The Freedom of Information Act (“FOIA”) is a wonderful tool for collecting data from federal agencies.Lawyers will often advise their clients to file a FOIA request for one reason or another. In the context of immigration, attorneys often advise their clients to file FOIA requests with U.S. Citizenship and Immigration Service (“USCIS”), Immigration and Customs Enforcement (“ICE”), Customs and Border Patrol (“CBP”), the Office of Biometric Identity Management (“OBIM”), or the Executive Office for Immigration Review (“EOIR”).
The information the attorney seeks to glean from these requests will often inform important questions, such as what type of relief you may qualify for, and what types of relief may be off the table. For example, if CBP FOIA records show that you’ve been removed from the United States twice in the past three years, but you forgot to mention that to the attorney, this information will inform the attorney that they should not suggest you apply for certain types of relief which will save everyone time, and will save you money. Conversely, if FOIA records show that someone applied for an immigration benefit for you in 1999, which now makes you eligible for a different form of relief, this will allow the attorney to recommend the right course of action for you even if you forgot to inform your attorney about the previously filed petition.
The goal of this article is to explain to you, in the simplest terms possible, what the FOIA is, what you need to know about it, and what it can do. This article will also briefly talk about potential remedies that may be available to you if the government fails to comply with their responsibilities imposed by the FOIA.
Historical Background
First, some history—it’s important to understand where the FOIA came from in order to understand where it is now.
In the first half of the 1950s, the United States was in the grip of McCarthyism. One United States Senator, Mr. Joseph McCarthy, began a vociferous campaign against alleged communists in the U.S. government and other institutions. Although most of the persons alleged of being communists were not communists, they were nonetheless blacklisted and many lost their employment. In response to this blatant partisan fearmongering, and rapidly increasing governmental secrecy, Democratic Congressman John Moss championed the FOIA. Although Moss first suggested the FOIA in 1955, with the support of newspapers editors and journalists, he was unable to find Republican support for the bill until a young Republican named Donald Rumsfeld joined Moss’s efforts during the Kennedy and Johnson administrations. Despite this bipartisan support, President Lyndon B. Johnson, along with every federal agency, opposed the FOIA. Ignoring presidential opposition, the Senate passed its version of the FOIA and the House passed the bill soon after with a vote of 307-0. In 1966, President Johnson signed the bill, and the FOIA became law.
In its initial form, the FOIA was impotent because it contained no enforcement power. Federal agencies could ignore FOIA requests without consequence. However, in response to the Watergate scandal of 1974, in which President Nixon was caught with his hand in the cookie jar, Congress amended the FOIA, allowing individuals to sue the federal government if they failed to comply with their FOIA obligations. President Gerald Ford, at the request of, of all people, Mr. Donald Rumsfeld, vetoed the 1974 FOIA amendments on the ground that it was unconstitutional, imposed too great of a burden on federal agencies, and was likely to jeopardize national security. Congress promptly overruled this veto
Though the FOIA was amended by Congress on multiple occasions after the 1974 amendment, the most important subsequent changes to the FOIA regime, between 1975 and 2001, stemmed from Executive Orders. For example, in 1982, “President Ronald Reagan issued Executive Order 12356, which created new classification rules that made withholding potentially sensitive government information as a response to FOIA requests much easier.” President Bill Clinton later reversed or loosened these restrictions. Then, in 2001, President George W. Bush issued Executive Order 13233, which decreased access to presidential records, much to the chagrin of journalists and government watchdogs.
In 2002, Congress reentered the fray, passing the Intelligence Authorization Act to limit access to governmental records of foreign governments. In 2007, the OPEN Government Act of 2007, which updated who qualified as members of the news media (thereby allowing more persons to obtain cheaper access to records), was passed. In 2016, the Obama Administration passed the FOIA Improvement Act, which included modest reforms to the FOIA, including limits to when an agency may withhold information.
Administrative Compliance with the FOIA
Since roughly 2004, obtaining data from the FOIA has become harder and harder. Each new administration since George W. Bush’s seems to be more secretive than the last. George W. Bush’s administrative has been accused of being “the most secretive administration in history,” and government became even more secretive under the Obama administration. President Trump’s administration between 2016 – 2020 has followed this path, fighting certain FOIA requests tooth-and-nail, and simply ignoring others.
Because of the current 16-year trend towards government secretiveness by government agencies subject to the FOIA, it is important for people who are filing FOIAs to understand their rights under the FOIA, and to understand how these rights can be enforced in the face of government intransigence.
What Rights Does the FOIA Provide and How Do I Make a FOIA Request?
The FOIA allows any person, regardless of citizenship, to make a FOIA request. Generally, FOIA requests should be reserved for information that is not publicly available. If the information sought is not publicly available, a FOIA request may be submitted in written form to the agency. The FOIA request should reasonably describe the records sought. The vast majority of federal agencies accept FOIA requests electronically, including by web form, e-mail, or fax. A complete list of federal agencies can be found HERE. No specific form is needed to make a FOIA request, although using an agency’s form can sometimes make things simpler. Additionally, depending on how large and involved the FOIA request is, the agency is permitted by statute to charge certain fees, although these are generally waived as a matter of course so long as the fees are less than $25.
It is important to note that each agency handles its own records in response to requests. Within the context of immigration, this means as many as five separate FOIAs may need to be filed in order to get a complete history of one’s immigration history. Because USCIS, ICE, CBP, OBIM, and EOIR are all different agencies which control their own records, a thorough FOIA request will need to request data from each of these agencies. Additionally, depending on the underlying facts of any individual’s history, it may also be necessary to file FOIA requests with other agencies including, but not limited to, the Federal Bureau of Investigation (“FBI”), the Department of Justice (“DOJ”), etc.
A FOIA request can be made for any agency record, and you are allowed to specify the format in which you wish to receive the records (printed or electronic form, etc.). However, the FOIA does not require agencies to create new records, conduct research, analyze data, or answer questions when responding to FOIA requests, so FOIA requests typically need to be phrased carefully. Additionally, there are nine statutory exemptions to the FOIA which allow agencies to withhold certain data which falls within the ambit of any of the exemptions.
Once a FOIA request is submitted, the agency typically has 20 business days to make a “determination.” Courts have construed this “determination” requirement as requiring the agency to determine whether it will comply with the FOIA request; the agency is not required to answer the FOIA request within 20 business days. Although agencies typically send an acknowledgment letter, most such acknowledgement letters do not satisfy the “determination” requirement.
If the agency fails to make a determination within 20 business days, the requester has the right to file a lawsuit against the agency for noncompliance with the FOIA. However, if the agency issues a determination more than 20 business days after the FOIA request was filed, but before a lawsuit has been filed, the right to file a lawsuit for untimeliness dissipates, and the requester is instead required to go through the administrative appeals process before filing suit.
If the agency makes a determination before suit is filed (regardless of whether the agency has determined to comply or fight), the agency will likely do one or more of three things: (1) the agency will disclose all requested documents or state that no such documents were found, (2) the agency will disclose some documents and redact or withhold others and will state their reason for withholding, or (3) the agency will acknowledge that records exist but will withhold them in full and will state their reasons for so doing. Assuming the agency makes a determination before a suit is filed, the agency can take as long as is reasonably necessary to fulfill the request. In practice, this allows agencies upwards of 1-2 years, in many but not all instances, to respond fully to the request.
If the requester is happy with the agency’s response, nothing more needs to be done. If the requester is unhappy with the agency’s response, the requester has a limited window of time to file an administrative appeal. The denial/response letter should provide details on how and when to file such an appeal. There is not currently any sort of required filing fee for an appeal from a FOIA, so if you’re told otherwise, find a new attorney (most attorneys will charge legal fees for filing an administrative appeal, which is normal, but they should not be charging “filing” fees).
If the results of the administrative appeal are less than satisfactory, the requester is again allowed to file a lawsuit in federal court against the agency for noncompliance with the FOIA. If the litigant is deemed a “prevailing party,” they may be able to recover attorney’s fees and costs from the federal agency or agencies named in the lawsuit. The FOIA requester has six years from the date of the issuance of a decision on the administrative appeal, and if the requester has failed to file a lawsuit in the applicable period, they may refile the FOIA request to restart the statute of limitations.
FOIA litigation can be exceedingly complex, although some cases are quite straightforward. If you are considering a FOIA lawsuit, you’ll get the best results if you hire a competent attorney who has experience litigating FOIA issues. Because the merits of most FOIA litigation is tied to the strength and thoroughness of the initial FOIA request and any administrative appeal therefrom, it is highly recommended to retain an attorney to draft your initial FOIA request if you need the requested information for any important personal or immigration-related reason.
Conclusion
The FOIA is a powerful tool, and you can learn a ton from government agencies if you take the time to craft careful and targeted FOIA requests. If you have previously filed applications with government agencies, but you do not have copies of the application or results, your attorney may need to file a FOIA request before they can move forward with your case in order to make sure they do not file an application that will later come back to bite you, due to the eventual discovery of some important fact you forgot to tell your attorney. There is no need to hire an attorney to file a FOIA request, but doing so may aid your chances of receiving the response you want on the first try. Depending on which attorney you use, they may also be able and willing to help you file a FOIA lawsuit, should one be necessary, in order to help you enforce your statutory rights under the FOIA.
Disclaimer: This article was written generally and is not specific to the facts of your case. This article does not constitute legal advice and is not meant to constitute legal advice. Do not rely on this as legal advice. This article will not be updated, so the information might be out of date at some point in the future. For your reference, this article was written on October 5, 2020.