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Freedom of Information Act (FOIA)

Reference Guide


1. Introduction

The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, section 552, was enacted in 1966 and provides that any person has the right to request access to federal agency records or information. All agencies of the United States government are required to disclose records upon receiving a written request for them, except for those records that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court. The federal FOIA does not, however, provide access to records held by state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local records; state agencies should be consulted for further information about their access procedures.

This Reference Guide is designed to familiarize you with the specific procedures for making a FOIA request to the United States Department of Agriculture (USDA), Office of the Assistant Secretary for of Civil Rights (OASCR).

It is important to understand that there is no central office in the government that processes FOIA requests for all federal agencies. Each agency responds to requests for its own records. Therefore, before sending a request to OASCR you should determine whether this agency is likely to have the records you are seeking.

Other general sources of information about how to make a FOIA request include:

  • "Your Right to Federal Records," is available for fifty cents per copy from the Consumer Information Center, Department 319E, Pueblo, CO 81009. This publication also can be accessed electronically at: www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm.
  • "A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records," is published by the Committee on Government Reform and Oversight of the House of Representatives. It is available for sale for $5.00 from the U.S. Government Printing Office, stock number 052-071-01230-3. It also can be accessed electronically at: http://www.tncrimlaw.com/foia_indx.html

II. Access to Certain Records Without a FOIA Request

All agencies make certain types of records, created by the agency on or after November 1, 1996, available electronically. If you have access to the internet, you will not need to make a FOIA request to obtain access to these records. Specific records that can be found on the internet include:

  1. final opinions and orders made in adjudicating cases*;
  2. final statements of policy and interpretations that have not been published in the Federal Register;
  3. administrative staff manuals and instructions to staff that affect a member of the public;
  4. copies of records that have been the subject of a FOIA request and that are of sufficient public interest or curiosity that the agency believes other persons are likely to request them; and
  5. the agency's annual FOIA report - which includes such information as the number of requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the agency's handling of FOIA requests.

* The Final Agency Decisions issued by OASCR are not posted due to privacy concerns.

OASCR's FOIA homepage can be accessed at: http://www.ascr.usda.gov/foia_cr.html This site includes our annual FOIA reports, information on FOIA exemptions, where and how to submit a FOIA request or appeal, and a sample FOIA request letter.

III. Where to Make a FOIA Request

Your request must be in writing. Indicate that you are making a request under FOIA, and send the request to the following address:

VIA MAIL:
Director
USDA Office of Adjudication
1400 Independence Avenue, SW
Washington, DC 20250-9410

VIA FACSIMILE: (202) 720-0953

VIA E-MAIL: ascrfoia@usda.gov
(NOTE: While e-mail attachments are often an important and legitimate means of conducting business, they also have the potential to cause great harm to our e-mail infrastructure, as well as to individual workstations. Please place the text of your FOIA request into the 'body' of the email message.)

IV. How to Make a FOIA Request

A FOIA request can be made for any agency record. This does not mean, however, that the Office of the Assistant Secretary for Civil Rights will disclose any record sought. There are statutory exemptions that authorize the withholding of information of a sensitive nature. When the Office of the Assistant Secretary for Civil Rights does withhold information from you, it must specify which exemption of the FOIA permits the withholding. FOIA does not require agencies to do research, to analyze data, to answer written questions, or to create records in order to respond to a request.

Although certain information may be required from a FOIA requester, no special form is required by OASCR . However, an individual may choose to use our sample FOIA request letter. Requests must be in writing, either handwritten or typed. Requests may be mailed, faxed or sent via e-mail.

Whenever you request information about yourself, you may be asked to provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person that you claim to be. This will ensure that private information about you is not disclosed to anyone else. When submitting a Privacy Act (PA) request, please use our Sample Privacy Act Requester Letter.

When making your request, you should be as specific as possible with regard to names, dates, places, events, subjects, etc. You do not have to give a requested record's name or title, but the more specific you are about the record or type of records requested, the more likely it will be that the agency will locate those records.

When OASCR receives your FOIA request, we will send you a letter acknowledging the request and assigning it a control number. If you do not provide the necessary information, OASCR will not process your request, but will advise you of what additional information is required.

Under certain circumstances, you may be entitled to receive more information under the PA than under the FOIA. Under the FOIA, anyone can request any agency record. PA requests are more limited and can be made only by U.S. citizens or aliens lawfully admitted for permanent U.S. residence, who are seeking information about themselves, which is in a system of records maintained under their names or other personal identifiers. Even if a request does not mention the PA, OASCR automatically treats requests as being made under both the FOIA and the PA whenever it is appropriate to do so. In this way, requesters receive the maximum amount of information available to them by law.

V. Response Times

Under the statute, all federal agencies are required to respond to a FOIA request within twenty working days, excluding Saturdays, Sundays, and legal holidays. This period does not begin until the request is actually received by the office that maintains the records sought. An agency is not required to send out the releasable documents by the last business day; it can send you a letter informing you of its decision and then send out the documents within a reasonable time afterward.

Under the FOIA, an agency may extend the response time for an additional ten business days when:

  1. the agency needs to collect responsive records from field offices;
  2. the request involves a "voluminous" amount of records that must be located, compiled, and reviewed; or
  3. the agency must consult with another agency that has a substantial interest in the responsive material. When such a time extension is needed, the agency may notify you of this in writing and offer you the opportunity to modify or limit your request.

When a determination on your request is not made within the deadline described above and you have not agreed to a different response deadline, you may file suit in federal court to obtain a response. If, however, the court concludes that you have unreasonably refused to limit your request or to accept an alternate timetable for response, the court may find that the agency's failure to comply within the statutory time period is justified. The court also may approve a delay if it concludes that the agency is experiencing an unexpected, substantial increase in the number of requests received. In addition, the court may excuse the lack of a timely response if the agency demonstrates that it has a backlog of requests on a first-come/first-served basis, and that it is making reasonable progress in reducing its backlog. In such cases, the court may postpone its consideration of your lawsuit until the agency reaches your request in its processing backlog.

OASCR has established a FOIA Requester Service Center in compliance with Executive Order 13392: Improving Agency Disclosure of Information. (http://a257.g.akamaitech.net/7/
257/2422/01jan20051800/edocket.access.gpo.gov/
2005/pdf/05-24255.pdf) The FOIA Requester Service Center is the initial point of contact for FOIA requesters to obtain information concerning the status of their request, and information about the agency's FOIA response. For more information contact:

FOIA Requester Service Center
Telephone number: (202) 720-5212
Fax: (202) 690-7442
E-mail: ascrfoia@usda.gov

Requesters who have concerns about the service they are receiving from the FOIA Requester Service Center may raise their concerns with our FOIA Public Liaison:

Carl-Martin Ruiz
Telephone number: (202) 720-5212
Fax: (202) 720-0953
E-mail: ascrfoia@usda.gov

VI. Expedited Processing

Under certain conditions, you may be entitled to have your request processed on an expedited basis. However, you should realize that whenever a FOIA request is expedited for a particular requester, it results in an additional delay for previous requesters who have been waiting for a response. Therefore, in an effort to treat all requesters equitably, OASCR ordinarily will process a FOIA request ahead of others only in cases in which there will be a threat to someone's life or physical safety, or where an individual will suffer the loss of substantial due process rights if the records are not processed on an expedited basis.

The FOIA also requires that requests be processed on an expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. Requests are not expedited under this provision merely because the requester is a representative of the news media.

A statement setting forth the reasons your request should be expedited must accompany all requests for expedited processing. You should certify that the reasons you have given are true and correct. The agency will be required to notify you of its decision whether to grant expedited processing within no more than ten days after receiving your letter. If the agency denies your request for expedited processing, you will be advised of your right to submit an administrative appeal of that denial.

VII. Fees

There is no initial fee to file a FOIA request. However, an agency is entitled to charge certain fees, which depend on the category of requester you fall into. For the purposes of fees only, the FOIA divides requesters into three categories:

  • Commercial requesters may be charged fees for searching for records, processing the records, and photocopying them.
  • Educational or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses, after the first 100 pages of copies.
  • Requesters who do not fall into either of these two categories are not charged for processing; they are charged only for record searches and photocopying - and there is no charge for the first two hours of search time or for the first 100 pages of photocopies.

OASCR currently charges 20 cents per page for photocopying. In all cases, if the total fee does not exceed a minimum amount, currently $25.00, OASCR will not charge any fee at all.

You should always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, you will be asked to express your commitment to pay the estimated fees and the processing of your request will be suspended until you agree to do so. You ordinarily will not be required to actually pay the fees until the records have been processed and are ready to be sent to you. If, however, you have failed to pay fees within 30 days of billing, or if the estimated fees exceed $250, you may be required to pay the estimated fees before the records are processed. If you agree to pay fees and then fail to do so within 30 days of billing, you may be charged interest on your overdue balance and OASCR will not process any further requests from you until payment has been made in full. If you agree to pay fees for searching for records, be aware that you may be required to pay such fees even if the search does not locate any responsive records or, if records located are withheld as entirely exempt.

VIII. Fee Waivers

If you expect or are advised that a fee will be charged, you may request a waiver of those fees. In order to determine if you are eligible for a fee waiver, you will be asked to address the fee waiver factors. Fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records on themselves usually are denied under this standard because such disclosures usually will not result in any increase of the public's understanding of government operations and activities. In addition, a requester's inability to pay fees is not a legal basis for granting a fee waiver.

IX. Initial Request Determinations

Once OASCR has processed your request and any fee issues have been resolved, the agency will send you a written initial determination. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions, or three exclusions (reasons for which an agency may withhold records from a requester). The determination letter will advise you of whether any information is being withheld pursuant to one or more of the exemptions. When a page is being withheld in its entirety, OASCR will either specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information.

The exemptions authorize federal agencies to withhold information covering:

  1. classified national defense and foreign relations information;
  2. internal agency rules and practices;
  3. information that is prohibited from disclosure by another federal law;
  4. trade secrets and other confidential business information;
  5. inter-agency or intra-agency communications that are protected by legal privileges;
  6. information involving matters of personal privacy;
  7. certain types of information compiled for law enforcement purposes;
  8. information relating to the supervision of financial institutions; and
  9. geological information on wells.

The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security matters. Even if information may be withheld under the FOIA, the agency may disclose it as a matter of administrative discretion if it is not prohibited by any law and would not cause any foreseeable harm, although the agency is not legally obligated to do so.

X. Appeals

You may file an administrative appeal if you:

  • disagree with the agency's withholding of information or you believe that there are additional records responsive to your request that the agency failed to locate.
  • have requested expedited processing or a fee waiver and the agency has not granted your request.
  • disagree with a determination that a record does not exist, that a record is not readily reproducible in the form requested, that the requested information is not a record subject to the FOIA, or any disputed fee matter.

Requesters will be advised of their right to file an appeal in the initial determination letter sent by OASCR or in the letter denying a request for expedited processing or a fee waiver. The appeal must be received in writing within 45 days from the date of the agency's determination letter. Both the front of the envelope and the appeal letter should contain the notation "Freedom of Information Act Appeal."

There is no specific form or particular language needed to file an administrative appeal. It is helpful if you include the initial request number that OASCR assigned to your request and the date of the response. You may explain the reasons why you disagree with the agency's action, but a simple statement that you are appealing the decision ordinarily is sufficient. If, however, you are appealing because you believe there are additional records that have not been located in response to your request, you should specify why you think such records exist and, if possible, where you believe they might be located.

XI. Judicial Review

If you still believe that OASCR has not handled your FOIA request in accordance with the law after your appeal has been decided, you have the right to challenge the agency's action in a lawsuit filed in federal court, through the litigation process known as "judicial review." Before doing so, you ordinarily will be required first to have filed an administrative appeal and to have received a response. However, if OASCR fails to respond to either your initial request or your appeal within the time limits discussed above, you may file suit as soon as the time limits have expired. To initiate a court action, you may file suit in a federal district court in any of the following places:

  1. where you reside;
  2. where you have your principal place of business (if any);
  3. in the District of Columbia; or
  4. where the records are located, if they are not located in the District of Columbia.

The final administrative appeal determination letter will advise you of your right to seek judicial review and will specify how to do so. You have six years to file suit from the date of the agency's final determination letter.