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Freedom of Information Act (FOIA: GEN, PRA,EXC)
Jeremiah
nielt2
Terms in this set (31)
The Freedom of Information Act (FOIA) was passed for the purposes of opening
What is the Freedom of Information Act? agency records to public inspection. This Act also established a procedure to ensure
that agencies comply with the requirements of making their records public.
The FOIA was codified as part of the APA at 5 U.S.C. § 552. Unlike other sections of the
What is the relationship between the
course and the relevant APA sections, most administrative law professors will simply
Freedom of Information Act and the APA?
refer to this body of legislation as FOIA rather than referring to the section of the APA.
The two most common issues under the FOIA are the following:
1. Whether the material sought as part of a FOIA request constitutes an agency record
Analyzing FOIA Problems within the meaning of the statute; and
2. Whether one of the FOIA's exceptions applies to this case, allowing the agency to
refuse to disclose the information.
Can anyone requests documents under the Yes. The language of the FOIA appears to place no limitations on who can request
FOIA? documents
When making a request for disclosure under No. The act merely requires that requests "reasonably describe" the records sought and
the FOIA, must the person request that they be submitted in accordance with the agency's published procedures.
identifiable documents?
Under the FOIA, agencies are required to publish in the Federal Register descriptions
What information does the FOIA require of their structure and operating procedures, their substantive rules and interpretations,
agencies to publish in the Federal Register? and the methods by which the public can obtain further information from the agencies,
according to APA §552(a)(1)
No. For the purposes of the FOIA, there are two requirements that must be satisfied for
Are all records located on an agencies requested materials to qualify as agency records. First, the requested materials must
premises considered agency records for the have been created or obtained by the agency in the course of performing the agency's
purposes of the FOIA? official duties. Second, the agency must be in control of the requested documents at
the time of the FOIA request.
After receiving a FOIA request, how long The agency has 20 working days to inform the requester of its decision to grant or deny
does the agency have to make a access to the materials, and if access is granted, it must occur promptly thereafter.
determination whether or not it is going to
comply with the request?
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Agencies are allowed to charge for document review, in addition to search and
duplication costs, if the records are requested for commercial use. For noncommercial
May an agency charge a requesting party
requests by the news media, or educational and scientific organizations, the agencies
fees incurred in resolving issues of law or
can charge only duplication fees. On all other noncommercial requests, the agency can
policy while processing the request?
charge duplication and search fees (but not for documents review). Agencies can
choose to waive fees.
A recent decision, Maracich v. Spears, held that parties who obtain information via a
FOIA request could still be subject to other legal prohibitions against obtaining or
Can a party that obtains information legally
using such information. In Maracich, plaintiff attorneys used a FOIA request to get client
through a FOIA request be subject to civil or
names from the state DMV for a class action against car dealerships. Prospective clients
criminal liability under other statutes for
who received solicitation letters sued the lawyers for violating the federal drivers
obtaining or using that information?
privacy protection act. The Supreme Court held that the lawyers could be liable under
the DPPA for obtaining the info via FOIA request and using it.
If one person submits a FOIA request, which Yes, as long as the subsequent parties were not part of the original litigation. In Taylor v.
the agency denies, and the agency prevails Sturgell, the Supreme Court rejected the concept of virtual representation for
in litigation over the request, can subsequent purposes of FOIA suits, which lower courts had used to bar subsequent parties from
individuals submit requests for the same requesting (and litigating over) the same information, especially when using different
information? legal arguments.
Penn E. Pincher submitted a request for Yes. Pincher will probably lose this case. Agencies are allowed to charge for document
documents to the federal trade commission review, in addition to search and duplication costs if the records are requested for
(FTC). Because Pincher was entitled to the COMMERCIAL USE. For non commercial requests by the news media or educational
documents under the FOIA, the FTC and scientific organizations, the agencies can charge only duplication fees. On all other
complied with his request. Along with the noncommercial requests, the agency can charge duplication and search fees (but not
documents, however, FTC also sent a bill to fees for document review). Agencies can choose to waive fee.
Pincher for the time spent searching for and
duplicating the documents. Pincher,
extremely unhappy about possibly having to
part with his money, seeks judicial review of
the FTC copy charges. Can the agency
charge him these costs?
Mary Jane is currently serving time in a The FOIA places the burden of proof on the government agency, according to APA
federal penitentiary for drug related §552(a)(4)(b). The agency must either prove that the requested materials are statutorily
charges. She submitted a FOIA request to exempt from disclosure, or that the agency cannot find or identify the requested
the Drug Enforcement Agency (DEA) for documents despite a reasonable search.
specific documents compiled by the DEA in
the course of its investigation of her illicit
drug activities. The DEA, without
explanation, refuses to comply with Mary
Janes request. Mary brings a claim under the
FOIA alleging the documents were
wrongfully withheld. Who carries the burden
of proof in litigation against the DEA?
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