Door 3. What Records Can You Get?

What records can you get?  Under freedom of information law, the real question is: What records CAN’T you get?

That’s because freedom of information statutes at the state and federal levels provide the public with the GENERAL right of access to records of government agencies and offices covered under the laws.  Keep in mind, freedom of information laws have nothing to do with access to records of private companies, nonprofit organizations or any other nongovernmental entity UNLESS those records have been filed with and are under the control of a covered government agency AND the request is made to that governmental body.

If a record is under the custody and control of a covered agency, you generally are entitled to receive it upon request.  Waiting times and fees can apply, as provided under the freedom of information laws. 

There are important EXCEPTIONS to this general right to disclosure.  The exceptions are detailed in the individual state and the federal government’s freedom of information statutes and vary depending upon which freedom of information statute applies.  To understand what records you’re entitled to obtain, it’s important to understand what is potentially off limits.  To do that, for state and local records, you need to examine the applicable state’s freedom of information statute.  For federal records, the federal Freedom of Information Act applies.  Either way, the statute will set forth specific categories of records and information that government may keep confidential.  If the information you seek does not fall into one of those excluded categories, you should be able to obtain it.  Even if the information does fall under an exclusion, you still may be able to receive it.  That’s because, unless an exception applies, government generally has the obligation to disclose.  But the decision to withold information, if and when an exclusion under freedom of information law applies, is generally not required.  In such cases, withholding information often is a matter of discretion and government can opt to disclose information even when an exclusion applies.

Some typical categories of information that can be off limits:  disclosures that would violate personal privacy, disclosures that would compromise ongoing law enforcement investigations, disclosures specifically exempt by other laws, and disclosure of trade secrets. 

Take a look at this excerpt of New York’s law as an example of some of the types of information that can be legally withheld:

Records or portions of records that:

(a) are specifically exempted from disclosure by state or federal statute;
(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;
(e) are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;

(f) if disclosed could endanger the life or safety of any person;
(g) are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government; or

(h) are examination questions or answers which are requested prior to the final administration of such questions;
(i) if disclosed, would jeopardize an agency’s capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or
(j) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.

So, if you’re requesting information from a government agency in New York that’s covered under the Freedom of Information law, at the state, county or local level, unless it falls under one of the excluded categories above, you are legally entitled to it.  The same is true in states across the country, but you need to look at your state statute to determine what kinds of information can be withheld in order to fully appreciate what you have every right to obtain. 

Before you can obtain access to records, you need to find out which agency has them, the correct person to contact, and often the form in which they’re kept.  Review the state-by-state map for helpful starting points in your state.

At the federal level, the Freedom of Information Act (FOIA) spells out your rights to access government records of agencies of the executive branch.  The Department of Justice is the “principal contact point” for FOIA inquiries, has FOIA advisors available by telephone to answer questions and also maintains a list of FOIA contacts at all federal agencies. (http://www.usdoj.gov/oip/foiacontacts.htm)

The home page of each federal agency Web site provides a tab or link to “FOIA” or “Freedom of Information” resources. 

FOIA also governs disclosure of presidential and vice presidential records after the officials’ terms have ended. Under the Presidential Records Act, former presidents’ (and vice presidents’) records are subject to disclosure under FOIA five years after their terms have ended. That five-year period can be extended, at the option of the current or former president, for an additional seven years.  After the waiting period has lapsed, FOIA’s exceptions to disclosure that generally apply to federal agencies remain in force.  (http://www.archives.gov/foia/foia-guide.html)

FOIA does not apply to Congress, the courts or state and local governments.  Congressional records are available through the General Accountability Office, which follows the spirit of FOIA.  (http://www.gao.gov/about/products/foia.html). 

Exceptions under federal law, under the Freedom of Information Act include:
“(1) classified national defense and foreign relations information; (2) internal agency rules and practices; (3) information that is prohibited from disclosure by another federal law; (4) trade secrets and other confidential business information; (5) inter-agency or intra-agency communications that are protected by legal privileges; (6) information involving matters of personal privacy; (7) records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) information relating to the supervision of financial institutions; and (9) geological information on wells . . .”

Freedom of information laws at the state and federal levels also explain who is entitled to information, how requests should be made, government’s obligations in terms of response time, costs, and follow-up rights and obligations if your request is unanswered, unreasonably delayed or denied. 

Many of the statutes also include penalties, including the possibility of legal fees, for governmental agencies that fail to comply with freedom of information law.

Next: Door 4. How to Create Productive Records Requests

(c) Geanne Rosenberg