Saturday, August 11, 2007

Getting Info from the Government: FOIA 101

Suppose your grandfather or great-grandfather worked for the federal government or for a government contractor, building Hoover Dam. Perhaps he kept a journal that stayed with the government for some reason when the project was completed. Or may be your relative was in the Far North as an early operator of the DEW Line. You might want to learn more about that than just what's in the history books. Perhaps your family's homestead was taken by the government to build a defense plant. Now you want to know what the place was like and to learn about the circumstances of the taking. Or, perhaps most interesting of all, maybe your ancestor was under surveillance by the FBI or passed information about his former homeland to the CIA. Wouldn't that be something to know about?!

Information of the sort described above can be had from the government if you know the secret word that opens government vaults and and filing cabinets [with some exceptions] to ordinary citizens. And I'll bet you do know the word, but maybe not how it works.

The "word" is "FOIA" (foy-yuh), the acronym for Freedom of Information Act.

Most people have heard of FOIA, but many do not know how it works or the type of information available under it. Many genealogists have used FOIA (even if they didn't realize it) to get Social Security applications and passport information from the government.

Basically, FOIA requires federal agencies to make available to any person upon request records held by those agencies. A FOIA request should be in writing and must "reasonably describe" the records being sought. The request must be made in accordance with the particular agency's rules and procedures which can be found on each agency's website. The rules state such things as where to send the request and what the fees are (more about that later).

What types of information might be obtained under FOIA? "Agency records" include paper records, but also electronic records, photographs, sound recordings, maps, videos, etc.

There are exceptions to the obligation of a federal agency to disclose information. These include (1) national security information; (2) internal agency personnel rules; (3) information exempted by other laws; (4) trade secrets or confidential business information obtained by the government from another party; (5) internal documents exempt from disclosure in litigation; (6) personnel or medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy; (7) certain law enforcement information; (8) certain banking regulatory information; and (9) geological and geophysical information and data.

The exemptions can become quite complex and many have the subject of litigation before the Supreme Court. However, don't let that stop you from making your genealogy-related request. The agency has to show that an exemption applies.

An agency may charge fees for FOIA requests. There are fee categories set out in the law. The most favorable fee categories are for educational institutions, non-commercial scientific organizations, and the news media. Generally, these entities must only pay the costs of duplication, but are entitled to the first 100 pages free. Other requesters generally may be required to pay the costs of search and review in addition to duplication.

There's no obvious fee category that covers genealogists, but that may depend upon what you intend to do with the material. In any event, there's a provision for a waiver of fees, no matter who the requester is. A waiver may granted if the material requested "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." As a genealogical requester, I would probably try to make this case.

An agency is supposed to make records "promptly available" after a request. Under the law, an agency has twenty days to determine if it will comply with the request. If it will comply, the agency must immediately notify the requester and then promptly make the records available. If the agency will not comply, it must notify the requester of a right to appeal--the appeal must be filed within 20 days of notification. The head of the agency then usually has ten days to decide the appeal.

In reality, most agencies have a backlog of FOIA requests and processing takes considerably longer than the deadlines. You have a right to go to court if the agency misses its deadlines, but I imagine that as genealogists, we've gotten used to waiting for public records.

Although the FOIA procedures can seem cumbersome, in most cases they are not. There are numerous FOIA websites that describe the procedures and give examples. I would advise, however, to check if the records you're seeking are available without a FOIA request. For example, many records have been transferred to the National Archives and are available from them. Other records are now posted on agency websites.

FOIA applies only to federal agencies. Most states, however, have similar laws regarding disclosure of public records.

So if you want the map of the wildlife refuge that now occupies your grandmother's homestead or a copy of the tape of your uncle's interrogation by the FBI, use the magic word, FOIA.

The foregoing is for educational purposes only and does not constitute legal advice. If you have a problem of a legal nature, seek legal counsel.


Moultrie Creek said...

Great article, Craig!

In addition to FOIA for federal records, many states have similar laws for their records - like Florida 's "Sunshine" law. These may also be worth pursuing for local issues that had an impact on a family member.

Colleen said...

Craig ... This was very informative! Thanks for posting it!