Freedom of Information Act
F0IA -- A Request of Last Resort
The best advice anyone can give you on the Freedom of Information Act is simply this: Don’t go there if you don’t have to.
Do anything, everything you can to get the information you need without filing a FOIA request. Filing a request automatically blows your deadline. It almost certainly means you won’t get all the information sought. And you may get flat rejected.
There is a lot of information available just by asking for a document or two.
Check the website of the department or agency. Many post an index or handbook or reference guide listing records that are readily available on the website or at one of their offices – documents you can get without resorting to FOIA.
For instance, here’s what the Department of Defense says:
“In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information that would not be withheld under the FOIA should continue to be honored through appropriate means without requiring the requester to invoke the FOIA.” (See the full memo below)
If only it were always that easy.
Just in case, we have provided a lengthy list links to reports and guides on FOIA, Some of these cites offer model letters and FOIA request forms. Go to Help by Topic.
Department of Defense Regulation 5400.7-R
Note: The Department’s FOIA policy has not been rewritten since the Ashcroft memo. It seems clear in reading it that reporters should simply make a request and that the department should provide the record without getting involved in the more cumbersome and slower FOIA process whenever that’s possible.
C1.3. DoD PUBLIC INFORMATION C1.3.1. Public Information.
C1.3.1.1. The public has a right to information concerning the activities of its Government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall not be withheld in whole or in part unless the record is exempt from mandatory partial or total disclosure under the FOIA. As a matter of policy, DoD Components shall make discretionary disclosures of exempt records or information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court. In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information that would not be withheld under the FOIA should continue to be honored through appropriate means without requiring the requester to invoke the FOIA.
A Few Other FOIA Notes
• Agencies must file an annual statistical report that broadly describes their FOIA activity including number of requests and number of requests still pending.
• One of the many amendments made to the Freedom of Information Act by the Electronic Freedom of Information Act Amendments of 1996 was the addition of a requirement that each federal agency list in its annual FOIA report all of the statutes on which it relied to withhold information under Exemption 3 of the FOIA. See 5 U.S.C. § 552(e)(1)(B)(ii) (2000) (also requiring citation of applicable case precedents upholding such statutes as Exemption 3 statutes
• Last year, agencies invoked nearly 125 laws as a statutory basis for withholding information under FOIA Exemption (3).
