia, Lawyers.com
Filing
for Federal Information:
- The public gets some information in 60% of FOIA requests, in a third
of appeals at agencies, and in 60% of court cases. (spreadsheet)
- Fees may cover searching and/or copying. The cost depends on whether
they respond in time, and whether you will use it for business, informing
the public, etc. (DOJ, and Muckrock)
- Model letters (NFOIC), and far more detail (which may
not be helpful) at S.ai
- System to generate letters and
track response: MuckRock and FoiaMachine
above
- Joint tracking and filing site for several agencies (FOIAOnline)
- You can often file online, which is fast, but reaches the agency as
plain text, with no control over the spacing or format. You can improve
clarity by submitting a pdf, using certified mail if there is no way to
submit it online or by fax. Email submissions are getting uncommon.
- Advice from Public Citizen, Unredacted, NSArchive, EFF
- Legal advice for reporters from SPJ and ASNE,
discussed by CJR
- Requests under FOIA can specify a preference for email, fax or mail,
to receive answers and handle questions from the agency. Contact addresses
need to be kept up to date. If a decision takes time, the agency may ask
if you are still interested, and close the file if you do not
respond, though they have to reopen it if you respond soon after they told
you to.
- FOIAmapper indexes the contents of federal record
systems, and each agency's FOIA processing times, though they cannot
always be up to date.
- FOIA.wiki
has posts from the public on many Federal FOIA topics,
including each agency
- Ombudsman at the National Archives (OGIS) achieves
action occasionally. They also have a compliance office which
seeks voluntary compliance, and their advisory committee has
minutes, transcripts, and livestreams.
- American Society of Access Professionals (ASAP, $50/yr) has
introductory webinars ($50-100) and training conferences
($500-1,000) attended by government FOIA staff and frequent requesters
(about half the income goes to the management company, Bostrum, and half to other program costs).
How
Long Will You Wait for Federal Information?
- The median time to answer simple
requests is within 20 working days at 80-90% of federal agencies. Simple
means under 500 or so pages from one location, but each agency has its own
criteria.
- It will often be faster if you ask first for any records which may
have already been released to others. These records have already been
"pre-processed." If they've been released to several
others, they should already be in the agency's online Reading
Room. Agencies have internal indexes to check if they have released
records covered by your request before. On the other hand if you already
have those records, you can tell the agency just to send additional records, so you don't have to pay for
duplicates.
- Here is the median decision time in 2016 for each agency
which received over 300 requests that year. For parts of agencies (like
FBI) and smaller agencies, see the annual
reports, Table VII. A.
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Will
it be faster if you go to Court?
- If you don't get the information as fast as this table shows, you
can go to court, with or without a lawyer, as discussed below. Many
requesters get documents soon after filing suit, since the Justice
Department assigns a lawyer to represent the government, and s/he takes a
fresh look and often convinces the agency to release documents, rather
than lose in court. There's an anonymous saying, "For a $400
filing fee I get a Justice Department lawyer who really knows the law as
my FOIA officer!" You can find out about Rule
41(a), Voluntary Dismissal, if the case gets deeper than you can
handle.
- When considering whether to give up, wait or sue, The New York
Times said in 2019, "If requesters always shrug and walk
away at that point, it means we are leaving it to FOIA bureaucrats to
decide just how secret our government is going to be. And in 2017
they added, By suing regularly, we hope to achieve two things. We put
agencies on notice that we will take them to court if our requests are not
handled properly, and it gives us a shot at shaping the law through court
decisions."
- Individual reporters file more suits than newspapers
in recent years, and there is a list.
- A former State Department lawyer, now making FOIA requests for a
nonprofit says, "where we distinguish ourselves is that by
litigating, we solve one of the fundamental challenges thats
at the heart of the public records system, which is that whether through a
lack of resources or obstruction, its very
difficult to get information in a timely way.
- The lawsuit that we filed with the FCC was over net
neutrality, and through that, we established ourselves as quite an
advocate on that issue and interested in that issue. Since wed already
shown the FCC that we werent afraid to sue over
net neutrality related documents, the FCC gave
us the comment system crash records without a fight. Thats actually a
really wonderful example of how our engagement in litigation identified us
to the FCC as a requester whos willing to go to
court."
- It is possible to go to court if a request takes longer than (a)
agency's median time, and (b) 20 working days. Courts expect
first-in-first-out processing within each track (simple, complex, or
expedited) (p.47, DOJ Litigation
Considerations), so no request should take more than the median. NSArchive says, "it is
productive to talk with the agency and wait a reasonable time for the
agency to process the request." They do not say what is reasonable,
so you can judge if the median is a reasonable time. DOJ guidance tells
agencies themselves how to estimate reasonable times for completion,
"Agencies that utilize multi-track processing can also consider
the agency's average processing times for its various tracks. This
information is readily available in the agency's Annual FOIA Report and on
FOIA.gov."
- Some requests take much longer than the median, when requesters do not take
the agency to court. 1% take over 14 months.
- Complex requests mean you want a lot of information, or from multiple
locations, etc. Median time to answer is
within four months (84 working days) at three quarters of federal
agencies. Agencies typically do not tell you if they put the
request in the simple or complex track.
- Expedited requests mean you convinced them to process on a special track,
usually because you need a lot of information for a deadline. This special
track can take nearly as long or longer than complex requests. Each
agency's regulations explain how to request expedited, if you think it
will be helpful.
- Check the annual report. They're hard to follow, but table
numbers seem standard: Table VII. A shows median days to
decide at each part of an agency, such as FBI (in Justice) or Medicare (in
HHS). Instructions tell agencies to count working
days (p.8). I would generally feel comfortable
waiting that many days, but going to court soon after, unless the agency
convinces me a decision is imminent.
- Annual reports also show their approval rate:
compare full and partial "grant" in table VI. B. (1)
to number "processed" in table V. A. There's no
detail, and this mostly reflects simple requests, so we don't know the
approval rates of complex or expedited requests. It may be worth waiting
longer for a simple request if the agency approves most of them, or if
they reverse most denials on appeal (tables VI. A. and VI.
B.) and decide appeals fast (table VI. C. (4)).
- Summary spreadsheet
shows 2016 processing times and approval rates at cabinet departments and
independent agencies.
- I've waited too long, but eventually I took them to court without a
lawyer, and got the information quickly.
How to
Find and Learn from Similar Cases in Federal Court?
- Searchable list of federal FOIA appeals in court, by agency, topic, judge, name,
date, location, etc. (FoiaProject) has docket of
each case and free copies of some documents.
- Searchable list of all federal cases. You can search on FOIA, name, agency, location, judge, etc.
(CourtListener.com). Not as good a search as FoiaProject
above, but it also has non-FOIA cases and free copies of many documents.
- All federal court documents are at Pacer,
which is free for under 150 pages per calendar quarter, and 10 cents per
page otherwise. Installing an app in Firefox or Chrome
lets you get free copies from CourtListener's
free archive, and add to it whenever you pay for documents from Pacer. Search tips.
- Lists of FOIA appeals in court opened & closed (US Dept. of
Justice) not as detailed as FoiaProject above,
but more complete on results.
- State courts do not have good ways to search, but you can search state supreme court opinions. Private newsletters in CA, FL,
IL, LA, MO, PA, TX and WV report civil cases (all are listed at the bottom
of the link). A
group is collecting descriptions of the record systems of state courts, including what is
online, and what you can search onsite.
- The following graph summarizes final federal court outcomes on FOIA
in fiscal year 2016. The public won some information by settlement or
court decisions in at least 60% of court cases, and may have received some
information even when the final court decision on the last information
went fully to the government.
- The Federal Circuit Court for DC ruled in Payne v. US, 837 F.2d 486, 494 (D.C. Cir. 1988), that
courts don't just order release of documents; they can stop an
"impermissible practice" at any agency by declaratory and/or
injunctive relief. A US District Court used this authority in 2011 to rule that agencies must provide estimated completion
dates ( 552(a)(7)(B) ).
- When a court orders legal fees, it can order investigation of FOIA
staff who seemed arbitrary or capricious (p.125, DOJ Litigation
Considerations) but not without ordering legal fees, so not in FOIA
cases brought by individuals without a lawyer. The 6 times lawyers asked
the courts for such investigations from 2013-2016, courts
said no.
Represent
Yourself in Court?
- Overview of issues when representing yourself: shorter from NOLO and PublicCounsel or longer from
US District Court in N. California. There are also books.
- The government usually settles. You can read my settlement
negotiations, though details will vary in each case. ABA has strategic
and ethical
advice on settlements, and there are books. FOIA settlements are usually public, and
documents are not sealed, as they too often are in product liability cases.
- Federal
Practice Manual for Legal Aid Attorneys describes what to do in
all stages of federal litigation, from drafting and filing the complaint,
to trial practice and limitations on relief.
- Federal Rules of Civil Procedure online, or here, and printed and each district court's Local Rules.
- Filing any court case costs $400 (or free if you can't afford $400,
Rule 24), plus a few dollars for copies and certified mail
(4(i)). The government can charge more costs in some
situations, under Rule 68, and Rule 54(d).
The latter cost from 54(d), is "uncommon"
(p.840) on FOIA.
US
Justice Department:
- Annual
and quarterly reports on activity at each agency (report instructions). If a request takes longer than
the median shown there, it may be time to appeal to court. They're
supposed to handle them first-in-first-out (p.47), so none should take too long.
- Statistics
on requests, from FOIA annual reports: print or spreadsheet of any number
of agencies and multiple years at a time (needs cookie to get spreadsheet,
FOIA.gov)
- Overview of the
US Freedom of Information Act
- Legal Treatise on FOIA cases
- Guidance
to agencies on complying with FOIA and 2022 letter
- Changes in June 2016 with law marked up with amendments
Regulations:
Besides the law, each federal
agency publishes regulations (also called rules) to carry out the
law. To find them try a search engine, after you change name_of_agency
to the agency you want:
- name_of_agency "freedom of
information" site:law.cornell.edu/cfr
There is another search at ecfr.gov,
but it is not as complete. Agencies also have internal guidance, which MuckRock obtained
by FOIAs. They focus on just one of the exemptions, but include guidance on
other issues.
FOIA
at Medicare, Health and Human Services
Like other agencies, the Department of
Health and Human Services (HHS) has rules for FOIAs, and each major office in
HHS also has rules. The overall HHS rules on FOIAs, adopted in 2016 are at:
https://www.federalregister.gov/documents/2016/10/28/2016-25684/freedom-of-information-regulations
Former rules at HHS were in effect for
decades and are at:
https://www.gpo.gov/fdsys/pkg/CFR-2015-title45-vol1/pdf/CFR-2015-title45-vol1-part5.pdf
There were lots of changes. For
example on appeals, after they deny a FOIA, an improvement in the new
rules is:
- 90 days to appeal, up from 30 days (required by 2016 law)
Worse in the new rules:
- They give less detail about what should be in the appeal letter
- When they grant an appeal, now they'll "reprocess your
request" which is pretty vague. Previously their rules said they had
to "send the records to you promptly or let you inspect them, or else
we will explain the reason for any delay and the approximate date you will
receive copies or be allowed to inspect the records."
- They have a new rule that they'll stop processing a FOIA appeal when
a requester files a lawsuit. Lawsuits did not freeze processing under the
old rules, and in fact HHS sometimes released records in response to a
suit, without waiting for a judge to decide.
It is not clear how these HHS rules
interact with separate FOIA rules at sub-agencies of HHS. For example the Centers
for Medicare and Medicaid Services (CMS) has its own rules, which still say
30 days to appeal, and do not address the freeze in processing during a
lawsuit. CMS rules are at
https://www.law.cornell.edu/cfr/text/42/part-401/subpart-B
and CMS also has policies at
Example
of a FOIA for Documents which Medicare Gives to Accountable Care Organizations
Text of FOIA
from Paul Burke submitted online July 15, 2013, Control # 071620137079
Denied Feb 25, 2015 in a letter
from Medicare, then released
June 8, 2016
Court case and settlement
discussions