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Questions and Answers on the Freedom of Information Act and Privacy Act |
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Table of Contents Introduction The Freedom of Information Act (FOIA), enacted in 1966, generally provides that any person has the right to request access to federal agency records or information. Federal agencies are required to disclose records upon receiving a written request for them, except for those records that are protected from disclosure by any of the nine exemptions or three exclusions of the FOIA. This right of access is enforceable in court. In 1996, Congress revised the Freedom of Information Act (FOIA) by passing the Electronic Freedom of Information Act Amendments (E-FOIA). The E-FOIA amendments provide for public access to information in an electronic format and for the establishment of electronic FOIA reading rooms through agency FOIA sites on the Internet. The primary source of FOIA-related information on the Internet is the Justice Department's FOIA website (www.usdoj.gov/foia), which contains links to the FOIA websites of other federal agencies. The Privacy Act of 1974 is another federal law regarding federal government records or information about individuals. The Privacy Act establishes certain controls over how the executive branch agencies of the federal government gather, maintain, and disseminate personal information. The Privacy Act also can be used to obtain access to information, but it pertains only to records that federal agencies keep about individual U.S. citizens and lawfully admitted permanent resident aliens. The FOIA, on the other hand, covers all records in the possession and control of federal executive branch agencies. This brochure provides basic guidance about the FOIA and the Privacy Act to assist citizens in exercising their rights. It uses a question-and-answer format to present information about these laws in a clear, simple manner. The brochure is not intended to be a comprehensive treatment of the complex issues associated with the FOIA and the Privacy Act. The questions answered here are those frequently asked by persons who contact the Federal Citizen Information Center (FCIC) of the U.S. General Services Administration for information on the FOIA and the Privacy Act. The answers were compiled by the FCIC, along with the Justice Department-the agency responsible for coordinating the administration of the FOIA and encouraging agency compliance with it. The Office of Management and Budget (OMB), which has a similar responsibility for the Privacy Act, reviewed the answers to questions on that law. What the Freedom of Information Act is and How to Use it What information is available
under the FOIA? What information is available under the FOIA? The FOIA provides access to all federal agency records except for those records (or portions of those records) that are protected from disclosure by any of nine exemptions or three exclusions (reasons for which an agency may withhold records from a requester). The exemptions cover: The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security matters. Even if information is exempt from disclosure under the FOIA, the agency still may disclose the information as a matter of administrative discretion if it chooses to do so and disclosure is not prohibited by any law. The full text of the FOIA is available in this publication. The FOIA does not apply to Congress, the courts, or the central offices of the White House, nor does it apply to records of state or local governments. However, all state governments have their own FOIA-type statutes. You may request details about a state's records access law by writing to the office of the attorney general of that state. The FOIA does not require a private organization or business to release any information directly to the public, whether it has been submitted to the federal government or not. However, information submitted to the federal government by such organizations or companies can be available through a FOIA request if it is not protected by a FOIA exemption, such as the one covering trade secrets and confidential business information. Under the FOIA, you may request and receive by mail a copy of any record that is in an agency's files and is not covered by one of the exemptions or exclusions. For example, suppose you have heard that a certain toy has been recalled as a safety hazard and you want to know the details. The Consumer Product Safety Commission could help you by providing copies of the recall documents. Perhaps you want to read the latest inspection report on conditions at a nursing home certified for Medicare. Your local Social Security office keeps such records on file. Or you might want to know whether the Department of Veterans Affairs has a file that mentions you. In all of these examples, you could use the FOIA to request information from the appropriate federal agency. If, on the other hand, the records you seek are about yourself, you may request them under the FOIA and the Privacy Act of 1974. In such cases, records may be withheld only if exempt under both both laws (see Sample Privacy Act Request Letter). When you make a FOIA request, you must describe the records that you want as clearly and specifically as possible. If the agency cannot identify and locate records that you have requested with a reasonable amount of effort, it will not be able to assist you. While agencies strive to handle all FOIA requests in a customer-friendly fashion, the FOIA does not require them to do research for you, analyze data, answer written questions, or in any other way create records in order to respond to a request. Can I find agency records on the Internet? Yes, and it can be very useful to look at the information that an agency makes available on the Internet before making a FOIA request. Agencies place a wide variety of information on their websites that is very useful to the general public and describes their various programs and activities. Additionally, under the E-FOIA amendments, the FOIA requires that agencies make certain records available in their electronic FOIA reading rooms on the Internet. For example, you will find certain agency opinions, staff manuals, policy statements, and records frequently requested under the FOIA that were created by the agency after November 1, 1996. You can find links to the FOIA sites of federal agencies on the Internet by going to the Justice Department's website. Whom do I contact in the federal government with my request? How do I get the right address? There is no one office of the federal government that handles all FOIA requests. Each FOIA request must be made to the particular agency that has the records that you want. For example, if you want to know about an investigation of motor vehicle defects, write to the Department of Transportation. If you want information about a work-related accident at a nearby manufacturing plant, write to the Department of Labor (at its office in the region where the accident occurred). Most of the larger federal agencies have several FOIA offices. Some have one for each major bureau or component; others have one for each region of the country. On the Internet, you can find addresses of the FOIA offices of most federal agencies by going to the Justice Department's website at www.usdoj.gov/foia (click on "Other Agencies," and select " Principal FOIA Contacts at Federal Agencies"). The U.S. Government Manual, the official handbook of the federal government, may also be useful. It describes the programs within each federal agency and lists the names of top personnel and agency addresses. The Manual is available at most public libraries and can be purchased from the Superintendent of Documents (ordering instructions). In addition, each agency publishes FOIA regulations in the Code of Federal Regulations (CFR) that contain the mailing addresses of its FOIA offices. (For example, the Justice Department's FOIA regulations can be found in Volume 28 of the CFR, Part 16.) The CFR is available at most public libraries. Also, agencies have placed their FOIA regulations on their FOIA sites on the Internet. How do I request information under the FOIA? In order to make a FOIA request, simply write a letter to the appropriate agency. For the quickest possible handling, mark both your letter and the envelope "Freedom of Information Act Request." Although you do not have to give a record's title, you should identify the records that you want as specifically as possible to increase the likelihood that the agency will be able to locate them. Any facts you can furnish about the time, place, authors, events, subjects, and other details of the records will be helpful to the agency in deciding where to search and in determining which records respond to your request, saving you and the government time and money. As a general rule, FOIA requesters are not required to state the reasons why they are making their requests. You may do so if you think it might help the agency to locate the records. If you are not sure whether the records you want are exempt from disclosure, you may request them anyway. Agencies often have the legal discretion to disclose information even if it falls within a FOIA exemption. May I request records in a specific format? Yes, but the records may not be available in the requested format. If you request records that already exist in an electronic format, the FOIA requires agencies in almost all cases to provide these records to you in that same format, if that is what you prefer. However, if you request records that exist only in paper form, and would like them in some electronic format, the agency is obligated to provide the records in that electronic format only if it can do so with a reasonable amount of effort. The same is true if you request that electronic records be provided to you in an electronic format in which they do not already exist. What is the cost for getting records under the FOIA? The FOIA permits agencies to charge fees to FOIA requesters. For noncommercial requesters, an agency may charge only for the actual cost of searching for records and the cost of making copies. Search fees usually range from $15 to $40 per hour, depending upon the salary levels of the personnel needed for the search. The charge for copying documents can be as little as 10 cents per page at some agencies, but may be considerably more at other agencies. For noncommercial requests, agencies will not charge for the first two hours of search time or for the first 100 pages of document copying. Agencies also will not charge if the total cost is minimal. An agency should notify you before proceeding with a request that will involve large fees, unless your request letter already states your willingness to pay fees as large as that amount. If fees are charged, you may request a waiver of those fees if you can show that the records, when disclosed to you, will contribute significantly to the public's understanding of the operations or activities of the government. How long will it take to answer my request? Under the FOIA, federal agencies are required to respond to your request within 20 working days of receipt (excluding Saturdays, Sundays, and federal holidays). If you have not received a response by the end of that time (allowing for mailing time), you may telephone the agency or write a follow-up letter to ask about the status of your request. Sometimes an agency may need more time to find the records, examine them, possibly consult other persons or agencies, decide whether to disclose all of the information requested, and prepare the records for disclosure. Agencies may extend this 20-day period up to 10 more working days, with written notice to you. Some agencies, particularly law enforcement agencies, receive large numbers of requests, many of which involve voluminous records or require exceptional care to process. If an agency has a backlog of requests that were received before yours and has assigned a reasonable portion of its staff to work on the backlog, the agency ordinarily will handle requests on a first-come, first-served basis and may not respond to all requests within the statutory time period. The FOIA allows an agency to set up processing categories so that simple requests do not have to wait to be handled because a more complicated request was received by the agency first. Is there any way for me to speed up the response time? If an agency is unable to respond to your request in time, it may ask you to modify your request so that you can receive a response more quickly. Generally, it takes agencies less time to process simple requests involving a small number of records. Complex requests involving a greater number of records can take considerably more time to process. Therefore, you and an agency FOIA Officer may want to discuss narrowing the scope of your request to speed up the response time or to agree on an alternative time frame for record processing. Another means of obtaining a faster response is to ask the agency for "expedited processing" of your request. However, you should know that the agency will grant this request only under very specific circumstances. In order to qualify, you must certify that there is an imminent threat to the life or physical safety of an individual or, if you are a member of the news media, you must demonstrate that there is an urgency to inform the public about certain federal government activity. An agency must decide whether to grant a request for expedited processing within 10 days. In their individual regulations, agencies may establish other ways for requesters to obtain expedited processing. What happens if the agency denies my request? If the agency locates records in response to your request, it can withhold them (or any portion of them) only if they are exempt from disclosure. If an agency denies your request, in whole or in part, it ordinarily must provide an estimate of the amount of material withheld, state the reason(s) for the denial and inform you of your right to appeal to a higher decisionmaking level within the agency. In order to appeal a denial, promptly send a letter to the agency. Most agencies require that appeals be made within 30 to 60 days after you receive notification of a denial. The denial letter should tell you the office to which your appeal letter should be addressed. For the quickest possible handling, you should mark both your request letter and the envelope "Freedom of Information Act Appeal." Simply ask the agency to review your FOIA request and its denial decision. It is a good idea also to give your reason(s) for believing that the denial was wrong. Be sure to refer to any pertinent communications you have had with the agency on the request and include any number the agency may have assigned to your request. It can save time in acting on your appeal if you include copies of your FOIA request and the agency's denial letter. You do not need to enclose copies of any documents released to you. Under the FOIA, the agency has 20 working days (excluding Saturdays, Sundays, and federal holidays) to decide your appeal. Under certain circumstances, it may also take an extension of up to 10 working days. At some agencies, as with initial requests, some appeals may take longer to decide. What can I do if my appeal is denied? If the agency denies your appeal, or does not respond within the statutory time period, you may take the matter to court. You can file a FOIA lawsuit in the U.S. District Court where you live, where you have your principal place of business, where the documents are kept, or in the District of Columbia. In court, the agency will have to prove that any withheld information is covered by one of the exemptions listed in the law. If you win a substantial portion of your case and your lawsuit is found to be a matter of public interest, the court may require the government to pay court costs and reasonable attorney's fees for you. What the Privacy Act is and How to Use it
What is the Privacy Act? The federal government compiles a wide range of information on individuals. For example, if you were ever in the military or employed by a federal agency, there should be records of your service. If you have ever applied for a federal benefit or received a student loan guaranteed by the government, you are probably the subject of a file. There are records on every individual who has ever paid income taxes or received a check from Social Security or Medicare. The Privacy Act, passed by Congress in 1974, establishes certain controls over what personal information is collected by the federal government and how it is used. This law guarantees three primary rights: (1) the right to see records about oneself, subject to the Privacy Act's
exemptions; The Privacy Act also provides for certain limitations on agency information practices, such as requiring that information about an individual be collected from that individual to the greatest extent practicable; requiring agencies to ensure that their records are accurate, relevant, timely, and complete; and prohibiting agencies from maintaining information describing how an individual exercises his or her First Amendment rights unless the individual consents to it, a statute permits it, or it is within the scope of an authorized law enforcement investigation. What information can I request under the Privacy Act? The Privacy Act applies only to records about individuals maintained by agencies in the executive branch of the federal government. It applies to these records only if they are in a "system of records," which means they are retrieved by an individual's name, Social Security number, or some other personal identifier. In other words, the Privacy Act does not apply to information about individuals in records that are filed under other subjects, such as organizations or events, unless the agency also indexes and retrieves them by individual names or other personal identifiers. There are 10 exemptions to the Privacy Act under which an agency can withhold certain kinds of information from you. Examples of exempt records are those containing classified information on national security and those concerning criminal investigations. Another exemption often used by agencies is that which protects information that would identify a confidential source. For example, if an investigator questions a person about your qualifications for federal employment and that person agrees to answer only if his identity is protected, then his name or any information that would identify him can be withheld. The 10 exemptions are set out in the law. If you are interested in more details, you should read the Privacy Act in its entirety. Though this law is too lengthy to publish as part of this brochure, it is readily available. It is printed in the U.S. Code (Section 552a of Title 5), which can be found in many public and school libraries. You may also order a copy of the Privacy Act of 1974, Public Law 93-579, from the Superintendent of Documents (ordering instructions). Also, the full text of the Privacy Act is available on the Justice Department's FOIA site on the Internet. Go to the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials," and scroll down to the " Text of the Privacy Act"). Whom do I contact in the federal government with my request? How do I get the right address? As with the FOIA, no one office handles all Privacy Act requests. To locate the proper agency to handle your request, follow the same guidelines as for the Freedom of Information Act. How do I know if an agency has a file on me? If you think a particular agency has a file pertaining to you, you may write to the Privacy Act Officer. Agencies are generally required to inform you, upon request, whether or not they have files on you. In addition, agencies are required to report publicly the existence of all systems of records they keep on individuals. The Office of the Federal Register makes available on the Internet a compilation of each agency's systems of records notices, including exemptions, as well as its Privacy Act regulations. The Privacy Act Issuances Compilation includes most systems, is updated every two years, and can be found at www.access.gpo.gov/su_docs/aces/PrivacyAct.shtml. How do I request information under the Privacy Act? Write a letter to the agency that you believe may have a file pertaining to you. Address your request to the agency's Privacy Act Officer. Be sure to write "Privacy Act Request" clearly on both the letter and the envelope. Most agencies require some proof of identity before they will give you your records. Therefore, it is a good idea to enclose proof of identity (such as a copy of your driver's license) with your full name and address. Do not send the original documents. Remember to sign your request for information, since your signature is a form of identification. If an agency needs more proof of identity before releasing your files, it will let you know. Give as much information as possible as to why you believe the agency has records about you. The agency should process your request or contact you for additional information. A sample request is shown here. Keep a copy of your request. You may need to refer to it in further correspondence with the agency. What is the cost for getting records under the Privacy Act? Under the Privacy Act, an agency can only charge for the cost of copying records, not for time spent locating them. How long will it take to answer my request? Under the terms of the Privacy Act, the agency is not required to reply to a request within a given period of time. However, most agencies have adopted the FOIA response times. If you do not receive any response within four weeks or so, you might wish to write again, enclosing a copy of your original request. What if I find that a federal agency has incorrect information about me in its files? The Privacy Act requires agencies maintaining personal information about individuals to keep accurate, relevant, timely, and complete files. If, after seeing your file, you believe that it contains incorrect information and should be amended, write to the agency official who released the record to you. Include all pertinent documentation for each change you are requesting. The agency will let you know if further proof is needed. The law requires an agency to notify you of the receipt of such an amendment request within 10 working days of receipt. If your request for amendment is granted, the agency will tell you precisely what will be done to amend the record. You may appeal any denial. Even if an agency denies your appeal, you have the right to submit a statement explaining why you think the record is wrong and the agency must attach your statement to any nonexempt records involved. The agency must also inform you of your right to go to court and have a judge review the denial of your appeal. What can I do if I am denied information requested under the Privacy Act? There is no required procedure for Privacy Act appeals, but an agency should advise you of its own appeal procedure when it makes a denial. Should the agency deny your appeal, you may take the matter to court. If you win your case, you may be awarded court costs and attorney fees. What is the relationship between the FOIA and the Privacy Act? Although the two laws were enacted for different purposes, there is some similarity in their provisions. Both the FOIA and the Privacy Act give people the right to request access to records held by agencies of the federal government. The FOIA's access rights are generally given to "any person," but the Privacy Act's access rights are given only to the individual who is the subject of the records sought (if that individual is a U.S. citizen or a lawfully admitted permanent resident alien). The FOIA applies to all federal agency records. The Privacy Act, however, applies to only those federal agency records that are in "systems of records" containing information about individuals that is retrieved by the use of a name or personal identifier. Each law has a somewhat different set of fees, time limits, and exemptions from its right of access. If the information you want pertains to the activities of a federal agency, an organization, or some person other than yourself, you should make your request under the FOIA, which covers all agency records. If the information you want is about yourself, you should make the request also under the Privacy Act, which covers most records of agencies that pertain to individuals. Sometimes you can use the FOIA to get records about yourself that are not in a Privacy Act "system of records." If you are in doubt about which law applies or would better suit your needs, you may refer to both in your request letter. If you request records about yourself and the Privacy Act applies, the agency should process the request under both the FOIA and the Privacy Act and withhold requested information from you only if it is exempt under both laws. Can I request information about other people? Yes, but it might be withheld to protect their personal privacy. The FOIA contains two very important provisions concerning personal privacy: Exemption 6 and Exemption 7(C). They protect you from others who may seek information about you, but they also may prevent you from obtaining information about others. The FOIA's Exemption 6 permits an agency to withhold information about individuals if disclosing it would be "a clearly unwarranted invasion of personal privacy." This includes, for example, almost all of the information in medical and financial benefit files and much of the information in personnel files. Exemption 7(C) similarly protects personal privacy interests in law enforcement records. To decide whether to withhold information under these two FOIA privacy exemptions, an agency must balance personal privacy interests against any public interest that would be served by disclosure. Neither Exemption 6 nor Exemption 7(C) can be used to deny you access to information about yourself, only to deny you information about other persons. Federal Citizen Information Center The Federal Citizen Information Center (FCIC) of the U.S. General Services Administration administers a national contact center which can help you find information about the federal government's agencies, services, and programs. You may ask the contact center for assistance in contacting the proper federal agency with your Freedom of Information Act or Privacy Act request. Simply call toll-free 1-800-FED-INFO (that's 1-800-333-4636) from anywhere in the United States. The contact center is open for personal assistance from 8 a.m. to 8 p.m., Eastern time, Monday through Friday, except federal holidays. Recorded information on frequently requested subjects is available around the clock. A text version of this publication is available on the FCIC's website at www.pueblo.gsa.gov (click on "Federal Programs," and scroll down to this publication's title) and the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials," and scroll down to this publication's title). In addition, the FCIC publishes the free Consumer Information Catalog, which lists more than 200 free and low-cost federal booklets on a wide variety of consumer topics. For a free copy of the Catalog, write to Consumer Information Catalog, Pueblo, CO 81009, or call toll-free 1-800-8 PUEBLO (that's 1-800-878-3256). The Catalog is also available through FCIC's website at www.pueblo.gsa.gov. The U.S. Government Manual is the official handbook of the federal government. Published by the National Archives and Records Administration, it describes the programs in each federal agency, lists the names of top personnel, the mailing address, and a general information telephone number. It is available in most public libraries or can be purchased from the U.S. Government Printing Office (GPO). For pricing and ordering information, call toll-free 1-866-512-1800. The text version is available on the U.S. Government Printing Office's website at www.gpoaccess.gov/gmanual. This law gives citizens the right to see files about themselves, subject to its exemptions; to request an amendment if a nonexempt record is inaccurate, irrelevant, untimely, or incomplete; and to sue the government for permitting others to see their files unless specifically permitted by the law. A complete copy of the Privacy Act can be found at Section 552a of Title 5 of the U.S. Code. Or you may order a copy of the Privacy Act, Public Law 93-579, from GPO by calling toll-free 1-866-512-1800. A text version is available on the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials," and scroll down to the " Text of the Privacy Act"). A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records This booklet, written by the Committee on Government Reform, U.S. House of Representatives, provides a much more detailed explanation of the Freedom of Information Act and the Privacy Act than this brochure. It may be purchased from GPO by calling toll-free 1-866-512-1800. A Portable Document Format (PDF) version is available online at www.reform.house.gov/GovReform/Files. Freedom of Information Act Guide and Privacy Act Overview This book is updated every other year by the Justice Department's Office of Information and Privacy. The "Justice Department's Guide to the Freedom of Information Act," is a comprehensive summary of the law that includes a discussion of the nine FOIA exemptions and its most important procedural aspects. The "Privacy Act Overview," prepared in coordination with the Office of Management and Budget, is a discussion of the provisions of the Privacy Act. The book also contains the texts of both statutes. It may be purchased from the from GPO by calling toll-free 1-866-512-1800. View the text versions on the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials," and then click on the name of each document). Freedom of Information Case List This book, updated in 2002 by the Justice Department's Office of Information and Privacy, contains lists of cases decided under the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act. The book includes the texts of those four statutes and a list of related law review articles. For pricing and ordering information, call toll-free 1-866-512-1800. A text version is available on the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials," and then click on "Freedom of Information Case List"). FOIA Update This newsletter, published by the Justice Department's Office of Information and Privacy from 1979-2000, contained FOIA-related information and guidance for federal agencies. All back issues are available and keyword searchable on the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials,"and then click on "FOIA Update").
FOIA Post This Web-based successor to FOIA Update has been published by the Justice Department's Office of Information and Privacy since 2001. Items of FOIA-related information and guidance are published on an as-needed basis. It can be found on the Justice Department's website at www.usdoj.gov/foia (click on "Reference Materials," and then click on "FOIA Post"). FOIA Reference Guides or Handbooks Under the amended statute, each federal department or agency is required to maintain a reference guide or handbook to assist the public in making FOIA requests to that agency. These are available on each agency's FOIA website (for example, the Justice Department's FOIA Reference Guide is available at www.usdoj.gov/04foia/04_3.html. A joint publication of |
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