FOIA: Careful What You Wish

By Nancy S. Barber
GLASS KEY INVESTIGATIONS
Presented at the Council of International Investigators
Regional Meeting-Washington D.C.
March 17, 2018

FREEDOM OF INFORMATION ACT

The Freedom of Information Act (FOIA) was enacted in 1966 and is codified at

5 USC Section 52. The statute faced executive resistance throughout its lifetime. It was enacted despite President Lyndon Johnson’s opposition. FOIA went into effect in 1967 albeit diluted by the following exemptions[1].

  • Executive Order/National Defense
  • Internal Personnel Rules and Practices
  • Statutory Exemption
  • Trade
  • Secrets, Commercial of Financial Information. (Cause competitive harm).
  • Inter or Intra Agency Memoranda or Letter
  • Personnel and Medical Files
  • Records Compiled for Law Enforcement Purposes
  • Financial/Bank Records
  • Oil Well information

For the first time in U.S. history, FOIA provided a statutory right for US citizens to access their government’s records. While it may be the law of the land, the statute remains under constant assault fraught with disproportionate delay, lack of response and bureaucratic gamesmanship.

The implementation of the act did not guarantee public access. A series of amendments were passed to resolve some of the most persistent problems in the FOIA system bogged down by costly and litigious sparring with federal agencies:

1974 Amendment – In the wake of the Watergate scandal and several court decisions, Congress sought to amend the FOIA. President Ford vetoed the amendments and Congress voted to override the veto.

1986 Amendment – Congress amended FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records.

1996 Amendment – The FOIA was expanded with the Electronic Freedom of Information Act Amendments of 1996.

2002 Amendment – In the wake of the 9/11 attacks, the FOIA was amended to limit the ability of foreign agents to request records from U.S. intelligence agencies[2]

2007 Amendment – The FOIA was amended with the OPEN Government Act of 2007.

FOIA was recently amended in 2016. The FOIA Improvement Act of 2016 provided for the following:

  • A requirement that federal agencies make records available to requesters in an electronic format (g., PDF or online download);
  • A requirement that federal agencies make frequently requested records (requested three or more times) publicly available using an electronic format (e., made available on the federal agency’s website or its FOIA site);
  • A prohibition on federal agencies charging record production fees for costs associated with the production of requested records if the agency missed a response deadline;
  • A requirement that federal agencies disclose requested information unless the agency reasonably foresees the disclosure of requested records resulting in harm to a protected interest under FOIA. That includes national security, documents containing confidential information or trade secrets, and documents containing medical information;
  • Permissible disclosure of agency records created 25 or more years before the date of a FOIA request;
  • Use of mediation services provided by the Office of Government Information Services (OGIS) to resolve disputes between federal agencies and FOIA requesters over the validity or adequacy of an agency’s response to a FOIA request;
  • Development of new authority and duties for Chief FOIA Officers in each federal agency along with the creation of a Chief FOIA Officers Council to increase compliance and efficiency in responding to FOIA requests; and
  • A requirement that the Director of the Office of Management and Budget (OMB) oversee the creation and ensure the operation of a consolidated online FOIA request portal that will allow the public to submit requests to all federal agencies on a single website.

In spite of the foregoing amendments, there remains a deep-seated institutional hostility to public access to agency files. Most Presidents (Johnson, Ford, Bush and Obama) fought the implementation and/or amendments. The Obama Department of Justice (DOJ), which was charged with enforcing FOIA law, campaigned against the revision. DOJ lawyers distributed talking points against a version of a reform bill in 2014, arguing it needlessly added cost and complexity.

As recently as 2016, the Associated Press reported that the administration set a record for censoring or denying access to information requested under FOIA. The backlog of unanswered requests across the government had risen by 55 percent, to more than 200,000.[3]

The most significant obstacle to FOIA’s implementation is a failure to fund FOIA-dedicated agency staff to respond that underwrites institutional intransigence. Agency FOIA backlogs are endemic. Absent expensive and time-consuming litigation, there are no enforcement ramifications if an agency fails to respond.[4]

With all of the overwhelming weight of bureaucratic sloth, few, if any, consequences for refusing to respond to a FOIA request and no agency budget to perform the job, why would an investigator launch a FOIA search?

-ADVANTAGES OF FOIA-

  1. FOIA is litigation neutral. Sec. 552(a)(3). The FOIA does not contemplate considerations of the requester’s identity or intended use of agency records. FOIA contains no express statement as to its use for any purpose. You do not have to provide a reason for the request and/or identify your client.
  2. FOIA is more efficient than discovery, providing an independent means of discovery that does not require notice to any of the parties to an action. The courts have held that FOIA rights are unaffected by the requester’s involvement in any action.[5]
  3. A FOIA requester is entitled to obtain disclosure of any nonexempt agency records responsive to a request without making any showing of need or relevancy. Civil discovery is limited to subjects which are relevant to the pending action.
  4. FOIA records have no restriction to their use. Documents cannot be withheld on grounds that they are related to ongoing administrative action and/or litigation.
  5. Discovery proceedings differ significantly from FOIA actions and the general rule of “issue preclusion” would not bar an FOIA for documents which were earlier subpoenaed. For example, a FOIA could be served to obtain documents sought by subpoena during grand jury proceedings.
  6. Key advantage of FOIA over civil discovery results from FOIA’s lack of any requirement for a showing of relevancy of the records sought to a particular pending action. FOIA may be the only way to discovery of government documents during certain phases of an agency’s investigation.

If you are contemplating filing a FOIA, there are certain steps you can take to assure the best chance of success in locating the records, and it starts with an investigation before you draft your FOIA request.

-INITIAL REQUESTS-

  1. CHOOSE THE CORRECT AGENCY when lodging requests. Be certain to distinguish between local or regional offices. Local offices tend to have day-to-day operations records while regional offices tend to have more policy type of documents. DO YOUR HOMEWORK ON THIS OR YOU ADD A LOT OF WASTED TIME TO THE INITIAL REQUEST AND THREATEN SUCCESS. Remember many agencies evolved over the years. It is YOUR RESPONSIBILITY to investigate the proper agency to process the FOIA. You will never succeed if you do not take the time to identify the proper agency. FOIA is applicable to federal agencies. You cannot propound a FOIA to state or local agencies. Many states have sunshine laws; e.g., California Public Records Act.
  2. Some agencies will forward requests, but always include a request in your FOIA request to be directed to the proper agency if you are advised they do not have the records.
  3. Consider the age of your document cohort. If an agency denies having the records, do NOT assume the agency did not have them at one time. They may be on their way to the Federal Records Center or already archived at NARA. BE CERTAIN TO SEARCH NARA AND FRC OFFICES FOR RECORDS BEFORE LODGING YOUR FOIA. Otherwise you will cause delay when an agency tells you they do not have your records. What they are telling you is that the agency does not have them, but that does not mean that they agency records are not at the FRC or NARA.
  4. Fishing expeditions are not your friend.       Be as descriptive and precise as possible or you will NEVER see those records.
  5. Be certain that your initial request cites the proper codes (5 USC Sec 552(a) (3) (b) for procedural compliance.
  6. Be certain to cite in your request for copying fees to be reimbursed. You can set a budget limit.
  7. Be sure to set a date for compliance to produce records within statutory time limits. Sec. 552(a) (6) (A) (i).
  8. The initial request should re-state that FOIA requires release of all reasonably segregable portions which are not exempt. [(5 USC 552(b)).
  9. Initial requests letter should state that you are aware of your administrative appeal rights. (5 USC Sec(a)(6)(A)(i).
  10. If records are not released, your original request should ask if records are found exempt, have the agency state with specificity the nature of the exemption.
  11. Be certain that your request does not fall within the FOIA exemptions. See above.

-HOW TO BEGIN-

BEFORE you lodge a FOIA, you need to find the records. While it seems counterintuitive, it is your job to help the agency find their records. If you cannot find the records at NARA or the Federal Records Center, you can assume that the current agency has the records. Again, consider the age of your records when filing a FOIA.

-NATIONAL ARCHIVES (NARA)-

The U.S. National Archives (NARA) can be thought of as the U.S. government’s storage basement. There are nine NARA facilities in the United States.[6]

NEVER go to NARA without setting up a research appointment. They are not like public libraries where you can go in any time and expect to use the Dewey decimal system that precisely locates your documents

Each NARA facility has archivists who are typically assigned a specific record group (RG) and you should contact them before you go in to discuss the nature of your research. Remember that NARA has very strict access rules to their facilities and research areas. Each Archive issues a researcher card to be used just at their facility. [7]

Each department, agency, etc. records at NARA are organized by Record Group numbers which can be located on line at (http://www.nara.gov.). Once you have located your record group, go to the Finding Aids which are also on-line.

The Finding Aids are a loose description of the records within each record group. Find the records closest to your search criteria. Be aware that the Finding Aids reflect decades and decades of evolution. Inconsistencies can be bountiful. Some are hand written, some are not. They are only a guide and not necessarily accurate. The NARA facilities themselves often have another companion finding aid to the ones on-line that the archivist can parse out details.

And, finally, be aware that you may be presented with dozens of boxes that more or less loosely fit the Finding Aid record description, but you will have to review all of the records to ascertain IF they are the correct records.[8]

FEDERAL RECORDS CENTER

If you have done your due diligence and searched NARA records, and the agency is telling you they don’t have the records, welcome to the Dark State of public records searches. Two possibilities exist: (1) The documents were transferred to the Federal Records Center (FRC) or (2) They were destroyed following agency document retention policy.

The National Archives and Records Administration operate a system of Federal Records Centers for storage of, and access to, records of the Federal Government. The distinction here is that while NARA administers the Federal Records Center, the records are not in NARA’s possession access. Rather, FRC records remain within the purview of each agency. You will quickly find yourself in bureaucratic quicksand if you do not grasp this distinction.

But wait? If I send a FOIA to an agency, wouldn’t they naturally check to see if the materials I requested were in the FRC? Never make that assumption. Remember it is your responsibility to locate the agency’s records.

The Federal Records Center (FRC) and the National Archives are operated by the National Archives and Records Administration (NARA), but the two programs serve very different functions. The FRC is used to store records that Federal agencies need for current business on an infrequent basis. The records are still considered to be in the “control” of the agency. The FRC is not open to the public, per se. And remember, NARA has no idea what documents are in the FRC holdings.

The National Archives is the custodian of Federal records that are no longer needed for Agency business, but that have been determined to have sufficient historical value to warrant preservation.

Each agency has its own set of record retention policies, which it may or may not follow, but not all records that make their way to the FRC will ultimately survive. Most of the records stored in the FRC will eventually be destroyed. Records transferred to the National Archives will be preserved permanently. And, remember, you may find your records, but will have to overcome the declassification process. Records stored at the FRC cannot be accessed without agency consent.

But wait? How can the public find the FRC records if they are not publicly available and still under agency control. If you cannot locate records at NARA or at the agency, sharpen your FOIA pencil. Every NARA researcher should end their dig by asking the archivist, well, if they are not here, and they are not at the agency, are they at the FRC?

The FRC’s bureaucratic architecture mirrors that of NARA. Headquarters are located in Suitland, MD and regional offices are scattered throughout the country.[9]

You cannot access the FRC records. You can access a document known in-house as Standard Form 135 (SF 135). This is a form each agency fills out for transfer of temporary records and is key to locating records. The record description is often imprecise, but usually you can find a general cohort of documents relative to your search.

A researcher cans ask the FRC for a copy of the agency’s “01 Report,” which is a print-out of the database entry for the transfer of records. A researcher can also ask the agency for a copy of the related “History Report”, which tells which records were transferred to NARA, destroyed or returned to the agency. With that information you can select the accession numbers (from the 135) assigned to your records to assist in locating them.

On occasion, some FRC staff disputed public access to the 135’s and a researcher may have to remind staff of a prior administrative finding granting public viewing of the 135’s. Once you locate a 135 that describes the general nature of your records, you should obtain a copy of the 135 document for use with your FOIA request.

Now you are ready to lodge your FOIA request as the 135 document will provide the agency with sufficient information to locate their documents.

This is probably one of the most challenging research tasks, but well worth the effort. The road is filled with challenges and bureaucratic resistance. The following case study, illustrates the pit falls of pursuing a FOIA request through the FRC to the agency:

-CASE STUDY-

The client’s goal was to locate U.S. Army Base records regarding the 1965 operations of the motor pool. The client had propounded a FOIA to the Army Base and the response was that the records did not exist. Our office was contacted to locate the records.

Given that the agency denied the existence of the records in response to the client’s request, we searched NARA records and did not locate the records. By process of deduction, we located the records in the Federal Records Center using the 135’s. At this point, we were ready to lodge the FOIA request that included attaching copies of the 135s. Now the fun began.

Remember that even though the records were physically located on a FRC site, that particular US Army Base still maintained control over the records. The records have to be transported to the Base from the FRC site, reviewed for any national security claims and declassified.

Once the 135s were attached to the FOIA, and served, the Army’s FOIA officer was contacted to ask when we may expect the records, we were told that the 135s were too difficult to read and they could not pull the records. Remember, it was the agency staff who wrote out the 135 records descriptions. Next, we were told there were too many records. Then, we were told they had no room for any one to review them.

Always negotiate these responses as reflected in the following e-mail exchange with the Base FOIA Officer:

GK: Where does that leave us [if there is no room]? If I were to rent a local conference room or rent a conference room at the Fort Polk area, would that work?

Thanks, Nancy

FOIA Officer: Nancy, No (sic) reading room can be set up for you to review the documents as they have Privacy Act (PA) information. The following is (sic) the steps I will have to take to process this request.

  1. Order the 9 boxes from NARA.
  2. Once boxes come in I would have to pull each order and make a copy.
    Count each page and time spent on the request and provide you an estimated
    cost if it is more than you state you would pay.
  1. Redact information that would not be release (sic) and send to the Staff Judge Advocate for review.
  2. After the legal review the package would be send to the Initial Denial Authority for further review and release.
  3. I will give you a heads up that it is a question if the names would be redacted using B6 Exemption of the Freedom of Information Act.

Please advise me ASAP if you would like for me to proceed. 

Freedom of Information/Privacy Act Officer Assistant Installation Records

Manager Serco, Directorate of Human Resources Admin Services Div (FOIA/PA)

1941 15th Street, Bldg 2048

Fort Polk, Louisiana 71459-5463

GK:  As we discussed this morning, we can narrow the search with a sample run of the documents requested, if you can locate records that would identify approximately 25 personnel actions at Fort Polk within the parameters of the original request as a test of the relevancy of the documents to our investigation. Your assistance in this matter is most appreciated. 

Later that day:

GK: This will confirm our telephone conversation today wherein we discussed a FOIA request this office submitted on August 7th, that included the 135’s, which you stated were too difficult to read, and I will send you a transcription of them to spare you time on this.

As we discussed, a suggestion was made that perhaps the easiest way to go at this, rather than ordering all of the FRC records in the 135s which presents a significant undertaking, that we do a sample run to see if the records can be declassified in the first place for public review. I would suggest that if you would order a paradigm set of the records, perhaps 25% of the original request to have shipped to Ft. Polk, and follow the procedure implemented at NARA, where records are available for public review, but not consumption, i.e, no copying or scanning until the NARA staff at the review desk look at the records and determine that the declassification process is indeed complete. I can arrange to have a researcher review the records at Ft. Polk at your convenience, and if we just spend a day on the process, we will know that either they can or cannot be declassified, and that ends it. If they can be declassified, we can live with just that. sample run, one way or the other in order to the info needed for trial preparation. If you could check with your JAG contact to see if this would be the way we could go, I think it would expedite things and make less work for everyone.

 In the meantime, I am attaching your original response to refresh your recollection and I will get the transcription of the 135s to you later this afternoon. I appreciate your prompt call back regarding this matter and as well as your assistance. Nancy

And yet later that day…

GK:  I have narrowed the search to just one of the 135s, which has a total of nine boxes, near as I can tell from the 135. This would be an excellent sample run, and only involves nine boxes of records, if I am reading this right, and that should make the test run less difficult than addressing the entire cohort of 135 records.

 Attached is the 135 selected as a sample from the entire cohort of 135s included with the original FOIA (attached) that I have scanned for a better copy, and includes a transcription of the 135s.

If you could let me know by 8/29 if there is any chance this approach would work, that would be most appreciated or I am back at square one, and need to know that in order to respond to my client’s request for an investigation. If there is anything else I can do to assist in this, please let me know. Thanks, Nancy

Within a week, we received the sample run documents, which were precisely what the client had asked for, and not only did the documents include the identities of the motor pool base employees, but their personal identifiers were included. This provided the client with several exculpatory witnesses that, as a result, permitted the client to settle the matter with relative ease.

While FOIA requests remain bogged down in the bureaucratic muck and mire, a diligent and patient investigator can still find the mother lode. And your clients will be impressed, especially after they are originally told no records exist.

Finally, a FOIA request requires diligent preparation prior to lodging the request, especially in determining the correct agency. The burden rests with the investigator and not the agency when looking for records. You will have more success if you understand that there will be little to no assistance from the agency. Persistence, a calm, patient negotiation with the agency staff is required. Remember they have no budget and there are few, if any, consequences in simply ignoring your request. Happy hunting.

///

 

[1] Litigation Under the Federal Open Government Laws: The Freedom of Information Act, The Privacy Act, The Government in the Sunshine Act, The Federal Advisory Committee Act, Edited by Allan Robert Adler, American Civil Liberties Union Foundation, Washington D.C, 1991.

[2] The most singular assault on FOIA was the Intelligence Authorization Act of 2002 born out of the 9/11 attacks. It had a series of consequences to researchers that obscured transparency and caused significant delays. For example, documents in the control of the National Archives Records Administration (NARA) that had been declassified over the last several decades were reclassified. Researchers now must wait for NARA personnel to declassify documents, again. One Archive has only one staff member assigned to declassification, who, because of staffing shortages, was forced to take a six-week vacation. That added two to three months’ time to gain access to the documents. Documents that had been previously reviewed, and duplicated, were now classified. In some instances, some of my clients had been provided documents that were declassified decades ago, which, in theory, they now could not legally possess because of the reclassification.

[3] National Law Review, June 21, 2016.

[4] Jurist, “The Freedom of Information Act Was Just Amended. Here’s What Changed-And Didn’t”, Jonathon Bruno, July 2, 2016.

[5]A FOIA request itself becomes a part of the official record and can itself be released to another party.

[6] Alaska, California, District of Columbia/College Park, MD, Georgia, Illinois, Iowa, Kansas, Massachusetts, Michigan, Ohio, Pennsylvania, Texas and Washington  Records are typically lodged locally. For example, records from Hunters Point Naval Shipyard most likely are in San Bruno, whereas records from Long Beach Naval Shipyard would be in Laguna Niguel. College Park is the mother ship for most DC based agencies that are headquartered in that area.

[7] . If you have a researcher ID card from College Park, it can be used at any NARA facility.

[8] For example, the Navy has a numerical filing system for categorizing their records. One of the categories is “Correspondence” and while general in its description, it often contains specific references to a research topic that is not necessarily apparent at first blush in the Finding Aid’s record description. For example, while the Navy did not maintain its procurement records for World War II, there is correspondence that addressed procurement.

[9] See https://www.archives.gov/frc/locations for a list of FRC offices.

Nancy S. Barber
California, USA

Nancy S. Barber founded Glass Key Investigations in 1988. Glass Key Investigations provides investigative services for matters involving toxic tort, environmental, land use, elder abuse and civil litigation. The firm conducts corporate research, witness locate and trial support.

Ms. Barber holds a Forensic Environmental Investigation Certification., B.A. in Spanish, a M.A. in Latin American Studies, a Paralegal Certificate and a nursing home ombudsman certification. She has served as in instructor in environmental law and paralegal training. Glass Key Investigations was awarded fees in a public land use action filed in U.S. District Court case in which the firm donated pro-bono services to a plaintiff’s action against the federal government.

Ms. Barber is a member of the California Association of Licensed Investigators (CALI), National Association of Legal Investigators (NALI), Council of International Investigators (CII) and National Council of Investigation and Security Services (NCISS).