Testimony to the Information, Security and Privacy Advisory Board, 2015
October 23, 2015State Resolutions Organizing Toolkit
October 28, 2015Resource: How to Submit a FOIA Request
You’ve been meaning to do it for years: use the Freedom of Information Act to find out which government agencies have been spying on you and which of the groups you belong to have been infiltrated. Use the resources on this page to get started!
Why Every Activist Should FOIA Themselves, and their Group
What about State and Local Government Records?
How to File a FOIA – Instructions and Sample Letters
Why You Should FOIA Yourself
It’s now easier than ever for U.S. police agencies to get, keep and share information about you and your political and religious beliefs and activities. The Patriot Act, FISA Reform Act and new FBI guidelines loosen restrictions on spying while new technologies enhance the government’s ability to collect and store data. Information about perfectly legal activities of innocent Americans is shared throughout the government, including the military, through Fusion centers, Joint Terrorism Task Forces and other mechanisms.
Freedom of Information Act requests have led to the disclosure of federal, state and local police spying on political groups. Here are just a few examples:
- In 2011, Austin activist Scott Crow received 440 pages of his FBI file, which revealed that the FBI spent three years tailing him, digging through his trash, tracking his phone calls and trying to find ways to harass him.
- In 2010, the Department of Defense was forced to release documents that revealed (among other things) that the FBI spied on Planned Parenthood protest activities and shared the info with DOD; NORAD collected and shared intelligence about a protest planned by Alaskans for Peace in 2005; and the Army Reserve collected information about protest groups in Georgia.
- In 2009, a FOIA request to the town of Olympia, Washington, made by a member of IWW revealed that the Army had infiltrated Students for a Democratic Society and a local peace group. The informant had become an integral part of the peace group, and administrator of their listserve.
- A 2006 FOIA request to law enforcement agencies in Maryland revealed that state police had infiltrated peace, environment anti-death penalty and other groups, and labeled non-violent activists as “terrorists” in a police database.
That just scratches the surface of what has been revealed by FOIA. Check out Sunshine in Government’s FOIA FILES as well as MuckRock for more juicy tidbits.
A Brief History of FOIA
The Freedom of Information Act (FOIA) was enacted by Congress in 1966 to give the public access to information held by the federal government. But, it was not until after the 1976 public exposures of the FBI’s flagrant abuses of constitutional rights under COINTLEPRO, that Congress broadened the purview of FOIA to include CIA and FBI documents.
On his first day in office, President Obama issued a Presidential Memorandum regarding FOIA, stating:
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.”In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.
— January 21, 2009, President Barack Obama
Memorandum for the Heads of Executive Departments and Agencies
The memorandum directed the Attorney General to issue new FOIA guidelines, which were published in March. The new guidelines directed agencies to be more forthcoming in responding to FOIA requests:
First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because
it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption. Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other arts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.— March 19, 2009, Attorney General Eric Holder
Open government advocates argue that the reality has not matched this rhetoric, although some federal agencies have improved their response to FOIA requests.
Who Can File?
Anyone can file a FOIA request. You do not need to be a U.S. citizen. The Act gives any person the right to request and receive access to any document, file, or other record in the possession of any federal government agency, subject to exemptions. You can ask the FBI for any information they have on you, or you can ask the CIA what they have on your peace group. You can also request records that may be of interest to your advocacy work from various agencies.
What About State and Local Government Records?
The Freedom of Information Act doesn’t apply to state and local governments; each state has its own laws and procedures regarding disclosure of records, but sometimes it is easier to get information from state and local governments. A major component of post-9/11 law enforcement has been the push to share information across agencies and up and down levels of government. Information gathered by your local police may find its way up the ladder to state and federal police agencies. Documents released by state and local agencies can help give us a better picture of the information sharing environment, so you are encouraged to request information from all levels of government. In most states, you can use the template provided in this packet, but begin your letter “Pursuant to the (my state) Public Records Act, I seek the following records….”
To find out where to send your request, or to ask about specific procedures, you can call your local or state police department (or whatever agency you are interested in) and ask how to file a public records request. If your request pertains to records about yourself, be sure to mention that, because often additional documentation is required to affirm your identity.
The National Freedom of Information Coalition maintains a resource page with links to information on Freedom of Information and Public Records for each state.
The Reporters Committee for Freedom of the Press has a letter generator to help you file a request with your state
How to File a FOIA Request
The first step is to send a letter to the agency you think may have the information you want. You can use the FOIA online portal to send a request to some federal agencies, or use the Reporters Committee for Freedom of the Press letter generator, or use the tools available at Muckrock (which charges a small fee). Or, you can print out a letter and mail it to the agency you are interested in.
You can refer to the sample letters are below to find out how best to word your request. As you move along in the process, make sure to be a diligent record keeper: keep a copy of each request you send and when you sent it, and keep track of every subsequent communication with the agency (or agencies). Keep notes from each phone conversation; it is also wise to follow-up each phone conversation with a letter confirming the substance of the phone call. If you use the Reporters Committee or Muckrock, they will automatically keep track of your requests and follow up for you.
Step 1: File Your Request
File a request about your group(s)
Step 2: Agency Response (or lack thereof)
You should receive a response from the agency within 20 working days. It might just be an acknowledgement of your request that includes a point-of-contact or case officer for your FOIA request. If the date passes without a response, your first step should be a phone call. To check on the status of your FBI FOIA request, you may call David P. Sobonya, the FBI’s FOI/PA Public Information Officer, at (540) 868-4593.
Contacts for other agencies are listed here.
What should you do if:
If you receive your file — next steps
If the Agency denies your request:
Denial: documents were not adequately described
Denial: documents don’t exist or are not in control of the agency
Denial: request falls under one or more of FOIA’s exemptions
Step 4: Filing an Appeal
If an agency has denied your request in whole or in part, you can file an administrative appeal to the head of the agency. You are strongly encouraged to do so, because appeals are easy to file, and often lead to the disclosure of information initially withheld. Most agencies require that appeals be filed within 30 days.
An appeal can include your arguments supporting disclosure of the documents requested – you may include any facts or any arguments supporting the case for reversing the initial decision. However, an appeal letter does not have to contain any arguments at all. It is sufficient to state that the agency’s initial decision is being appealed.
Appeal letters can be used to challenge: (a) the agency’s failure to respond in a timely manner; (b) the agency’s decision not to release records; (c) the adequacy of the search methodology used by the agency to locate responsive records. If you are appealing a denial, the agency’s denial letter should inform you of appeal procedures and the proper address to send your appeal letter. Your appeal letter should attach and describe copies of the request and the denial, state that an appeal is being made of the agency’s initial denial, and, if you can, explain why the denial was unwarranted, either because the exemption does not apply or because the agency should use its discretion to release the records anyway.
FOIA Yourself
Use the first form letter below. This particular form letter is addressed to FBI headquarters, but you can find the addresses of other agencies below. Since this is a request for information about yourself, it is also a Privacy Act request, which means you must provide evidence that you are who you say you are. To do that, download and fill out this Certification of Identity.
On the outside of the envelope, write: FOIA/PA Request.
(Your Name
Address
City, State ZIP
Date)
Federal Bureau of Investigation
Attn: FOI/PA Request
Record/Information Dissemination Section
170 Marcel Drive
Winchester, VA 22602-4843
Re: FREEDOM OF INFORMATION
ACT/PRIVACY ACT REQUEST
To Whom It May Concern:
Pursuant to the Freedom of Information Act, 552 U.S.C. § 552, and the Privacy Act, 552 U.S.C.§ 552a, I seek the following records1, created or collected from
(date you want the agency to begin their search) to the present:
1. Any records about myself.
To assist you with the search, I am providing, in addition to the above-listed address, the following:
My full name:
Other names used:
My date of birth:
My place of birth:
My social security number:
2. Any records relating to the following events:
(provide as many details as possible, for example date, place and time of protests, meetings etc that may have been monitored by law enforcement)
This request is for research and study purposes, and not for any commercial use. I agree to pay up to $ (amount you are willing to pay — many agencies assume you will pay up to $25) in fees, if the costs exceed the two hours of search time and 100 pages of duplication costs for which I am entitled not to be charged. Please notify me in advance if the fees exceed that amount. If the records exceed 250 pages, I would appreciate a digital copy on a CD-ROM rather than photocopies.
If you have questions, you can reach me at (your phone number).
Under penalty of perjury, I hereby declare that I am the person named above and I understand that any falsification of this statement is punishable under the provisions of Title 18, United States Code (U.S.C.), Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years, or both; and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of Title 5, U.S.C., Section 552a(i)(3) as a misdemeanor and by a fine of not more than $5,000.
Sincerely,
(your signature)
_______________________________________________
1 The term “records” includes all records on communication preserved in any form, including: correspondence, documents, data, e-mails (including all attachments and history), text messages, web searches (including search histories), audio/visual tapes, faxes, files, guidance, analyses, notes, procedures, rules, manuals, and technical information.
FOIA Your Group
The FBI maintains a simple electronic FOIA request form to be used to request information about a group or event. If you choose to use that form, make sure you print it out and keep a copy for your records.
You can use the sample below, which we’ve modified based on an ACLU of Maryland FOIA request which revealed that Maryland State Police had unconstitutionally spied on anti-death penalty and anti-war groups (see the original FOIA here, see some of the released documents here, read more here)
(Your Name
Address
City, State ZIP
Date)
Federal Bureau of Investigation
Attn: FOI/PA Request
Record/Information Dissemination Section
170 Marcel Drive
Winchester, VA 22602-4843
Re: REQUEST UNDER FREEDOM OF INFORMATION ACT AND PRIVACY ACT
Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) and the Privacy Act, 552 U.S.C. § 552a, I seek the following records1, created or collected from (date you would like agency to begin their search) to the present, that were prepared, received, transmitted, collected and/or maintained by the Federal Bureau of Investigation or any of their components or field offices, including but not limited to any Joint Terrorism Task Force relating or referring to the following:
1. Any records relating or referring to (group or groups) including but not limited to records that document any monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration and/or collection of information relating
to the organization or its members.
2. Any orders, agreements, or instructions to monitor, conduct surveillance, question, interrogate, investigate, infiltrate, and/or collection information relating to (group or groups) or its members.
3. Any records relating or referring to how, why or when (group or groups) or its members were selected to be a subject of monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration, and/or collection of information.
4. Any records relating or referring to how monitoring, surveillance, observations, questioning, interrogation, investigation, infiltration and/or collection of information relating to (group or groups) or its members was or will be conducted.
5. Any records relating or referring to the names of any other federal, state or local government agencies participating in any monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration and/or collection of information relating to (group or groups) or its members.
6. Any records relating or referring to the specific role of the National Joint Terrorism Task Force or any local Joint Terrorism Task Force, in any monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration, and/or collection of information relating to (group or groups) or its members.
7. Any records relating or referring to the specific role of any federal, state or local government agency participating in any monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration and/or collection of information relating to (group or groups) or its members.
8. Any records relating or referring to how records about (group or groups) or its members have been, will be, or might be used.
9. Any databases, lists or other compilations of record that include (group or groups) or any of its members that were prepared or are maintained for monitoring or surveillance, or other law enforcement or anti-terrorism purposes.
10. All records relating to the monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration and/or collection of information about (group or groups) or any of its members in connection with meetings or assemblies at (location(s) of meetings).
11. All records relating to the monitoring, surveillance, observation, questioning, interrogation, investigation, infiltration and/or collection of information about (group or groups) or any of its members in connection with (specific protest activities such as vigils, tabling etc.) at (location of protest activity or activities).
12. All records relating to any database used for law enforcement or domestic surveillance or monitoring purposes, or for maintaining information that includes the names of organizations involved in (issue your group works on, such as “anti-war activities” or “animal rights activities,” etc) , demonstrations or other protest activities (including (group or groups)).
13. All records relating to any lists (or directives, orders, or instructions to prepare or maintain lists) of potential security threats or Potential Threat Elements (“PTEs”), including any records relating to the criteria to be used in designated PTEs, in the State of (your state) or other locations that include the names of organizations or individuals involved in (issue you work on) activities, demonstrations or other protest activity (including (group or groups)).
14. All records relating to any coordination by, between or among the FBI and the State of (your state) or any county, city or town within (your state) relating in any way to Joint Terrorism Task Force activities that include the monitoring, surveillance, questioning, interrogation, and/or investigation of individuals or organizations on the basis of organizational membership, political views or affiliation, or participation in protest activities or demonstrations.
This request is for research and study purposes, and not for any commercial use. I agree to pay up to $ (amount you are willing to pay, usually about $25) in fees, if the costs exceed the two hours of search time and 100 pages of duplication costs for
which I am entitled not to be charged. Please notify me in advance if the fees exceed that amount. If the records exceed 250 pages, I would appreciate a digital copy on a CD-ROM rather than photocopies.
If you have questions, you can reach me at (your phone number) – .
Sincerely,
_____________________________________________________________
1 The term “records” includes all records on communication preserved in any form, including: correspondence, documents, data, e-mails (including all attachments and history), text messages, web searches (including search histories), audio/visual tapes, faxes, files, guidance, analyses, notes, procedures, rules, manuals, and technical information.
Contact Information for Federal Agencies
FBI
You can submit your request via mail, fax or email:
Federal Bureau of Investigation
Attn: FOI/PA Request
Record/Information Dissemination Section
170 Marcel Drive
Winchester, VA 22602-4843
Fax: (540) 868-4995/4997
E-mail (scanned copy): foiparequest@ic.fbi.gov
To check on the status
of your FOIA request:
David P. Sobonya, FBI FOI/PA Public Information Officer, phone: 540-868-4593
Website: http://www.fbi.gov/foia/
CIA
CIA will not accept FOIA requests via e-mail.
Information and Privacy Coordinator
Central Intelligence Agency
Washington, D.C. 20505
Or send via fax to: 703-613-3007.
To check on the status
of your CIA FOIA request, call the FOIA Requester Service Center (8
– 4:30 EST)
703-613-1287
Website: www.foia.cia.go/FAQ.asp
DHS
Submit by mail only:
Mary Ellen Callahan
Chief Privacy Officer/Chief FOIA Officer
The Privacy Office
U.S. Department of Homeland Security
245 Murray Drive SW, Building 410
STOP-0655
Washington, D.C. 20528-0655
To check the status of
your request:
James V.M.L. Holzer
Phone: 703-235-0790 or 866-431-0486
Website: http://www.dhs.gov/xfoia/editorial_0579.shtm#1
NSA
You can submit your request via mail, fax or email:
National Security Agency
Attn: FOIA/PA Office (DJP4)
9800 Savage Road, Suite 6248
Ft. George G. Meade, MD 20755-6248
Fax: 443-479-3612
Privacy Act requests submitted by fax are limited to 20 pages and should be marked to the attention of the FOIA/PA Office.
E-mail: foianet@nsa.gov complete with a digital signature. This signature is required for all e-mail submissions. Requests without a digital signature will not be processed.
To check on your FOIA status:
FOIA/PA Office: 301-688-6527
United States Secret Service
Freedom of Information and Privacy Acts Branch
245 Murray Drive, Building 410
Washington, D.C. 20223
FOIA Officer/Requester Service Center Contact: Latita Payne
Phone: 202-406-6370
Fax: 202-406-5154
E-mail: FOIA@usss.dhs.gov
Website: http://www.secretservice.gov/foia.shtml
TSA
You can submit your request via mail, fax or email:
Transportation Security Administration
Office of the Special Counselor
ATTN: Freedom of Information Act Office
601 South 12th Street
Arlington, VA 20598-6033
By fax: (571) 227-1406
By E-mail: FOIA.TSA@dhs.gov
To check your FOIA status:
1-866-364-2872
Website: http://www.tsa.gov/research/foia/index.shtm
Agency Response: Files Received
We’re working to build a strong file of our own — documenting FBI and other agency abuses of Constitutional Rights, so please send us a copy of your file. Scan a copy of your file and email it to us at info@rightsanddissent.org; or make a copy and send it the old-fashioned way to : Defending Rights & Dissent, 11431 Amherst Ave #1821 Silver Spring, MD 20915,
Agency Response: Denial: documents were not adequately described
The agency may assert that files cannot be found because you did not adequately describe the documents you seek. You should contact the official handling your request for clarification and rewrite your request more precisely and resubmit it.
Agency Response: Denial: documents don’t exist or are not in control of the agency
The agency may say they have done a reasonable search and have not found any documents. This may be true, but if you believe you have been a target of the FBI (or other agency), you can challenge the adequacy of the agency’s search (see the sample appeal letter). You should call the agency and ask what search methodology or techniques the agency used in its attempt to locate responsive records – are there any search “clues” you can provide?
You can also consider re-framing your request – for instance, ask for records pertaining to groups you are active with, or specific events, rather than records specifically about yourself. You can also consider submitting a records request to your local or state police (click here).
Under certain circumstances, an agency may state that it has no records subject to your request, even though it does in fact have some relevant records. For example, under FOIA exemptions (see below), the agency may apply exemption 1 (national security), the government can refuse to acknowledge the existence of classified records if the mere existence of the records is classified. Under exemption 7 (investigatory records), where a subject is not aware of a criminal investigation and disclosure could interfere with law enforcement proceedings, the government can refuse to state whether such records exist.
Agency Response: Denial: request falls under one or more of FOIA’s exemptions
Public Citizen’s Freedom of Information Clearinghouse explains: An agency may withhold some or all of the records that you seek if they fall within one or more of the Act’s nine exemptions, described below. If an agency withholds records based on one of these nine exemptions, it must (1) release portions of the records that are not exempt and that can be separated from the exempt portions; (2) indicate where the withheld portions appear on the records; and (3) if the records are withheld in their entirety, provide a reasonable estimate of the amount of information that is being withheld, unless giving an estimate would harm an interest protected by the exemption invoked.
You may challenge an agency’s decision to withhold the records by appealing any denial. In some cases, you may also ask the agency to use its discretion to release the records even if the records are covered by an exemption (see Attorney General guidelines on page one).
Most likely exemptions:
(1) National Security: The documents exempt under this section are those that are properly classified pursuant to a Presidential Executive Order. If you are requesting a document that the agency tells you is classified, you may want to ask that the reasons for classification be re-examined, as the agency may determine that there is no longer a need for secrecy, at least as to some parts of the records in question.
(2) Internal Agency Rules: This exemption protects rules and practices of agency personnel that are “predominantly internal” in
nature and whose disclosure serves no substantial public interest or significantly risks circumvention of agency regulations or statutes. Thus, minor employee matters such as employee parking and cafeteria regulations are exempt.
(3) Information Exempted by Another Federal Statute: This exemption honors mandatory nondisclosure provisions in other laws.
(4) Trade Secrets and Confidential Commercial or Financial Information: Trade secrets are protected from disclosure. In addition, commercial or financial information may be withheld if it was voluntarily given to the government and is not customarily disclosed to the public by the company, if its disclosure likely would impair the agency’s ability to obtain information in the future, or if disclosure of the information would cause substantial competitive injury to the business that submitted it to the government.
(5) Internal Agency Memoranda: This exemption protects inter- or intra-agency memoranda that would normally be privileged in litigation. The most often invoked privilege is the “deliberative process” privilege, which allows an agency to withhold documents containing advice and recommendations which are both pre-decisional and deliberative, but still requires release of any segregable, factual portions of documents. Typically, preliminary drafts and unfinished reports may be withheld,
but final decisions and the memos on which they are based must be disclosed. Thus, a memo from a staff person to a supervisor recommending that a particular policy be established would be exempt from disclosure. But the factual portions of this memo would not be exempt unless they reveal the deliberative decision-making process of the agency.
(6) Personal Privacy: This exemption involves a balancing of the public’s interest in disclosure against the degree of invasion of privacy that would result from disclosure. If your request involves this exemption, you should provide a brief explanation of the public benefits from disclosure, particularly how disclosure sheds light on government activities, so that it can be determined whether any invasion of privacy resulting from disclosure would be “clearly unwarranted.”
(7) Investigatory Records: This exemption protects information compiled for law enforcement purposes that could reasonably be expected to interfere with enforcement proceedings, to identify a confidential source, to disclose techniques and procedures for law enforcement investigations, or to invade personal privacy.
(8) & (9) Other Exemptions: These are two special-interest exemptions relating to banking and oil well information, and they are not relevant to most FOIA requests.
Under certain circumstances, an agency may state that it has no records subject to your request, even though it does in fact have some relevant records. For example, under exemption 1 (national security), the government can refuse to acknowledge the existence of classified records if the mere existence of the records is classified. Under exemption 7 (investigatory records),
where a subject is not aware of a criminal investigation and disclosure could interfere with law enforcement proceedings, the government can refuse to state whether such records exist.
If you receive your file
— next steps
If the Agency doesn’t respond
(contact information)
If the Agency denies your request
Instructions for filling out these forms
FBI Washington, DC Field Office
CIA link to CIA FOIA webpage
Department of Homeland Security link to DHS FOIA webpage
NSA (National Security Agency) link to NSA FOIA webpage
TSA (Transportation Safety Administration) link to TSA FOIA webpage
The letters are in Word format so you can download them and customize them.
To file a record request from a state or local agency, please visit the Reporters Committee for a Free Press.
Sample Appeal Letter
Sometimes an agency denies your request, but you are allowed to appeal. Writing an appeal letter is pretty simple, and you are encouraged to do so.
This sample letter is addressed to the FBI. Your response letter from any other agency will identify who you should address
your appeal to. In all cases, your letter should include the line “this is an appeal under the Freedom of Information Act, 5 U.S.C.
§ 552”. You should also write “Freedom of Information Act Appeal” on the outside of the envelope on the lower left hand corner. The only other necessary information is your name, address and information that identifies your initial request (usually the agency will assign your request a case number, which will be included in the response letter).
Freedom of Information Appeal
Office of Information Policy
U.S. Department of Justice
Suite 11050
1425 New York Avenue, N.W.
Washington, D.C. 20530-0001
Date: (date)
Re: Freedom of Information Act Appeal
Dear Administrator:
This is an appeal under the Freedom of Information Act, 5 U.S.C. §552.
On (date) I made a FOIA request to the FBI for (brief description of what you requested). On (date), the FBI denied my request
on the grounds that (state the reasons given by the agency). Copies of my request and the denial are enclosed.
Pursuant to the Freedom of Information Act, 5 U.S.C. 552, I hereby appeal that denial. The information which I have requested is clearly releasable under FOIA and, in my opinion, may not validly be protected by any of the Act’s exemptions.
(Here, insert legal and “public policy” arguments in favor of disclosure, if you wish. You are not required to make legal or policy arguments to support your appeal; if you simply state “I appeal” the agency will review the documents and the justifications
given in the original denial. However, it is usually a good idea to try to persuade them to release the information. See the Federal Open Government Guide (www.rcfp.org/fogg/index.php?i=ex1) or call the Defending Dissent Foundation office for further information on any of the specific exemptions cited by the agency in their denial of your original request. The descriptions contained there should suggest arguments you can make to counter the agency’s assertions.)
I trust that upon re-consideration, you will reverse the decision denying me access to this material and grant my original request.
Thank you for your assistance.
Very truly yours,
Your signature
Name (printed)
Address
Telephone number (optional)