The Freedom of Information Act Overview Miriam Brown-Lam Head, DON FOIA/Privacy Act Policy Program

1. The Freedom of Information Act Overview Miriam Brown-Lam Head, DON FOIA/Privacy Act Policy Program

2. The Freedom of Information ActHigh-level Overview • FOIA, enacted in 1966 (5 U.S.C.§552) • Right to access agency records, enforceable in court • Records disclosed unless protected by one of nine exemptions • Ensure an informed citizenry • Prevent secret law • Amended substantially: 1974, 1986, 1996 (E-FOIA), EO 13392 in December 2005, Open Government Act of 2007

3. FOIA is Statutory • FOIA is a legal requirement • It is not optional • FOIA requests must be processed in accordance with the law • Disclosure laws allow agencies to withhold information or documents using nine exemptions only

4. FOIA is Statutory • For Official Use Only (FOUO) is NOT an exemption; it is a tool to alert the reader/ or processor that information contained in the document may be exempt from release • All personnel working on a FOIA request for documents must track their time spent, locations/files searched, and should keep a record of the personnel they worked with to conduct search

5. Nine FOIA Exemptions (1) National Security Information (2) Internal Personnel Rules & Practices (Low-2, High-2) (NOTE: DoD only uses HIGH-2) (3) Information Exempted by Other Statutes (4) Trade Secrets & Commercial or Financial Information

6. FOIA Exemptions (continued) (5) Privileged Interagency/Intra-agency documents - Deliberative Process Privilege - Attorney Work-Product Privilege - Attorney-Client Privilege - Government Commercial Information Privilege (6) Personal Information Affecting an Individual’s Privacy

7. FOIA Exemptions (continued) (7) Records Compiled for Law Enforcement Purposes when release could: (A) Interfere with law enforcement proceedings; (B) Deprive a person of a right to a fair trial; (C) Constitute an unwarranted invasion of personal privacy;

8. FOIA Exemptions (continued) (Exemption (7) continued) (D) Disclose the identity of a confidential source; (E) Disclose techniques & procedures of law enforcement investigations; and (F) Endanger the life or physical safety of any individual.

9. FOIA Exemptions (continued) (8) Records of Financial Institutions (9) Geological and Geophysical Information concerning Wells

10. Changes in the FOIA • E-FOIA Amendments, 1996 • Executive Order 13392, December 2005 • Open Government Act of 2007

11. Electronic FOIA Amendments of 1996 (E-FOIA) • Brings FOIA into electronic age • Broadens access • Reaffirms “openness” • Electronic reading rooms • Electronic requirements - Reading rooms - Electronic record searches - Format of disclosure - Computer redactions

12. E-FOIA (Continued) • Other procedural requirements: - Volume of material denied - Time limit/backlog provisions - Annual Reports - Reference material and guides

13. Executive Order 13392Improving Agency Disclosure of Information • Signed December 14, 2005 • Establishes citizen-centered and results-oriented policy • Focus on eliminating backlogs, improving customer service and achieving processing improvements

14. EO 13392(Continued) • Establishes Chief FOIA Officer position • Senior official at Assistant Secretary or equivalent level (Mr. Donley, DoD) • Responsible for monitoring FOIA implementation and ensuring compliance

15. EO 13392(Continued) • Establishes FOIA Requester Service Centers and FOIA Public Liaisons • Required FOIA Improvement Plan with specific milestones for improving FOIA implementation • Failure to meet milestones reported in FOIA annual report and to President’s Management Council

16. OPEN Government Act of 2007 • Openness Promotes Effectiveness in our National Government Act of 2007 • Enacted on December 31, 2007 • Resulted from Congress’ belief that FOIA has not lived up to strong presumption of disclosure • Congress sought to strengthen and improve the law • Designed to promote accessibility, accountability and openness in Government

17. OPEN Government Act of 2007(Continued) • Impact: • Limits agency’s ability to assess fees for requests not responded to within statutory timeframes • Mandates a number of procedural changes and increases reporting requirements • Codifies designation of Chief FOIA Officer and FOIA Public Liaisons into law • Establishes Office of Government Services under NARA/DOJ to act as ombudsman

18. OPEN Government Act of 2007(Continued) • Attorney fees and litigation costs • No longer paid from Treasury Judgment Fund • Effective January 1, 2008, will be paid from agency annual appropriations • Plaintiff may be awarded fees and costs if agency changes its position after suit filed • Inadequate/incomplete FOIA processing will have greater financial consequences

19. Transparency and Open Government • On January 21, 2009, the new President addressed Transparency and Open Government, stating: • “Government should be transparent.   Transparency promotes accountability and provides information for citizens about what their Government is doing.  Information maintained by the Federal Government is a national asset.”

20. Transparency and Open Government • “Government should be participatory.  Public engagement enhances the Government's effectiveness and improves the quality of its decisions.” •  ”Government should be collaborative.  Collaboration actively engages Americans in the work of their Government.” 

21. Transparency and Open Government • The President also directed that FOIA • "should be administered with a clear presumption: In the face of doubt, openness prevails." • Moreover, the President instructed agencies that information should not be withheld merely because "public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

22. Transparency and Open Government • The President also called on agencies to "adopt a presumption in favor of disclosure" and to apply that presumption "to all decisions involving [the] FOIA." • This presumption of disclosure includes taking "affirmative steps to make information public," and utilizing "modern technology to inform citizens about what is known and done by their Government."

23. Attorney General Holder’s Memo • In his Memorandum dated March 19, 2009, the Attorney General directed that whenever full disclosure of a record is not possible, agencies • "must consider whether [they] can make partial disclosure." • The Attorney General also "strongly encourage[s] agencies to make discretionary disclosures of information."

24. FORESEEABLE HARM • The Attorney General’s Memo also stated: • When a FOIA request is denied, agencies will now be defended "only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law."

25. FORESEEABLE HARM(CONTINUED) • The determination of whether an agency reasonably foresees harm from release of a particular record, or record portion, goes hand-in-hand with the determination of whether to make a discretionary release of information. Under the Attorney General’s Guidelines, agencies are encouraged to make discretionary releases.

26. FORESEEABLE HARM(CONTINUED) • A discretionary release is not appropriate for information determined to be exempt under Exemption 1,3,4,6,7C and 7F of the FOIA. Otherwise, a discretionary release is appropriate unless the agency can identify a foreseeable harm that would result from release of the information. Consider the sensitivity of the document’s content and it’ age!

27. FORESEEABLE HARM(CONTINUED) • Specifically stated, records protected by the exemptions covering national security, commercial and financial information, personal privacy, and information protected by statute, are generally not subject to discretionary releases.

28. FORESEEABLE HARM(CONTINUED) • Thus, for material covered by Exemption 1, which protects properly classified information, if an agency determines that the information is properly classified, no discretionary disclosure is appropriate.

29. Overall Responsibility • We all have a responsibility to implement and carry out the FOIA in accordance with the law and Departmental regulations and guidance • At a minimum, if you are processing a FOIA request, you should have some knowledge of what the FOIA means, who the FOIA contacts are within your echelon, and what type of material is generally exempt from release

30. Changes in the FOIA • In the past three years, changes have been made to the FOIA program that will • Result in the FOIA community forming a more cohesive working community • Require an even greater amount of information for the FOIA Annual Report • Provide more accountability for managing the FOIA caseload

31. SUMMARY As the Department of the Navy’s FOIA program continues to evolve, the FOIA community will become a more cohesive group of information-sharing professionals.

32. Questions?