Freedom of Information Act (FOIA)
What is the Freedom of Information Act?
The Freedom of Information Act (FOIA) is the statute (at 5 U.S.C. §
552) that provides access to
federal agency records except to the extent that such records (or portions thereof) are protected
from disclosure by any of the nine exemptions and three special law enforcement record exclusions in
the act. The FOIA is not a means by which to obtain answers to questions. It applies only to requests
for agency "records", and only "records" in existence at the time of the FOIA
request.
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Who may file a FOIA request?
Anyone can submit a FOIA request, including U.S. citizens, partnerships, corporations,
associations, state governments, and foreign nationals or governments. The statute
excludes federal agencies from the definition of a person who can request records under
the act. Requests for records from fugitives from justice, or from an agency acting on
behalf of a fugitive, also are not covered by the act.
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How do I make a FOIA request to OSC?
Your request must be in writing. Telephone calls will not be accepted or handled as
FOIA requests. You should address your letter to:
FOIA/PA Officer
Office of Special Counsel
Legal Counsel and Policy Division
1730 M St., N.W., Suite 218
Washington, DC 20036-4505
Your letter and envelope should clearly be marked "FOIA Request." You may
also send your request by facsimile to (202) 653-5161.
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Are there records I can get without a FOIA request?
Yes. You can obtain OSC annual reports, publications, press releases, and forms
directly through our Web site. You can also request a copy of OSC regulations and the
agency staff directory directly from OSC without filing a FOIA request.
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How long will it take to process my FOIA request?
All federal agencies are expected by law to respond to a FOIA request within 20
business days, stating whether the records requested, or portions thereof, will be
released. However, many federal agencies, including OSC, have backlogs of FOIA requests.
OSC's FOIA Officer generally acknowledges requests as soon as they are received in
the agency's Legal Counsel and Policy Division. Requests are usually processed in order of
their receipt. OSC uses a multi-track processing system for responding to FOIA requests.
Multi-track processing is a system in which simple requests requiring relatively minimal review
(such as requests for copies of correspondence previously exchanged between the requestor and
OSC, or for minimal information that is easily retrievable) are placed in one processing track.
More complex requests (such as those requesting entire contents of files and requiring more substantive
review) are placed in another track. Requests in each track are processed on a first-in/first-out basis.
There are certain steps you can take to assist OSC in responding more quickly to your
request. Make sure you are as specific as possible in requesting the information you seek.
If your request is very broad (e.g., you are asking for
documents over a period of years, etc.), you may want to reduce the scope of the request.
Referencing specific case and report numbers is also helpful in expediting a response to your
request. Whenever possible, include the date, title or name, author, or subject matter of the
record you are requesting. The more specific you are, the more likely OSC will be able to locate the
records you seek.
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What types of information may be withheld from me?
OSC is an independent federal investigative and prosecutorial agency. Its primary
mission is to protect federal employees from prohibited personnel practices, especially
reprisal for whistleblowing. As such, the contents of OSC case files – other than
copies of materials exchanged between first-party requesters and the OSC – are
generally subject to withholding under FOIA. Most records, or portions of records, are
withheld on the basis of three of the FOIA's nine exemptions:
- Exemption (b)(2), which exempts from disclosure "information related solely to the
internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2)
OSC documents covered by this exemption include records with information on routine
internal personnel matters, correspondence control information, routing slips,
administrative data forms, case tracking information and computer or other administrative
codes.
- Exemption (b)(5), which exempts "inter-agency or intra-agency memorandums or
letters which would not be available to a party other than an agency in litigation with
the agency." 5 U.S.C. § 552(b)(5) This also includes information covered by
the attorney work product and deliberative process privileges. Martin v. Office of
Special Counsel, 819 F.2d 1181 (D.C. Cir.1987)
The contents of OSC case files are frequently covered by either or both the attorney
work-product privilege and the deliberative process privilege. Many materials in complaint
files are attorney work-product. This is because when someone files a complaint with OSC
alleging a possible violation of law, information is compiled by staff for the use of our
attorneys in anticipation of possible litigation to obtain correction/disciplinary action
for any violations. Records made for that purpose continue to be protected regardless of
the passage of time or status of the case.
OSC complaint files also contain memoranda, notes and other documents prepared by
complaint examiners, investigators, and attorneys reflecting their preliminary decision
making on the allegations under review. Such records are protected from disclosure under
the deliberative process privilege of exemption (b)(5).
Records in OSC files subject to withholding under exemption (b)(5) include: complaints
examiner notes, summaries of interviews, and recommendations; investigator notes,
summaries of interviews, investigative reports or summaries; prosecution recommendations;
and tapes or transcripts of interviews.
- Exemption (b)(7) protects information "compiled for law enforcement purposes"
that could "reasonably be expected to interfere with enforcement proceedings."
5 U.S.C. § 552(b)(7)(A) This exemption generally applies to OSC records for
information compiled for law enforcement purposes in connection with an actual or
prospective enforcement proceeding (e.g., corrective or disciplinary action). Once
the matter is closed, exemption (b)(7)(C) continues to protect information for which
"disclosure could reasonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C. § 552(b)(7)(C)
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What can I do if my FOIA request is denied?
Section (6)(A) of the FOIA requires OSC and all federal agencies to notify requesters
of their right to appeal an adverse decision in response to their FOIA request. The
OSC's FOIA regulation, at 5 C.F.R. § 1820.8, provides requesters the right to appeal
any OSC FOIA decision within 30 days from the date of the Agency's FOIA decision
letter.
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To whom should I address my appeal?
All appeals should be clearly marked "FOIA Appeal" on both the envelope and
letter. The appeal should be addressed to:
Erin M. McDonnell
Associate Special Counsel for Legal Counsel and Policy
Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, DC 20036-4505
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What happens if my appeal is denied?
Under subsection (6)(A)(ii) of the FOIA, an agency should make a determination with
respect to an appeal within 20 business days. If an appeal is denied in whole or in part,
a requester has a right to judicial review of that determination. OSC’s FOIA
regulation, at 5 C.F.R. § 1820.8, outlines a requester's appeal and judicial review
rights.
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Will I be assessed fees for information obtained under the FOIA?
The FOIA and OSC regulations permit us to recover the direct costs of providing
information to FOIA requesters. The OSC may charge a fee for document search, review and
reproduction based on the category of requester.
Fee categories are as follows: (1) commercial use requests – a request for
information that is from an individual or entity seeking information to further the
commercial, trade, or profit interests of the requester; (2) requests from educational and
noncommercial scientific institutions and the news media; and (3) all other requesters.
For specific fee schedules, see OSC's FOIA regulation at 5 C.F.R. § 1820.6
The Electronic Freedom of Information Act Amendments (EFOIA) of 1996 (Public Law
104-231) requires federal agencies to make their reports and publications available
electronically. Click here to see OSC's most recent annual FOIA report. See the next
paragraph for access to other OSC reports and publications.
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Frequently Requested OSC Documents
The EFOIA requires federal agencies to make information in records frequently requested under FOIA available electronically. The following is OSC's list of frequently requested information/records:
- I.M.P.A.C. Card Information: OSC employs slightly over 100 employees, most of whom investigate and prosecute prohibited personnel practices and prohibited political activity by government employees. A government
I.M.P.A.C. card is used by one OSC employee for micropurchases of software, ADP equipment and office supplies. By interagency agreement, the Treasury Department’s Bureau of the Public Debt uses an
I.M.P.A.C. card in its processing of OSC purchases of other goods and services. The OSC
I.M.P.A.C. cardholder is Jim Bashaw, Information Technology Specialist. The OSC official responsible for overall management of these functions is: Marie Glover, Director, Human and Administrative Resources Management Branch. The address for both of these individuals is:
U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, DC 20036-4505
Telephone: (202) 254-3600
Fax: (202) 653-5151
- OSC Publications:
Annual Reports
The Role of the U.S. Office of Special Counsel
Political Activity and the Federal Employee
Political Activity and the State and Local
Employee
OSC amicus brief on behalf of TSA screeners
- Other Useful Resources:
"Your Right to Federal Records, Questions and Answers on the Freedom of
Information Act and the Privacy Act" [guide issued by the U.S. Department of Justice
(DOJ) , and the U.S. General Services Administration in November 1996].
DOJ FOIA Home Page: www.usdoj.gov/oip/foia
