The latest information about the U.S. Freedom of Information Act and any modifications made can be found at the FOIA Update page of the U.S. Justice Department website at: http://www.usdoj.gov/oip/foi-upd.htm.
August 2000
DEPARTMENT OF JUSTICE
FREEDOM OF
INFORMATION ACT
REFERENCE GUIDE
I. Introduction
The Freedom of Information Act (FOIA), which can be found in
Title 5 of the United States Code, section 552, was enacted in
1966 and provides that any person has the right to request access
to federal agency records or information. All agencies of the
United States government are required to disclose records upon
receiving a written request for them, except for those records
that are protected from disclosure by the nine exemptions and
three exclusions of the FOIA. This right of access is enforceable in court. The federal 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 records;
state agencies should be consulted for further information about
them.
This Reference Guide is designed to familiarize you with the
specific procedures for making a FOIA request to the Department
of Justice. The process is neither complicated nor time consuming. Following the guidance below will make it more likely that
you will receive the information you are seeking in the shortest
amount of time. This guide also includes descriptions of the
types of records maintained by different parts of the Department,
some of which are available through means other than the FOIA.
Initially, it is important to understand that there is no
central office in the government which processes FOIA requests
for all federal agencies. Each agency responds to requests for
its own records. Therefore, before sending a request to the
Justice Department you should determine whether this agency is
likely to have the records you are seeking. Each agency should
have its own FOIA reference guide, so if the records you are
interested in are kept by another agency you may wish to request
a copy of that agency's guide from its FOIA office or view it on
that agency's FOIA site on the World Wide Web.
Other general sources of information about how to make a
FOIA request include:
- "Your Right to Federal Records," available for fifty
cents per copy from the Consumer Information Center, Department
319E, Pueblo, CO 81009. This publication also can be accessed
electronically at
www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm
on the World Wide Web.
- "A Citizen's Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 to Request Government Records."
This report is published by the Committee on Government Reform
of the House of Representatives. It is available
for sale for $5.00 from the U.S. Government Printing Office,
stock number 052-071-01287-7. It also can be accessed on the
World Wide Web at
thomas.loc.gov/cgi-bin/cpquery/z?cp106:hr50.106:.
In addition, the "Consumer Action Handbook" describes
which federal agencies are responsible for specific consumer
problems and where to write for assistance. Single copies of
this publication may be obtained for free by writing to: Handbook, U.S. Office of Consumer Affairs, 750 17th Street, N.W.,
Washington, D.C. 20006-4607. This booklet also can be accessed
on the World Wide Web at www.pueblo.gsa.gov/crh/respref.htm.
The formal rules for the making of FOIA requests to the
Justice Department are set forth in Chapter 16 of Volume 28 of
the Code of Federal Regulations. This multiple-volume set is
available in all law libraries and federal depository libraries.
A copy of the portions of Chapter 16 pertaining to making FOIA
requests may be obtained from the Justice Management Division,
U.S. Department of Justice, 950 Pennsylvania Avenue,
N.W., Washington, D.C. 20530-0001. .....
II. Access to Certain Records Without a 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 World
Wide Web, you will not need to make a FOIA request to obtain
access to these records. Such records include: (1) final opinions and orders made in adjudicating cases; (2) final statements
of policy and interpretations which have not been published in
the Federal Register; (3) administrative staff manuals and instructions to staff that affect a member of the public; (4)
copies of records that have been the subject of a FOIA request
and that are of sufficient public interest or curiosity that the
agency believes other persons are likely to request them; and (5)
the agency's annual FOIA report--which includes such
information as the number of 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. (Such records that were created prior
to November 1, 1996, may be inspected in an agency reading room.
See Attachment B [ for a listing of the
Justice Department's reading room locations.)
The Department of Justice has a site on the World Wide Web
which can be accessed at www.usdoj.gov, and which contains FOIA-related information. This site also includes a link to the Justice Department's Government Information Locator Service (GILS)
site, as well as links to all other federal executive branch
agencies. Each Justice Department component maintains its own
home page, which contains a wide variety of substantive information for which a FOIA request is not required. Another good
general source of information can be found under "Publications
and Documents" on the main Justice Department home page.
The Department of Justice maintains a FOIA home page which
can be accessed at www.usdoj.gov/04foia/indextxt.html. This site includes the
Justice Department's annual FOIA report, various reference
materials, information on how to make a FOIA request, and copies
of the relevant statutes. Additionally, this site provides links
to component reading rooms which contain the geographic address
of the conventional reading room, as well as links to records
required by the FOIA to be made electronically available.
The Department of Justice also makes certain information,
such as publications, available in paper copy without requiring a
formal FOIA request. These types of materials are described on a
component-by-component basis in Attachment B [go to DOJ website to access]. Among
these publications is the Justice Department's annual report on
the Freedom of Information Act, which includes extensive statistical information about
FOIA requests to the Justice Department. Copies of the Justice Department's annual
FOIA report may be obtained from the Justice Management Division,
U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530-0001,
in addition to being accessible electronically through the Justice Department's Web site. As of 1999,
the annual FOIA reports of all other federal agencies are
available through the Justice Department's Web site. The Justice Department submits a
calendar year report to Congress which describes our efforts to "encourage agency
compliance" with the FOIA and which also lists all FOIA litigation cases against all federal agencies
that were filed and in which decisions were rendered by the
courts in that year.
Attachment C {access at DOJ website] of this Reference Guide contains descriptions
of the Department's major information systems arranged in two
ways--by component and also alphabetically. Individuals
using print versions of this guide may .... [find them ]in Attachment C {access at DOJ website].
III. Where to Make a FOIA Request
The Department of Justice is organized into a number of bureaus, divisions, and offices. These subdivisions of the Department are often referred to as "components." Within the Justice
Department, 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. Attachment B [obtain at DOJ website] contains a description of
Justice Department components and their addresses.
The functions of each component are also summarized in the
Department's regulations (Volume 28 of the Code of Federal Regulations, Part 0). The "United States Government Manual" also
describes the activities of the Justice Department's components.
The "United States Government Manual" is issued annually by the
Government Printing Office and is available in most libraries.
It may be purchased by writing to: Superintendent of Documents,
P.O. Box 371954, Pittsburgh, PA 15250-7954. To obtain the current price you can call (202) 512-1800. You may also call that
telephone number to place an order using one of several major
credit cards. In addition, the "United States Government Manual"
can be accessed electronically at the Government Printing Office's World Wide Web site,
which can be found at
www.access.gpo.gov/su_docs/txtindex.html.
In most cases, you should send your FOIA request to a component's central FOIA office. For records held by a field office
of the Federal Bureau of Investigation (FBI) or a district office
of the Immigration and Naturalization Service (INS), however, you
must write directly to that FBI or INS office. On the other
hand, all requests for records held by a United States Attorney's
Office should be sent directly to the Executive Office for United
States Attorneys in Washington, D.C.
Because, over time, individual employees of the Justice
Department may change job positions, it is not recommended that
you address your request to a specific person. Rather, you
should include the notation "Freedom of Information Act Request"
on the front of your request envelope and also at the beginning
of your request letter. In this way you will be sure that the
responsible individual receives your request without delay.
If you believe that the Justice Department does maintain the
records you are seeking, but are uncertain about which component
has the records, you may send your request to: FOIA/PA Mail
Referral Unit, Justice Management Division, U.S. Department of
Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530-0001, Attention: FOIA Request. Personnel in that division will
then forward your request to the components of the Justice
Department that they believe are most likely to maintain the
records you are seeking.
IV. How to Make a FOIA Request
A FOIA request can be made for any agency record. This does
not mean, however, that the Justice Department will disclose any
record sought. As noted above, there are statutory exemptions
that authorize the withholding of information of a sensitive
nature. When the Justice Department does withhold information
from you, it ordinarily must specify which exemption of the FOIA
permits the withholding. As a matter of policy, the Justice
Department will consider making a discretionary disclosure of
exempt information whenever possible. You should be aware that
the FOIA does not require agencies to do research for you, to
analyze data, to answer written questions, or to create records
in order to respond to a request.
Although, as discussed immediately below, certain information may
be required from a FOIA requester, no special form is
required by the Justice Department. Requests must be in writing,
either handwritten or typed. While requests may be submitted by
fax, most components of the Justice Department have not yet developed
the capability to accept FOIA requests submitted through the
World Wide Web.
In order to protect your privacy, 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 claim to be. You
may fulfill this requirement by: (1) completing and signing Form
DOJ-361 (see Attachment D [access at DOJ website]), (2) having your signature on your
request letter witnessed by a notary, or (3) including the following
statement just before the signature on your request letter: "I declare
under penalty of perjury that the foregoing is
true and correct. Executed on [date]." If you request information
about yourself and do not follow one of these procedures,
your request cannot be processed. This requirement helps to
ensure that private information about you will not be disclosed
to anyone else. The INS has created an optional form which may
be used by individuals making FOIA requests for their own files.
A copy of this form is attached as Attachment D [obtain at DOJ website].
Likewise, files relating to another person regarding a matter that 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: (1) a statement by
that other person authorizing the release of the information to
you which 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
(2) 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 components of the Justice Department will
respond to a request made for information concerning another
person's role 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.
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 record or types of
records that you want, the more likely it will be that the Justice Department will be able to locate those records. For example, if you have been interviewed by a law enforcement component
(such as the FBI) in connection with a law enforcement investigation and you wish to request a copy of the interview report, your
listing of the date and location of the interview, and the name
of the interviewing agent and subject of the investigation, if
known, will be helpful to the component in determining where to
search and in determining which records respond to your request.
Additionally, you should be aware that Justice Department components ordinarily will use the date upon which they begin a
record search as the "cut-off" date for including records.
In addition to the statements or information that have already been discussed, some components of the Justice Department
require additional specific information in order to process a
request for particular types of records. These special requirements are noted, where applicable, as part of the descriptions of
components in Attachment B [obtain at DOJ website].
When a Justice Department 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 not
process your request, but will advise you of what additional
information is required.
Under certain circumstances you may be entitled to receive
more information under the Privacy Act of 1974 (a separate federal statute) than under the FOIA. Under the FOIA anyone can request any agency record. Privacy Act requests are more limited
and can be made only (1) by U.S. citizens or aliens lawfully
admitted for permanent U.S. residence, (2) who are seeking information about themselves, (3) which is in a system of records
maintained under their names or other personal identifiers. Even
if a request does not mention the Privacy Act, however, the Justice Department automatically treats requests as being made under
both the FOIA and the Privacy Act whenever it is appropriate to
do so. In this way, requesters receive the maximum amount of
information available to them by law.
V. Response Times
Under the statute, all federal agencies are required to
respond to a FOIA request within twenty business days, excluding
Saturdays, Sundays, and legal holidays. This period does not
begin until the request is actually received by the FOIA office
of the 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 out the documents within a reasonable time
afterward.
Some components of the Justice Department, such as the FBI
and the DEA, receive thousands of requests each year. Many of
these requests require a line-by-line review of hundreds and even
thousands of pages of documents. Although the Justice Department
is making every effort to respond to FOIA requests as promptly as
possible, in some cases it simply cannot do so within the specified time period. This may be due either to the size of the request or to the fact that the component has a backlog of previously received requests that are awaiting processing. Some components use "multitrack processing" queues to deal with their
heavy FOIA workloads; components' descriptions of their multitrack
processing systems are contained in Attachment B [obtain at DOJ website].
Under the FOIA, a component may extend the response time for
an additional ten business days when: (1) the component needs to
collect responsive records from field offices; (2) the request
involves a "voluminous" amount of records which must be located,
compiled, and reviewed; or (3) the component must consult with
another agency which has a substantial interest in the responsive
material or among two or more other components of the Justice
Department. 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.
When a determination on your request is not made within the
deadline described above and you have not agreed to a different
response deadline, you may file suit in federal court to obtain 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 also may approve a delay if it concludes that the component is experiencing an unexpected, substantial increase in the
number of requests received. In addition, 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. In such cases, the court may postpone its consideration
of your lawsuit until the agency reaches your request in its
processing backlog.
VI. Expedited Processing
Under certain conditions you may be entitled to have your
request processed on an expedited basis. However, you should
realize that whenever a FOIA request is expedited for a particular requester, it 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 Justice Department 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 simply because the requester is facing a court deadline
in some judicial proceeding. In both criminal prosecutions and
civil litigation there is a process known as "discovery," which
gives the parties certain rights to obtain relevant information
apart from the FOIA. These discovery rights are usually sufficient to protect the requester's due process rights. In administrative proceedings that do not include such procedures for obtaining access to necessary information, expedited access may be
granted when time is of the essence.
The FOIA also requires that requests be processed on an
expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently
needed to inform the public concerning some actual or alleged
government activity. Requests are not expedited under this
provision merely because the requester is a representative of the
news media. Similarly, the Justice Department also expedites
requests when the subject is of widespread and exceptional media
interest and the information sought involves possible questions
about the government's integrity which affect public confidence.
A request for expedited processing must be accompanied by a
statement setting forth the reasons why your request should be
expedited. You should certify that the reasons you have given
are true and correct. The component will be required to notify
you of its decision about whether to grant expedited processing
within no more than ten days after receiving your letter. If the
component denies your request for expedited processing, you will
be advised of your right to submit an administrative appeal of
that denial, which will be handled expeditiously.
VII. Fees
There is no initial fee to file a FOIA request and, in the
majority of requests made to the Justice Department, no fees are
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, and photocopying them. On the other hand, educational or noncommercial scientific institutions and representatives of the news media are
charged only for photocopying expenses, after the first 100 pages
of copies. Requesters who do not fall into either of these 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 100 pages of
photocopies. The Justice Department currently charges 10 cents
per page for photocopying. In all cases, if the total fee does
not exceed a minimum amount, currently $14.00, the Justice Department will not charge
any fee at all.
You may always 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 Justice Department 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. You ordinarily will not be
required to actually pay the fees until the records have been
processed and are ready to be sent to you. If, however, you have
failed to pay fees within 30 days of billing in the past, or if
the estimated fees exceed $250, you may be required to pay the
estimated fees in advance, that is, before the records are processed. If you agree to pay fees and then fail to do so within 30
days of billing, you may be charged interest on your overdue
balance and the Justice Department will not process any further
requests from you until payment has been made in full. If you
agree to pay fees for searching for records, be aware that you
may be required to pay such fees even if the search does not
locate any responsive records or, if records are located, they
are withheld as entirely exempt.
VIII. Fee Waivers
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 are denied under 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.
IX. Initial Request Determinations
Once the component has processed your request and any fee
issues have been resolved, the component will send you a written
initial determination. In the vast majority of cases, Justice
Department components will include any documents that can be
disclosed along with the determination letter, although in exceptional cases the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal
agency records (or portions of those records), except for those
records that are withheld under any of nine exemptions or three
exclusions (reasons for which an agency may withhold records from
a requester). The determination letter will advise you of
whether any information is being withheld pursuant to one or more
of the exemptions. When a page is being withheld in its entirety, the component usually either will specify the number of
pages being withheld or will make a reasonable effort to estimate
the volume of the withheld information.
The exemptions authorize federal agencies to withhold information covering: (1) classified national defense and foreign
relations information; (2) internal agency rules and practices;
(3) information that is prohibited from disclosure by another
federal law; (4) trade secrets and other confidential business
information; (5) inter-agency or intra-agency communications that
are protected by legal privileges; (6) information involving
matters of personal privacy; (7) certain types of information
compiled for law enforcement purposes; (8) information relating
to the supervision of financial institutions; and (9) geological
information on wells. The three exclusions, which are rarely
used, pertain to especially sensitive law enforcement and national security matters. Even if information may be withheld under
the FOIA, the component still may disclose it as a matter of
administrative discretion if that is not prohibited by any law
and would not cause any foreseeable harm, although the component
is not legally obligated to do so. The Justice Department
strives to achieve maximum responsible information disclosure
through this discretionary disclosure policy.
X. Appeals
You may file an administrative appeal if you are not satisfied with the component's initial response. You may disagree
with the component's withholding of information or you may believe that there are additional records responsive to your request that the component failed to locate. You also may file an
administrative appeal if you have requested expedited processing
or a fee waiver and the component has not granted your request.
You may also appeal a determination that a record does not exist,
that a record is not readily reproducible in the form requested,
that the requested information is not a record subject to the
FOIA, or any disputed fee matter. You should be advised of your
right to file an appeal in the initial determination letter sent
by the component or in the letter denying your request for
expedited processing or a fee waiver. Ordinarily, your appeal
must be received within sixty days of the date of the component's
determination letter. This time may be extended if the component
failed to notify you of your right to appeal in its determination
letter. All appeals must be made in writing and addressed to:
Office of Information and Privacy
U.S. Department of Justice
Flag Building, Suite 570
Washington, D.C. 20530-0001
Both the front of the envelope and the appeal letter should contain the
notation "Freedom of Information Act Appeal."
There is no specific form or particular language needed to
file an administrative appeal. You should include the initial
request number that the component assigned to your request and
the date of the component's action. If no request number has
been assigned, it will help if you enclose a copy of the component's determination letter. Please do not attach copies of
released documents unless they pertain to some specific point you
are raising in your appeal. You may explain the reasons why you
disagree with the component's action, but a simple statement that
you are appealing the decision ordinarily is sufficient. If,
however, you are appealing because you believe there are additional records that have not been located in response to your
request, you should specify why you think such records exist and,
if possible, where you believe they might be located.
Appeals from all components of the Justice Department are
reviewed by an attorney in the Office of Information and Privacy.
The attorney will ordinarily have available all of the documents
processed in connection with your request and will make an independent determination as to whether the component has properly
processed your request.
Under the FOIA, the Office of Information and Privacy is
required to make a determination on your administrative appeal
within twenty business days. The Office of Information and Privacy 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. When a case is remanded, you
will have an opportunity again to appeal to the Office of Information and Privacy after the component has reprocessed the records if you remain dissatisfied with the component's action in
any respect.
XI. Judicial Review
If you still believe that the Justice Department has not
handled your FOIA request in accordance with the law after your
appeal has been decided, you have the right to challenge the
agency's action in a lawsuit filed in federal court, through the
litigation process known as "judicial review." Before doing so,
you ordinarily will be required first to have filed an administrative appeal and to have received a response. If the Justice
Department fails to respond to either your initial request or
your appeal within the time limits discussed above, however, you
may file suit as soon as the time limits have expired.
If you do bring a court action, you may file your suit in a
federal district court in any of the following places: (1) where
you reside, (2) where you have your principal place of business
(if any), (3) in the District of Columbia, or (4) where the records are located, if they are not located in the District of
Columbia. If you have waited until you have received an administrative appeal determination, that final administrative response
letter will advise you of your right to seek judicial review and
will specify where you can do so. You have six years to file
suit from the time your right to sue begins. Lastly, please understand that attorneys and employees of the Justice Department
are prohibited from giving legal advice to members of the public
on any matters, including Freedom of Information Act litigation.
A brief description of recent FOIA litigation may be found
in Attachment E [obtain at DOJ website].
Attachments:
[available at DOJ website noted below]
A--Listing of FOIA contacts at all federal agencies
B--Description of Justice Department components and related
information
C--Descriptions of major information systems
D--Copies of forms
E--Brief description of recent FOIA litigation
