Since 1967, the Freedom of Information Act (FOIA) has given Americans the right to request records from any federal agency. According to the Office of Information Policy (OIP), government agencies received 790,772 FOIA requests during the Fiscal Year 2020, and the demand for information remains strong.
What is FOIA?
FOIA is a federal law described as “the law that keeps citizens in the know about the government.” It provides any person with the legal right, enforceable in court, to obtain access to government information contained in executive branch agency records. The intent of FOIA is to increase the transparency related to the functions of U.S. government agencies, enabling the American public to identify issues and encourage Congress, agency officials, and the President to address them more easily.
FOIA applies only to federal agencies that fall under the executive branch — the Department of Defense, Department of Commerce, Department of Homeland Security, among others. However, agencies like the CIA, FBI, and EPA have their own equivalent law, as does each U.S. state.
FOIA Exemptions and Exclusions
Federal agencies must disclose any information requested under FOIA unless it falls under one of the following nine exemptions:
Information that is classified to protect national security
Information related only to an agency’s internal personnel rules and practices
Information that is forbidden from being disclosed by another federal law
Confidential or privileged financial or commercial information and trade secrets
Privileged communications occurring within or between agencies, including those protected by deliberative process privilege, attorney-work product privilege, or attorney-client privilege
Information that would invade another person’s privacy if disclosed
Information compiled for law enforcement purposes that reasonably would or could:
Interfere with enforcement proceedings
Deprive a person of a right to a fair trial or impartial adjudication
Constitute an unwarranted invasion of privacy
Disclose the identity of a confidential source
Disclose law enforcement investigation techniques and procedures
Endanger the life or safety of someone
Information related to the supervision of financial institutions
Geological information on wells
FOIA also provides special protections for three specific categories of law enforcement and national security records. The first exclusion protects the existence of an ongoing criminal investigation in certain circumstances, the second safeguards the existence of informant records, and the third, limited to the FBI, protects the existence of foreign intelligence, counterintelligence, or classified international terrorism records.
Responding to a FOIA Request
Agencies typically process requests in the order of receipt but must respond to requests within 20 business days. However, under FOIA, agencies may extend the response time for an additional ten business days if they need to collect records from field offices, the request involves “voluminous” amounts of records, or the respondent must consult with another agency to answer the request. If an extension is necessary, the requester will be notified and allowed to modify or limit the request.
Once the agency processes the request, they will send a responsive letter, along with the responsive documents, to the requester. The letter will advise whether any information is being withheld, according to one or more of the nine FOIA exemptions. If the respondent withholds entire pages, they will specify the volume of the materials being denied and notify the requester if records are not located or what issues led to their inability to comply with the request.
Administrative appeals can be filed with the Solicitor of Labor under certain circumstances:
If records responsive to the request were withheld
If the requester believes that there are additional records responsive to the request that the agency did not provide
If the agency did not process the request within the statutory time limits.
If their request for expedited processing or a fee waiver is denied
Using Ediscovery Software for Responding to a FOIA Request
While not identical, the workflows involved in responding to a FOIA request share many commonalities with the typical ediscovery process. Because of these similarities, a cloud-based ediscovery platform can streamline the FOIA response process. For example, the Everlaw platform does this by enhancing:
Speed. Users can create a new project from a template when a request comes in, quickly upload and process data from multiple file types, and make the project accessible to colleagues to begin review.
Search. Users can run searches for responsive documents that comply with the request based on keywords or phrases, email senders or recipients, date/time, and more.
Redacting and withholding. Users can automatically bulk identify personally identifiable information (PII) and other confidential information for redaction to avoid disclosure errors. Additionally, users can create redaction stamping options for exemption codes and apply directly to records, and leverage tools like data visualization, audio and video (A/V) redaction, and persistent highlights for fast review at scale.
Exporting. Users can securely export responsive documents as PDFs with instant Bates and redaction stamps. Also, users can provide an automatically generated privilege log (or
Vaughn Index) to the requester with their response. This workflow helps users easily track and close requests.
The volumes and types of data that government agencies manage only continue to grow over time, putting new pressures on agencies as they also face growing FOIA requests from the public. In this climate, a reliable, secure, and sophisticated cloud-based ediscovery solution can become an invaluable tool for agencies at every level of government to streamline FOIA response processes, boost productivity, and enhance public trust.
Are you interested in learning more about FOIA requests? Tune in to our on-demand webinar, “Turning to Tech: How to Ease the Burden of Responding to Public Records and FOIA Requests,” to trends, observations, methods, and best practices for responding to FOIA requests.