FOIA Process & Exemptions

An Overview of the FOIA Process.

There is no mystery in the FOIA process. In fact, it  is simple. Just file the FOIA request and work with the FAA’s FOIA Officer, to help them produce the FAA records. Below are some tips, including some FOIA document examples, illustrating both a simple FOIA request and a more complex FOIA request.

File the FOIA request:

Formality is not required. You basically have to specify that it is a FOIA request, and be as precise as you can in describing the records you seek. It is helpful to declare your fee status and/or your willingness to pay, otherwise they may delay while ‘finding out’.

[Example-#1: a 6-11-12 FOIA request. A simple FOIA, seeking records related to the skydiving operation at Molalla, OR]

[Example-#2: a 7-23-12 FOIA request. A slightly more complex FOIA, seeking specified records. In this case, overly-redacted records received in an earlier FOIA response were attached, and used to nudge further FOIA disclosures.]

According to paragraph 32 of FAA’s FOIA Order, they have to respond within twenty working days after the FOIA request is  received and considered to be ‘perfected’. FAA’s FOIA Order at paragraph 30 defines ‘perfected’ as a request for which the records are adequately described, which has been assigned to the responsive office, and for which the requestor has agreed to the fee estimate. This is one area where FOIA responses get delayed; they ‘buy time’ by assigning to multiple offices (even if the other offices are irrelevant to the request) or by trying to excessively clarify the request. They may also employ a ‘pay-to-play’ tactic, in which they will arbitrarily quote an exorbitant fee estimate, then close down your FOIA request because you refused to agree to pay the amount.

Agency response:

The FOIA Officer is trained to process FOIA requests, but they are stuck in the middle, having to deal with non-FOIA FAA officials who tend to want to hide everything. Some FOIA Officers are real professionals, dedicated to the FOIA objective (which is transparency, especially during the present Obama administration; see the Obama FOIA letter). Other FOIA Officers may have been beaten down enough that they just no longer care; it is just a job, and easier to do it slowly/quietly/ineffectively, than to raise opposition from FAA officials. At any rate, the FAA response needs to provide all responsive records and, if any redactions are made or documents withheld, it needs to clearly declare your right to file an Appeal.

Appeal if FOIA response is deficient:

An Appeal is especially warranted if records are notably missing or excessively redacted. This letter needs to be a bit more formal than the earlier FOIA request letter. You need to declare that you are Appealing the FOIA response. It is helpful to succinctly summarize the FOIA, and the FOIA response, in the first paragraph of your Appeal letter. It is also helpful to clearly declare exactly what needs to be produced for the Appeal. The Appeal will be handled by a person at FAA Headquarters, who will ask for records from the field facility that botched the original FOIA Response. It is not unusual for the field person to distort the FOIA case. So, be precise and add attachments; if you do a good job of framing the FOIA case, the field person will have no room to wiggle. [NOTE: one of the most prominent lessons learned through a persistent series of FOIA requests is that, most of the time, agency officials are afraid of the embarrassment that the documents will reveal. Thus, they tend to get quite creative in their ways to justify what to withhold and what to redact.]

Agency response to FOIA Appeal:

Although officially, “…determinations of administrative appeals are required to be made within 20 working days…,” more practically, FOIA appeals will tend to run far longer. It may help if you follow up your appeal with regular emails/phonecalls; be polite, and be firm, and ask to do whatever you can to help them get their job done.

If your work has been good, and if you are lucky enough to have a rare, cooperative FAA official where the records are, you may finally get the records you requested.

File a FOIA Lawsuit in a District Court (if needed):

If you are not satisfied with the Appeal Response, or if they withheld information, the actual response letter should include a formal declaration of your rights to file at a District Court. FAA is gambling that you do not want to pay the $350 filing fee, and that the legal process is too intimidating. If you want to help FAA break out of this bad habit, here’s one example of a FOIA lawsuit: [link to Lewis FOIA Lawsuit webpage, at aiREFORM.com]

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FAA’s Favorite FOIA Exemptions.

Yes, just like a real Mom, FAA really does have her favorites! These four are especially common (and presented in order of how commonly they are misused by FAA…).

FOIA Exemption #6 relates to ‘personal privacy’. Obviously, personal phone numbers, birthdates, medical data, home address, social security etc. should be redacted to protect ‘personal privacy’. But, oddly, FAA officials tend to believe that if an FAA manager signs an official FAA document while doing their job, his/her name needs to be redacted. How can there by accountability within an organization where a signature does not exist? The excessive use of this exemption  is ridiculous, and certainly warrants an immediate appeal.

FOIA Exemption #5 relates to content that should reasonably be concealed during a legal process. It is intended to prevent you from using FOIA to procure the strategy FAA’s lawyer is about to use at a proceeding. Obviously, it would not be a fair/just legal process if one side could use a tool such as FOIA to force the other side to compromise their strategy. But, unfortunately, many FAA officials incline toward hiding everything. So, to them, if they merely share a  record with an FAA attorney, it now becomes eligible for FOIA exemption … even if there is no legal case, either active or reasonably anticipated.

FOIA Exemption #7 relates to law enforcement records. Sometimes the FOIA records are concealed using this exemption, and there is virtually no way for you to know if it is a valid action. You simply have to trust that FAA is being honest and truthful. Or, if you know better, just Appeal.

FOIA Exemption #2 relates to internal personnel rules and practices. This one is weird, and generally invoked when they are getting really desperate. The reasonable idea is that ‘internal’ rules/practices should not be released if doing so would allow someone to circumvent a rule or regulation. This exemption is almost always misapplied, and needs to be Appealed.