Freedom of Information (FOIA) and Privacy Act

The Freedom of Information Act generally provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.

Enacted in 1966, the FOIA established for the first time an effective statutory right of access to government information. The principles of government openness and accountability underlying the FOIA, however, are inherent in the democratic ideal: "The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." The Supreme Court has emphasized that "official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose."

This was emphasized also in the statement of FOIA policy issued by President Clinton on Oct. 4, 1993, in which he called upon all federal agencies to renew their commitment to the Act and to enhance its effectiveness as a vital mechanism of government openness and accountability:

"For more than a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form of government. The statute was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process."

On Monday, December 31, 2007, President Bush signed into law the following changes to the Freedom of Information Act:

S. 2488, the "Openness Promotes Effectiveness in our National Government Act of 2007'", which amends the Freedom of Information Act (FOIA) by: (1) establishing a definition of "a representative of the news media;" (2) directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund; (3) prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and (4) establishing an Office of Government Information Services in the National Archives and Records Administration to review agency compliance with FOIA.

Any person can file a FOIA request, including U.S. citizens, foreign nationals, organizations, universities, businesses and state and local governments. Federal employees may, as private citizens, request records under the FOIA. These requests must be prepared at their own expense and on their own time. They may not use Government equipment, supplies or postage.

The FOIA does not require Federal Agencies to answer questions, render opinions, or provide subjective evaluations. Requesters must ask for existing records, such as those mentioned above.

There are seven reasons why the Army may not release a record requested under FOIA:
1. The request is transferred to another Army Component or Federal Agency.
2. The Army component determines through knowledge of its files and reasonable search efforts that it neither controls nor otherwise possesses the requested record.
3. A record has not been described with sufficient detail to enable the Army Component to locate it by conducting a reasonable search.
4. The requestor has failed unreasonably to comply with procedural requirements, including payment of fees, imposed by the FOIA and AR 25-55.
5. The request is withdrawn by the requestor.
6. The information requested is not a record within the meaning of the FOIA and AR 25-55.
7. The record is denied in whole or part in accordance with procedures set forth in the FOIA and AR 25-55.

The following types of records may be withheld by the IDA in whole or in part from public disclosure under the FOIA, unless otherwise prescribed by law:
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 of DoD or any of its components whose release would allow the circumvention of these records thereby substantially hindering the effective performance of a significant function of the DoD component.
3. Records that a statute (or law) specifically exempts from disclosure by terms that permit no discretion on the issue, or in accordance with criteria established by that statute for withholding or referring to particular types of matters to be withheld.
4. Trade secrets and commercial or financial information obtained from a private source which would cause substantial competitive harm to the source if disclosed.
5. Internal advice, recommendations, and subjective evaluations, as contrasted with factual matters, that are reflected in records pertaining to the decision-making process of an agency and records pertaining to the attorney-client privilege.
6. Records which, if released, would result in a clearly unwarranted invasion of personal privacy.
7. Records or information compiled 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 and data (including maps) concerning wells.

When information is withheld, whether partially or fully, this constitutes a denial under FOIA. A request may be denied for one or more of the aforementioned exemptions. When this happens, you will be notified in writing by an Initial Denial Authority (IDA) and given appeal rights. IDAs are denial authorities for records that fall under their functional areas. If your request is denied partially you will receive information that has portions deleted. Redacted or sanitized records have the denied information removed from where it was originally located within the document. There are usually two methods for sanitizing a document; one is to blacken out the denied information, and the other is to completely remove it.

The FOIA allows fees to be charged to requesters based upon their fee category. Any fees for previous FOIA requests must be paid in full prior to processing new requests. Waivers or reductions in fees may 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 operations and activities of the Army.
The FOIA requires that requesters be placed into one of the below fee categories:

• Commercial. Requesters who seek fee 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.
• Educational Institution. 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 Institution. A non-commercial scientific institution is operated solely for conducting scientific research. The records must be sought in furtherance of scientific research, the results of which are not intended to promote any particular product or industry. 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 another category are considered "other" requesters, and normally make requests for agency records for their personal use. "Other" requesters receive two hours search, all review costs, and the first 100 pages at no cost. All requesters should submit a willingness to pay fees statement regardless of the fee category, however, this does not mean you will be charged fees. Except for commercial requesters whose fees total more than $15, waivers are always considered. Fee waivers may be granted when the disclosure of the records is in the public interest and the records are likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. The following factors are weighed in 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 from the disclosure.
  • The significance of the contribution to the public understanding.