1. What is the Freedom of Information Act (FOIA)?
FOIA 5 U.S.C. § 552
is a mechanism by which members of the general public can obtain copies of government records. Any “person” can file a FOIA request including U.S. citizens, foreign nationals, corporations, and organizations.
2. What constitutes a record and can be requested under FOIA?
Not all government documents must go through the FOIA process to be disclosed. Any document readily available to the public may be released absent a FOIA request. This rule applies to brochures, flyers, published materials and other documents accessible via the Internet.
All other documents not publicly available must be released through the FOIA, such as copies of letters to and from the Corps that reference Corps projects; project research, diagrams, reports and technical specifications; contract information pertaining to Corps projects; project data; and personnel information.
FOIA covers all existing agency records regardless of the form or format. For example, email, contracts, photos and maps are covered.
3. Can questions be asked under FOIA?
FOIA does not require federal agencies to answer questions, create records, render opinions, or provide subjective evaluations. Requesters can ask for existing records.
4. What documents must be withheld under FOIA (FOIA Exemptions)?
Records released under FOIA are subject to being withheld under one of the nine FOIA exemptions, as described in 5 U.S.C. § 552(b)(1)-(9):
1) Records currently and properly classified in the interest of national defense or foreign policy.
2) Records related solely to internal personnel rules and practices, which, if released, would allow circumvention of an agency function.
3) Records protected by another law that specifically exempts the information from public release.
4) Trade secrets and commercial or financial information obtained from a private source that would cause substantial competitive harm to the source if disclosed.
5) Internal records that are deliberative in nature and part of the decision process that contains opinions and recommendations.
6) Records which, if released, would result in a clearly unwarranted invasion of personal privacy.
7) Investigatory records or information complied for law enforcement purposes.
8) Records for the use of an agency responsible for the regulation or supervision of financial institutions.
9) Records containing geological and geophysical information (including maps) concerning wells.
Even if an exemption applies, it does not necessarily mean we can withhold an entire document. We will redact those specific portions of a document that an exemption applies to, all other portions of the document may be released.
5. What is a denial?
When information is withheld, whether fully, partially, or due to an absence of records, it is considered a denial under FOIA.
A request may be denied for one or more of the nine exemptions. When this happens, the requester will be notified in writing by the Initial Denial Authority (District Counsel) and given their appeal rights. If there is an exemption in a document, it does not always mean that the whole document will be withheld. If there is only a specific portion of a document that an exemption applies to, that portion will be redacted. All other portions of the document will be released.
6. Can I appeal a denial?
Denials can be appealed. If your request is initially denied in whole or in part under one or more of the nine exemptions, or due to an absence of records, the denial letter will include the proper procedures for submitting an appeal.
7. Do I have to pay for a FOIA request?
FOIA allows fees to be charged to certain types of requesters, but it also provides that waivers or reductions in fees be given if disclosing the information is in the public interest. Public interest is defined as information which significantly enhances the public’s knowledge of the operation and activities of the agency. FOIA requires that requesters be placed into one of the following categories. For more information, see DOD 5400.7-R
– Requesters who seek information for a use or purpose that furthers their commercial, trade, or profit interest are considered commercial requesters. Commercial requesters pay all fees for search, review and duplication.
– Institutions of education, including preschools, elementary or secondary schools and institutions of higher learning, qualify as educational institutions. The records must be sought in furtherance of scholarly research. Educational requesters pay only duplication fees, unless it is determined that fees are waived or reduced in the public interest. The first 100 pages are provided at no cost.
· Non-Commercial Scientific -
A non-commercial scientific institution is operated solely for conducting scientific research. The records must be sought in furtherance of scientific research. Like educational requesters, these requesters pay only duplication fees, unless it is determined that fees are waived or reduced in the public interest. The first 100 pages are provided at no cost.
· News Media
– A representative of the news media is a person actively gathering news for an entity organized and operated to publicize or broadcast news to the public. News media pay only duplication fees, unless it is determined that fees are waived or reduced in the public interest. Again, the first 100 pages are provided at no cost.
· “Other” Requester
– Requesters who do not qualify in any other category are considered “other” requesters, and normally make requests for agency records for their own personal use. “Other” requesters receive two hours free search and review, and the first 100 pages at no cost.
All requesters must include a “willingness to pay statement” in their request, regardless of the fee category. The requester can set a limit on the costs to be incurred. For example, he/she may state “not to exceed $50”. If the estimate for the request exceeds the agreed upon limit the FOIA Officer will call the requester to discuss his/her options. A few options at this time would be to narrow the request, authorize additional funds, or cancel the request.
8. What are the fees for a FOIA request?
Standard fees are assessed for a FOIA request. The basic fees are listed below:
Professional search and review..........$48 per hour
Clerical search and review..................$24 per hour
Office photocopies (8 1/2” x 11”)........15 cents per page
Non-commercial requesters receive the first 100 pages for free.
9. Do I qualify for a fee waiver?
Fee waivers may be considered, except commercial requests. A fee waiver may be granted when the disclosure of the records is in the public’s interest because it is likely to contribute significantly to the public's understanding of the operations or activities of the government. The factors that are considered when making a fee waiver determination:
· The subject of the request.
· The informative value of the information to be disclosed.
· The contribution to an understanding of the subject by the general public likely to result for the disclosure.
· The significance of the contribution to public understanding.
· Disclosure of the information is not primarily in the commercial interest of the requester.
· The ability of the requester to disseminate the information.
Fee waivers are granted case-by-case. For more information on fee waivers, see Part 286 of Chapter 32 of the Code of Federal Regulations