Freedorn of Information Act R

kYhat is

&

& Freedsffi! sfcr {F0lA}Inforunatilon

ith the seemingly rurnpa;nt Freedom of

Information Act media requests

made in the last several years,

you might be surprised to learn that the

Act was initially enacted it 1965 afitook effect on July 5, L957 . Due to the

proliferation of electronic informa-

tion during the 1990s, the Electronic

Freedom of Information Act

Amendments of 1995 expanded the

scope of the Act to include elec-

tronic records in its definitions,

ar,d mandated the creation of"electronic reading rooms" for ,'the public, More recently, in :t..:'

2002, sweeping amendments fol-lowed by those ubiquitous media

requests under its guise have

again brought this Act out into the

collective American lexicon.

FReerou orlurcnmnnor Acr

The Freedom of Information Act, cod-ified at 5 U.S.C. * 552, also is extant inmany forms pertaining to state and localrecords, and yes, even to some internationalrecords. Unless otherwise specified, this articledeals with the federal Freedom of Information Act,hereinafter FOIA or the Act, and the federal agencies towhich this particular statute applies.

The impetus behind the Act was to make federal agency records

- or portions of certain records - available to the general pub-lic. There are, however, nine notable exceptions to the Act in

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ny Slur K. Hanrsrrnr,o, ACP

which such records are not avillable tothe public. (See sidebar on page 42).

The exceptions entail matters one

might expect, such as those having

to do with national security, per-

sonal information, and even

those having to do with tradesecrets. You can see a com-plete list of the FOIA exemp-

tions at 5 U.S.C. * 552, et seq.(See sidebar onpage 42).

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The FOIA is seen as a way

for ordinary citizens to gain

access to records they mightnot otherwise be able to see,

and away for our governmen-

tal agencies to ostensibly oper-ate transparently. In other

words, the agencies are not sup-posed to have anything to hide

from us, the very people for whomthe federal agencies work, and there-

fore, we should be able to view theirwork under cefiaiq circumstances.

Some records are even automatically dis-

closed under the FOIA, such as those frequentlyrequested, as all three branches of our federal gov,

ernment - the Congress, the President and the

Judiciary-recognize the need for transparent gover-

norship as avital aspect of our democracy.

38 Fnsnunny / Mancn 2012 e National Paralegal Reporter@

The executive branch, headed by the President, is the enti-ty that is responsible for the administration of the FOIA, whilethe Office of Information Policy under the Department of

Justice is charged with overseeing that agencies comply withlegitimate FOIA requests.

The records of federal agencies included under the purviewof the FOIA is wide ranging and covers paper documents as

well as many other forms of media, including print, photo-graphic, and, as mentioned earlier, electronic records, so

long as such records are in that particular agency's posses-

sion and control from which the FOIA is made.

The FOIA applies to allfederal agencies,whichmeans it does not applv to:

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For records and more information from the fed-eral courts, please visit: www.uscourts.gov oranyone can review federal litigation or bankruptcyrecords at www.paceLgov. (Some minor sur-charges may apply.)

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If you wish to obtzin records and other infor-mation on the Congress, you may contact yourlocal House Representative or Senator.Alternatively, you can visit ouu.house.goo,wtrry. senate.gov, or www.congress.gov.

$vags &q*vxaruMsxrs .rtD Cor:nrsFor records and additional information on

your state or local agencies - or their courts

- you should contact those entities directly,or look for their information online.

States generally enact their own, similarversion of the F0IA. For example, here inTexas our agencies follow what is called theTexas Public Information !rA, Charpter 552of Texas Government Code. This state Actproltdes a rrav for the pubtc to access toinformarion in the custod-v of governmentalaSencres-

Ierlre A troursrAs paralegels, we are frequently called

upon to obtain federal, state and localdocuments in the possession and controlof some form of governmental entity.Most of the time, if the information isnot akeady easily available, it is as sim-ple as visiting that particular agency's

Freedom of Inforrnation Act Re

that organization. If not, a simple, sample letter requestingthe information under the FOIA will suffice, but keep inmind that the F0IA with which most folks are familiar is afederal law pertaining to federal agencies only, lf yowzttomey needs state or local information from a govern-mental zgency, it will be time to put on your paralegal sleuthcap and, to locate the correct channel for procuring suchinformation locally.

A local letter requesting information under Texas' versionof the FI0A, for example, might look like this, see beloy.

> continued on page 40

Sample form found at www.foift.org/pialetFreedom of Information Foundation of Texas

Sample TEXAS pUBLrc rr\rnnn.-Your Name

frrc INFORMATION AC? Request letter

1 Rerurn Address

;;,; ^. (busi6s5,

hours)

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Wg<Signafure>

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National Paralegal Reporter@ * FsnnuA.ny / MancH 2012 39

website to find out how to make a FOIA request particular to

Freedorn of Information Act R uest> continueil from page 39

You can simply tailor your local FOIA request letter to meet

your own state's requirements, blut agah, in most cases you

will find exact verbiage or forms by visiting that agency's web-

site from which you seek FOIA documents.

Wnnr rs rHe 0rnunsAorunilr$rnATroilts FOIA Por.rcY?

One of President Barack Obama's campaign promises was

transparency in government. In that spirit of open governing,

the President and Attorney General Eric H Holdeq Jr., have

explicitly directed federalagencies to apply a presumption ofopenness toward FOLA requests. Specifically, Attorney General

Holder has asked agencies not to withhold information simply

because it might technically fall under one of the Act's exemp-

tions, and he encouraged an agency to use its own discretiongenerously when complying with requests for information.Presideni Obama promised to make this the most transparentgovernment administration in American history and it is in this

vein that the Department of Justice's 0ffice of InJormationPolicy enthusiastically encourages compliance with the Act and

its directives to make available to the public all informationcovered by the Act.

Houl oo I Mnrr A FOIA REouEsr?The first step t0 making a FOIA request is t0 determine which

agency is in control of the information you 0r your attorneyneeds. You can find a list of the different agencies to whichFOIA requests can be made at www.foia.gov/report-makerequest.html, plus you can determinewhich agency should be in the posses-

sion and control of the informationyou need at this link,Furthermore, each agency is a

hyperlink of its own with spe-

cific instructions for makingsuch a request from that par-

ticular agency, Because each

agency has its own particularinstructlons for making a F0IArequest, some agencies will have

sample forms, while some agencies

will have sample letters.For instance, should you wish to obtain

information or records from the IRS (other than those

to which opposing counsel's client consents and for which itsigns authorizations), one can go to wvw.irs.gov/foia./arti-clel0,,id=2t1,443,00. html to find options of a sample let-ter, guidelines and a fee schedule.

Conversely, one simply need Google* the appropriate agency

from which one wishes to make a request, and add "FOIA

request" or "how to make a FOIA request of _____."

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. The FOIA: www.nfoic.org/freedom-infoma-tion-act

. Sample F0IA letter generator: www.nfoic.rglsam-ple-foiaJetters

e F0IA letter generator and tracker for either federal

or state agencies: www.rcfp.org/foialettetlindex.php

. Media law guide: www.nfoic.org/media-law-guide

o International FOIA law guide: www.nfoic.org/international -foi-laws

. Freedom of Information Act Request form(Department of Homeland Security):nuv.uscis.gov/files/form/g -639.pd

. FCC's Regulations Implementing the FOIA (47

C.F.R. $$ 0.441 - 0.470): www.transition.fc c. gov / f oia/ cfr. html

Grnrntc Snmplr F0lA LrrrrnMost sites I visited had some form or other of the fol-

lowing information to include in a generic sample FOIA

request letter:

1. Some type of statement that the request is being

made under the Freedom of Information Act, 5

u.s.c. 9552.2. A specific and detailed description

of the information you are request-

ing. Identify dates, authors,addresses, subjects, or titles of

documents sought, You can

also enclose copies or referto published accounts ofthe information sought: forexample a newspaper or

journal article, or a govern-

mental report.

3. Request a wariver of fees ifeligible; if not, include your firm's

check for the information. (In almost

all cases, therc are fee schedules associated

with making a FOIA request, some nominal, and some

significant, depending on how many documents or howmuch information is being requested.)

4. Ptarkyour envelope with the letters FOIA Request,

and send it to the proper address. I recommend send-

ing the letter via certified mail, return receipt request-

ed, so you will have a paper trail of your F0IA request.

40 Fesnunny / MlncH 2012 s National Paralegal Reporter@

Elrcrnorrc Rrltluc HoomSome information may be viewed in an agency's "electronic reading

room," as mentioned previously. If this is an option, simply visit that par-ticular agency's website and there will typically be some sort of electronicform to fill out, along with some way to pay the fee electronically.

An example of an "electronic reading room" can be found at the U.S.

Department of Transportation's Pipeline and Hazatdous Material's web-site, more commonly known as HAZMAI, which recognizes four categoriesof records under the Freedom of Information Act (FOIA):

1.. Final Opinions and Orders;

2. Policy Statements;

3. Staff Manuals and Instructions; and4. Frequently Requested Records Under FOIA.

To be able to access this room, one must physically visit HAZMAI's "elec-tronic reading room" in Washington, D.C. ( wr"w.phms a.dot,govtfoia/ e-reading-room).

Other agencies, such as the Federal Deposit Insurance Corporation, pro-vide at least part of their "electronic reading rooms" via the Internet. Ifyou are requesting FDIC information, visit www.fdic.govlabottlftee-dom./readingroom.html to view PDFs related to your FOIA request(s).

In other cases, you can make an online F0IA request, but must physical-ly go to the agency's "electronic reading room." For instance, theDepartment of State provides an online electronic form to make your FOIArequest (www.foia.state.gov/foiarcq/ foialetter.asp), but you will

Freedom of Information Act R" uest

by no means exhaustive, so check first to see ifwhat you or your attorney need is abeady avail-able publicly. If not, nowyou know exactly howto go about procuring the documents or infor-mation your attorney needs.

Sami K. Hartsfield, ACP is aparalegal and freelance writerbased in Houston, Texas. She

is a NALA Advanced CertifiedParalegal, has earned six spe-

cialty certifications since2007, and is WestlawNext cer-tified. She has worked as a

law firm webmaster, law firm social media mar-keter, and ghostwriter for personal injury lawfirms. She holds a degree in paralegal studieswith a 4.0 GPA and a bachelor of science degreein political science. graduating summa cumlaude. Hartsfield interned with Texas' 14th Courtof Appeals under Chief Justice Adele Hedges,and completed the University of Houston LawCenter's Summer 2008 Prelaw Institute with a

4.0. You can find her on Facebook, Twitter, or e-mail her at LegallyBlog@yahoo.com.

have to caLL202.251.8484to sched-

ule a time to view the records intheir public reading rooms. (You

may also fax or mail your FOIA

request to the State Department.)

ApprallilG A D=ulErCanl appeal the agency's denial of

my FOIA request?

Yes. Your appeal should include a

copy of your original request, alongwith a written description of thedetails. Write a statement indicatingyou arc appealing the agency'sdenial pursuant to 5 U.S.C. $552(a) (6) . You must srare thesrounds for your appeal, such asrhl' the agency's denial is inconsis-iE-I Eith the Act.

ErruJlr. keep in mind much infor-malion. such as documents withinthe \edonel .\rchives, declassifiedor releued putrlic documents, and

I certain edministrative rulings ormanuals. are automaticallv availableto the public or can readilr be foundonline for free. This list of alreadv-available documents to the public is

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