3-17.100
Introduction and Overview of the Freedom of Information Act (FOIA)
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The Freedom of Information Act, codified at 5 U.S.C. Sec. 552, was
enacted in 1966, with an effective date of July 4, 1967. In revising
Section 3 of the Administrative Procedure Act of 1946, as amended, it
provided, with certain enumerated exceptions, for disclosure to the public
of records, files, and other information of federal departments and agencies
(hereinafter "agencies") in the executive branch. Since its enactment, the
Act has been amended several times. The general presumption is that
documents are to be disclosed when someone requests them. See
generally the EOUSA Resource Manual at
136.
[cited in
EOUSA Resource Manual 136]
3-17.120
FOIA Operations Within the Justice Department
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The regulations of the Department of Justice for administration of the
Act are published at 28 C.F.R. Part 16, Subpart A.
Requests for access to records under the FOIA should be directed to the
component of the Department which maintains the records. Requests for
records of United States Attorneys' offices or concerning activities of the
United States Attorneys should be immediately forwarded to the Executive
Office for United States Attorneys.
Departmental policy is that the originating component of any
intra-Departmental document has the final decision on whether or not a
document should be disclosed. This means, for example, that the decision to
disclose a Federal Bureau of Investigation (FBI) investigative report is to
be made by the FBI. Because the Act is designed to provide access to
government information, it does not permit the withholding of a complete
document where only a portion of it comes within a particular exemption.
3-17.121
Office of Information and Privacy
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The Office of Information and Privacy (OIP) was established in the
Department of Justice to advise executive branch agencies and organizational
units of this Department on questions of policy relating to the
interpretation and application of the Freedom of Information Act (FOIA), 5
U.S.C. 𨺀 and to advise this Department on matters relating to the
interpretation and application of the Privacy Act of 1974 (PA), 5 U.S.C.
§ 552a. OIP coordinates the development and implementation of, and
compliance with, FOIA policy throughout the Executive Branch and undertakes,
arranges, or supports training and informational programs concerning both
Acts for Executive Branch agencies and this Department. In addition, OIP is
the reviewing authority for administrative appeals of FOIA/PA decisions made
by components of the Department of Justice
3-17.130
Procedure for Requests Under FOIA Received by the U.S. Attorney's
Office
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Upon receipt of a FOIA request by a U.S. Attorney's Office, its receipt
should be immediately acknowledged and the requester informed that his/her
correspondence has been forwarded to the FOIA/PA Unit of the Executive
Office for United States Attorneys (EOUSA). A copy of your acknowledgment
to the requester and the original request letter should then be forwarded to
the Executive Office for U.S. Attorneys (the responsible "component").
3-17.131
Specific Processing Procedures in Department of Justice
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Absent "exceptional circumstances", the FOIA/PA Unit must make an
initial determination within 10 working days after the date of official
receipt as to whether or not to comply with the request for disclosure, and
should immediately (by the close of the 10th working day) notify the
requester of the determination, the reasons therefor, and the requester's
right to administratively appeal any adverse determination to the Office of
Information and Privacy within 30 days after receipt of this initial
determination. Components of the Department of Justice shall comply with
the time limits set forth in the FOIA for responding to and processing
requests and appeals, unless there exist exceptional circumstances within
the meaning of 5 U.S.C. Sec. 552(a)(6)(C).
The Department's regulations provide (28 C.F.R. Sec. 16.4(b)) that the
reply letter denying the request, in whole or in part, must be signed by the
head of the responsible component (the Director or his/her designee of the
Executive Office for U.S. Attorneys in the case of U.S. Attorneys' Offices).
Such a denial letter must specifically set forth: the exemptions relied
upon; how those exemptions were applied in this case; a statement of the
requester's right to an administrative appeal and judicial review; the time
period for administrative appeal; and, the name and title of the person
responsible for the denial.
The Act permits reasonable search and copy fees to be charged to the
requester. United States Attorneys' office personnel who become involved in
searching for, gathering, copying and forwarding documents and materials to
EOUSA for processing, should maintain accurate records of the time and
materials expended in such FOIA processing efforts.
A requester who is not satisfied with the disclosure decision has the
right to pursue an administrative appeal to the Office of Information and
Privacy. OIP must act on an appeal within 30 working days after the date of
receipt of the appeal letter subject to a reasonable extension of time for
"unusual circumstances," 5 U.S.C. Sec. 552(a)(6)(B). If the appeal is not
acted upon within this time frame, or the appeal is ultimately denied, the
requester may file a complaint in the United States District Court in the
district where the requester resides or has his/her principal place of
business in which the records are located, or in the District of Columbia.
These civil actions are under the supervision of the Federal Programs
Branch, Civil Division.
3-17.140
Relation to Civil and Criminal Discovery
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Access to records under the FOIA is entirely independent of discovery
under the Federal Rules of Civil and Criminal Procedure; an individual is
free to use both means of gathering information.
The Act directs agencies to provide to "any person" any record
reasonably described (5 U.S.C. Sec. 552(a)) and not exempt by the Act (5
U.S.C. Sec. 552(b)(1) to (9)). As a general rule, no inquiry is made as to
the purpose for which the record is sought.
3-17.150
Sanctions for Violating FOIA
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See the EOUSA Resource Manual at
137.
3-17.200
Privacy Act (PA)
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The Privacy Act of 1974, Pub.L. No. 93-579 (December 31, 1974), the
principal provision of which (Section 3), is codified at 5 U.S.C. Sec. 552a,
amended by Pub.L. No. 98-477, 98 Stat. 2209 (1984).
The purposes of the Act are, to:
- Safeguard an individual's privacy from misuse of
federal records;
- Grant an individual access to records concerning him/her which
are
maintained by federal departments and agencies (hereinafter
"agencies");
- Provide an individual with a limited right to correct
inaccuracies in
his/her records maintained by agencies;
- Provide an individual with a limited right to contest the
routine uses and
accuracy of these records;
- Impose certain administrative/procedural restrictions on
agency collection,
maintenance, and dissemination of personnel information;
- Limit the use by federal, state, and local governmental
agencies of the
social security number as a personal identifier; and
- Establish a two-year Privacy Protection Study Commission to
develop
recommendations for further legislative-type controls on the
recordkeeping
practices of federal, state, and local governmental agencies and
private
organizations. An "individual" covered by the Act is a citizen of
the United
States and an alien lawfully admitted to the United States for
permanent
residence. A "record" subject to the Act is one maintained by a
federal agency
about an individual, access to which is by name, identifying
number, symbol, or
other similar identifying particular, including a fingerprint,
voice print, or
photograph. The phrase "system of records" is defined as a
grouping of records.
Finally, a "routine use," with respect to disclosure of a record,
is one which
is compatible with the purpose for which the information was
collected.
3-17.220
Privacy Act Operations Within the Justice Department
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The regulations of the Department of Justice for administration of the
Act are published at 28 C.F.R. Part 16, Subpart D. Subpart E of 28 C.F.R.
Part 16 sets out the system of records exempt under Section 3(j) or (k) of
the Act.
General Departmental supervisory responsibility over the Act is in the
Justice Management Division (JMD) under the direction of that Division's
General Counsel. That office, which is designated the FOIA/PA Section, is
responsible for receiving and routing to the appropriate office, board,
division, or bureau requests to the Department for access and/or correction
of records subject to the Act. (Most requests however, are actually routed
to a system manager in a particular component of the Department by the
requester.) General Counsel JMD is responsible for: monitoring compliance
by the Department with the Act; making recommendations to improve such
compliance; preparing the Department's annual report under the Act; and
performing certain other administrative/management functions under the
Act.
Information on procedures for requests under the Privacy
Act can be
found in the EOUSA Resource Manual | | | | | | | | | | | | | | | | | | | | | | | | | | |