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The Freedom of Information Act

Overview

Miriam Brown-LamHead, DON FOIA/Privacy Act Policy Program

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The Freedom of Information ActHigh-level Overview

FOIA, enacted in 1966 (5 U.S.C.§552) Right to access agency records,

enforceable in court Records disclosed unless protected by

one of nine exemptions Ensure an informed citizenry Prevent secret law Amended substantially: 1974, 1986,

1996 (E-FOIA), EO 13392 in December 2005, Open Government Act of 2007

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FOIA is Statutory

FOIA is a legal requirement It is not optional FOIA requests must be processed

in accordance with the law Disclosure laws allow agencies to

withhold information or documents using nine exemptions only

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FOIA is Statutory For Official Use Only (FOUO) is NOT an

exemption; it is a tool to alert the reader/ or processor that information contained in the document may be exempt from release

All personnel working on a FOIA request for documents must track their time spent, locations/files searched, and should keep a record of the personnel they worked with to conduct search

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Nine FOIA Exemptions

(1) National Security Information (2) Internal Personnel Rules & Practices

(Low-2, High-2)(NOTE: DoD only uses HIGH-2)

(3) Information Exempted by Other Statutes(4) Trade Secrets & Commercial or

Financial Information

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FOIA Exemptions (continued)

(5) Privileged Interagency/Intra-agency documents

- Deliberative Process Privilege - Attorney Work-Product Privilege

- Attorney-Client Privilege - Government Commercial Information

Privilege(6) Personal Information Affecting an

Individual’s Privacy

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FOIA Exemptions (continued)

(7) Records Compiled for Law Enforcement Purposes when release could:

(A) Interfere with law enforcement proceedings; (B) Deprive a person of a right to a fair trial; (C) Constitute an unwarranted invasion of personal privacy;

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FOIA Exemptions (continued)

(Exemption (7) continued)

(D) Disclose the identity of a confidentialsource;

(E) Disclose techniques & procedures of law enforcement investigations; and

(F) Endanger the life or physical safety of any

individual.

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FOIA Exemptions (continued)

(8) Records of Financial Institutions(9) Geological and Geophysical Information

concerning Wells

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Changes in the FOIA

E-FOIA Amendments, 1996 Executive Order 13392,

December 2005 Open Government Act of 2007

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Electronic FOIA Amendments of 1996

(E-FOIA)

Brings FOIA into electronic age

Broadens access

Reaffirms “openness” Electronic reading rooms Electronic requirements

- Reading rooms - Electronic record searches - Format of disclosure - Computer redactions

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E-FOIA (Continued)

Other procedural requirements:

- Volume of material denied - Time limit/backlog provisions - Annual Reports

- Reference material and guides

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Executive Order 13392Improving Agency Disclosure of

Information

Signed December 14, 2005

Establishes citizen-centered and results-oriented policy

Focus on eliminating backlogs, improving customer service and achieving processing improvements

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EO 13392(Continued)

Establishes Chief FOIA Officer position

Senior official at Assistant Secretary or equivalent level (Mr. Donley, DoD)

Responsible for monitoring FOIA implementation and ensuring compliance

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EO 13392(Continued)

Establishes FOIA Requester Service Centers and FOIA Public Liaisons

Required FOIA Improvement Plan with specific milestones for improving FOIA implementation

Failure to meet milestones reported in FOIA annual report and to President’s Management Council

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OPEN Government Act of 2007

Openness Promotes Effectiveness in our National Government Act of 2007

Enacted on December 31, 2007

Resulted from Congress’ belief that FOIA has not lived up to strong presumption of disclosure

Congress sought to strengthen and improve the law

Designed to promote accessibility, accountability and openness in Government

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Impact: Limits agency’s ability to assess fees for

requests not responded to within statutory timeframes

Mandates a number of procedural changes and increases reporting requirements

Codifies designation of Chief FOIA Officer and FOIA Public Liaisons into law

Establishes Office of Government Services under NARA/DOJ to act as ombudsman

OPEN Government Act of 2007(Continued)

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OPEN Government Act of 2007(Continued)

Attorney fees and litigation costs No longer paid from Treasury Judgment Fund

Effective January 1, 2008, will be paid from agency annual appropriations

Plaintiff may be awarded fees and costs if agency changes its position after suit filed

Inadequate/incomplete FOIA processing will have greater financial consequences

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Transparency and Open Government

On January 21, 2009, the new President addressed Transparency and Open Government, stating: “Government should be transparent.   Transparency promotes accountability

and provides information for citizens about what their Government is doing.  Information maintained by the Federal Government is a national asset.”

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Transparency and Open Government

“Government should be participatory.  Public engagement enhances the Government's effectiveness and improves the quality of its decisions.”

 ”Government should be collaborative.  Collaboration actively engages Americans in the work of their Government.” 

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Transparency and Open Government

The President also directed that FOIA "should be administered with a clear

presumption: In the face of doubt, openness prevails."

Moreover, the President instructed agencies that information should not be withheld merely because "public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

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Transparency and Open Government

The President also called on agencies to "adopt a presumption in favor of disclosure" and to apply that presumption "to all decisions involving [the] FOIA."

This presumption of disclosure includes taking "affirmative steps to make information public," and utilizing "modern technology to inform citizens about what is known and done by their Government."

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Attorney General Holder’s Memo

In his Memorandum dated March 19, 2009, the Attorney General directed that whenever full disclosure of a record is not possible, agencies "must consider whether [they] can make

partial disclosure." The Attorney General also "strongly

encourage[s] agencies to make discretionary disclosures of information."

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FORESEEABLE HARM

The Attorney General’s Memo also stated: When a FOIA request is denied,

agencies will now be defended "only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law."

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FORESEEABLE HARM(CONTINUED)

The determination of whether an agency reasonably foresees harm from release of a particular record, or record portion, goes hand-in-hand with the determination of whether to make a discretionary release of information. Under the Attorney General’s Guidelines, agencies are encouraged to make discretionary releases.

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FORESEEABLE HARM(CONTINUED)

A discretionary release is not appropriate for information determined to be exempt under Exemption 1,3,4,6,7C and 7F of the FOIA. Otherwise, a discretionary release is appropriate unless the agency can identify a foreseeable harm that would result from release of the information. Consider the sensitivity of the document’s content and it’ age!

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FORESEEABLE HARM(CONTINUED)

Specifically stated, records protected by the exemptions covering national security, commercial and financial information, personal privacy, and information protected by statute, are generally not subject to discretionary releases.

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FORESEEABLE HARM(CONTINUED)

Thus, for material covered by Exemption 1, which protects properly classified information, if an agency determines that the information is properly classified, no discretionary disclosure is appropriate.

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Overall Responsibility

We all have a responsibility to implement and carry out the FOIA in accordance with the law and Departmental regulations and guidance

At a minimum, if you are processing a FOIA request, you should have some knowledge of what the FOIA means, who the FOIA contacts are within your echelon, and what type of material is generally exempt from release

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Changes in the FOIA

In the past three years, changes have been made to the FOIA program that will Result in the FOIA community forming a

more cohesive working community

Require an even greater amount of information for the FOIA Annual Report

Provide more accountability for managing the FOIA caseload

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SUMMARY

As the Department of the Navy’s FOIA program continues to evolve, the FOIA community will become a more cohesive group of information-sharing professionals.

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Questions?