"The whole of government consists in the art of being honest." -- Thomas
Jefferson, letter to John Adams. Sample FOIA requests
One can assure government honesty only if one knows what government is doing. Getting documents and other valuable information from the government is a key part of solving any environmental problem and making sure that our environmental laws are being enforced. The Freedom of Information Act (FOIA), found in the United States Code at 5 U.S.C. 552, is part of the federal Administrative Procedure Act, and it is the citizen's means to lots of material that the government would not normally make available to the public. Using this Act, activists Paul Merrell and Carol Van Strum broke the story for Greenpeace that paper mills using chlorine to bleach their pulp were discharging dioxin and that the EPA knew about it and was not telling anyone.
Often, government personnel worry about giving out information to the public, because industry tends to get very mad when sensitive public documents actually get into the hands of the public. Also, some politicians and bureaucrats do not want the public nosing around what they are doing, and some public employees have a real sympathy for the industries that they are supposed to regulate and do not want regular people interfering in what that industry wants to do. Thus, many government personnel will simply not give out any information of value out of fear for their jobs or in order to do industry a favor. Therefore, when your informal requests for public documents do not produce results, you must make an official request under this Act. Federal employees cannot ignore such a request, and when they turn over documents after a FOIA request, they are covered in case industry or some prominent politician or bureaucrat gets angry.
FOIA provides that the agency must give you the documents you request within ten working days, or else, they can get into big trouble. Starting in October 1997, this time period for responses will extend to 20 working days, and the new amendments to the law allow agencies to extend that time even further in unusual circumstances. Most agency regulations also provide a means of expanding this deadline, but the agency has to inform you of any expansion and the reasons for it. Under FOIA, you can pretty much request anything, but you do have to be reasonably specific. Sample FOIA requests. Asking the EPA for "all documents you have on acid rain" will not do it, but asking for "all documents submitted by Exxon to the EPA on acid rain during the years 1985 until the present" is specific enough. If the government has a problem understanding what you want, they usually will call for clarification.
FOIA is not for asking an agency questions. A request like "How do you process permits?" will get you no response. A proper FOIA request to get the same information would be, "Provide all documents describing or explaining how the agency processes permits." FOIA provides for making documents available to the public. Now, the term "documents" includes a wide variety of things like computer files, e-mail, faxes, photographs, maps, and virtually anything else written down or tangible. But FOIA cannot be used to make an agency create a new file. So, if you ask a question, they are under no obligation to provide a new document to answer that question.
While FOIA provides access to all sorts of interesting documents, there are exceptions under the Act that can prevent access to certain papers. For instance, papers important to national security or protected by executive privilege (remember Richard Nixon) are exempt from disclosure under FOIA. If the agency does deny you access to certain documents, they must tell what those documents are and give the claimed exemption. Any denial of a document request can be administratively appealed within the agency, and each agency has somewhat different ways of doing such an appeal, but they must inform you of that right and of the procedure. If an administrative appeal fails, you can take the agency to federal district court to try to get the documents. Also, if the agency completely fails to respond to your request either with the information, a denial or an extension, you can take them straight to court.
Normally, copying government documents costs you money, but the FOIA provides for a waiver of any fees for collecting and copying the requested records "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operation or activities of the government and is not primarily in the commercial interest of the requester." Grassroots environmental people will usually have no problem meeting the second prong of the fee waiver test. As for the first prong, you should provide as much information as is possible in your request as to why you want the information and what you will do with it. After all, you are wanting to inform the public about some government activity that has been previously unknown to them, and that is what the fee waiver provision contemplates.
FOIA requests can be very simple. Find the right address for the agency and send the request to the "FOIA Officer" for that agency. Or use the name of a specific individual or office if you know that is who has the documents that you want. For matters of national scope, you will usually make your request to the national office, but for matters of local scope, such as information in the local Army Corps of Engineers' office on a wetlands fill proposal, the letter should go to that local office. If you send your request to the wrong place in the agency, it will eventually be sent to the proper office, but that will delay your getting the information. As for the requested documents themselves, just set forth in as clear and concise a fashion as possible exactly what it is you want. Then give your reasons for the information and why you should be granted a fee waiver. A lawyer could handle a FOIA request for you, and such a request on an attorney's letterhead may look more impressive, but essentially, there is nothing about making a FOIA request that you cannot handle yourself. An appeal of a denail of your FOIA request will normally not require a lawyer either; this can be handled much int eh same way as you made the request int he first place. However, if you need to take the agency to court, you will need a lawyer then. Such a case can be handled right in the federal district where you live, but it is still litigation with many of the perils that entails. There is a provision for getting your attorney fees and costs if you win.
Always place prominently the words "Freedom of Information Act Request" on the front of the envelope and at the top of the letter. This will identify the request for those who handle the agency's mail and help speed your request to the appropriate person and office.
As for getting access to state government documents, each state has a different law. Check your local law for your state. In Alabama, for example, a statute mandates that all state records are available to the public, with minor exceptions such as trade secrets. The public is allowed to get copies of any record. However, there is no fee waiver provision, and some agencies charge up to a dollar per page for copying. Such high fees for copying are designed to discourage this disagreeable public participation in government; more conscientious agencies will charge a much more reasonable amount. As discussed in Chapter One, bad agency people have ways of preventing your access to your public documents. If you are denied access to documents, you may have to take the agency to state court; this obviously would require a lawyer. The procedure for doing so will vary from state to state.
For examples of a FOIA request, below are two requests that I filed for clients. It is important to remember that most federal agencies have adopted their own rules on how they handle FOIA requests. You will need to look up these rules in the Code of Federal Regulations (CFR), but generally, all agencies FOIA rules will be pretty similar, because, after all, each agency must comply with the provisions of FOIA. However, some agencies have added certain informational requirements for you to get a waiver of fees, for example. All that is needed is for you to look up the current regulations and adapt the following form letters accordingly. There is no magic in the following form letters; feel free to adapt them to your needs and to provide additional information if you feel in is helpful. If an agency does require additional information, it is incumbent upon them to ask you for it rather than just deny your request outright.
Recent changes have been made to the FOIA by Congress. For an overview of these changes, link to a Summary of the Electronic Freedom of Information Act Amendments of 1996, and to Highlights of the Electronic FOIA Amendments. Both of these summaries were prepared by Public Citizen Litigation Group, 1600 20th Street, NW, Washington, DC 20009, (202) 588-1000.
An in-depth guide to the FOIA was prepared by the United States House of Representatives. Click here to access it.
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SAMPLE FOIA REQUESTS
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September 24, 1991
United States Department of the Army
Corps of Engineers
Office of Counsel
P.O. Box 2288
Mobile, Alabama 36628-0001
Re: Freedom of Information Act Request
Dear Sir or Madam:
On behalf of the Friends of the Locust Fork River, a non-profit group, I am
submitting this request under the Freedom of Information Act, 5 U.S.C. 552.
Please provide, within the ten working days required by law, the following
records:
(1) Any and all papers, documents, applications, information, data or other
materials sent to or submitted to the United States Army Corps of Engineers by
The Water Works and Sewer Board of the City of Birmingham, Alabama, regarding
construction of a dam and/or reservoir on the Locust Fork of the Black Warrior
River in Alabama;
(2) Any and all papers, documents, applications, information, data or other
materials sent to or submitted to the United States Army Corps of Engineers by
anyone working for, retained by or representing The Water Works and Sewer Board
of the City of Birmingham, Alabama, regarding construction of a dam and/or
reservoir on the Locust Fork of the Black Warrior River in Alabama;
(3) Any and all papers, documents, applications, information, data or other
materials prepared by the United States Army Corps of Engineers or by anyone
working for, retained by or representing the Corps regarding construction of a
dam and/or reservoir on the Locust Fork of the Black Warrior River in Alabama.
We further request that any fees associated with this request be waived
because disclosure of the records is "likely to contribute significantly to
public understanding of the operations or activities of government and is not
primarily in the commercial interest of the requester." 5 U.S.C.
552(a)(4)(A)(iii). This request satisfies all of the requirements for a fee
waiver that are set out in the regulations. 32 C.F.R. 518.80. The records sought
involves "issues which will significantly contribute to the public understanding
of the operations or activities" of the Corps, 518.80(c)(1)(i), in that
information regarding a dam and/or reservoir on the Locust Fork, as submitted to
the Corps, will illuminate the public on how projects such as this are
considered and reviewed by the Corps. Further, the requested information "is
meaningful and shall inform the public on the operations or activities" of the
Corps, 518.80(c)(1)(ii), in that the Water Works Board will not release this
information to the public, and disclosure of the information by the Corps will
hold great potential for meaningfully informing the public to understand this
proposed project and its impacts. The Friends of the Locust Fork intend to
distribute this information to the general public in order to inform them of
this proposed project and its potential impacts. 518.80(c)(1)(iii). The
requested information will not duplicate what is already known to the public but
will be unique in contributing previously unknown facts, because the Water Works
Board will not release this information to the public. 518.80(c)(1)(iv).
Finally, the Friends of the Locust Fork River have no commercial interest in
the records sought. 518.80(2). The group's sole interest lies in using the
requested information to advance their own understanding, as well as that of
other members of the public, into the activities of the Corps regarding the
Locust Fork River and this proposed project. The Friends of the Locust Fork is a
non-profit organization that is currently engaged in securing 501(c)(3) status
with the Internal Revenue Service, and no information gathered through this
request will be used for any commercial purpose by this organization. In sum,
application of the Army's regulations to this request compels the conclusion
that a fee waiver is appropriate.
If you anticipate any delay in processing this request or if you foresee any
problem relating to our request for a fee waiver, please notify me as soon as
possible.
Sincerely,
Ray Vaughan
Attorney for the Friends of the
Locust Fork River
November 25, 1991
Allan Hubbard
Executive Director
Council on Competitiveness
Old Executive Office Building
Room 286
Washington, D.C. 20501
Re: Freedom of Information Act Request
Dear Mr. Hubbard:
On behalf of Edward W. Mudd, Jr., a taxpayer and resident of Shelby County,
Alabama, I am submitting this request under the Freedom of Information Act, 5
U.S.C. 552. Please provide, within the ten working days required by law, the
following records:
(1) Any and all papers, documents, information, data or other materials that
list the members of the Council on Competitiveness;
(2) Any and all papers, documents, information, data or other materials that
list the employees and staff of the Council on Competitiveness and their general
job descriptions and duties;
(3) Any and all records and minutes of the meetings of the Council on
Competitiveness;
(4) Any and all regulations or procedures of the Council on Competitiveness;
(5) Any and all information regarding the formation, structure and budget of
the Council on Competitiveness;
(6) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the United States Environmental Protection
Agency by the Council on Competitiveness, by Vice-President Quayle, or by any of
the Council's members, staff or employees;
(7) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the United States Department of the Interior
by the Council on Competitiveness, by Vice-President Quayle, or by any of the
Council's members, staff or employees;
(8) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the United States Fish and Wildlife Service by
the Council on Competitiveness, by Vice-President Quayle, or by any of the
Council's members, staff or employees;
(9) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the United States Forest Service by the
Council on Competitiveness, by Vice-President Quayle, or by any of the Council's
members, staff or employees;
(10) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the National Park Service by the Council on
Competitiveness, by Vice-President Quayle, or by any of the Council's members,
staff or employees;
(11) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the Council on Competitiveness, to
Vice-President Quayle, or to any of the Council's members, staff or employees by
the American Paper Institute, by the Chlorine Institute, by any pulp and paper
mill company or by any of their representatives;
(12) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the Council on Competitiveness, to
Vice-President Quayle, or to any of the Council's members, staff or employees by
any industry, by any industry trade group or by anyone else regarding
reauthorization of the Clean Water Act;
(13) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the Council on Competitiveness, to
Vice-President Quayle, or to any of the Council's members, staff or employees by
any industry; by any industry trade group or by anyone else regarding the Clean
Air Act or any present or proposed regulations under the Clean Air Act;
(14) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the Council on Competitiveness, to
Vice-President Quayle, or to any of the Council's members, staff or employees by
any industry, by any industry trade group or by anyone else regarding
Yellowstone National Park or wolf reintroduction to the Park;
(15) Any and all papers, documents, letters, information, data or other
materials sent to or submitted to the Council on Competitiveness, to
Vice-President Quayle, or to any of the Council's members, staff or employees by
any industry, by any industry trade group or by anyone else regarding the
Endangered Species Act, reauthorization of the Endangered Species Act, any
endangered or threatened species or any species considered for listing as an
endangered or threatened species.
We further request that any fees associated with this request be waived
because disclosure of the records is "likely to contribute significantly to
public understanding of the operations or activities of government and is not
primarily in the commercial interest of the requester." 5 U.S.C.
552(a)(4)(A)(iii). This request satisfies all of the requirements for a fee
waiver.
Mr. Mudd has no commercial interest in the records sought. His interest lies
in using the requested information to advance his own understanding, as well as
that of other members of the public, into the activities of the Council
regarding its operations and purposes. In sum, application of the statute to
this request compels the conclusion that a fee waiver is appropriate.
If you anticipate any delay in processing this request or if you foresee any
problem relating to our request for a fee waiver, please notify me as soon as
possible.
Sincerely,
Ray Vaughan
Attorney for Edward W. Mudd, Jr.