Q & A: Obtaining Documents Through the Recently-Amended Freedom of Information

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 
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. 
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 

? ?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 
? ?[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 
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 
 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
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. 
 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. 

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.

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