1. What is an FOIA request?
The Freedom of Information Act (FOIA), which was enacted in 1966, provides that any person has the right to request access to federal agency records or information. All agencies of the executive branch of the U.S. government are required to disclose records upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions of the FOIA.
Note: The 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 government records; state agencies should be consulted for further information about them.
2. Can I access certain records without an FOIA request?
All agencies are required by statute to make certain types of records created by the agency on or after November 1, 1996, available electronically. If you have access to the Web, you will not need to make a FOIA request to access these records. These records include:
- Final opinions and orders made in the adjudication of cases
- Final statements of policy and interpretations which have not been published in the Federal Register
- Administrative staff manuals and instructions to staff that affect members of the public
- Copies of records that have been the subject of a FOIA request and that also are the subject of sufficient public interest or curiosity that the agency believes that other persons are likely to request (or already have requested) them; and
- The agency’s annual FOIA report – which includes such information as the number of FOIA 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.
3. Where can I make an FOIA Request?
The Department of Homeland Security is organized into a number of bureaus, divisions, and offices. These subdivisions of the Department are often referred to as ‘components’. Within the Department of Homeland Security, each component processes its own records. Therefore, your request will receive the quickest possible response if it is addressed directly to the component that you believe has the records you are seeking. In almost all cases, you should send your FOIA request to a component’s central FOIA office.
Note: If you believe that the Department of Homeland Security does maintain the records you are seeking, but you are uncertain about which component has the records, you may send your request to: FOIA/PA Mail Referral Unit, U.S. Department of Homeland Security Privacy Office Director, Disclosure & FOIA 245 murry Drive SW, Bldg 410 STOP-655 Washigton DC 20528-0655. Personnel in that division will then forward your request to the component of the Department of Homeland Security most likely to maintain the records you are seeking.
4. How can I make an FOIA Request seeking information about myself?
Although certain information may be required from a FOIA requester, no special FOIA form is required by the Department of Homeland Security . Requests must be in writing, either handwritten or typed. While requests may be submitted by fax, most components of the Department of Homeland Security have not yet developed the capability to accept FOIA requests submitted through the Web.
In order to protect your privacy as well as the privacy of others, whenever you request information about yourself you will be asked to provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person that you say you are. You may fulfill this requirement by:
- Having your signature on your request letter witnessed by a notary; or
- Including the following statement immediately above the signature on your request letter: “I declare under penalty of perjury that the foregoing is true and correct. Executed on (date)”
Note: If you request information about yourself and do not follow one of these procedures, your request cannot be processed.
5. How can I make an FOIA Request seeking information about another person?
Files relating to another person regarding a matter the disclosure of which would invade that person’s privacy ordinarily will not be disclosed. For example, if you seek information that would show that someone else (including even your spouse or another member of your immediate family) has ever been the subject of a criminal investigation – or even was mentioned in a criminal file – you will be requested to provide either:
- A statement by that other person, authorizing the release of the information to you, that has been signed by that person and either was witnessed by a notary or includes a declaration made under penalty of perjury (using the language quoted in the preceding paragraph); or
- Evidence that the subject of your request is deceased, such as a death certificate, a newspaper obituary, or some comparable proof of death. Without proof of death or the subject’s consent, in almost all cases the Department of Homeland Security will respond to a request made for information concerning another person’s possible involvement in a law enforcement matter by advising that it will ‘neither confirm nor deny’ the existence of responsive records. Such law enforcement information about a living person is released without that person’s consent only when no privacy interest would be invaded by disclosing the information, when the information is already public or required to be made public, or when there is such a strong public interest in the disclosure that it overrides the individual’s privacy interest
6. What information should I include in my FOIA Request?
In making your request you should be as specific as possible with regard to names, dates, places, events, subjects, etc. In addition, if you want records about a court case, you should provide the title of the case, the court in which the case was filed, and the nature of the case. If known, you should include any file designations or descriptions for the records that you want. You do not have to give a requested record’s name or title, but the more specific you are about the records or types of records that you want; the more likely it will be that the Department of Homeland Security will be able to locate those records.
7. What happens after the Department of Homeland Security component receives my FOIA request?
When a Department of Homeland Security component receives your FOIA request, it ordinarily will send you a letter acknowledging the request and assigning it an initial request number. If you do not provide the necessary information, the component will advise you of what additional information is required before further processing your request.
8. What is the processing time for an FOIA request?
Under the statute, all federal agencies are required to respond to a FOIA request within 20 business days, excluding Saturdays, Sundays, and legal holidays. This time period does not begin until the request is actually received by the FOIA office of the Department of Homeland Security component 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 you the documents within a reasonable time afterward.
Under the FOIA, a component may extend the response time for an additional ten business days when:
- The component needs to collect responsive records from field offices
- The request involves a ‘voluminous’ amount of records that must be located, compiled, and reviewed; or
- The component needs to consult with another agency or other components of the Department of Homeland Security that have a substantial interest in the responsive information
Note: When such a time extension is needed, the component may notify you of this in writing and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request.
9. What happens when a determination on my FOIA request is not made within the applicable time period?
When a determination on your request is not made within the applicable time period and you have not agreed to a different response timetable, you may file a suit in federal court to pursue 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 component’s failure to comply within the statutory time period is justified. The court may excuse the lack of a timely response if the component demonstrates that it has a backlog of requests that were received before yours, that it processes its requests on a first-come/first-served basis, and that it is making reasonable progress in reducing its backlog of pending FOIA requests. In such cases, the court may postpone its consideration of your lawsuit until the agency reaches your request in its processing backlog.
10. Can I get my FOIA requests processed on an expedited basis?
Under certain conditions you may be entitled to have your requests processed on an expedited basis. However, you should realize that whenever a FOIA request is expedited for a particular requester, taking that action results in an additional delay for previous requesters who have been waiting for a response. Therefore, in an effort to treat all requesters equitably, the Department of Homeland Security 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 bases. In most cases, a request will not be expedited merely on the basis that the requester is facing a court deadline in a judicial proceeding.
11. Is there a filing fee for an FOIA request?
There is no initial fee to file a FOIA request and, in the majority of requests made to the Department of Homeland Security, no fee is ever charged. By law, 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 (i.e., reviewing them to determine the possible applicability of FOIA exemptions), and photocopying them
- Educational or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses, after the first one hundred pages of copies
- Requesters who do not fall into either of the above 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 one hundred pages of photocopies. The Justice Department charges ten cents per page for photocopying. In all cases, if the total fee does not exceed a minimum amount, currently $14, the Justice Department will not charge any fee at all
Note: You may 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, the Department of Homeland Security will assume that you are willing to pay fees of up to $25. If a component estimates that the total fees for processing your request will exceed $25, it will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, 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.
12. Can I get a waiver of the filing fee for an FOIA request?
If you expect or are advised that a fee will be charged, you may request a waiver of those fees. However, 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 pertaining to themselves usually do not meet 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.
13. Can I file an appeal if I am not satisfied with a Department of Homeland Security component’s initial response?
Yes, you may file an administrative appeal if you are not satisfied with a Department of Homeland Security component’s initial response. You may file an appeal when:
- You disagree with the component’s withholding of information or you might believe that there are additional records responsive to your request that the component failed to locate
- You have requested expedited processing or a fee waiver and the component has not granted that request
Note: Your appeal must be received within sixty days of the date of the component’s determination letter.
14. Where can I file an appeal against a Department of Homeland Security component’s initial response?
All appeals must be made in writing and addressed to: Associate General Counsel (General Law)
Department of Homeland Security
Washigton DC 20258
Note: Both the front of the envelope and the appeal letter should contain the notation ‘Freedom of Information Act Appeal’.
15. What happens after I file an appeal against a Department of Justice component’s initial response?
Under the Freedom of Information Act, the Associate General Counsel (General Law) is required to make a determination on your administrative appeal within 20 business days. The Associate General Counsel (General Law) may take one of several actions on your appeal.
- It may affirm the component’s action in full, in which case it will identify which exemptions (if any) have been appropriately claimed
- Or it may affirm part of the component’s action (identifying the applicable exemptions), but order the release of other information previously withheld
- Finally, under some circumstances, it may return or ‘remand’ the request to the component for complete reprocessing
Note: When a case is remanded, you will have an opportunity again to appeal to the Associate General Counsel (General Law) after the component has reprocessed the records if you remain dissatisfied with the component’s action in any respect.