FOIA Guide for Environmental Information

 

What is FOIA?

The Freedom of Information Act (FOIA – codified in the United States Code at 5 U.S.C. §552) gives the public access to federal agency records. FOIA lets U.S. citizens, foreign nationals, organizations, associations, and universities ask federal agencies for records, and requires agencies to proactively disclose certain records online.

FOIA is one of the best tools for accessing otherwise nonpublic environmental records. Although FOIA works the same no matter what type of information you are trying to get, this guide is full of tips that are especially useful for obtaining environmental information from federal agencies.

This guide focuses on the federal FOIA statute, but each state also has its own freedom of information law that applies to state agency records. Some states’ information access statutes are called FOIA, but they also go by other names. For example, Kansas has KORA (the Kansas Open Records Act), and New Jersey’s law is called OPRA (Open Public Records Act). State FOI laws are especially useful for obtaining environmental information because many national environmental programs are carried out at the state level. State agencies are often charged with implementing and enforcing federal environmental laws, so sometimes you need to obtain information from both state and federal agencies using both federal FOIA provisions and state FOI laws.

How does FOIA work?

FOIA lets you get information in two ways: (1) proactive disclosure of certain records; and (2) agency responses to information requests from the public.  

1.     Proactive disclosure

Agencies must make certain materials available to the public automatically. Things like final administrative adjudication orders and opinions and agency policy statements and interpretations must appear in agencies’ online FOIA reading rooms, which should be linked on federal agency websites. Each agency administers their FOIA reading rooms differently, so there is no uniformity in the types of materials you will find on various agency websites, nor is there a single, central repository of FOIA records. FOIAonline was created as a central FOIA resource for all agencies, but not all agencies contribute to the website (although the EPA does put its FOIA records there). Also note that, beyond FOIA proactive disclosure requirements, agencies must publish certain types of information, including information about their rulemaking processes, in the Federal Register. To save time, search online, including in FOIA reading rooms, to see whether information has been proactively released before filing a FOIA request.

2.     Disclosure by request

Usually, when people think about FOIA, they focus on FOIA requests. The “information upon request” section of FOIA is the primary way to obtain government information that is not otherwise disclosed. The statute itself does not have any specifications for making FOIA requests beyond requiring that requests reasonably describe the records requested and follow any agency specific (or other published) rules about time, place, fees, and procedures. FOIA is intentionally broad so that anyone can easily make requests without having to explain why they want the information.

There are three major steps for filing a FOIA request: (1) determine which agency has the records you need; (2) draft a request for the records; and (3) submit the request. This process is quite simple, and there are no other statutory requirements, although there are some best practices and tips that will help make your FOIA request a success:

FOIA’s Scope: What can you get with FOIA?

Before you make a FOIA request, familiarize yourself with the kinds of things you can and cannot get using the statute. The statute provides access only to “federal agency records” only. Thus:

1.     What you request must come from an agency

FOIA covers all 15 federal departments and over 70 federal agencies. However, FOIA does NOT cover the president, Congress, or the courts. Also, the federal FOIA does not cover state government offices (but remember, there are state FOI laws that provide access to state agency records). Also, records created and kept by government contractors frequently fall outside of FOIA’s coverage because contractors are not part of the agencies, which is especially relevant to environmental information requests, because many of the federal government’s environmental projects are carried out by contractors.

2.     What you request must be a record

“Record” is a fairly inclusive term, including both electronic and hardcopy materials like paper files, online repositories and databases, videos, and datasets. However, keep in mind that:

o   FOIA does not require agencies to create or maintain records. Under FOIA, agencies do not have to aggregate data or otherwise create new records for you. FOIA also does not require agencies to conduct research, analyze data, or answer questions when responding to FOIA requests. FOIA only requires agencies to hand over pre-made records from their files – no clarification, creation, or explanation required. FOIA also does not obligate agencies to collect information. If agencies stop tracking or collecting particular types of data, FOIA has no provisions requiring them to start again.

o   Records do not include tangible, evidentiary objects like computer hardware, or archival exhibits like guns, bullets, or clothing. So, while you can get photographs and electronic document delivery tools like CDs and USB drives, you likely cannot obtain materials like water samples or other media used in EPA testing, even if you can likely get the data collected through testing of those samples.

3.     What you request cannot fall under a FOIA exemption

FOIA fully exempts certain types of material from its public access provisions:

·      Exemption 1: Information that is classified to protect national security.

·      Exemption 2: Information related solely to the internal personnel rules and practices of an   agency.

·      Exemption 3: Information that is prohibited from disclosure by another federal law.

·      Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.

·      Exemption 5: Privileged communications within or between agencies, including:

·      Exemption 6: Information that if disclosed, would invade another individual’s personal privacy.

·      Exemption 7: Information compiled for law enforcement purposes which:

·      Exemption 8: Information that concerns the supervision of financial institutions.

·      Exemption 9: Geological information on wells.

Some of these exemptions tend to affect environmental information more than others. Beyond Exemption 9, which withholds a very specific type of information about the environment, several of the other exemptions often impact FOIA requests for environmental information. Exemptions 5 and 6 are the EPA’s most commonly used FOIA exemptions, and Exemption 4 often comes into play because a lot of environmental information involves chemical compounds and processes created and used by industrial companies. FOIA’s definition of trade secret includes secrets, plans, formulas and devices used for making, preparing, compounding or processing of trade commodities. This includes records ranging from lists of chemicals used in the fracking processes to descriptions of tools used in harbor dredging projects. Also, many environmental laws that require or encourage polluters to self-report also allow polluters to mark their documents as “confidential” on an ad hoc basis to ensure that the information within the reports will not be publicly released.

In short: if it is not an agency record, you are not going to get it with a FOIA request, and even if it is an agency record, it may be exempt from disclosure.

Tips for filing a FOIA request

Even though there’s no one right way to file a FOIA request, there are some best practices and tips that may optimize your FOIA results:

·      Research before you request

Before you file a FOIA request, check to see whether the information you want is already available. FOIA requests are a tool of last resort – making a FOIA request is far more costly and time consuming than finding what you need online or through a non-government source. Look in agencies’ online FOIA reading rooms and elsewhere on their websites to see if the agency has already proactively shared the records you want. Check with government and library sources to see whether the records are available through an outside source.

If what you are looking for is not already available, figure out which records you need and which agencies you should request them from. You should be able to articulate which records you want with some specificity and know where they are located in the federal agency system.

1. Which Records?

Figure out what types of data you need. Knowing specifics like dates (or date ranges), document types (reports, emails, etc.), and identifying particular events, company names, and data sets help the agency quickly and easily find the records you are requesting. A request for “any reports or communications containing the total amount of the greenhouse gas nitrous oxide from Volkswagen vehicles with defeat devices from February 2013-February 2015” will be much easier to satisfy than a far less specific request for “Everything you have on Volkswagen emissions testing.” Even if what you want to get is a broad swath of information (e.g., all releasable records concerning a pollution event or all documents about a certain natural resource between a span of dates), it is still beneficial to include as much useful, specific information as you can.

If you have any helpful documents (similar record types or other documents discussing the record you seek), attach them to your request. Also remember that FOIA does not require agencies to create records in response to your request, so you should request items that actually exist in agency records, and not some amalgamation, analysis, or portion of a record.

Do not hesitate to contact the agency to help you narrow down your request. If you have questions about what certain records (inspections and complaints, etc.) are called or named or how the agency documents certain events, check with an administrator so that you use the correct terminology in your FOIA request.

2. Which Agency?

Because so many agencies are involved in environmental work and projects, and because there are hundreds of environmental programs and initiatives in the federal government (the EPA alone is tasked with overseeing dozens of environmental programs), figuring out which agency or office to direct your FOIA request to can be a challenge. This challenge is compounded by the fact that the EPA, and many of its programs, are decentralized, spread across regional EPA offices and shared between state and federal agencies. If you can determine which office that holds the records you need, you’ll be better able to focus your FOIA request.

First, make sure your FOIA request is indeed for federal records, and not state records. Or, in the alternate, make sure you send FOIA requests to the relevant federal offices, and also send state FOI requests to any relevant state offices. Second, avoid sending your request to the wrong agency entirely. The EPA may be the main “environmental” agency, but many other agencies are engaged in environmental activities, from the U.S. Army Corps of Engineers and the U.S. Department of the Interior to the Federal Energy Regulatory Commission. Most federal agencies deal with at least a few environmental issues on some level, so research which agency holds the relevant information for your issue. If you are unable to determine which precise agency holds the information, then think about sending requests to all potential agencies.

·      Drafting tips for your FOIA request

Your FOIA request should include a subject line, a statement defining your request, information about your fee status or request a fee waiver, and your contact information. There is no required structure for the actual request, and FOIA requests vary widely in form and depth. Note, however, that some agencies have online FOIA request submission forms with word limits.

Good FOIA request are clear and specific. FOIA administrators have to sift through thousands of FOIA requests every year. The simplest requests are sometimes answered first, so the easier you can make it for the agency’s FOIA staff to locate and retrieve your records, the better your FOIA experience will be. It is best to assume that a FOIA officer is not familiar with what you seek. Thus, you should specifically describe the records you want and provide any background information that is helpful for identifying the records. Calling a record “Mary Smith’s letter from December 2014, to the South Coast Air Quality Management District regarding the Edgington Oil Company permit,” for example, makes the record much easier to find than calling it “a letter written about air pollution from oil companies.”

Incorporate keywords that administrators can enter into database searches, as many agency records are stored electronically. Provide accurate report titles, dates, names, and pertinent news stories discussing the subject of your request. Help FOIA staff by being as organized as possible, and try to keep your FOIA request concise. Just as you do not appreciate reading long-winded, confusing e-mails, FOIA administrators do not have the time or desire to parse through meandering FOIA requests. Confusing and poorly researched requests likely linger in the queue longer than clear, succinct requests.

Also, remember that you do not have to include your rationale for requesting records, as FOIA requires agencies to disclose agency records regardless of the recipient’s intent or rationale for wanting them. The only exception for offering a rationale for your search is if you are trying to obtain a fee waiver by demonstrating that the documents will benefit the public interest by contributing significantly to the public’s understanding of operations or activities of the government.

·      Check out online FOIA request forms and samples

Different organizations provide FOIA form letters online. Some are topical (specific to the FBI or to national security requests, etc.) while others are geared toward certain types of requesters (journalists, etc.) but overall, they tend to be good starting points for drafting FOIA request letters. A simple Google search for “sample FOIA request” retrieves plenty of FOIA letter and FOIA appeal letter forms. Also, looking at the correspondence on previous requests like those on MuckRock and FOIAonline can be helpful when crafting FOIA requests.

·      Proactively deal with FOIA fees

Avoid exorbitant processing fees by discussing fee limits and categories in your initial FOIA request. Agencies can charge reasonable FOIA fees for searching, reviewing, and reproducing records in response to requests. Unfortunately, despite the reasonability requirement, agencies sometimes try to charge hefty fees to FOIA requesters. Search fees can be as high as $50 an hour, and printing fees can cost 35 cents a page. Most agencies’ FOIA regulations clarify that by filing a request, FOIA users agree to pay threshold fees at a minimum of $25. A well-written FOIA request should preemptively discuss possible fees. Note that when requests are made for records serving the public interest, requests should be granted free of charge. Commercial requestors (those seeking information for profit) have to pay all fees, while educational and non-commercial scientific requestors, and requestors from news media, are entitled to no charges aside from duplication costs for responses over 100 pages, as are any other requesters (but they may have to pay additional search costs if they arise). If you can clarify that your interest in records is non-commercial, and that the records will improve the public’s understanding of government activities and operations in promotion of the public interest, you may be able to reduce your FOIA fees or waive them entirely.

·      Know how to send your FOIA request

Before you send a FOIA request, figure out the agency’s preferred FOIA request format. These specifications are usually available on agency websites, and most agencies have a whole webpage dedicated to FOIA request information. Usually, agencies prefer that you send requests electronically, although some agencies still prefer mail or fax transmissions. Check with the agency to be sure. FOIA.gov provides links to contact information for all federal FOIA offices.

If the documents deal with something in a particular geographic location, send your request to the correct regional office. EPA provides an online map with addresses for each region on their website.  If you are trying to get information quickly, note that sometimes sending the request to the attention of a local or regional office may lead to a quicker response, however, make sure that you are sending the request to an administrator who is accustomed to processing FOIA requests.

·      Tracking your FOIA request

Upon receiving your request, the agency will usually notify you promptly that they have received, and are processing, your request. They will often assign an identification number to the particular FOIA request, which you should use in future correspondence with the agency regarding the request.

Persistence and organization are key to getting a timely FOIA response (or any response at all, in some cases). In the case of a paper FOIA submission, keep in contact with the agency and check up on the status of your request often. In the case of electronic submissions, many systems now give users the ability to check the status of their request online as it changes over time. Check in with FOIA administrators regularly, so you do not lose track of your request. You could even set a regular weekly or bi-weekly reminder to check on your request, depending on how urgently you need the records. If you can, get the name and contact information of a specific FOIA administrator, and check in with them. Sometimes, the agency will contact you for clarification on your request. Keep track of the correspondence you have with the agency regarding the request, as you may need this timeline of communication should you later decide to pursue FOIA litigation.

If you are looking for a quick response, know that agencies sometimes set up a faster track for easy requests and a slower track for more complex requests, so breaking your request up into smaller, manageable pieces may also expedite the FOIA process.

FOIA Appeals & Litigation

Ideally, you will eventually get an electronic or paper copy of records in response to your FOIA request. Hopefully, the request will contain everything you ask for. You may, however, receive a partial document or a document containing redactions (that is, blacked-out or otherwise omitted words, sentences, or paragraphs). Agencies will redact portions of documents that are exempt from disclosure, and release the remainder of the agency record. Some agencies will identify the exemption they relied on to redact certain information.

If you do not get what you want from a FOIA request, or if you are charged excessive fees, follow up with the agency. Contact the FOIA officer who managed your request, or negotiate with the agency’s FOIA liaison. The National Archives Office of Government Information Service (OGIS) also provides mediation services for disputes between FOIA requestors and federal agencies. It may be that simply re-framing your requests or refocusing the types of records you want will help retrieve the data you need.

If you still cannot get the information you need, or if your fees are unreasonably high, you may file an appeal with the agency. Filing an appeal with the agency is a necessary first step of FOIA litigation, because you must undertake and exhaust the agency appeals process before you can sue the agency in court. If you want to appeal, do it promptly – most agencies have deadlines for filing FOIA appeals that range from 30 to 90 days after the agency denies your FOIA request. FOIA appeals must be made in writing, and you can find samples of FOIA appeals online. Generally, a FOIA appeal should include:

●      Statement of Appeal. Clearly label your letter as an appeal of the agency’s adverse determination.

●      Background on the Initial Request and Its Denial. Include subject details of your request and its denial, and make sure to include the identification number for the request, if you have one.

●      Arguments in Support of the Appeal. Arguments will vary depending upon why you are appealing and whether any exemptions have been invoked in the denial.

If you exhaust the agency’s appeals processes, you can proceed to FOIA litigation by filing a complaint against the agency in federal court. To pursue a cause of action under FOIA, you must be able to show that the agency has (1) improperly, (2) withheld, (3) agency records. If you can prove these three elements, you may consider filing a FOIA case. Beware, however, that FOIA litigation can be costly and is subject to court filing and attorneys’ fees.

Want more FOIA in your life?

There are organizations, social media feeds, listservs and resources for the latest FOIA news, FOIA guides, and all other things FOIA. There are not specific environmental FOIA resources yet, but hopefully in the future, there will be more. Here are some of the most popular general FOIA resources:

·      Department of Justice (DOJ) Guide to FOIA

The DOJ provides its FOIA guide online.  The DOJ’s guide explains FOIA and provides an extensive discussion and history of FOIA cases and their holdings. The book has the most complete and extensive case law annotations of any FOIA resource. Since the book is drafted by DOJ administrators, the wording may be more pro-agency, and preferential to agencies’ FOIA goals, which may oppose those of transparency advocates in some instances.

·      Litigation Under the Federal Open Government Laws

The Electronic Privacy Information Center (EPIC), a public interest research center focused on privacy and civil liberties issues, has their own FOIA manual. This manual approaches FOIA from a public interest perspective. This book offers both overviews and case annotations that discuss FOIA exemptions and processes in great depth, with specific cites to relevant statute sections, breaking down the law into granular-level discussion points. 

·      George Washington University’s National Security Archive FOIA Resources

The National Security Archive is an organization created by journalists and scholars to “check” government secrecy. Along with collecting and archiving declassified documents and FOIA records related to national security, the organization provides online guides about how to make FOIA requests and engage in FOIA litigation.

·      MuckRock.com

Muckrock is a centralized FOIA request and response repository. MuckRock has become a FOIA-focused community with many FOIA and information access resources. It is more collaborative and interactive than many other informational and research websites, as you are able to place FOIA requests through MuckRock (for a fee) and also view other FOIA requests and responses. Perusing MuckRock is also a great way to see the language and format of FOIA requests and the agencies’ common responses to FOIA requests. (The website also contains state agency requests.)

·      Reporters Committee for Freedom of the Press

This journalist organization publishes a Federal Open Government Guide that discusses FOIA and its benchmark cases and a Federal FOIA Appeals Guide that covers the administrative appeals process and also contains a section-by-section guide for each exemption and considerations like FOIA litigation and attorneys fees. Both are available online and downloadable in PDF format.

The Reporters Committee for Freedom of the Press also has an online FOIA letter generator - iFOIA lets users compose and track FOIA requests free of charge for agencies that use e-mail for FOIA requests (most agencies). If you run into FOIA litigation issues, the Reporters Committee for Freedom of the Press also provides a free legal telephone hotline.

·      Foia.gov

This website, hosted by DOJ, provides video tutorials on various aspects of FOIA, as well as all sorts of FOIA statistics and reports. While this website is a rather broad look at FOIA, it is useful if you want basic information about the statute and how it works.