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FREEDOM OF INFORMATION ACT (FOIA) GENERAL OVERVIEW

FREEDOM OF INFORMATION ACT (FOIA) GENERAL OVERVIEW. MLCLANT GENERAL LAW BRANCH. NOTE TO VIEWERS.

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FREEDOM OF INFORMATION ACT (FOIA) GENERAL OVERVIEW

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  1. FREEDOM OF INFORMATION ACT (FOIA) GENERAL OVERVIEW MLCLANT GENERAL LAW BRANCH

  2. NOTE TO VIEWERS This training presentation was prepared by the General Law Branch, Legal Division, MLCA, representing the interests of the United States Coast Guard. The information provided in this presentation summarizes and rephrases federal laws and regulations in order to instruct federal employees on the general nature of the FOIA. It is not intended to provide a legal opinion or recommendation. Due to the dynamic nature of the law, these laws and regulations may be impacted by judicial and legislative action that may not be incorporated into the presentation due to limitations of time and resources. Therefore, the information is not controlling. If it conflicts in any manner with these laws and regulations, and none of it is intended to contravene or supersede any provision of law or other order, directive, or issuance of competent authority. Viewers are encouraged to consult source documents for definitive guidance. Liaison with Coast Guard attorneys, through the chain of command, is strongly encouraged.

  3. MLCLANT FOIA Control Officer JOE MASON Ph # (757) 628-4192 FAX # (757) 628-4451 jmason@mlca.uscg.mil

  4. WHAT IS FOIA? • Enacted by Congress in 1966 and codified at 5 U.S.C. § 552. • Statutory right of access to information in federal agencies. • Ensures an informed citizenry / prevents secret law. • Records must be disclosed unless exempt, excluded. • Public interest in withholding, e.g., national security, business, privacy, law enforcement exemptions. • Amended several times. Latest was 1996 with Electronic Freedom of Information Act (E-FOIA) Amendment.

  5. GENERAL PROVISIONS • Only applicable to federal agencies of the Executive Branch. • Any person for any reason may request agency records. • 20 working day time limit for agency to make release decision. • Acknowledgement letter does not satisfy time limit requirement. • Recordholder must decide to grant/deny within the time limit. • Right to appeal. • Right to judicial review.

  6. E-FOIA • “Electronic Amendment” to FOIA enacted in 1996. • Extended processing time limit from 10 to 20 working days. • Requesters may file FOIA requests electronically. • Must furnish records in requested format “if practicable.” • Denials must describe the volume and location of records withheld. • Provides for expedited processing requests (10-day resolution limit).

  7. NOT ALL REQUESTS FOR RECORDS ARE FOIAS • If request doesn’t mention FOIA, and all responsive records will be released: • Don’t have to treat as a FOIA request. • Response doesn’t have to be signed by Initial Denial Authority. • Not necessary to provide appeal rights. • However, if all or part of the information requested will be denied, then the request will be treated as a FOIA request (CG FOIA Manual, COMDTINST M5260.3, Chapter 5-A-2).

  8. RECORDS EXCLUDED FROM FOIA • Records available through inspection / purchase / request. • Refusal to process requests for excluded materials is not a denial. • Excluded records includes: • Federal Register • Document Inspection Facilities • Public Affairs Materials • Library & Museum Materials • Distribution System, Govt. Printing Office (GPO) • Transcripts of Public Hearings

  9. COAST GUARD’S POLICY ON RECORD ACCESS • It is the Commandant’s policy to make records maintained by the Coast Guard available to the public to the greatest extent possible in keeping with the spirit of the FOIA while balancing the need to protect privacy and security interests (Change 3 to FOIA Manual – Post 9/11 policy). • ALCOAST 532/01 was issued in response to Attorney General John Ashcroft’s memo of 12 October 2001. New legal standard – “sound legal basis” for withholding information. • COMDTINST M5260.3 (FOIA/PA Manual) sets forth the policy and procedures for all commands to follow in administering the FOIA and Privacy Act.

  10. SUBMITTING A FOIA REQUEST • Must be in writing (e.g., letter, fax, e-mail). • Must “reasonably” describe the information requested. • Should indicate that it is being made under FOIA. • Should indicate an agreement to pay all applicable FOIA fees. • Should be addressed to the custodian of the records.

  11. NEGOTIATED RELEASE • Acceptable to “bargain” with requester on scope of information requested (e.g., withholding names & identifiers embedded within requested records). • Info “withheld” under this negotiated agreement is not considered a denial of responsive info. • Details of a negotiated release must be memorialized in your release letter to the requester.

  12. SEARCH • A thorough search of all locations in which responsive records could reasonably be expected to be located must be conducted and formally documented (FOIA Manual, Ch 5-F-4). • A “no records” response must describe: • types of files searched. • identifiers used in search (e.g., computer search words). • dates of search. • name(s) of searcher(s). • searcher contact info. • other relevant info (Ch 5-F-1). • A “no records” response must include appeal rights (Ch 5-F-4).

  13. SEGREGABILITY • All segregable portions of a document must be released (FOIA Manual, Ch 5-D-2). • No “blanket” withholdings.

  14. 1. Classified Material 2. Internal Personnel Rules 3. Records Required to be Withheld by Another Statute 4. Confidential Commercial or Financial Information 5. Inter-Agency or Intra-Agency Documents 6. Personal Privacy 7. Records or Information Compiled for Law Enforcement Purposes 8. Records Relating to Supervision of Financial Institutions 9. Geological or Geophysical Information 9 EXEMPTIONS(Chapter 8 of FOIA/PA Manual)

  15. EXEMPTION 1 • Applies to information which is currently and properly classified in the interest of National Defense. • Refer to the Classified Information Security Program, COMDTINST M5510.23, to see if records should be declassified. • “Glomar” response may be appropriate when the fact of a record’s existence or nonexistence may be classified. (“We can neither confirm nor deny the existence of such records.”)

  16. EXEMPTION 2 • Applies to internal practices and personnel rules of an agency. • “Low 2” – Internal matters of a relatively trivial nature. Administrative burden of processing request is not justified by any genuine and significant public interest. (Examples: correspondence routing sheets, blank data entry sheets, general e-mail messages everyone receives.) • “High 2” – Documents that if released would allow someone to circumvent a regulation or statute or impede the effectiveness of the CG’s law enforcement activities. (Examples: guidelines for conducting investigations, security procedures, vulnerability assessments, answers to exams.)

  17. EXEMPTION 3 • Applies to records exempted from disclosure by statute. • List of statutes on Coast Guard FOIA Home Page, http://cgweb.uscg.mil/g-s/g-si/g-sii/sii-2/foia.htm. Examples: 10 U.S.C. § 2305 - Contract proposal not incorporated into contract. 14 U.S.C. § 645 - Coast Guard medical quality assurance records. 46 U.S.C. § 7319 - Names, etc., of merchant seamen and record entries. • Use of any other statute must be approved in advance by COMDT (G-CIM-2).

  18. EXEMPTION 4 • Applies to trade secrets and commercial or financial information obtained from a person or company and considered privileged or confidential. • Trade Secrets – A plan, formula, process, or device. • Commercial or Financial Information - Intended to protect the interests of commercial entities that submit information to the Coast Guard and the interests of the government in receiving continued access to such data. • Will release of info impair Govt.’s ability to obtain necessary info in the future? • Will release cause substantial harm to the competitive position of the person from whom info was obtained? • Will release of info cause some other harm to Govt. or submitter?

  19. EXEMPTION 5 • Applies to inter-agency or intra-agency memoranda that contains: • Deliberative process material – pre-decisional info, e.g., drafts, opinions, recommendations. • Attorney work product – prepared by an attorney or under his/her direction in anticipation of litigation. • Attorney-client communications – comms between an attorney and their client. • Confidential commercial info – info that if released would be harmful to the Govt’s bargaining position. • Other examples – safety mishap investigations.

  20. EXEMPTION 6 • Applies to personnel, medical, or similar files, release of which would cause a clearly unwarranted invasion of privacy. • Balancing test: private interests versus public interests. • Privacy interests – e.g., home addresses, home phone numbers, social security numbers, etc. • No privacy interests – corporations, deceased individuals (except in very specific cases). • Public interests – does release shed light on agency’s performance of its duties.

  21. EXEMPTION 7 • Applies to records or information compiled for law enforcement purposes. • 7(A): could interfere with enforcement proceedings. • 7(B): could deprive a person to a fair, impartial hearing. • 7(C): could be an infringement of personal privacy. • 7(D): could disclose the identity of a confidential source. • 7(E): could disclose techniques of law enforcement investigations. • 7(F): could endanger the life or physical safety of any individual.

  22. EXEMPTIONS 8 & 9 • Exemption 8 applies to records of agencies responsible for the regulation or supervision of a financial institution. • Exemption 9 applies to records relating to any geological or geophysical info or data concerning wells. • Neither of these exemptions are used by the Coast Guard.

  23. RELEASE & DENIAL AUTHORITY • Release authority is encouraged to be delegated to the lowest levels. • Denial authority is restricted. List of individuals with FOIA Initial Denial Authority (IDA) is located on Coast Guard FOIA Home Page, http://cgweb.uscg.mil/g-s/g-si/g-sii/sii-2/foia.htm. IDA list includes: CG LANTAREA CGD SEVEN CG MLCLANT & MLCLANT(l) • Denial & partial denial letters can only be signed by the IDA.

  24. WHAT’S CONSIDERED A DENIAL? • Withholding all or part of requested records or information. • Not granting a fee waiver or fee reduction. • Not granting a request for expedited processing. • The response letter must be signed by IDA and explain appeal rights.

  25. JUSTIFICATION MEMO • Required for all decisions to deny disclosure of records (FOIA Manual, Ch 9-A). • Explains “sound legal basis” for each exemption cited to withhold records. • Must be approved by a legal officer.

  26. FEES • Fee assessment is not an option. • Fee assessment must be uniform. • Follow the fee computation formula in CG FOIA Manual, Ch 11-C. • 4 categories of requesters (i.e., commercial, educational, news media, others). • 3 types of fees (i.e., search, review, duplication).

  27. FOIA FEES TABLE*First 100 pages free.**First 2 hours of search free.

  28. FEES (cont’d) • No charge for mailing records unless express delivery requested. • Fees payable to “Treasury of the United States.” • Payment sent to releaser of records, and then forwarded to Department of Treasury’s Lockbox in Pittsburgh, PA (FOIA Manual, Ch 11-D). • If “estimated” fees will exceed $25, requester must be notified of the estimated amount. • CG will waive fees totaling less than $10.

  29. FEE WAIVERS • Anyone may request a waiver / reduction of fees. • Granting waiver = public expense. • Requester must include justification(s). • Criteria: • Records must concern operations / activities of Govt. • Records must not already be in public domain. • Disclosure must contribute to understanding of general public – not a narrow segment of interested persons. • Disclosure must significantly enhance public’s level of understanding. • Must demonstrate ability & intention to disseminate the records to the general public.

  30. EXPEDITED PROCESSING • Anyone may request expedited processing. • Reduces agency response time from 20 to 10 working days. • Criteria: • Must be a person primarily engaged in disseminating info & has an urgency to inform the public of actual or alleged Fed Govt. activity, or • Must show that without expedited treatment, there is imminent threat to life or physical safety. • If granted, process immediately. • If denied, notify requester of right to appeal.

  31. WHAT IS THE PRIVACY ACT? • Enacted by Congress in 1974 and codified at 5 U.S.C. § 552a. • Protects personal privacy of individuals’ in records held by Federal Government; sets rules on how records will be maintained and disclosed. • Applies only to “systems of records” – those retrievable by name or personal identifier (published in Federal Register). • Applies only to United States citizens; allows access to most personal information about themselves and provides procedures for correction or amendment of information. • Coast Guard policy: The protection of personal information is of paramount importance; all commands will comply with the Act. • Legal remedies: Individuals have enforcement rights under the Act, and there are criminal penalties for Federal employees who fail to comply with the Act.

  32. FOIA “Any person” has access to records held by federal government. Applies to all records of federal agencies. Can charge search, review, and duplication fees. Must respond to requester and determine access to records within 20 days. Privacy Act Only U.S. citizen (or permanent resident alien) who is “subject of the record” may have access. Applies only to records of federal agencies that are in a “system of records.” Can charge only duplication fees. Must acknowledge request w/i 10 days, and determine access to records w/i 30 days. FOIA & PRIVACY ACT COMPARISONS

  33. RECORDS RETENTION • Recipient of FOIA request must retain the following records: • Copy of request • Copy of response (signed / dated) • Copy of other correspondence btwn recordholder and requester • “Unmarked” copy of all responsive records • Copy of records in the format released to the requester • Justification Memo (if any records were withheld) • Retention Schedule: • Complete release 2 years after date of response • “No records” 2 years after date of response • Full / Partial Denial 6 years after date of response

  34. REFERENCES • Freedom of Information Act, 5 U.S.C. § 552http://www.usdoj.gov/foia/foiastat.htm • Privacy Act, 5 U.S.C. § 552ahttp://www.usdoj.gov/foia/privstat.htm • USCG FOIA & Privacy Acts Manual, COMDTINST M5260.3 • Department of Justice FOIA Guidehttp://www.usdoj.gov/oip/foi-act.htm • Department of Justice Privacy Act Overviewhttp://www.usdoj.gov/foia/04_7_1.html

  35. THE END Questions? JOE MASON Ph # (757) 628-4192 FAX # (757) 628-4451 jmason@mlca.uscg.mil

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