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Thursday, May 1, 2014

UTILIZING THE FREEDOM OF INFORMATION ACT (FOIA)

INTRODUCTION

The purpose of this article is to discuss the background and administration of the Freedom of Information Act (FOIA) and suggest tips in using the FOIA as a tool in operating your business.

BACKGROUND

Extract: United States Department of Justice Web Site:


 http://www.foia.gov/about.html

“Enacted on July 4, 1966, and taking effect one year later, the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. A FOIA request can be made for any agency record. Before sending a request to a federal agency, you should determine which agency is likely to have the records you are seeking. Each agency’s website will contain information about the type of records that agency maintains.

The FOIA is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government. Under the FOIA, agencies must disclose any information that is requested – unless that information is protected from public disclosure. The FOIA also requires that agencies automatically disclose certain information, including frequently requested records. As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.”

POINTS OF CONTACT (POC)

The following  link is a global means to determine points of contact for a specific request.  


 http://www.foia.gov/report-makerequest.html

A typical POC page will look like this:

FOIA Contact: To make a FOIA request to Department of Education please send request to:
Gregory Smith

Director, FOIA Service Center, Office of Management
LBJ 2E305
400 Maryland Avenue, SW
Washington, DC 20202-4536
(202) 401-8365 (Telephone)
(202) 401-0920 (Fax)
 
EDFOIAManager@ed.gov (Request via Email)

FOIA Requester Service Center: Phone: (202) 401-8365FOIA Public Liaisons: Elise Cook, Marie-Teresa Cueva, Linda Darby, Bennie Jessup, Robert Wehausen, or Christie Swafford, 

Phone: (202) 401-8365
 

Notes: This agency has additional FOIA contact information that can be found by visiting its website.

PRACTICAL USE

Although occasions may arise for use of the FOIA on legal matters, personnel issues, and records that relate to agency background and activities, the most common uses of the FOIA in government contracting are as follows:
  • Market Research
  • Copies of historical contracts issued by an agency as well as contractor proposals.
  • Specific articles supporting a protest action.
RESPONSE TIME

The FOIA require a 30 day response time to your request, but actual response times vary by agency and backlog.  Here is a link indicating the relative range of experiences of late:

If the agency determines the request will exceed $25 in costs, you should indicate in your request that you will be willing to pays those costs to receive the data. 

MAKE YOUR REQUEST  AS SPECIFIC AS POSSIBLE

Identify the document or documents specifically by name and identifying number (s).  When requesting contracts, RFP’s, change orders and similar data, always include the contract number and be specific with regard to references to all changes.  If proposals are requested include a specific request for management, technical and cost volumes. The more detail you provide the more likely the response will supply what you wish to have.

BE PREPARED FOR GOVERNMENT REDACTING

When the government receives requests for copies of contracts, proposals and similar data that contain specific in formation pertinent to another company, they are required to contact that company and ask for identification of information the firm deems proprietary.  To the extent the firm identifies such data, expect the response you receive to have the data redacted (blanked out and unreadable). 

EXPEDITING
Among the larger agencies, especially DOD and Justice, it is rare to receive the information requested in a FOIA within 30 days.  Be prepared to expedite, by email, registered letter and by visitation if necessary, depending on the importance of the request to your business. 
 
REFUSALS

Refusals by the government can be appealed if you and your legal counsel make the judgment a given request falls outside of the following nine (9) exemptions permitted the government or one of three special law enforcement record exclusions detailed at the FOIA web site:

"Exemption 1: Information that is classified to protect national security.  The material must be properly classified under an Executive Order.

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. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.

Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.

Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:

  1. Attorney-Work Product Privilege
  2. Attorney-Client Privilege
  3. Deliberative Process Privilege
  4. Presidential Communications Privilege
Exemption 6: Information that, if disclosed, would invade another individual's personal privacy.

Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur.  Law enforcement information is exempt if it:

            7(A). Could reasonably be expected to interfere with enforcement proceedings 
            7(B). Would deprive a person of a right to a fair trial or an impartial adjudication 
            7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy 
            7(D). Could reasonably be expected to disclose the identity of a confidential source
            7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions
            7(F). Could reasonably be expected to endanger the life or physical safety of any individual 
  
Exemption 8: Information that concerns the supervision of financial institutions.

Exemption 9: Geological information on wells.

Exclusions:

Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records.  The provisions protecting those records are known as “exclusions.”  The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings.  The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.  The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.  Records falling within an exclusion are not subject to the requirements of the FOIA.  So, when an office or agency responds to your request, it will limit its response to those records that are subject to the FOIA."


WHAT IF YOUR COMPANY DATA IS REQUESTED UNDER THE FOIA?

When notified by a contacting officer that copies of your company contract(s) and/or proposal(s) have been requested by another firm, identify to the officer  the pricing data, proprietary data and sensitive information you do not wish to have disclosed and formally indicate by letter the sections of the documents you wish redacted prior to release to another firm. The officer may or may not provide to you the name of the firm requesting the information. If you are involved in a re-compete effort for which you are the incumbent it is wise to inform the FOIA Officer of the agency involved that you expect to be notified when requests are made for copies of your information.  

SUMMARY

We suggest you study the FOIA site and the agency(s) you target for information.  Be specific in your requests and be prepared to expedite them. The FOIA can be a valuable tool for your business, but it usually takes patience and practice to use it effectively.




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