Q&A
Obtaining Documents Through the
Recently-Amended Freedom of Information Act
Prepared by Jane Perkins
National Health Law Program
February 2008
Q: I am researching an issue for possible litigation. I understand that the U.S.
Department of Health and Human Services (DHHS) may have stated a position
on the matter. If this is true, I need to know what the position is and what method
the agency used to transmit it (e.g. opinion letter, regional letter, e-mail).1 I asked
state employees for copies of relevant documents from DHHS, but they told me
they do not have anything. How can I get the documents, if any, from the federal
government?
A: You can submit a Freedom of Information Act (FOIA) request to DHHS,
asking for documents that refer or relate to the issue you are investigating. While
the FOIA has existed for years, it has often been ignored because of the
unreasonably long delays between the date of the request and the government?s
response (at times, exceeding two years). However, Congress recently
amended the FOIA to make it a better tool for obtaining documents and
improving government accountability.
Background
The ?basic purpose? of the FOIA is to ?ensure an informed society, . . . to check
against corruption and to hold the governors accountable to the governed.? N.L.R.B. v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Enacted in 1966, the FOIA
applies to each agency within the executive branch of the government, including DHHS.
See 5 U.S.C. § 552(f)(1).
Last year, for this first time in a decade, Congress amended the FOIA when it
passed the Openness Promotes Effectiveness in our National Government Act of 2007
(also called the OPEN Government Act), Pub. L. No. 110-175 (S. 2488), 121 Stat. 2524
(Dec. 31, 2007). The congressional findings reaffirm the importance of open
government:
? ?The effective functioning of a free government like ours depends largely
on the force of an informed public opinion. This calls for the widest possible
understanding of the quality of government service rendered by all elective or
appointed public officials or employees.? (quoting Barr v. Matteo, 360 U.S. 564
(1959));
? ?[D]isclosure, not secrecy, is the dominant objective of the Act.? (quoting
Dep?t of Air Force v. Rose, 425 U.S. 352 (1976));
? Government should be open and accessible to the American people and
?always based not upon the ?need to know? but upon the fundamental ?right to
know.??
OPEN Government Act, Pub. L. No. 110-175, § 2.
The OPEN Government Act includes provisions that establish stricter agency
response timeframes, impose penalties on agencies that fail to make timely responses,
and create an oversight Office of Government Information Services within the National
Archives and Records Administration (NARA). The President signed the legislation into
law on December 31, 2007.
Unfortunately, President Bush?s commitment to the OPEN Government Act is
already being questioned. Senators Patrick Leahy and Thad Cochran, drafters of the
2007 legislation, have objected a provision in the President?s fiscal year 2009 budget
that attempts to repeal parts of the Act and move the functions of the Office of
Government Information Services from the independent NARA to the Department of
Justice. See 154 Cong. Rec. S1050-02, 2008 WL 398113 (Feb. 14, 2008) (Statements
of Senators Leahy and Cochran). According to Senator Leahy, this proposal ?is not only
contrary to the express intent of the Congress, but contrary to the very purpose of this
legislation-to ensure the timely and fair resolution of American's FOIA requests.? Id. at
S1050. Implementation will need to be monitored in the coming months.
The requirements for disclosure
The FOIA requires records and information to be released to the public upon
request. See 5 U.S.C. § 552; see also 45 C.F.R. part 5 (DHHS regulations
implementing the FOIA). This includes final opinions and orders in the adjudication of
cases, ?statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register,? and administrative staff manuals
and instructions to staff that affect a member of the public. 5 U.S.C. § 552(a)(2)(A)-(C).
Records and information include documents on file with the agency in any format,
including electronic formats, and also include any information that is maintained for an
agency by an entity under government contract for purposes of records management.
Id. at § 552(f) (as amended by OPEN Government Act, Pub. L. No. 110-175, § 9).
For records created on or after November 1, 1996, within one year after the
creation date, the agency must make the records available, including by computer
telecommunications or, if computer telecommunications means have not been
established by the agency, by other electronic means. Id. at § 552(a)(2) (as amended
by the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-
231 (H. 3082), 110 Stat. 3048, Oct. 2, 1996). To avoid a ?clearly unwarranted invasion
of personal privacy,? the agency can delete identifying details, so long as the
justification for the deletion is explained fully in writing and, where possible, indicated at
the place in the record where the deletion occurred. Id.
Except in unusual circumstances, the agency must determine whether to comply
with a request within 20 working days after its receipt. The agency must immediately
notify the requester of the decision and of the right to appeal any adverse determination
to the head of agency, who must decide the appeal within 10 working days. Id. at §
552(a)(6)(A). This provision was strengthened in the OPEN Government Act. Effective
December 31, 2008, the 20-day period cannot be tolled by the agency except that the
agency can make one request for additional information and toll the 20-day period while
it is awaiting the response or to clarify issues regarding the search fee that the agency
has assessed. In either case, the agency?s receipt of the requester?s response ends the
tolling period. OPEN Government Act, Pub. L. No. 110-175, § 6. And, if the agency
fails to meet the 20-day deadline it cannot assess any search fees unless an unusual
circumstance exists. Id.
As noted, the timeframe to be extended only in ?unusual circumstances,? defined
to mean, ?only to the extent reasonably necessary to the proper processing of the
particular requests,? specifically for the need to:
? search for and collect records from field facilities or other establishments
that are separate from the office processing the request;
? search for, collect, and examine a voluminous amount of separate and
distinct records; or
? consult ?with all practicable speed? with another agency having a
?substantial interest? in the determination of the request.
5 U.S.C. § 552(a)(6)(B)(iii). A written notice to the person must explain the reason for
the extension and the date on which a determination is expected to be dispatched (in
most instances not to exceed 10 working days). Moreover, when the request cannot be
processed within the time limit, the agency must provide the person with an opportunity
to limit the scope of the request so that it can be processed with the time limit or an
opportunity to arrange with the agency an alternative time frame for processing the
request or modified request. Id.2
Agencies must have processes for expediting requests and respond within 10
days after the date of the request in cases where the person shows a compelling need.
Id. at § 552(a)(6)(E).
In most cases, the agency can charge a fee for providing the documents. The
agency must publish the fees schedule, including guidelines for waiving or reducing
fees. Id. at § 552(a)(4); see 45 C.F.R. §§ 5.41-5.45 (DHHS fee procedures). Notably,
the FOIA requires documents to be furnished without charge or at a reduced charge
if disclosure of the information is in the public interest because it is likely to
contribute significantly to pubic understanding of the operations or activities of
the government and is not primarily in the commercial interest of the requester.
5 U.S.C. § 552(a)(4)(A)(iii). The fee waiver provision was added in 1974 in ?an attempt
to prevent government agencies from using high fees to discourage certain types of
requesters and requests,? such as from journalists and non-profit public interest groups
See Ettlinger v. F.B.I., 596 F. Supp. 867, 872 (D. Mass. 1984) (citing Senate Committee
on the Judiciary, Amending the Freedom of Information Act, S. Rep. No. 854, 93d
Cong., 2d Sess. 11 (1974)).3
Permissible exemptions
The FOIA provides that agency documents must be provided to the public upon
request, unless the document falls within one of the nine exceptions listed in the FOIA:
1. The records are classified as secret pursuant to an Executive Order of
secrecy in the interest of national defense or foreign policy;
2. The records relate ?solely to the internal personnel rules and practices? of
the agency;
3. The records are specifically exempted from disclosure by another statute,
provided that statute leaves no discretion on the issue;
4. The records contain trade secrets and commercial or financial information
that is privileged or confidential;
5. The records are inter- or intra-agency memorandums or letters which
would not be available by law to a party in litigation with the agency (e.g. attorney
work product, attorney-client communications);4
6. The records are personnel, medical, and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy;
7. The records are compiled for law enforcement purposes, but only to the
extent that release could reasonably be expected to interfere with enforcement
proceedings, deprive a person of a fair trial, constitute an unwarranted invasion
of personal privacy, disclose the identity of a confidential source, reveal special
agency investigatory techniques and procedures, or endanger the life or safety of
any individual;
8. The records are prepared by or for the use of an agency responsible for
the regulation or supervision of financial institutions;
9. The records pertain to geological and geophysical information and data
concerning wells.
5 U.S.C. § 552(b). The agency must note on a partially released record which
exemption is being used to justify the withholding. See 5 U.S.C. § 552(b) (as amended
by OPEN Government Act, Pub. L. No. 110-175, § 12).
The standard that agencies are to apply when making disclosure decisions has
changed depending on the President. Congress finally weighed in as part of the OPEN
Government Act. The first Bush administration defended agency withholding whenever
there was a ?substantial legal basis? for doing so. The Clinton administration replaced
this policy with a ?presumption of disclosure? that allowed use of an exemption only
?where the agency reasonably foresees that disclosure would be harmful to an interest
protected by that exemption.? Memo from Attorney General Reno for Heads of
Departments and Agencies, Oct. 4, 1993, at
http:www.doj.gov/oip.foia_updates/Vol_XIV_3/page3.htm. Attorney General Ashcroft?s
policy replaced the ?foreseeable harm? standard with a policy that instructed agencies to
base their decision to use an FOIA exemption on ?sound footing, both factually and
legally.? Memorandum from John Ashcroft, Attorney General, for Heads of all Federal
Departments and Agencies (Oct. 12, 2001), available at
http://www.usdoj.oip/foiapost/2001foiapost19.htm.5
Last year, Congress stepped in to
stop the political see-saw, finding that
the Freedom of Information Act establishes a ?strong presumption in favor of
disclosure? as noted by the United States Supreme Court in United States
Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to
all agencies governed by the Act.
OPEN Government Act, Pub. L. 110-175, § 2(3).
Private enforcement
An individual who believes that the agency has improperly withheld records may
bring an action in the United States District Court in which the complainant resides or
has his principal place of business, in which the agency records are located, or in the
District of Columbia. 5 U.S.C. § 552(a)(4)(B).
In addition, a requester is deemed to have exhausted his administrative remedies
if the agency fails to comply with the applicable time limit provisions of the statute. If the
government can show the court that ?exceptional circumstances? exist and that the
agency is exercising ?due diligence? in responding to the request, the court can retain
jurisdiction and allow the agency additional time to complete its review of the records.
Id. at § 552(a)(6)(C). However, exceptional circumstances do not include a delay that
results from a predictable agency workload of requests, unless the agency
demonstrates reasonable progress in reducing the backlog of pending requests. If the
person making the request refuses to reasonably modify the request or arrange an
alternative time frame, this will be a factor in determining whether ?exceptional
circumstances? exist Id.
The district court exercises de novo review; judicial review is limited to the record
before the agency. Id. at § 552(a)(4)(A). The court can enjoin the agency from
withholding the documents and order production of them.
The court can assess attorney fees and other litigation costs against the United
States. Id. at § 552(a)(4)(E). The OPEN Government Act establishes a right to attorney
fees and litigation costs when the complainant has ?substantially prevailed? by obtaining
relief through either a judicial order, an enforceable written agreement or consent
decree, or a voluntary or unilateral change in position by the agency. See OPEN
Government Act, Pub. L. No. 110-175, § 4 (amending 5 U.S.C. § 552(a)(4)(E)).6
See
also 5 U.S.C. § 552(a)(4)(F) (as amended by the OPEN Government Act, Pub. L. No.
1100-175, §.5) (authorizing proceedings to determine whether disciplinary action is
warranted against an employee who was primarily responsible for a wrongful
withholding and requiring annual reports to Congress on the number of such actions).
Making the FOIA more responsive
To aid requesters, the OPEN Government Act amended the FOIA to requires
each agency to make an FOIA Public Liaison available to assist in the resolution of
disputes. It also requires each agency to establish a tracking system that will assign an
individualized tracking number for each request that will take longer than 10 days to
process. The agency must also establish a telephone line or Internet service that
provides information about the status to the request, including the date on which the
agency received the request and an estimated date on which the agency will complete
action on the request. See OPEN Government Act, Pub. L. No. 110-175, § 7 (adding 5
U.S.C. § 552(a)(7)) (effective Dec. 31, 2008).
Government agencies are also required to report extensive information about
their processing of requests, and these reports must be made available to the public on
request. Id. at § 8 (amending 5 U.S.C. § 552(e)). Finally, the Office of Government
Information Services is also established within the independent National Archives and
Records Administration. The Office will review policies and agency compliance, make
recommendations to Congress and the President on ways to improve administration of
the FOIA, and offer mediation services to resolve disputes between requesters and
agencies. See Id. at § 10 (adding 5 U.S.C. § 552(h)(7)).7
Filing a request with DHHS
You can submit an FOIA request to DHHS through a letter. Mark both the
envelop and its contents: ?Freedom of Information Act Request? and mail to:
Centers for Medicare & Medicaid Services
Office of Strategic Operations and Regulatory Affairs
Freedom of Information Group
Room N2-20-16
7500 Security Boulevard
Baltimore, Maryland 21244-1850
Rather than write a letter, you can use a pre-print developed by DHHS:
http://www.cms.hhs.gov/AboutWebsite/Downloads/FOIARecordsRequestForm.pdf. You
can also file on line: http://www.hhs.gov/foia/request/index.html.
Conclusion
For over 40 years, the FOIA has existed to improve government accountability
and help keep citizens informed. The OPEN Government Act of 2007 is designed to
make the FOIA more user-friendly and government more responsive. The National
Health Law Program can assist you with obtaining and reviewing documents.
1 The form of the document will determine the deference that it will be given in court. For information
about deference in Medicaid cases, see Sarah Somers, National Health Law Program, An Advocate?s
Guide to Deference (Feb. 2008), available at https://healthlaw.org or by contracting the NC office,
(919) 9968-6308 (x103).
2 By February 1st of each year, the agency must report to the Attorney General on the extent to which
documents have been withheld, the time frames for processing requests, and the full-time staff devoted
to processing requests. These reports must be made available to the public. See 5 U.S.C. § 552(e) (as
amended by OPEN Government Act, Pub. L. No. 110-175, § 8).
3 The fee waiver provision was amended again in 1986 to remove continued ?roadblocks and
technicalities.? 132 Cong Rec. S16, 489-01 (daily ed. Oct. 15, 1986) (Statement of Sen. Leahy). See also
132 Cong. Rec. S14, 270-01 (daily ed. Sept. 30, 1986) (Statement of Sen. Leahy) (?A request can qualify
for a fee waiver even if the issue is not of interest to the public at large. Public understanding is
enhanced when information is disclosed to the subset of the public most interested, concerned, or
affected by a particular action or matter.?).
4 ?The FOIA is not to be used as a substitute for the traditional means of discovery available to a litigant
. . . Accordingly, insofar as a requester seeks information merely to advance private lawsuits-or
administrative claims-we will consider disclosure less ?likely to contribute … to public understanding.? In
re Steele, 799 F.2d 461, 466 (9th Cir. 1986) (quoting 5 U.S.C. § 552(a)(4)(A)).
5 The Ashcroft memorandum also instructed agencies that a ?wide range of information? could be
withheld under Exemption 2 (regarding internal practices of the agency).
6 See H.R. Rep. No. 110-45, at 4 (2007), at http://www.fas.org/sgp/congress/2007/hrpt110-45.pdf
(stating that this section clarifies that Buckhannon Bd. and Care Home v. W. Va. Dept. of Health and
Human Resources, 532 U.S. 598 (2001), which rejected the ?catalyst theory? of attorney fee recovery
and required the litigant to prevail through a court ruling, does not apply to FOIA cases. If the agency
provides the records before a court decision, the requester may receive attorney fees and litigation costs.
Id.
7 The President's FY 2009 budget proposes: ?The Department of Justice shall carry out the responsibilities of
the office established in 5 U.S.C. 552(h). . . . In addition, subsection (h) of section 552 of title 5, United States
Code, is hereby repealed. . . .? See Commerce, Justice, and Related Agencies Appropriations Act, 2008, § 519
of Title V of the Department of Commerce; p. 239 of the Appendix. As noted above, Senators Leahy and
Cochran have voiced bipartisan objection to this attempted repeal.
