THE FREEDOM OF INFORMATION ACT — BASIC PRINCIPLES GOVERNING ACCESS TO INFORMATION IN RECORDS UNDER THE CUSTODY OF FEDERAL AGENCIES.

DANIEL MARTIN BELLEMARE

ATTORNEY AT LAW*

*Quebec and Vermont Bar

INTRODUCTION

The Freedom of Information Act (5 USC § 552) (FOIA) is a statute adopted by Congress which became law in 1966. FOIA provides a right of access to information contained in records under the custody of an agency of the federal government (“agency”). The right of access to information in federal agencies’ records (“right of access”) is broad, but not unlimited. Nine statutory exemptions fix limitations on the right of access provided by law. Administrative and judicial remedies ensure that the right of access is not unduly restricted.

I. FOIA REQUEST

Records of an agency shall be made “promptly available” upon request. 552 (a) (3) (A). This obligation rests on the several departments of the executive branch of the federal government. 552 (f) (1). The right of access extends basically to information “maintained by an agency in any format”, 552 (f) (2) (A), as well as to those in records stored by a third-party on behalf of an agency “under Government contract”. 552 (f) (2) (B). Nevertheless, an agency has only an obligation to divulge information in records under its custody. Kissinger v. Reporters Committee, 445 U.S. 136, 150-151 (1980) (Rehnquist J.).

A FOIA request (“request”)must contain a sufficient or “reasonable” description of requested records. The requester must also complywith rules adopted by an agency as to “time, place, fees […], and procedures” for making a request. 552 (a) (3) (A). “[A]s a general rule”, FOIA places no obligation on a FOIA requester (“requester”) to demonstrate a need or justification for being granted access to information in records under the custody of an agency. National Archives and Records Administration v. Favish, 541 U.S. 157, 172 (2004). Similarly, the identity of the requester is
irrelevant to make a determination whether to produce or withhold requested records. Id. at 172.

The scope of the right of access is related to FOIA’s purpose. “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.” (reference and case citation omitted) National Labor Relations Board v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978) (Marshall J.). FOIA provides a statutory right of access to “[o]fficial information that sheds light on an agency’s performance of its statutory duties”. United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989).

FOIA “defines a structural necessity in a real democracy.” Favish, 541 U.S. at 172. “FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny”. Reporters Committee for Freedom of the Press, 489 U.S., at 774. In other words, FOIA was enacted to promote government’s accountability, not access to “information about private citizens that happen to be in the warehouse of the Government.” (italics in text omitted) ibid.

An agency has twenty (20) days to make a determination on a request. 552 (a) (6) (A) (i). However, should “unusual circumstances” prevent compliance with the time-limit set by law, an agency may, upon written notice, extend for a period of ten “working days” the time allowed for responding. 552 (a) (6) (B) (i). Although agencies have twenty days to process a request, they often take more time to make an initial determination. Conversely, a requester may demand that an agency process a request expeditiously. 5 USC 552 (a) (6) (E).

An agency has twenty (20) days to make a determination on a request. 552 (a) (6) (A) (i). However, should “unusual circumstances” prevent compliance with the time-limit set by law, an agency may, upon written notice, extend for a period of ten “working days” the time allowed for responding. 552 (a) (6) (B) (i). Although agencies have twenty days to process a request, they often take more time to make an initial determination. Conversely, a requester may demand that an agency process a request expeditiously. 5 USC 552 (a) (6) (E).

If information in records has a “public interest” dimension, a requester may have access to it free of charges, or at reduced charges. Dissemination of information in requested records is in the public interest if: (1) it is “likely to contribute significantly” to educate the public on how public officials discharge their duties under the law; and (2) the information is “not primarily in the commercial interest of the requester”. 552 (a) (4) (A) (iii). Failure to comply with the twenty-day time-limit set in FOIA for processing a request has direct implications, as once it expires an agency is barred from collecting search or duplication fees. 552 (a) (4) (A) (viii) (I).

II. FOIA EXEMPTIONS —

Specific provisions in FOIAexempt an agencyfrom disclosing information in agencyrecords. First, agencies that are part of the intelligence complex of the United States established by the National Security Act of 1947 have an obligation to not disclose information to foreign governments or their representatives. 5 U.S.C. 552 (a) (3) (E). Second, records containing information pertaining to nine enumerated subject-matters are exempt from disclosure. The exemptions are enumerated at 5 U.S.C. 552 (b).

FOIA Exemption 1 (5 U.S.C. § 552 (b) (1)). FOIA exempts secret information pertaining to national defense or foreign policy. To be exempt, the information must be classified under an executive order. On December 29, 2009 President Barack Obama signed and issued Executive Order 13526. The executive order classifies information unavailable to the public. Another FOIA provision supplements Exemption 1. The Federal Bureau of Investigation may treat as exempt records whose very “existence” is classified, if they contain information as to foreign intelligence, counterintelligence, or international terrorism. 5 U.S.C. 552 (b) (3).

FOIA Exemption 2 (5 U.S.C. § 552 (b) (2)). An agency “internal personnel rules and practices” are exempt. Exemption 2 prevents disclosure of information in records pertaining e.g. to labor relations or human resources of an agency. Milner v. Department of Navy, 562 U.S. 562, 565 (2011) (Kagan J.) citing Department of the Air Force v. Rose, 425 U.S. 352 (1976). The exemption preserves administrative efficiency. Id. at 566. The information requested must be “related solely” to “internal personnel rules and practices” of an agency to enjoy exempt status under Exemption 2.

FOIA Exemption 3 (5 U.S.C. § 552 (b) (3)). The third exemption concerns a situation where a statute specifically forbids disclosure of information in records of an agency. This exemption is straightforward. To fall under Exemption 3, a specific provision in a federal statute must “specifically exempt” records containing one or several sets of information. The statutory prohibition must either: (1) leave no administrative discretion as to disclosure; or (2) list factors to be taken into consideration in deciding non-disclosure or specify the type of information which is exempt from disclosure.

FOIA Exemption 4 (5 U.S.C. § 552 (b) (4)). Information compiled in records or documents transmitted to an agency by a third-party shall not be disclosed if it contains “trade secrets”, “commercial”, or “financial” information; such information must be either “privileged” or “confidential”. The standard of non-disclosure under Exemption 4 is objective: Commercial or financial information is exempt when it is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy”. Food Marketing Institute v. Argus Leader Media, 588 U.S. __ (2019) slip op. at 12 (Gorsuch J.). Then, the information is “confidential” for purposes of Exemption 4.

FOIA Exemption 5 (5 U.S.C. § 552 (b) (5)). FOIA exempts also information in inter- orintra-agency memoranda less than 25 year-old. A requester seeking access to information in memoranda is in the same position as a plaintiff filing a civil action against an agency. Thus, an agency may refuse to disclose the information if privileged under the rules governing discovery in
civil ligation — “deliberative process privilege”; “attorney-client privilege”; and “attorney work product privilege”. United States Fish and Wildlife Serv. v. Sierra Club Inc., 592 U.S. __ (2021) slip op. at 5 (Barrett J.).

Nevertheless, a “final agency decision” as well materials and information in support of it must be disclosed. Sierra Club Inc. slip op. at 6 (Barrett J.) . A document is final if “it communicates a policy on which the agency has settled”. Ibid. The “real operative effect” standard governs finality, a functional inquiry. Sierra Club Inc. slip op. at 8 and 10 (Barrett J.). This standard imposes a totality of circumstances inquiry. If an agency attempts to disguise “a functionally final decision in draft form” , Exemption 5 has no application. Sierra Club Inc. slip op. at 10-11 (Barrett J.).

FOIA Exemption 6 (5 U.S.C. § 552 (b) (6)). Exemption 6 prohibits disclosure of information pertaining to “personnel”, “medical files”, and “similar files” of an agency. Such information is exempt if disclosure thereof “would constitute a clearly unwarranted invasion of personal privacy”. The privacy interest wins if it outweighs the interest in public disclosure. Department of State v. Ray, 502 U.S. 164, 173-179 (1991) (Stevens J.). Since FOIA provides access to records of an agency as a matter of public accountability, the public interest served bydisclosure must relate to the fulfillment by an agency of its statutory mandate, not information private in nature or substance. Id. at 177-78.

FOIA Exemption 7 (5 USC § 552 (b) (7)). This exemption concerns compilations of lawenforcement “records or information” whose disclosure would have enumerated consequences: (1) “interfere with enforcement proceedings”; (2) jeopardize the right to “a fair trial or an impartial adjudication”; (3) “constitute an unwarranted invasion of privacy ”; (4) “disclose the identity of a confidential source”; (5) disclose “techniques for law enforcement investigations or prosecutions”; or (6) “endanger the life or physical safety of any individual”.

For Exemption 7 to apply, the records or information must be “compiled” by a federal law enforcement agency (“enforcement agency”). The requirement regarding the time of compilation is “when the response to the FOIA request must be made.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 155 (1989) (Blackmun J.). Exemption 7 serves several objectives. Firstly, preserve the privacy of individuals under pending or past investigation by an enforcement agency. Secondly, maintain the administration of justice. Finally, preserve the effectiveness of techniques of investigation used to track criminal activities.

An enforcement agencymaymake a temporarydetermination that enforcement records do not fall under FOIA’s scope if covered by Exemption 7 (A) (interference with law enforcement proceedings), this to preserve the ability of federal agencies to fight crime effectively. However, three conditions must be met: (1) a pending criminal investigation or criminal prosecution; (2) the target is unaware of the investigation; and (3) there is a likelihood of interference with criminal enforcement proceedings. But, such determination may last “only such time” as the above circumstances exist. 5 USC § 552 (C) (1).

Exemption 7 (D), exempts information as to a “confidential” source. The word “confidential” should not be equated with “total secrecy”. Department of Justice v. Landano, 508 U.S. 165, 174 (1993). A source is confidential if he or she “furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.” Id. Like in the case of § 7 (A), enforcement records do not fall under FOIA’s scope of disclosure if a requester seeks access to information on a police informant and the information is requested under the latter’s personal name or identifier, unless the identity of the informant has been made public. 5 USC § 552 (c) (2).

Exemption 7 (C) allows an enforcement agency to withhold records or information where disclosure “could reasonably be expected to constitute an unwarranted invasion of privacy”. This exemption provides a stricter guarantee against invasion of privacy than the one afforded under Exemption 6 which delineates privacy in terms of “would constitute a clearly unwarranted invasion of personal privacy”. U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 756 (1989) (Stevens J.).

The right of privacy in exemption Section 7 (C) may also extend to family members of a relative who is deceased. For instance, the Supreme Court held that “FOIA recognizes family members’ right to personal privacy with respect to their close relative’s death-scene images.” National Archives and Records Admin. v. Favish, 541 U.S. 157, 170 (2004). Family members have
a right of privacy distinct from the deceased’s. Ibid. at 167. Therefore, an agency may invoke the right of privacy of family members “to deny […] gruesome requests in appropriate cases.” Ibid. at 170.

Like a requester seeking access to information covered by Exemption 6, a requester seeking access to private information in a law enforcement record must “establish a sufficient reason for the disclosure.” Favish at 172. The requester must meet a twofold standard: (1) a “significant” public interest in disclosure, beyond pure curiosity; (2) and, a likelihood that disclosure would advance that interest. Id. Should a FOIA requester fail to meet the above standard, Exemption 7 C) prohibits disclosure. Finally, under Exemption 7 (C) corporations have no cognizable privacy interest. FCC v. AT&T Inc., 562 U.S. 397 (2011).

The exemptions listed in 552 (b) do not prevent disclosure of non-exempt information despite such information happens to be in records containing exempt information. If non-exempt information is “reasonably segregable” from exempt information, then the portion of non-exempt information must be disclosed, 5 U.S.C. 552 (b), unless it is “inextricably intertwined with exempt portions.” Kimberlin v. Dept of Justice, 139 F.3d 944; 329 U.S. App. D.C. 251; 1998 U.S. App. LEXIS 6899 at ***13 quoting Mead Data Central, Inc. v. United States Dep’t of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 260 (D.C. Cir. 1977).

Lastly, in addition to all the exemptions reviewed above, an agency “may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.” (references omitted) Gardels v. CIA, 689 F.2d 1100; 223 U.S. App. D.C. 88; 1982 U.S. App. LEXIS 25264 at **5 — so-called Glomar response. It aims at ensuring the protection of information in situations where to answer whether it exists or not would implicitly reveal the information requested.

III. REMEDIES —

Federal courts have jurisdiction to hear a civil action for judicial review of an adverse determination by an agency. 552 (a) (4) (B). A district court reviews de novo an adverse determination; it has jurisdiction to order production of non-exempt records. A defendant agency has the burden to prove that a record contain information whose disclosure falls under one or several exemptions enumerated in FOIA.

A FOIA requester must exhaust administrative remedies before seeking judicial relief. Availability of judicial remedy depends on whether the agency has made a final determination on a FOIA request within the twenty-day time-limit imposed by law. If the agency makes a final adverse determination within twenty days, an appeal lies to the agency’s head. 552 (a) (6) (A) (ii). On the other hand, if the Agency fails to comply with the statutory twenty-day time-limit, then the FOIA requester “shall be deemed to have exhausted [his] administrative appeal remedies”, and may file a civil action for judicial review in federal court. CREW v. FEC, 711 F.3d 180, 190; 404 U.S. App. D.C. 275; 2013 U.S. App. LEXIS 6540 at ***25. A district court may also issue a jurisdictionretention order in “exceptional circumstances”, which allows an agency more time for responding to a FOIA request. 552 (a) (6) (C) (I).

An agency opposing disclosure in federal court establishes that an exemption applies by way of affidavits. An affidavit by an official of an agency carries “substantial weight”. Should a record contain sensitive information, its content may be examined in camera, but only by the presiding judge. An agencymakes a case for non-disclosure by producing a so-called Vaughn index, “a system of itemizing and indexing that [correlates] the government’s refusal with the actual portions of the document.” Vaughn v. Rosen, 484 F.2d 820; 157 U.S. App. D.C. 340; 1973 U.S. App. LEXIS 8291 at **20, cert. denied, 415 U.S. 977 (1974). This procedure remedies, to a certain extent, the unequal positions of the parties in FOIA litigation, the agency having access to the information in the records requested while the requester has not.

FOIA vests a district court with the power to order an agency to further search its files for responsive records. An agency has a statutory responsibility to “make reasonable efforts to search for the records” in response to a FOAI request. 552 (a) (3) (C). Search means “to review, manually or by automated means agency records for the purpose of locating those records which are responsive to a request.” 552 (a) (3) (D). The sufficiency of a search is assessed under a reasonableness standard. Dibacco v. United States Army, 795 F.3d 178; 417 U.S. App. D.C. 441; 2015 App. LEXIS 13343 at ***34 (noting that an agency has a “FOIA duty to undertake reasonable search efforts.”)

To recover attorney fees and costs, plaintiff must have “substantially prevailed” in a civil action for judicial review. 552 (a) (4) (E) (I). In 2007, Congress amended FOIA to expand the regime of attorney fees and costs. The amendment makes the rule in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 600 (2001) (Rehnquist J.) (holding that a party having failed to secure “a judgment on the merits or a courtordered consent decree” is not a prevailing party) accord Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452 (D.C. Cir. 2002); 2002 U.S. App. LEXIS 9041; 351 U.S. App. D.C. 199, inapplicable in FOIA litigation.

Plaintiff substantially prevails if the court grants relief by way of “a voluntary or unilateral change in position by the agency”, provided the claim in the FOIA complaint “was not insubstantial.” 552 (a) (4) (E) (ii) (II). An attorney representing a person or entity pro bono, or qua in-house counsel, is eligible to reasonable attorney fee and costs award. On the other hand, a pro se litigant (attorney or non-attorney) is not eligible for a fee award. Baker & Hostetler v. United States, 473 F.3d 312; 374 U.S. App. D.C. 172; 2006 U.S. App. LEXIS 31454 at ***31-35.

CONCLUSION

This short exposé covers basic rules of access under FOIA. A right of access to information in records under the custody of federal agencies exists, subject to nine enumerated exemptions. Federal courts around the country hear civil actions for injunctive and declaratory relief challenging adverse determinations on access by federal agencies. FOIA litigation may present complex legal issues. Nevertheless, the regime of attorney fees and costs in FOIA provides an incentive for citizens to seek relief when an agency denies a FOIA request.

March 28, 2022.