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I'm just testing the audio here and we'll get started in a couple minutes all right I think we're gonna get started my name is Rachel Clattenburg and this is a presentation about the federal FOIA law the Freedom of Information Act if you are looking for information on state public records you should look online this is just going to be about the federal act let me just quickly introduce myself my name is Rachel Clattenburg I work at the Public Citizen litigation group we've been litigating FOIA cases for over 40 years what we also deal with a number of other issues such as consumer rights regulations access to the courts administrative law first amendment and then of course open government which is what we're doing today public siddhis to be our the operate as a law firm within Public Citizen we accept no government or corporate money we just rely on foundation grants and donations here's some quick contact information if you are looking for litigation FOIA litigation examples we have a case page at citizen org slash FOIA and you can see all of our FOIA cases and the filings in those cases and we also have a list of some of the other FOIA resources and my contact info is here you can send any questions you have about FOIA to FOIA at citizen orgy or to me our Clattenburg at citizen org we are always happy to consider any oil litigation request so you can also send those there alright let's get started Oya fundamentals FOIA is a powerful offer based on four principles that underlie it first of all is the presumption in favor of public access to government information the burden is on the government to justify its withholdings it's presumed that the public has access to information second it's a very accessible tool you don't have to be an attorney anyone can use it it's simple and I hopefully will be showing you that today third is there are clearly defined categories of information that the government can could can withhold these are the nine exemptions if it's not in one of those exemptions the government can't withhold it and again the government has the burden of justifying that the information falls within one of those nine exemptions and fourth is the judicial review provision which gives the law its teeth and the courts perform an independent determination of whether the information falls within the exemptions this is really all you have to know about filing a FOIA request it's just a letter describing what you want to get from the insert from the government they have to be agency records and you need to address fees so that's really all there is to it I'm going to go a little more into depth but it's very easy you should use it it can be a very useful tool the first part of my presentation is going to focus on the mechanics of filing FOIA requests some information and strategies I have that I think will help you or hope will help you get the information you want more easily and in the second part I'm going to talk more about what you can get under FOIA the types of information you can expect to get that are unredacted and strategies for getting those alright so let's start off with some of the basics here any person can request agency records and you can request them from federal agencies if Oya does not apply to the courts and it does not apply to congress and agency records are as compared to personal records so for example an agency officials appointment calendar even if those contain even if that appointment calendar contains personal appointments if that calendar is used by the official and her staff for scheduling purposes or for agency business that would they'll be an agency record and there was a question submitted in it advance of this presentation about whether emails on a private server or subject to FOIA it does depend but if it's an agency official using a private email account to conduct agency business the DC Circuit held that simply using a private email account for your to run an agency does not mean you're not shielded by FOIA so yes just that is not a way to to avoid FOIA if you if you have a private email account that's not enough those are those can still be subject to FOIA that case is Competitive Enterprise Institute or its OSTP is the DC Circuit case from last summer this is a brief overview of how FOIA works or how it's supposed to work first up here you send in a proper request which I'll go over to a federal agency they will send you some sort of acknowledgement acknowledgement email or letter they are supposed to take no more than 20 working days although they can ask for ten additional days in unusual circumstances if they miss that deadline you can sue because that's called constructive denial or you can wait and then eventually they're supposed to issue a determination and you can appeal that determination and again the appeal or their appeal decision is supposed to take no longer than 20 working days if they miss that deadline you can sue or if they issue determination on the appeal you can also sue so that's a brief overview of how this works so now let's get into drafting the request you need to first of all reasonably describe the records that you want and I recommend being as narrow and targeted as you can you can always come back for more records if you find out that what you requested it wasn't enough and so I just recommend being more narrow you can't ask questions in the foyer request they don't have to answer any questions either you need to actually describe agency records that exist you can ask them to create records sometimes agencies do create some sort of spreadsheet or table in response but they're not required to and again as I said I recommend being more specific and erring on the side of narrow and your request must be in writing so one thing you think is important about getting information through FOIA is really figuring out what types of records an agency has so you can figure out what to ask for everyone thinks of emails and those get requested a lot but there are other types of Records and they might actually be easier to get and they might actually have all the information you want emails are often as I'll talk about if they're in between emails between agency officials agency staff there they're often exempt under exemption 5 so how can you think about what it is you want in what to ask for and what the agency might have in terms of Records so when you're brainstorming this you should be aware that agencies have FOIA logs and these are vary by agency as to how up-to-date they are but you can see this is NIH it's pretty up-to-date it lists the requests the organization that requested it and the types of Records requested and this is useful in trying to figure out what types of Records are out there because some some requesters know more and have requested certain information this is also just interesting you can see so for example like a research institution is asking for copies of grants and you can see a corporation asking for records about other corporations corporations are big users of FOIA for that purpose and then you can see the individual asking for all emails which is as I said very common this is Customs and Border Protection's FOIA log a lot of it is being redacted as work withheld under the privacy exemption which is B 6 but it's also just interesting that for you to see that another good resource is Makarov calm you can first of all submit employer request through their first small fee but I also recommend looking at their database of filed for our costs and also responses they've gotten is just a great way to generate ideas for how to request stuff and what types of Records you can request this is what their website looks like if you go to that link I just had there here I have sorted it filtered it by completed requests so ones that the agencies have responded to already and United States of America because I'm looking at federal ones America also has a lot of state and local-level public records requests but really interesting if you click on these you can see their requests and any of the agency's responses could be very helpful in you trying to think up how to draft your request another good option is just keep your eyes out in for news articles and what types of Records these agencies are producing this is for example one that we requested and ultimately sued over and it was came from this news article where this corporation provided a memo to Bloomberg News on the condition that Bloomberg News not publish the document and that the news organization drop an effort to obtain it through a public records request so we asked for that memo just based off of this news article and also based for the news articles you can in your request refer to documents that are mentioned in news articles that's a good way to narrow it and speaking of narrowing again as I said before I really think specific is better and a way to do that is you can narrow always by time so a certain time frame you can suggest keywords that they search for or people those are just three easy ways to narrow your request the agency can deny requests as being over broad and these are two examples from cases where the courts have held that the search was the request was too broad one was a page by page search through the 84,000 cubic feet of documents doesn't seem ridiculous to say that's too broad and another one was all records about the requester from all of the IRS s offices but I also want to mention that you will probably have Oya the FOIA officer at the agency it wouldn't be it's very common that they'll call and say hey your request is too broad you need to narrow it you need to name specific people for instance you don't have to agree with that just because they say that's over broad doesn't mean it's over abroad and if you disagree you can tell them I think the search is reasonable and it's a reasonable request it's reasonably narrow if you think it's over broad please deny our request on that grounds and issue us a denial letter so you don't have just because they call them tell you they say that your request is too broad which I get that call quite often you don't have to they're not always worried about that you can you can challenge that all right let's go on to fees um agencies are permitted to assess fees for FOIA requests there are three categories of requesters commercial news media and all other and there are three types of fees they can assess search fees review fees and duplication fees and you can see here based on this chart some are applied only commercial has to pay all of those and there are some you know less than hundred pages for a news media or all other are free for example this is examples of some of the agency's regulations on fees they do vary so you can look those up if you're curious what the rates are and I just thought this was kind of humorous this is an actual example the DoD's response to a mock rock and used FOIA requests where DoD said that the search costs and the response would cost something like fifteen it would be 15 million labor hours at an estimated cost of 660 million which I think most people would see is just a way to perhaps deter this request so there are ways to get around the fees if you qualify one is the public interest waiver request so you can ask for this in your FOIA request it has to be in the public interest not primarily in the commercial interest of the requester there are six factors you should address in support each of them in your FOIA request and by support I mean you should point to specific examples of how your organization is it's emanating the use the information or how it's in the public interest there's also you can ask to be categorized as a representative of the news media and again there factors you need to set out and support but you don't have to do that you can also just if you don't qualify for either of those you can say I'm willing to pay up to a certain dollar amount and list in your request or you can say if there are fees please inform me before you you incur them because again you get the first hundred pages in the first two hours for free so if you're only asking for a small number of documents you may not be assessed any fees anyway I just want to make two quick notes about fees first there is a provision in FOIA that you the agency may not assess search fees or in the case of media requests or they can't assess duplication fees if the agency misses it's 20 working day or 30 working day deadlines and this is the citation for that in the FOIA statute and you should just be aware of that the second is that if you have any plans to litigate a denial of a few waiver or fee waiver or fee requests category make sure you support your request for that waiver or categories efficiently because the court reviews the record that was before the agency okay and the third step here for drafting your request is figuring out where to submit the request and it's I actually don't find this that easy this website it's helpful it'll point you to the you can go there and it will show you the different agencies and you can click on that and then it will give you the FOIA contact info I highly recommend whatever they have listed there you also go to the agency's website they are not always perfectly consistent and sometimes there's an easier way to do it from the agency's actual website then from this central site that's supposed to collect everything about where you can submit FOIA requests there are online portals for submitting agents for submitting FOIA requests some of them use this centralized one called FOIA online but a number of them have their own which is a little bit annoying because they're all slightly different um my preferred method of doing it is just PDF in a letter and then emailing it but some agencies have stopped giving out a FOIA email address and sometimes it's hard to track down but if they have that as an option I always do that I think it's much easier than these online portals but it's whatever you whatever works for you and also just make sure you're following whatever the agency's FOIA regulations are for how to submit your request and in terms of the US Citizenship and Immigration Services they have a handy table this isn't the whole thing it just took a screenshot of part of it and it lists the type of record record that you're looking for and then which sub agency you should be submitting that to so that that looks helpful and also when it comes to immigration records you should be aware the Privacy Act if you're asking for records someone's immigration records or any records that are retrievable by a person's name or identifier you are asking for records under the Privacy Act and you will need to have a certification and verification of identity form that website will have this for you will tell you how to do it but you should just be aware of that so this is USCIS is information about that and it tells you how if you want that what you have to submit and they also have a form available online but just be aware of that if you're asking for someone's immigration records or any records about a particular person all right this is a quick overview of the process so far you're gonna research to figure out what kind of Records there are try to best draft your request you'll also make sure the records are not already publicly available so you don't waste your time um you'll reasonably describe them you'll be as specific as possible ask for a few waiver or a fee category or set some sort of limit as to how much you're willing to pay or ask them to tell you before they charge you for anything check out the agency's rule if there's a Privacy Act Records that you're asking for make sure you have submitted the proper waiver or certification and then you'll figure out where to submit it and submit it the agency will send you some sort of acknowledgment and eventually hopefully you will get an agency determination I just want to quickly say that agency determination under the law doesn't have to be all the responsive records it just has to set out the scope of what the agency will produce the exemptions they will be applying and give you notice of appeal rights this is a sample of a determination and once you have your determination you can appeal you should appeal in full to make sure that you're not waiving any arguments if you end up deciding to litigate agencies have different deadlines you should check that out make sure you don't miss them summer as short as 30 days as of last summer with the new amended FOIA act the deadline for all agencies is 90 days but that only applies to requests that were submitted after June 30th of last year so if you have any requests that are in the pipeline from before then it's a different appeal deadline if they are if you submit one now you'll get a 90-day deadline to appeal all right let's move on to the second part about the types of information you can get from FOIA and I'm just going to run through a bunch of examples because I want I think it's really helpful to realize that you can get a lot more than just emails even though that's what you're gonna want as I said before emails that are between within an agency or between agencies you can ask for them you'll get some of them and a lot of them will be redacted so the more you can think outside of the box of emails I think the more successful you'll be in getting FOIA response that isn't heavily redacted not always but it's just good to know what types of information you can get so these are some examples from some of the groups in Public Citizen for instance and some other places that have successfully used FOIA for their own work and these case these have not gone through litigation so this was just stuff that's released research protocols from nih consent forms for studies policy memos fda adverse event reports for drugs they have a whole database and you can request this more specific report for one of the ones listed in the in the database FDA inspection reports of American Red Cross blood banks contracts this one is taken from an article I thought it was just sort of amusing it was a contract for the TSA iPad that randomly generated an arrow either going left or right to tell you which line to go in for security and it was something like 1.4 million or ended up being I don't know if several hundred thousand once you took out some parts of that but it was an amazing amount you can get consumer completes this is one about Airlines and the comfort of the seats and they said that the seat felt like it barely had a cushion this is another consumer complaint about FCC complaints regarding the Colin Kaepernick and or San Francisco 49ers it's just all over and if you look pay attention in the news they often note safe for you but they'll say something like public records request open records request and all these articles that I have here all based on information that came through FOIA and again more articles relying on FOIA so I want to get back to what I was been kind of saying the whole time was this is the type of information you're gonna want you're gonna want emails between agency officials you're gonna want drafts of proposed guidance you know how did they come up with this guidance how did they come up with this draft you know what changes do they make to this rule before it was finalized in viral after environmental Sussman's draft studies communications and memos within the agency on any of these subjects and when you sit down to ask for that stuff I think just pause for a second because you should realize while you can definitely request that stuff just be prepared that you're gonna get a lot of stuff that looks like this where you get an email where you can maybe see everybody it was to and from and you can maybe see the signature line but a lot of exemption 5 if this is what you need ask for it you can definitely ask for emails but is there another way you can get what you want I'm going to quickly go over exemption 5 because it is applied a lot and if if there's a way you can get around it you're more likely to get the information you want so exemption 5 applies to inter and intra agency memos that will be privileged in litigation with it with the agency so anything that would normally be privileged in civil discovery there are a number of privileges the ones you're more most likely to see are the deliberative process privilege which applies to information that is both deliberative and pre-decisional and then the attorney-client privilege and the attorney work product privilege so this stuff that's covered by exemption five recommendations and deliberations that are part of the process by which the agency decisions and policies are formed so it's quite broad and it's often the type of information you want and my last point here is just that even though it says inter and intra agency sometimes emails and memos between agency and outside entities who are treated as consultants to the agency are also covered by exemption five under the consultant corollary if they're acting as agency employees or in the interests of the agency and not in furthering their own interests so the policy behind this deliberative process privilege which is the one that I see invoked the most under exemption 5 and nura were likely to encounter is that it this fear that if you release this information it would stifle the honest and frank communication with the agency and this is a quote from a case that is often referred to and it's just that you don't want the agency to have to operate as if it was in a fishbowl with everybody being able to see all the decision-making process so the type of information that exemption 5 applies to our advisory opinions recommendations deliberations papers that reflect agencies group thinking and working out policy emails between agency employees briefing materials summarizing issues and advising superiors so instead of asking for these sort of internal communications one thing you can do is ask for communications between outside entities and the government agencies because those do not fall within exemption 5 sometimes exemption 4 comes up but I recommend you see if you can get this information by asking for information that would have been exchanged between someone outside the government and then the government the next exemption I just want to quickly cover with you is exemption 6 which is the personal privacy exemption especially if you're asking for something like immigration records you're likely to run into this this is a photo that has been redacted under exemption 6 and as you can see they redact the heads I just think that's kind of Uri looking but that's how they do it exemption 6 is a balancing test so it's the balance between the public interest in the privacy interest in disclosure in the public interest for purposes of exemption 6 is the extent to which disclosure lets the public know what the government is up to and if that outweighs the privacy interests then they release it otherwise they don't release it exemption 6 is often used to withhold name addresses telephone numbers email addresses criminal history rap sheets birth dates social security numbers passport information identities of crime victims there's a Supreme Court case dealing with exemption 6 in the immigration context and that was the court upheld the use of exemption 6 to hold identifying information in reports of interviews at the State Department employees conducted with persons who had been involuntary voluntarily returned to Haiti and the case name is there but exemption 6 has not applied and they have released information such as names of those who voluntarily submitted comments to the government on a policy addresses of farmers who received federal subsidies names of those who violated federal grazing laws and most federal employees names titles grade salaries and qualifications although that kind of that depends and I think the higher up a federal employee is the more likely they are to stay it's not exempt under exemption 6 so that is exemption 6 you should just be aware of that and one more note is that we've been seeing more frequently it's agencies redacting information as non-responsive and non-responsive is not an exemption you know I just want you to be aware of that they they do do this it is not an exemption and the DC Circuit in a case that one of the attorneys in our group brought held that that is not an exemption under FOIA all right let's get to the deadlines as I said before they have 20 working days to issue their determination and then they can get a 10-day extension for unusual circumstances extent circumstances they can also toll under certain circumstances however the reality is that it is extremely unlikely you're going to get them that fast and it is a very slow response time the deadlines and the timing are going to probably be your most frustrating part of finally in a FOIA request it's just very frustrating frustrating the there was a question about what to do in this circumstance and I I'll give you some strategies because what you're going to end up with is you're oftentimes as you file a FOIA request and you just don't hear anything or they tell you they don't know it's gonna they're working on it and what do you do you don't you don't have any answers and you would like your your your records so just just to show you how common this is these are some humorous headlines from Techdirt that are based on real FOIA requests the State Department has taken over three years on a FOIA request about how long it takes to process FOIA requests and also the CIA took three years to reject FOIA requests for criteria for rejecting foyer class and at the bottom here I want to I want to just give you this warning now I think it's tempting to think that when you don't get a response and they are taking forever to respond it's tempting to think that the art they are hiding information but it's really just a very inefficient process and I think the vast majority of the time they're just overwhelmed with FOIA requests and it's just a very inefficient process and it's not obstruction so what can you do as I said before narrow narrow your request as much as you can when when you write it um fewer documents you're more likely to get a faster response you can by law ask for an estimated date of completion which they are required to provide for you and I recommend just politely checking up with your FOIA officer every few weeks every couple weeks just to make sure they know you know you're keeping track of this what's going on but another option is if you can try to negotiate with the agency by asking if you can modify the scope of your request with that speed it up you can ask them to produce documents on a rolling basis rather than once they've processed everything just as they process it to have them release it you can negotiate a priority search so ask them to search for you know just these officials first and then let you look at those documents and see if you want more or maybe that will help you modify the scope but narrow it you can also ask them if they would be willing to do an initial initial search of just a small number of Records to see what that produces to see if this is the type of if you want to change that your request at all or modify this the scope of this business is producing the records you want so those are your some ideas for what you can do if they just are Delaine there's also of course the option of litigation um before you can sue you have to exhaust your administrative remedies but a failure of the agency to meet its deadline is considered constructive exhaustion one note on that if they miss their deadline for sending you their final determination on the request and so it's like you know they they don't send you anything for 40 days or 50 days if they then send you a final determination you do have to appeal before you can sue even though they sent you it's late so if you've administrative leagues aw stood your remedies you can sue you can sue in DC you can see where the records are you can see where you are or where your principal place of business is most of the case law and FOIA comes out of the DC Circuit and a lot of the other circuits look to DC Circuit for law on fire so much law on it you should also be aware of the open America stay an agency can request that the court retain jurisdiction or stay the case while giving the agency additional time to complete its processing of the request if the agency can show exceptional circumstances exist in that the agency is exercising due diligence and responding to the request so if you sue on a request very quickly after the expiration of the twenty days it would not be shocking if the agency filed a request for an open America stay because they will probably just say to the court you know this was an unreasonable amount of time we are deluge dwith requests and we need more time and the court may well grant that so in that case you're paying a filing fee just to have more delay so you want to you want to look into the open America Day stuff before you sue it also is not litigation isn't always a great answer for delay either it's expensive you have the $400 filing fee and it's there's lit there's delay built into the litigation as well you have 30 days for the agency to answer but they often get a 30-day extension and then there's the motions practice and the whole thing takes a long time to Koya litigation is a little different because the agency has the burden of proof often they're the ones to file the motion for summary judgment first and then the plaintiff goes second alright and just to finish up these are some great resources both for drafting and in general the front of justice has a guide on FOIA it's very useful for the law on voya exemptions also the litigation its extensive it's on their website I've mentioned mock rock there's FOIA project FOIA map or FOIA gov the reporters committee also has a useful guide and then the FOIA logs which I mentioned to you that each agency has and I do not see any questions that were posted and I think we are pretty much done if you have any questions again feel free to email me or FOIA at citizen orgy or me which is far Clattenburg at citizen orgy and thanks so much for joining you