Overview of the FOIA
The Freedom of Information Act (FOIA), establishes a presumption that all records of governmental agencies are publicly accessible to unless they are specifically exempted from disclosure by FOIA or another statute.
FOIA requires different types of disclosures:
- Federal Register Publication Requirements
Section 552(a)(1) requires agencies to publish in the Federal Register descriptions of agency organization; procedures for the public to obtain information; statements of agency function; rules of procedure; descriptions of agency forms; substantive rules of general applicability and statements of general policy; and any changes in material required to be published.
- Public Availability Requirements
Section 552(a)(2) requires that agencies make available for public inspection or copying (or for sale) certain basic agency records that, while not subject to the publication requirement of § 552(a)(1), must be made available in agency reading rooms and (for records created on or after November 1, 1996) in "electronic" reading rooms accessible by computer. Four categories of records are subject to this disclosure requirement: (a) final opinions in agency adjudications; (b) statements of policy and interpretations not published in the Federal Register; (c) administrative and staff manuals that affect the public; and (d) records processed and disclosed under a FOIA request that “the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.”
- Records Disclosed on Request
All other records unless exempt from required disclosure under § 552(b) or excluded from FOIA coverage under § 552(c) must be disclosed upon request. See APA § 522(a)(2). Disclosures must be made pursuant to published agency rules. The RRB’s FOIA regulations are located at 20 CFR § 200.4. In addition, the RRB issues an annual report under the FOIA. Copies of the regulations and/or annual report may be obtained by writing to the General Counsel. The annual report is also available on the RRB's website.
Exemptions
FOIA requires that all government records must be published or made available to the public unless they fall into one of the nine enumerated exemptions in § 552(b). The exemptions are not mandatory bars to disclosure, and therefore an agency – unless otherwise prohibited by a more specific statute – may exercise its discretion to disclose exempted information.
- Exemption 1 covers documents that are “specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order.”
- Exemption 2 protects from disclosure information “related solely to the internal personnel rules and practices of an agency.”
- Exemption 3 protects information specifically exempted from disclosure by statute, provided that such statute (a) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or (b) established particular criteria for withholding or refers to particular types of matters to be withheld. Section 12(d) and 12(n) of the Railroad Unemployment Insurance Act (45 U.S.C. §§ 362(d) and (n) are incorporated into the Railroad Retirement Act. These provisions prohibit disclosure of personally identifiable information unless one of the exemptions contained in those sections are met. These statutes are Exemption 3 statutes.
- Exemption 4 applies to “trade secrets” and to “commercial or financial information obtained from a person and privileged or confidential.”
- Exemption 5 shields from mandatory disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
- Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
- Exemption 7 protects records or information complied for law enforcement purposes.
- Exemption 8 applies to matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulations or supervision of financial institutions.”
- Exemption 9 applies to “geological and geophysical information and date, including maps, concerning wells.”
How the FOIA Works
FOIA provides that “any person,” including corporations, associations, and foreign persons, entities and governments, may request agency records. Agency compliance is subject to the requester's willingness to pay search, copying, and for commercial requesters, review fees unless waived by the agency. FOIA does not impose any “need to know” requirement on requesters, and an agency must disclose any requested information that is not otherwise exempted.
- Definition of Agency
FOIA applies to any “agency,” which is defined to include any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), including any independent regulatory agency. The RRB is an independent federal agency in the executive branch of the federal government.
- Application to Agency Records
FOIA applies only to “agency records.” Agency records are documents that (1) are either created or obtained by an agency, and (2) are in that agency's physical possession and under its control at the time of the FOIA request.
Records held outside the government but subject to an agency right of access are not agency records. FOIA does not compel government agencies to create records. In very rare circumstances courts may require agencies to attempt to recreate destroyed records or to provide an explanation for records containing codes or notations that mask the meaning of the records. “Records” include electronic and other media.
- Specificity and Form of Request
Requesters must “reasonably describe” records sought so as to “enable a professional employee of the agency who is familiar with the subject area of the request to locate the records with a reasonable amount of effort.” Requesters must also comply with all published rules of the agency.
- Fees and Fee Waivers
Subject to some limitations, agencies may charge fees, according to published fee schedules, for searching for, reviewing, and copying the requested agency records. If a noncommercial requester makes the request, fees may only be charged for search time and copying. If the request is made by an educational or noncommercial scientific institution or a representative of the news media, fees may normally only be charged for search time. Additionally, noncommercial requesters may not be charged for the first 100 pages of document copying or for the first two hours of search time. Agencies reduce or waive fees where the disclosure of information is likely to contribute significantly to public understanding or the government activities and is not primarily in the commercial interest of the requester.
- Time for Administrative Determinations; Administrative Expedition
An agency is ordinarily required to make its initial determination within 20 working days of a receipt of a request for information, and to make a determination on any appeal within 20 working days of receipt of the appeal. In “unusual circumstances,” an agency can extend these deadlines by an additional 10 working days. A requester can obtain expedited processing of a request upon a showing of “compelling need” or in other cases determined by the agency to be appropriate. An agency must act on a request for expedited processing within 10 working days of its receipt. Where an agency fails to comply with the statutory deadlines, the requester may treat the delay as a denial and either appeal administratively or litigate in federal courts.
- Search Required
Agencies must make reasonable efforts to conduct a search for requested records. The agency cannot limit its search to only certain places if additional sources are likely to turn up the information requested. If a requester challenges the adequacy or thoroughness of an agency's search for records, the agency bears the burden of proving the reasonableness of its efforts and must provide details of the procedures used in its search.
- Segregation Requirement
Where a requested record contains exempt and nonexempt information, an agency must disclose nonexempt portions of the record that can be reasonably segregated. Determinations of whether record portions are reasonably segregable are based on the intelligibility of the nonexempt material and the burden of editing or segregating it.
- Explanation Required
Where an agency denies a request in whole or in part, the agency must provide the requester with an indication of which information will not be released, a statement of the reasons for withholding the records, a notice of the requester's right to appeal to the head of the agency, and a statement of the names and titles or positions of each person responsible for the denial.
- Administrative Appeal
A requester may appeal to the head of the agency a denial of a request, an inadequate agency search for records, an agency failure to respond to a request within the statutory time limits, the imposition of excessive fees, or the agency's denial of a request for waiver or reduction of fees. A requester may obtain expedited review upon a showing of “exceptional need or urgency.”
Judicial Review
The denial of an administrative appeal may be reviewed in the applicable United States District Court.
Jurisdiction
United States District Courts have jurisdiction to enjoin an agency from withholding agency records and to order production of any improperly withheld records. District courts also have jurisdiction to determine whether an agency has charged excessive fees for a FOIA request and whether the agency has improperly denied a fee waiver request. Courts may also have jurisdiction to review agency failure to publish information required by § 552(a)(1) and refusal to make information available for inspection and copying under § 552(a)(2).
Exhaustion of Administrative Remedies
FOIA requesters must exhaust administrative remedies before filing FOIA suits.
A requester “shall be deemed to have exhausted his administrative remedies ... if the agency fails to comply with the applicable time limit provisions.” If the agency responds to an initial request after the 20 working days permitted for a response to the request, but before the filing of a lawsuit, the requester has to pursue an administrative appeal before filing a lawsuit. Even if an agency fails to meet the time limits and the requester brings a lawsuit suit, courts may stay the case, retain jurisdiction and allow the agency additional time to process the request if the agency can show that “exceptional circumstances exist and the agency is exercising due diligence in responding to the request.” Exceptional circumstances exist where the agency “is deluged with a volume of requests for information vastly in excess of that anticipated by Congress” and “the existing resources are inadequate to deal with the volume of such requests within the time limits” of the Act.
Statute of Limitations
The general federal statute of limitations of six years applies to FOIA suits and begins to run once the requester has, or is deemed to have, exhausted his administrative remedies.
Venue
Proper venue for a FOIA action is in the federal district court in which the plaintiff resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia.
Burden of Proof
The agency always has the burden of proving (1) that the records in question or any parts withheld are exempt from disclosure and (2) that each document requested either has been produced, is unidentifiable, or is wholly exempt from disclosure.
De Novo Review
Agency decisions to withhold information are reviewed de novo by the courts.