Freedom of Information Act - Privacy Act Explained

First of a 4-Part Series

By Philip John Fairchild, POW

Information is power, it is said. The question is, how does one get it? Under the Freedom of Information Act and Privacy Act (FOIA/PA), citizens of the United States are entitled to access to "agency records" (FOIA) and to information about themselves contained in government files (PA). While this sounds like a star spangled right on first blush, the truth is that a person has to fight tooth and nail to procure the information he or she seeks.

Some agencies, the DEA and US Marshall's Service, for example, will often disgorge information upon receipt of a notarized FOIA/PA request. However, most agencies will not, and the following is a valuable step by step process to extract from them the information you require.

Step One: The Request

The first move in your FOIA/PA chess game is to send a notarized request to the agency that has the information you seek. There are several possible formats for this request, but the one shown here is a good, basic model. Note that state prisoners will have to check their legal libraries to replace the federal codes in these examples with state statutes, or at least title the request "Freedom of Information/Privacy Act Request under the State of ___________."

The FOIA requires that a request "reasonably describe" the records sought. Courts recognize that broad, sweeping requests lacking specificity are not permissible under the FOIA. See Keese v. U.S., 632 F. Supp. 85, 91 (S.D. Tex. 1985) (requests for all documents containing a requestor's name are not "reasonably specific"). The more precise and limited the request, the more likely you are to get a prompt response. Be certain that your request is made "in accordance with published rules" [the agency's rules - not absolutely a requirement 5 USC 552(a (3)(B).

In general, the Act requires release of all material not otherwise exempted; it does not permit the agency to consider the requestor's need or intended use in determining whether to disclose. There are instances where a statement of need is relevant to the agency's determination, e.g., to justify a fee waiver or to justify requiring an overburdened agency to answer an FOIA request out of turn; however, an explanation of need should ordinarily relate to the general public value of the information, rather than the particular need of the requestor. Usually you need not explain in your request why you want the material unless you think it will encourage the agency to release the data, or to waive or reduce fees.

It is important that you make copies of everything you submit, to be used as exhibits if you are forced to sue the agency to force compliance with the statutes. It is also important to type "FOIA/PA Request" on the lower left corner of your envelope. This aids the agency in delivering your request to the proper department. Your letter should be sent certified, registered return mail, that way you will know the agency has received it, when it was signed for, and is later proof that the agency has not complied with your request in a timely manner.

Under s 552(a)(6)(A)(i) of the Act, the contacted agency has ten (10) working days from their receipt of your request to make a determination on just what records are disclosable and to claim exemptions on those they wish to withhold. The agency will also tell you the fee to pay if you want the records. In most cases you will receive a form letter stating that the agency has placed you on a waiting list. You should also be assigned a number. Always use that number when corresponding with the agency. Keep copies of this correspondence, but disregard the agency waiting list: they can take years, if they are honored at all.

Part Two of This Series, The Appeal, will Appear Next Issue.

Example #1



REG. NO__________________________________

PLACE OF BIRTH__________________________


SOC. SEC. NO._____________________________

AGENCY REQUESTED FROM:________________

CASE NUMBER___________________________

DISTRICT COURT_________________________

Pursuant to the Freedom Of Information Act, 5 USC 552, and the Privacy Act of 1974, 5 USC 552a, I hereby request copies of the following documents. If for any reason you chose not to send me any of the documents or papers requested then please furnish me with a "Vaughn Index" as set forth in Vaughn v. Rosen, 484 F2d 82O(D.C.D.C. 1973).

I am requesting all records, documents, and information you have in your files pertaining to me or mentioning my name.

Please consider this as a first-party request under the FOIA, 5 USC 552, and as a Privacy Act request, 5 USC 552a also.

In the event that some of the material is considered by you to be exempt from disclosure under both Acts, then please include all segregable portions of documents and the specific exemption you are relying upon to deny disclosure of the excised portions. Please note that in order to avoid disclosure you must claim an appropriate exemption under both Acts.

I am requesting that you abide by the statutory time within which to make a determination on this request, that being ten (10) working days from your receipt under Section 552(a) (6)(A)(i).

I request a fee waiver or at least a fee reduction, however, in the event you deny this request for waiver I hereby agree to pay the fees for search and duplication while retaining my right to appeal your denial of waiver. The information requested will not be used for any commercial purpose.

I _____________________________________ hereby swear under the penalty of perjury that I am requesting all the above information and documents for my personal use.


STATE OF_________________________

COUNTY OF_______________________

BEFORE ME, A NOTARY PUBLIC, on this day personally appeared known to me to be the person whose name is subscribed above and, being by me first duly sworn, declared that the information above is true and correct.

Given under my hand and seal of office this___________ day of____________ ,19_________.

NOTARY PUBLIC______________

My commission expires:______________

For the full FOIA/PA series, including a printable PDF copy, CLICK HERE

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Colville, WA 99114