The Freedom of Information Act, enacted in 1966, provides that any person
has a right, enforceable in court, of access to federal agency records,
except to the extent that such records are protected from disclosure by
one of nine exemptions or by one of three special law enforcement records
exclusions.
How to File a FOIA Request
FREQUENTLY ASKED QUESTIONS How do I make a FOIA request?
National Institute of Standards and Technology
Do I need to complete a form?
How does NIST process FOIA requests?
How long will it take NIST to respond to my request?
What kinds of records can NIST withhold
and on what grounds can the agency deny a request?
Exemption 1 - Classified documents
How do I know if NIST has withheld records from me?
What if I think NIST has withheld records and should not have?
If your appeal is denied, you can file a judicial appeal in the U.S.
District Court where you live, in the district where the documents are
located, or in the District of Columbia.
What happens if NIST does not have the records I want?
If our FOIA Office staff know that another agency has the records you
want, they will refer you to that agency.
What are the fees for filing a FOIA request?
If you are concerned about costs, ask for a cost estimate in your letter.
FOIA staff will let you know roughly what your fees will be before they
process your request, and they will give you a chance to approve these
fees.
How can I reach the NIST FOIA Office?
The NIST FOIA Reading Room is located in Building 101, Room A529. To
access the room contact Sharon Bisco at (301) 975-4054.
The bracketed [ ] areas explain how to use these sample letters to write
your own letter.
Freedom of Information Act Request Letter
Re: Freedom of Information Act Request
Dear ___________________:
This is a request under the Freedom of Information Act, 5 U.S.C. Sec.
552.
I request that a copy of the following documents [or documents containing
the following information] be provided to me: [identify the documents or
information as specifically as possible].
In order to help to determine my status to assess fees, you should know
that I am [insert a suitable description of the requester and the purpose
of the request].
[Sample requester descriptions:
--a representative of the news media affiliated with (a newspaper,
magazine, television station, etc., or a public interest organization that
publishes or disseminates information, etc.), and this request is made
as part of news gathering and not for a commercial use.
--affiliated with an educational or noncommercial scientific institution,
and this request is made for a scholarly or scientific purpose and not
for a commercial use.
--an individual seeking information for personal use and not for a commercial
use.
--affiliated with a private corporation and am seeking information for
use in the company's business.]
[Optional] I am willing to pay fees for this request up to a maximum
of $[ ]. If you estimate that the fees will exceed this amount, please
inform me first.
[Optional] I request a waiver of all fees for this request. Disclosure
of the requested information to me is in the public interest because it
is likely to contribute significantly to public understanding of the operations
or activities of the government and is not primarily in my commercial interest.
[Include a specific explanation.]
Thank you for your consideration of this request.
Sincerely,
Name
Freedom of Information Act Appeal Letter
Re: Freedom of Information Act Appeal
Dear ______________________:
This is an appeal under the Freedom of Information Act.
On [date], I requested documents under the Freedom of Information Act.
My request was assigned the following identification number [00-000-00].
On [date], I received a response to my request in a letter signed by
[name of official]. I appeal the denial of my request.
[Optional] The documents that were withheld must be disclosed under
the FOIA because __________________________________________________________.
[Optional] I appeal the decision to deny my request for a waiver of
fees. I believe that I am entitled to a waiver of fees. Disclosure of the
documents I requested is in the public interest because the information
is likely to contribute significantly to public understanding of the operations
or activities of the government and is not primarily in my commercial interests.
[provide details]
[Optional] I appeal the decision to require me to pay review costs for
this request. I am not seeking the documents for commercial use. [provide
details]
[Optional] I appeal the decision to require me to pay search charges
for this request. I am a reporter seeking information as part of news gathering
and not for commercial use.
Thank you for your consideration of this appeal.
Sincerely,
Name
EXEMPTIONS
Exemption 1 applies to matters that are "(A)
specifically authorized under criteria established by an Executive Order
to be kept secret in the interest of national defense or foreign policy
and (B) are in fact properly classified pursuant to such Executive Order."
Executive Order 12356, issued by President Reagan, requires agency records
to be classified if their disclosure "reasonably could be expected to cause
damage to the national security." Such records, if "in fact properly classified"
according to the substantive and procedural rules of the Executive Order,
are exempt from mandatory disclosure under the FOIA.
Requesters should note that courts have upheld agencies decisions to
"neither confirm nor deny" the existence of requested records in cases
where disclosure merely of the records' existence reasonably could be expected
to cause damage to the national security.
FOIA amendments adopted in 1986 authorize the FBI to do this for its
classified records pertaining to foreign intelligence, counterintelligence,
or international terrorism investigations.
Exemption 2 applies to matters that are "related
solely to the internal personnel rules and practices of any agency."
This has generally been interpreted to exempt from disclosure only those
minor and routine matters in which the public could not reasonably be expected
to have an interest. It has also been interpreted to exempt law enforcement
manuals from disclosure where such manuals are predominantly of internal
interest to agency personnel and their disclosures significantly risks
circumvention of agency regulations or statutes.
Exemption 3 applies to matters that are "specifically
exempted from disclosure by statute (other than Section 552b of this title)
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."
In order to assert this exemption, an agency must cite a federal statute
other than the FOIA and show that (1) the statute meets either the (A)
or (B) criteria of the exemption, and (2) the records at issue fit within
the category of information which the statute authorizes to be withheld.
There is no comprehensive list of statutes meeting the exemption criteria.
Exemption 4 applies to matters that are "trade
secrets and commercial or financial information obtained from a person
and privileged or confidential."
In order to bring a record within this exemption, an agency must show
that the information is (A) a trade secret or (B) information that is (1)
commercial or financial, (2) obtained from a person, and (3) privileged
or confidential.
If the information was generated by the government, it cannot fall within
this exemption. However, the term "person" is here, as elsewhere in the
FOIA, broadly construed to include a wide range of entities, private corporations
and the like.
Requested records will be considered "confidential" within the meaning
of this exemption if their disclosure is likely to either impair the government's
ability to obtain necessary information in the future, or cause substantial
harm to the competitive position of the person from whom the information
was obtained. A pledge of confidentiality from the agency, or the fact
that the information at issue is not customarily available to the public,
will not qualify requested materials as "confidential" under this exemption.
Exemption 4 cases sometimes give rise to so-called "reverse FOIA" actions,
in which the original submitter of the requested materials will seek to
prevent the agency from releasing them to the requester.
Exemption 5 applies to matters that are "inter-agency
or intra-agency memoranda or letters which would not be available by law
to a party other than an agency in litigation with the agency."
This provision was intended to incorporate certain common law discovery
privileges into the FOIA exemption scheme, and it is probably the most
complex of the FOIA's nine exemptions. Included within its scope are the
"executive" privilege (protecting advice, recommendations and opinions
which are part of the deliberative, consultative, decision-making processes
of government), the attorney "work-product" privilege (protecting documents
prepared by an attorney in anticipation of particular proceedings, where
disclosure would reveal the attorney's litigation strategy or theory of
the case), and the attorney-client privilege (protecting confidential communications
between an attorney and his client).
The "executive" privilege, which is the most frequently encountered
application of Exemption 5 generally involves the most difficult "line-drawing"
problems for the agencies and the courts. Pre-decisional versus post-decisional,
fact versus opinion - these distinctions hold clear only to a point. Courts
have held that pre-decisional recommendations, which would ordinarily be
exempt, lose the protection of the "executive" privilege if an agency,
in making a final decision, chooses expressly to adopt them or incorporate
them by reference. Conversely, facts that would ordinarily be available
to the public have been withheld where they are selected or summarized
in a way that reflects the deliberative process, or where their disclosure
would impair the agency's ability to obtain information that is essential
to the agency's decision-making process.
Exemption 6 applies to "personnel and medical
files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy."
This exemption requires agencies and Courts to balance personal privacy
interests against the public interest in disclosure when the record of
information at issue can be identified as applying to a particular individual.
Although the Supreme Court has noted that the exemption standard of Ocularly
unwarranted" appears to tilt this balance in favor of disclosure, the Court
has also made clear that, for purposes of the FOIA, there is "public interest"
in the disclosure of "personal" information only when such information
will shed light on" the operations or activities of some government agency
or official.
Exemption 7 applies to records or information
compiled for law enforcement purposes, but "only to the extent that the
production of such law enforcement records or information (A) could reasonably
be expected to interfere with enforcement proceedings, (B) would deprive
a person of a right to a fair trial or an impartial adjudication, ©
could reasonably be expected to constitute an unwarranted invasion of personal
privacy, (D) could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or authority
or any private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by criminal
law enforcement authority in the course of a criminal investigation or
by an agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose techniques
and procedures for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law,
or (F) could reasonably be expected to endanger the life or physical safety
of any individual."
Congress had substantially revised the original 1966 language of this
exemption in 1974, and the current version reflects further amendments
enacted in October 1986.
Before demonstrating that disclosure of particular records would result
in at least one of the six enumerated harms, the agency must show that
the records are "compiled for law enforcement purposes."
Although civil and criminal, judicial and administrative enforcement
proceedings may all qualify for protection, the proceedings must involve
a specific, suspected violation of law.
In the case of a criminal law enforcement agency, whether records were
"compiled for a law enforcement purpose" is generally a function of whether
there is a "rational" link between the information connected and one of
the agencies law enforcement duties.
However, in the case of the FBI, some courts have concluded that virtually
all Bureau records are necessarily "compiled for law enforcement purposes"
because of the nature of the FBI's responsibilities. Many courts have also
said that such information, when compiled in the course of a criminal investigation,
is presumed confidential under Section (7) (D), unless proven otherwise.
It should also be noted that information contained in records originally
compiled for law enforcement purposes does not lose Exemption protection
when it is summarized or reproduced in a new document that is compiled
for some purpose other than law enforcement. Conversely, records originally
compiled for purposes other than law enforcement can nevertheless qualify
for Exemption 7 protection if they are subsequently assembled for law enforcement
purposes.
The 1986 FOIA amendments permit an agency to refuse to confirm or deny
the existence of records when disclosure of their existence could reasonably
be expected to interfere with a criminal law enforcement proceeding and
there is reason to believe that the subject of the proceeding is not aware
of its pendency.
Exemption 8 applies to matters that are "contained
in or related to examination, operating, or condition reports prepared
by, on behalf of, or for the use of an agency responsible for the regulation
or supervision of financial institutions."
This seldom-encountered exemption is broadly applied by the courts to
withhold a wide variety of reporting materials from many different kinds
of ''financial institutions." Although the term financial institution is
not defined in the FOIA or its legislative history, case law has ruled
that it may include any entity authorized to do business under federal
laws concerning banks and related institutions. The scope of the exemption
is, therefore, not limited to depository Institutions or entities actually
regulated by the agency at issue, nor is it limited to matters affecting
the solvency of the particular institution.
Exemption 9 applies to matters that are "geological
and geophysical information and data, including maps, concerning oil wells."
This least-asserted, least-litigated exemption of the FOIA provides
blanket protection for oil well information, which is in most cases also
protected by Exemption 4.
It is important to remember that the exemptions listed above are discretionary
rather than mandatory; in effect, this means that an agency can decide
to release records to a requester even after it has determined that the
records may be withheld pursuant to one or more of the exemptions.
The FOIA also requires an agency to provide a requester with any "reasonably
segregable portion" of a record after deletion of the portions which are
exempt" from disclosure. This means that any agency may not withhold an
entire document on the grounds that some portions of the document are exempt.
SUMMARY OF ELECTRONIC FOIA AMENDMENTS
Section 1. Short Title
Section 1. Short Title
Section 2. Findings and Purposes
The purposes of the bill include improving public access to government
information and records, and reducing the delays in agencies' responses
to request for records under the Freedom of Information Act.
Section 3. Application of Requirements to Electronic
Format Information
Section 4. Information Made Available in Electronic
Format and Indexation of Records
This section of the bill would require that materials, such as agency
options and policy statements, which an agency must "make available for
public inspection and copying," pursuant to Section 552 (a) (2), and which
are created on or after November 1, 1996, be made available by computer
telecommunications, as well as in hard copy, within 1 year after the date
of enactment. If an agency does not have the means established to make
these materials available on-line, then the information should be made
available in some other electronic form, e.g., CD-ROM or disc. The bill
would thus treat (a) (2) materials in the same manner as it treats (a)
(1) materials, which under the Government Printing Office Electronic Information
Access Enhancement Act of 1993 ("GPO Access Act"), Pub. Law 103-40, are
required, via the Federal Register, to be made available on-line.
This section would also increase the information made available under
Section 552 (a) (2). Specifically, agencies would be required to make available
for public inspection and copying, in the same manner as other materials
required to be made available under Section 552 (a) (2), copies of records
released in response to FOIA requests that the agency determines have been
or will likely be the subject of additional requests. In addition, they
would be required to make available a general index of these prior-released
records. By December 31, 1999, this index should be made available by computer
telecommunications. Since not all individuals have access to computer networks
or are near agency public reading rooms, however, requesters would still
be able to access previously-released FOIA records through the normal FOIA
process.
As a practical matter, this would mean that copies of prior-released
records on a popular topic, such as the assassinations of public figures,
would subsequently be treated as (a) (2) materials, which are made available
for public inspection and copying. This would help to reduce the number
of multiple FOIA requests for the same records requiring separate agency
responses. Likewise, the general index would assist requesters in determining
which records have been the subject of prior FOIA requests. Since requests
for prior-released records are more readily identified by the agency without
the need for new searches, this index would assist agencies in complying
with the FOIA time limits.
This section would make clear that to prevent a clearly unwarranted
invasion of personal privacy, an agency may delete identifying details
when it makes available or publishes the index and copies of prior-released
records.
Finally, this section would require, consistent with the "Computer Redaction"
requirement in Section 9 of the bill, an agency to indicate the extent
of any deletion from the prior-released records and, where technically
feasible, to indicate the deletion at the place on the record where the
deletion was made.
Such identification need not be included when doing so would harm an
interest protected by the exemption in subsection (b) under which the deletion
was made.
Section 5. Honoring Form or Format Requests
This section would also require agencies to make reasonable efforts
to search for records that are maintained in electronic form or format,
unless such search efforts would significantly interfere with the operation
of the agency's automated information systems.
The bill defines "search" as a "review, manually or by automated means,"
of "agency records for the purpose of locating those records responsive
to a request." Under the FOIA, an agency is not required to create documents
that do not exist. Computer records located in a database rather than in
a file cabinet may require the application of codes or some form of programming
to retrieve the information. Under the definition of "search" in the bill,
the search of computerized records would not amount to the creation of
records. Otherwise, it would be virtually impossible to get records that
are maintained completely in an electronic form, like computer database
information, because some manipulation of the information likely would
be necessary to search the records.
Section 6. Standard for Judicial Review
Section 7. Ensuring Timely Response to Requests
Multitrack Processing--An agency commitment to process requests on a
first-come, first-served basis has been held to satisfy the requirement
that an agency exercise due diligence in dealing with backlogs of FOIA
requests. Processing requests solely on a FIFO basis, however, may result
in lengthy delays for simple requests, due to the prior receipt and processing
of complex requests, and in increased agency backlogs. The bill would permit
agencies to promulgate regulations implementing multitrack processing systems,
and make clear that agencies should exercise due diligence within each
track. Agencies would also be permitted to provide requesters with the
opportunity to limit the scope of their requests in order to qualify for
processing under a faster track.
Unusual Circumstances--The FOIA currently permits an agency in "unusual
circumstances" to extend for a maximum of 10 working days the statutory
time limit for responding to a FOIA request, upon written notice to the
requester setting forth the reason for such extension. The FOIA enumerates
various reasons for such an extension, including the need to search for
and collect requested records from multiple offices, the volume of records
requested, and the need for consultation among components of an agency.
For unusually burdensome FOIA requests, an extra ten days still provides
insufficient time for an agency to respond. The bill would provide a mechanism
to deal with such requests, which an agency would not be able to process
even within an extra ten days. For such requests, the bill would require
an agency to inform the requester that the request cannot be processed
within statutory time limits and provide an opportunity for the requester
to limit the scope of the request so that it may be processed within statutory
time limits, or arrange with the agency an agreed upon time frame for processing
the request. In the event that the requester refuses to reasonably limit
the request's scope or agree upon a time frame and then seeks judicial
review, that refusal shall be considered as a factor in determining whether
"exceptional circumstances" exist under subparagraph (6) (C).
Requesters should not be able to make multiple requests merely to avoid
the procedures otherwise applicable in unusual circumstances. To avoid
the potential problem of multiple requests for purely circumvention purposes,
the bill would permit agencies to promulgate regulations to aggregate requests
made by the same requester, or group of requesters acting in concert, if
the agency reasonably believes that such requests actually constitute a
single request, which would otherwise satisfy the unusual circumstances
specified in subparagraph (6) (B) (iii) of the bill. The aggregated requests
must involve clearly related matters. Agencies are directed not to aggregate
multiple requests involving unrelated matters.
Exceptional Circumstances--The FOIA provides that in "exceptional circumstances,"
a court may extend the statutory time limits for an agency to respond to
a FOIA request, but does not specify what those circumstances are. The
bill would clarify that routine, predictable agency backlogs for FOIA requests
do not constitute exceptional circumstances for purposes of the Act, unless
the agency demonstrates reasonable progress in reducing its backlog of
pending requests. This is consistent with the holding in Open America v.
Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), where
the court held that an unforeseen 3,000 percent increase in FOIA requests
in one year, which created a massive backlog in an agency with insufficient
resources to process those requests in a timely manner, can constitute
"exceptional circumstances." Routine backlogs of requests for records under
the FOIA should not give agencies an automatic excuse to ignore the time
limits, since this provides a disincentive for agencies to clear up those
backlogs. The bill also makes clear that those agencies with backlogs must
make efforts to reduce that backlog before exceptional circumstances will
be found to exist.
Section 8. Time Period for Agency Consideration
of Requests
Expedited Access--The bill would require agencies to promulgate regulations
need" for a speedy response. The agency would be required to make a determination
whether or not to grant the request for expedited access within ten days
and then notify the requester of the decision. The requester would bear
the burden of showing that expedition is appropriate by certifying in a
statement that the demonstration of compelling need is true and correct
to the best of the requester's knowledge and belief. The bill would permit
only limited judicial review based on the same record before the agency
of the determination whether to grant expedited access. Moreover, federal
courts will not have jurisdiction to review an agency's denial of an expedited
access request if the agency has already provided a complete response to
the request for records.
A "compelling need" warranting expedited access would be demonstrated
by showing that failure to obtain the records within an expedited time
frame would: (I) pose an imminent threat to an individual's life or physical
safety; or, (II) "with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the public concerning
actual or alleged federal government activity." Agencies are also permitted
to provide for expedited processing in other cases as they may determine.
Expansion of Agency Response Time--To assist federal agencies in reducing
their backlog of FOIA requests, the bill would double the time limit for
an agency to respond to FOIA requests from ten days to twenty days. Attorney
General Janet Reno has acknowledged the inability of most federal agencies
to comply with the ten-day rule "as a serious problem" stemming principally
from "too few resources in the face of too heavy a workload."
Estimation of Matter Denied--The bill would require agencies when denying
a FOIA request to make reasonable efforts to estimate the volume of any
denied material and provide that estimate to the requester, unless doing
so would harm an interest protected by an exemption pursuant to which the
denial is made.
Section 9. Computer Redaction
Section 10. Report to the Congress
The Attorney General and the Director of the Office of Management and
Budget are required to develop reporting guidelines for the annual reports
by October 1, 1997.
Section 11. Reference Materials and Guides
Section 12. Effective Date
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