Freedom of Information Act (FOIA)

Direct link to this page: foia.globe1234.com

General FOIA Links

• States have distinct rules for how you get information from state and local government, including schools, etc. (NFOIC, RCFP)
• MuckRock helps file and track FOIA requests to all levels of government in the US ($20 for up to 4 requests). They cooperate with FoiaMachine, free, which lets users track requests, while MuckRock offers a "full service" which submits requests, follows up, and posts results online.
• FOIA group is a commercial version ($125 or more per FOIA), and they were reported to have government contracts processing requests.
• Many other countries have FOIA sites using standard (Alaveteli) software, German and Austrian software or other (FOIAdvocates, FOIAnet). Most countries have better laws than the US.
• Using public government data is always faster than FOIA. Each US agency has an electronic "Reading Room" with its adjudication orders, policies, manuals, and commonly requested items. Politico used usaspending.gov to find the HHS Secretary's use of chartered jets. Oversight.garden has Inspector General reports. Agency websites have vast information.
• ​Individuals don't need a lawyer at any stage, even going to court, and organizations only need a lawyer in court. For hard cases many people value advice and representation by a lawyer, but if you don't want to spend that much, see the sections below on learning from similar cases and representing yourself in court.
  
• To find an expert lawyer, you can search for cases like yours in CourtListener, to see which private lawyers handle cases like yours, and see their work. 
• Success rates of lawyers: JusticeToolbox,
• Reviews by clients: Avvo (background)
• Ratings of lawyers by lawyers; most aren't rated: Martindale, BestLawyers, SuperLawyers 
• Some companies rate their outside counsel with Qualmet's brief questionnaires ($)
• ​Other search sites for lawyers: Findlaw, Nolo, Justia, Lawyers.com

​Filing for Federal Information:

• The public gets some information in 60% of FOIA requests, in a third of appeals at agencies, and in 60% of court cases. (spreadsheet)
  
• Fees  may cover searching and/or copying. The cost depends on whether they respond in time, and whether you will use it for business, informing the public, etc. (DOJ, and Muckrock)
• Model letters (NFOIC), and far more detail (which may not be helpful) at S.ai
  
• System to generate letters and track response (IFOIA from RCFP). Also MuckRock and FoiaMachine above
• Joint tracking and filing site for several agencies (FOIAOnline)
• You can often file on line, which is fast, but reaches the agency as plain text, with no control over the spacing or format. You can improve clarity by submitting a pdf, using certified mail if there is no way to submit it online or by fax. Email submissions are getting uncommon.
• Advice from Public Citizen, Unredacted, NSArchive, EFF
• Legal advice for reporters from SPJ and ASNE, discussed by CJR
• Requests under FOIA can specify a preference for email, fax or mail, to receive answers and handle questions from the agency. Contact addresses need to be kept up to date. If a decision takes time, the agency may ask if you are still interested, and close the file if you do not respond, though they have to reopen it if you respond soon after they told you to.
• FOIAmapper indexes the contents of federal record systems, and each agency's FOIA processing times, though they cannot always be up to date.
• FOIA.wiki has posts from the public on many Federal FOIA topics, including each agency 
• Ombudsman at the National Archives (OGIS) achieves action occasionally. They also have a compliance office which seeks voluntary compliance, and their advisory committee has minutes, transcripts, and livestreams.
• American Society of Access Professionals (ASAP, $50/yr) has introductory webinars ($50-100) and training conferences ($500-1,000) attended by government FOIA staff and frequent requesters (about half the income goes to the management company, Bostrum, and half to other program costs).

​How Long Will You Wait for Federal Information?

• The median time to answer simple requests is within 20 working days at 80-90% of federal agencies. Simple means under 500 or so pages from one location, but each agency has its own criteria.
• Here is the median decision time in 2016 for each agency which received over 300 requests that year. For parts of agencies (like FBI) and smaller agencies, see the annual reports, Table VII. A.

Major Agencies	Simple Requests, Median Weeks	Complex Requests, Median Weeks	No. of FOIA Requests Received in FY2016
DHS	2	16	325,780
DOJ	3	18	73,103
DoD	3	20	53,544
NARA	3	122	49,966
VA	1	4	34,459
HHS	3	9	34,232
SSA	2	14	29,631
State	33	78	27,961
USDA	0	5	23,870
EEOC	4	6	17,680
U.S. DOL	1	2	16,196
SEC	1	0	14,458
DOT	3	4	13,800
Treasury	1	4	12,368
EPA	3	9	10,403
OPM	0	4	10,189
DOI	1	3	6,428
PBGC	1	3	3,713
USPS	1	5	2,718
NLRB	5	-	2,679
CIA	6	31	2,547
ED	1	9	2,445
HUD	3	8	2,345
DOC	3	9	2,026
DOE	3	14	1,974
FTC	1	3	1,260
SBA	1	4	1,116
GSA	2	7	957
FCC	3	29	836
NASA	2	5	834
USNRC	1	5	785
FRB	1	7	728
U.S. CPSC	3	9	702
CSOSA	4	8	627
NTSB	88	18	471
FDIC	2	5	465
CFPB	2	7	442
ODNI	1	47	382
USAID	3	22	377
NSF	3	6	348
US Average	5	23	759,842

• If you don't get the information as fast as this table shows, you can go to court, with or without a lawyer, as discussed below. Many requesters get documents soon after filing suit, since the Justice Department assigns a lawyer to represent the government, and s/he takes a fresh look and often convinces the agency to release documents, rather than lose in court. There's an anonymous saying, "For a $400 filing fee I get a Justice Department lawyer who really knows the law as my FOIA officer!" You can find out about Rule 41(a), Voluntary Dismissal, if the case gets deeper than you can handle.
  
• When considering whether to give up, wait or sue, The New York Times says, "If requesters always shrug and walk away at that point, it means we are leaving it to FOIA bureaucrats to decide just how secret our government is going to be. That was never part of democracy’s plan. By suing regularly, we hope to achieve two things. We put agencies on notice that we will take them to court if our requests are not handled properly, and it gives us a shot at shaping the law through court decisions."
• It is possible to go to court if a request takes longer than (a) agency's median time, and (b) 20 working days. Courts expect first-in-first-out processing within each track (simple, complex, or expedited) (p.47, DOJ Litigation Considerations), so no request should take more than the median. NSArchive says, "it is productive to talk with the agency and wait a reasonable time for the agency to process the request." They do not say what is reasonable, so you can judge if the median is a reasonable time. DOJ guidance tells agencies themselves how to estimate reasonable times for completion, "Agencies that utilize multi-track processing can also consider the agency's average processing times for its various tracks. This information is readily available in the agency's Annual FOIA Report and on FOIA.gov.​"
• Some requests take much longer than the median, when requesters do not take the agency to court. 1% take over 14 months.
• Complex requests mean you want a lot of information, or from multiple locations, etc.  Median time to answer is within four months (84 working days) at three quarters of federal agencies. Agencies typically do not tell you if they put the request in the simple or complex track.
• Expedited requests mean you convinced them to process on a special track, usually because you need a lot of information for a deadline. This special track can take nearly as long or longer than complex requests. Each agency's regulations explain how to request expedited, if you think it will be helpful.
• Check the annual report. They're hard to follow, but table numbers seem standard: Table VII. A shows median days to decide at each part of an agency, such as FBI (in Justice) or Medicare (in HHS). Instructions tell agencies to count working days (p.8). I would generally feel comfortable waiting that many days, but going to court soon after, unless the agency convinces me a decision is imminent.
• Annual reports also show their approval rate: compare full and partial "grant" in table VI. B. (1) to number "processed" in table V. A. There's no detail, and this mostly reflects simple requests, so we don't know the approval rates of complex or expedited requests. It may be worth waiting longer for a simple request if the agency approves most of them, or if they reverse most denials on appeal (tables VI. A. and VI. B.) and decide appeals fast (table VI. C. (4)).
• Summary spreadsheet shows 2016 processing times and approval rates at cabinet departments and independent agencies.
• I've waited too long, but eventually I took them to court without a lawyer, and got the information quickly. 

• If you don't get the information as fast as this table shows, you can go to court, with or without a lawyer, as discussed below. Many requesters get documents soon after filing suit, since the Justice Department assigns a lawyer to represent the government, and s/he takes a fresh look and often convinces the agency to release documents, rather than lose in court. For a $400 filing fee, you get a DOJ lawyer who really knows the law to be your FOIA officer!
  
• When faced with the decision to give up, or accept delays, or go to court, the New York Times lawyer says:
  
• "If requesters always shrug and walk away at that point, it means we are leaving it to FOIA bureaucrats to decide just how secret our government is going to be. That was never part of democracy’s plan. By suing regularly, we hope to achieve two things. We put agencies on notice that we will take them to court if our requests are not handled properly, and it gives us a shot at shaping the law through court decisions."
  

​How to Find and Learn from Similar Cases in Federal Court? 

• Searchable list of federal FOIA appeals in court, by agency, topic, judge, name, date, location, etc. (FoiaProject) has docket of each case and free copies of some documents.
• Searchable list of all federal cases. You can search on FOIA, name, agency, location, judge, etc. (CourtListener.com). Not as good a search as FoiaProject above, but it also has non-FOIA cases and free copies of many documents.
• All federal court documents are at Pacer, which is free for under 150 pages per calendar quarter, and 10 cents per page otherwise. Installing an app in Firefox or Chrome lets you add to CourtListener's free archive whenever you pay for documents from Pacer.
• Lists of FOIA appeals in court opened & closed (US Dept. of Justice) not as detailed as FoiaProject above, but more complete on results. ​
• The following graph summarizes final federal court outcomes on FOIA in fiscal year 2016. The public won some information by settlement or court decisions in at least 60% of court cases, and may have received some information even when the final court decision on the last information went fully to the government.

• The Federal Circuit Court for DC ruled in Payne v. US, 837 F.2d 486, 494 (D.C. Cir. 1988), that courts don't just order release of documents; they can stop an "impermissible practice" at any agency by declaratory and/or injunctive relief. A US District Court used this authority in 2011 to rule that agencies must provide estimated completion dates ( § 552(a)(7)(B) ).

Represent Yourself in Court? ​

• Overview of issues when representing yourself: shorter from NOLO and PublicCounsel or longer from US District Court in N. California. There are also books.​
• The government usually settles. You can read my settlement negotiations, though details will vary in each case. ABA has strategic and ethical advice on settlements, and there are books.​
• Federal Practice Manual for Legal Aid Attorneys describes what to do in all stages of federal litigation, from drafting and filing the complaint, to trial practice and limitations on relief.
• Federal Rules of Civil Procedure online, or here, and printed and each district court's Local Rules.
• Filing any court case costs $400 (or free if you can't afford $400, Rule 24), plus a few dollars for copies and certified mail (4(i)). The government can charge more costs in some situations, under Rule 68, and Rule 54(d). The latter cost from 54(d), is "uncommon" (p.840) on FOIA.

US Justice Department:

• Annual and quarterly reports on activity at each agency (report instructions). If a request takes longer than the median shown there, it may be time to appeal to court. They're supposed to handle them first-in-first-out (p.47), so none should take too long.
• Statistics on requests, from FOIA annual reports: print or spreadsheet of any number of agencies and multiple years at a time (needs cookie to get spreadsheet, FOIA.gov)
• Overview of the US Freedom of Information Act
• Legal Treatise on FOIA cases
• Guidance to agencies on complying with FOIA
• Changes in June 2016 with law marked up with amendments

​Regulations:

Besides the law, each federal agency publishes regulations (also called rules) to carry out the law. To find them try a search engine, after you change name_of_agency to the agency you want:

• name_of_agency "freedom of information" site:law.cornell.edu/cfr

There is another search at ecfr.gov, but it is not as complete. Agencies also have internal guidance, which MuckRock obtained by FOIAs. They focus on just one of the exemptions, but include guidance on other issues.

FOIA at Medicare, Health and Human Services

Like other agencies, the Department of Health and Human Services (HHS) has rules for FOIAs, and each major office in HHS also has rules. The overall HHS rules on FOIAs, adopted in 2016 are at:
https://www.federalregister.gov/documents/2016/10/28/2016-25684/freedom-of-information-regulations

Former rules at HHS were in effect for decades and are at:
https://www.gpo.gov/fdsys/pkg/CFR-2015-title45-vol1/pdf/CFR-2015-title45-vol1-part5.pdf

There were lots of changes. For example on appeals, after they deny a FOIA, an improvement in the new rules is:

• 90 days to appeal, up from 30 days (required by 2016 law)

Worse in the new rules:

• They give less detail about what should be in the appeal letter
• When they grant an appeal, now they'll "reprocess your request" which is pretty vague.  Previously their rules said they had to "send the records to you promptly or let you inspect them, or else we will explain the reason for any delay and the approximate date you will receive copies or be allowed to inspect the records."
• They have a new rule that they'll stop processing a FOIA appeal when a requester files a lawsuit. Lawsuits did not freeze processing under the old rules, and in fact HHS sometimes released records in response to a suit, without waiting for a judge to decide.

It is not clear how these HHS rules interact with separate FOIA rules at sub-agencies of HHS. For example the Centers for Medicare and Medicaid Services (CMS) has its own rules, which still say 30 days to appeal, and do not address the freeze in processing during a lawsuit. CMS rules are at
https://www.law.cornell.edu/cfr/text/42/part-401/subpart-B
and CMS also has policies at
http://www.cms.gov/Regulations-and-Guidance/Legislation/FOIA/Downloads/FOIAProcessingPolicyProceduresGuide-.pdf

Example of a FOIA for Documents which Medicare Gives to Accountable Care Organizations

Text of FOIA from Paul Burke submitted online July 15, 2013, Control # 071620137079
Denied Feb 25, 2015 in a letter from Medicare, then released June 8, 2016
Court case and settlement discussions