3-17.000
FREEDOM OF
INFORMATION
ACT
(FOIA) AND
PRIVACY ACT (PA)
3-17.100 Introduction and
Overview of the
Freedom of
Information Act (FOIA)
3-17.120 FOIA Operations
Within the
Justice Department
3-17.121 Office of
Information and Privacy
3-17.130 Procedure for
Requests Under FOIA
Received by the
U.S. Attorney's Office
3-17.131 Specific Processing
Procedures
in Department of
Justice
3-17.140 Relation to Civil
and Criminal
Discovery
3-17.150 Sanctions for
Violating FOIA
3-17.200 Privacy Act (PA)
3-17.220 Privacy Act
Operations Within the
Justice
Department
3-17.280 Departmental
"(a)(2)"
Publications
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.
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.
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
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").
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.
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.
See the EOUSA Resource
Manual at 137.
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.
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
Section (a)(2) of the Freedom of Information Act requires each
agency to
"make available for public inspection and copying" the agency's
so-called (a)(2)
materials, that is, certain final opinions and orders, certain
statements of
policy and interpretation, and certain administrative staff manuals
and
instructions to staff. Pursuant to the (a)(2) requirements, the
Department of
Justice published an index of such material. See 42 Fed. Reg.
15347. Listed
therein for the U.S. Attorneys are the following publications:
- The United States Attorneys' Manual;
- The United States Attorneys' Bulletin;
- Proving Federal Crimes, May 1980 Edition.
| September 1997
| USAM Chapter 3-17
|