Specific Provisions

The FOIA includes provisions for disseminating available information, defining key terms, procedural requirements, statutory exemptions and exclusions, and using a reverse FOIA.

Available Information

The FOIA requires federal agencies to publish information related to agency business in the FR. This information includes descriptions of agency organization, functions, procedures, and substantive rules and statements of general policy (FOIA, 5 USC §552[a][1]).

Agencies are also required to provide public access to "reading-room" materials. These materials include adju-dicatory opinions, policy statements, and administrative staff manuals. Agencies must index the materials to facilitate public inspection (FOIA, 5 USC §552[a][1]). They must also provide an opportunity to review and copy the materials (FOIA, 5 USC §552[a][2]).

An FOIA request can be made for any reason regardless of relevancy. However, the act has nine exceptions to this disclosure requirement in which a record may fall (FOIA, 5 USC§552[b]), along with three law enforcement exclusions (FOIA, 5 USC§552[c]). The exclusions and exemptions balance the needs of an informed public against the security and confidentiality required of certain government information.

Definitions

The FOIA applies only to records maintained by federal agencies as defined by the act (FOIA, 5 USC §552 [f]).

Agencies include any executive or military department or establishment, government or government-controlled corporation, or any independent regulatory agency. The FOIA does not require disclosure of records from state agencies, municipalities, courts, Congress, or private citizens. Nor does it require disclosure from the executive office or any presidential staff whose sole purpose is to counsel the president. However, states may have a functional equivalent of this federal act.

The FOIA does not explicitly define the term record. Nevertheless, the Supreme Court (Department of Justice

Tax Analysts, 492 U.S. 136, 144-145 [1989]) has established a two-part test for determining an agency record. An agency record must be (1) created or obtained by an agency and (2) under the agency's control at the time of the request.

Any person can make an FOIA request. Under the act (FOIA, 5 USC §551[2]), a person includes United States citizens, foreign citizens, partnerships, corporations, associations, and foreign and domestic governments. However, no person can make an FOIA request in violation of the law.

Procedural Requirements

An information request under section (a)(3) must follow procedural requirements including a fee payment to cover governmental costs. Every federal agency must publish its own specific procedural regulations in the FR (FOIA, 5 USC §§552[a][3], [a][4][A]). The regulations include the types of records maintained by the agency, a description of how to access such records, fees and fee waivers, and the agency's administrative appeal procedures. Generally, any person can access agency records provided that the agency's procedures are followed (FOIA, 5 USC §552[a][3][B]) and the request reasonably describes the records sought (FOIA, 5 USC §552[a][3][A]).

Once an agency receives an FOIA request, the agency must inform the applicant of its decision to grant or deny the request within ten working days (FOIA, 5 USC §552[a][6][C]). If access is granted, an agency typically releases the records after the ten day period (FOIA, §552[a][6][C]). Agencies can obtain time extensions if the request involves an extensive or voluminous search, or if the request requires consultation with other agencies (FOIA, 5 USC §552[a][6][B]).

Agencies which deny requests must provide the applicant with the reasons for denial, the right of appeal, and the names of the persons responsible for the denial (FOIA, 5 USC §552[a][6][A][1]). If the administrative appeal upholds the denial, the administrative opinion must also provide the appellee with the reasons for denial, the right for judicial review in the federal courts, and the name of the persons responsible for the denial (FOIA, 5 USC §552[a][6] [A] [ii]).

Statutory Exemptions and Exclusions

Agencies are required to provide FOIA applicants with the records they request unless the request falls within one of the statutory exemptions or exclusions. When one of the nine statutory exemptions applies, agencies can use discretion to disclose or withhold the information. The exemptions apply to the following nine types of documents (FOIA, 5 USC §552[b]):

1. Classified documents

2. Internal personnel rules and practices

3. Information exempt under other laws

4. Trade secrets and other privileged or confidential information

5. Internal agency letters and memoranda

6. Information relating to personal privacy

7. Certain records or information relating to law enforcement

8. Information relating to financial institutions

9. Geological information

In addition to exemptions, the FOIA lists three types of documents which are excluded from public access. The three FOIA exclusions were added to the act as part of the Freedom of Information Reform Act of 1986 and were designed to protect sensitive law enforcement matters.5

Reverse FOIA

A reverse FOIA prevents the disclosure of information. It is designed to protect businesses and corporations that submit information to an agency. This protection is allowed when a third party makes an FOIA request to obtain the agency records containing that business' information (CNA Financial Corp. v. Donovan, 830 F.2d 1132 [D.C. Cir. 1988]). Nevertheless, an agency can release the records if an exemption does not apply, or if one does apply, but, in the agency's discretion, the release is justified (CNA Financial Corp. v. Donovan).

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