Hospice Patients Alliance: Consumer Advocates

Using the Freedom of Information Act to Access State Records

Accessing A Hospice Agency's State Records
Using a State Freedom of Information Statute

Each hospice agency is certified and licensed by the state in which it operates for the purpose of participating in the Medicare and state Medicaid reimbursement systems. In order to participate with Medicare and Medicaid, each hospice agency corporation must sign a binding contract in which the hospice agrees to meet the "Conditions of Participation" which are set forth in the Federal and state regulations governing hospice. Federal regulations governing hospice are set forth at 42 CFR 418, et.seq. and state regulations will be found in the state administrative code through a search for "Health or Public Health" and "hospice."

Since each hospice must comply with the regulations governing its operations, it must also submit to periodic inspections of its facilities, records and all other aspects of operations. The state Department of Health Services (names vary by state) is delegated this inspection authority by the U.S. Health Care Financing Administration (H.C.F.A.) which administers the Medicare federal health insurance program. The state department of health conducts the inspections on a periodic basis such as each year or two years, and also in response to any complaints from the public.

The law creating the state Department of Health also includes language obligating it to inspect a health care facility or agency in response to complaints from the public. The results of these inspections are termed inspection reports or survey summary reports. If the state inspectors find that a hospice agency fails to meet a regulation, it is found to be "deficient" in that area. Therefore, a state inspector's report will list "deficiencies" found during an inspection with specific tag numbers that correspond to the regulations governing hospice.

Once a state cites a hospice agency as not meeting a regulation, it issues a citation with the deficiencies and the agency has a period of time to correct those deficiencies. First it must submit in writing a "plan of correction" which would bring the agency back into compliance, if truly implemented, and then the state is supposed to go back and re-inspect the agency to determine if compliance has been reached.

The records of state inspection reports/summaries are public record. You can access these records by contacting the state Department of Health in your state. You must find out which office within the state you live in handles requests for copies of such records. Then you can submit a "request for copies of records" under the freedom of information act or similar statute in your state. The federal freedom of information act does not cover state records, therefore it is helpful to try to ascertain the name of the state freedom of information act. You can easily obtain this information by contacting your local state representative's or state senator's office and asking for the name of the state law mandating release of public records, i.e., state freedom of information act.

Then you can send in your letter requesting the state survey summary report records about a hospice agency and its past record, including the hospice agency's plans of correction. It is helpful to request copies of all complaints about a hospice and state inspection survey summary reports relating to such complaints as well. Always specify a time period that you wish records for. For example, you may request "all state Health Department inspection report records between 1999 and 2001 relating to Hospice __________, located at ____________ (street address), in ________ County, State of ________."

Always send your Freedom of Information Request by U.S. Certified/Return Receipt mail, and always write the U.S. certified number on the letter, keeping a copy of all correspondence with the State.

The sample letters below used to obtain federal records, can be modified for your use in obtaining state health department records. Be very clear in how you request these records, making sure to have the name of the hospice and its address perfectly accurate. Type your letters to assure your letter is legible. Be prepared for bureaucratic obstruction in some cases! Some state offices are not very cooperative unfortunately. Remember that you have a right to see these records.

Getting Info From Medicare Using the Freedom of Information Act

You can get information about the Medicare status of an agency using the federal Freedom of Information Act. You can find out if Medicare has revoked an agency's Medicare particpatory status or other information. You will need to make sure to provide complete information about the agency you are interested in: official name (if not sure, check with the state licensing board), address, telephone number, and provider number (this is important...the provider number will be listed on any state or county health department investigation report, or you can get it from the state licensing board). Write to:

Freedom of Information Act
Attn: Doug Hradek
P.O. Box 14537
Des Moines, IA 50306-3537
Remember to put a note on your calendar for two months ahead, to remind yourself that you had requested this information. If you haven't received the information in two months, then write again by US Certified Return Receipt mail.

Accessing Federal Agency Records

You may wish to access federal records related to a hospice agency. For example, some hospice agencies may have been investigated by the U.S. Office of Inspector General and been fined for Medicare fraud. In such a case, the compliance agreements and settlements arranged would be public record. All federal agencies are required under the Freedom of Information Act (FOIA), 5 USC section 552, to disclose records requested in writing by any person. However, agencies may withhold information pursuant to nine exemptions and three exclusions contained in the statute. The U.S. FOIA applies only to federal agencies and does not create a right of access to records held by Congress, the courts, or by state or local government agencies. Each state has its own public access laws that should be consulted for access to state and local records.

The Freedom of Information Act (FOIA) establishes a presumption that records in the possession of agencies and departments of the Executive Branch of the United States government are accessible to the people. This was not always the approach to federal information disclosure policy. Before enactment of the FOIA in 1966, the burden was on the individual to establish a right to examine these government records. There were no statutory guidelines or procedures to help a person seeking information. There were no judicial remedies for those denied access.

With the passage of the FOIA, the burden of proof shifted from the individual to the government. Those seeking information are no longer required to show a need for information. Instead, the "need to know" standard has been replaced by a "right to know" doctrine. The government now has to justify the need for secrecy.

U.S. Dept. of Justice Guide to Freedom of Information Act

The U.S. Dept. of Justice Reference Guide is reproduced below for your convenience and is taken directly from: www.justice.gov/oip/doj-guide-freedom-information-act-0.


Sample letters requesting records under the authority of the Freedom of Information Act follow:

A. Freedom of Information Act Request Letter

Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code

Re: Freedom of Information Act Request

Dear __________:

This is a request under the Freedom of Information Act.

I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible].

In order to help to determine my status for purposes of determining the applicability of any fees, you should know that I am (insert a suitable description of the requester and the purpose of the request).

[Sample requester descriptions:

an individual citizen of the United States and am seeking information for personal use and this request is not for a commercial use.

[Optional] I am willing to pay fees for this request up to a maximum of $ XX. If you estimate that the fees will exceed this limit, please inform me first.

[Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. [Include specific details, including how the requested information will be disseminated by the requester for public benefit.]

[Optional] I request that the information I seek be provided in electronic format, and I would like to receive it on a personal computer disk [or a CD ROM].

[Optional] I ask that my request receive expedited processing because XXXX. [Include specific details concerning your ``compelling need,'' such as being someone ``primarily engaged in disseminating information'' and specifics concerning your ``urgency to inform the public concerning actual or alleged Federal Government activity.'']

[Optional] I also include a telephone number at which I can be contacted during the hours of XXXX, if necessary, to discuss any aspect of my request.

Thank you for your consideration of this request.


City, State, Zip Code
Telephone number [Optional]

B. Freedom of Information Act Appeal Letter

Agency Head or Appeal Officer
Name of Agency
Address of Agency
City, State, Zip Code

Re: Freedom of Information Act Appeal

Dear :

This is an appeal under the Freedom of Information Act.

On (date), I requested documents under the Freedom of Information Act. My request was assigned the following identification number: XXXX. On (date), I received a response to my request in a letter signed by (name of official). I appeal the denial of my request.

[Optional] I enclose a copy of that response letter.

[Optional] The documents that were withheld must be disclosed under the FOIA because (provide details you would want an agency head or appeal officer to consider when deciding your appeal.)

[Optional] I appeal the decision to deny my request for a waiver of fees. I believe that I am entitled to a waiver of fees. Disclosure of the documents I requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. (Provide details)

[Optional] I appeal the decision to require me to pay review costs for this request. I am not seeking the documents for a commercial use. (Provide details)

[Optional] I appeal the decision to require me to pay search and/or review charges for this request. I am a representative of the news media seeking information as part of news gathering and not for commercial use.

[Optional] I appeal the decision to require me to pay search and/or review charges for this request. I am a representative of an educational institution seeking information for a scholarly purpose.

[Optional] I appeal the decision to require me to accept the information I seek in a paper or hardcopy format. I requested this information, which the agency maintains in an electronic form, in an electronic format, specifically on a personal computer disk [or a CD ROM].

[Optional] I also include a telephone number at which I can be contacted during the hours of XXXX, if necessary, to discuss any aspect of my appeal.

Thank you for your consideration of this appeal.


City, State, Zip Code
Telephone number [Optional]

The latest information about the U.S. Freedom of Information Act and any modifications made can be found at the FOIA Update page of the U.S. Justice Department website at: http://www.usdoj.gov/oip/foi-upd.htm.

The following is the U.S. Dept. of Justice Reference Guide to the Freedom of Information Act and was copied directly from: http://www.usdoj.gov/04foia/referenceguidemay99.htm.

August 2000


I. Introduction

The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, section 552, was enacted in 1966 and provides that any person has the right to request access to federal agency records or information. All agencies of the United States government are required to disclose records upon receiving a written request for them, except for those records that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court. The federal FOIA does not, however, provide access to records held by state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local records; state agencies should be consulted for further information about them.

This Reference Guide is designed to familiarize you with the specific procedures for making a FOIA request to the Department of Justice. The process is neither complicated nor time consuming. Following the guidance below will make it more likely that you will receive the information you are seeking in the shortest amount of time. This guide also includes descriptions of the types of records maintained by different parts of the Department, some of which are available through means other than the FOIA.

Initially, it is important to understand that there is no central office in the government which processes FOIA requests for all federal agencies. Each agency responds to requests for its own records. Therefore, before sending a request to the Justice Department you should determine whether this agency is likely to have the records you are seeking. Each agency should have its own FOIA reference guide, so if the records you are interested in are kept by another agency you may wish to request a copy of that agency's guide from its FOIA office or view it on that agency's FOIA site on the World Wide Web.

Other general sources of information about how to make a FOIA request include:

  • "Your Right to Federal Records," available for fifty cents per copy from the Consumer Information Center, Department 319E, Pueblo, CO 81009. This publication also can be accessed electronically at www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm on the World Wide Web.

  • "A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records." This report is published by the Committee on Government Reform of the House of Representatives. It is available for sale for $5.00 from the U.S. Government Printing Office, stock number 052-071-01287-7. It also can be accessed on the World Wide Web at thomas.loc.gov/cgi-bin/cpquery/z?cp106:hr50.106:.

In addition, the "Consumer Action Handbook" describes which federal agencies are responsible for specific consumer problems and where to write for assistance. Single copies of this publication may be obtained for free by writing to: Handbook, U.S. Office of Consumer Affairs, 750 17th Street, N.W., Washington, D.C. 20006-4607. This booklet also can be accessed on the World Wide Web at www.pueblo.gsa.gov/crh/respref.htm.

The formal rules for the making of FOIA requests to the Justice Department are set forth in Chapter 16 of Volume 28 of the Code of Federal Regulations. This multiple-volume set is available in all law libraries and federal depository libraries. A copy of the portions of Chapter 16 pertaining to making FOIA requests may be obtained from the Justice Management Division, U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530-0001. .....

II. Access to Certain Records Without a FOIA Request

All agencies are required by statute to make certain types of records, created by the agency on or after November 1, 1996, available electronically. If you have access to the World Wide Web, you will not need to make a FOIA request to obtain access to these records. Such records include: (1) final opinions and orders made in adjudicating cases; (2) final statements of policy and interpretations which have not been published in the Federal Register; (3) administrative staff manuals and instructions to staff that affect a member of the public; (4) copies of records that have been the subject of a FOIA request and that are of sufficient public interest or curiosity that the agency believes other persons are likely to request them; and (5) the agency's annual FOIA report--which includes such information as the number of requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the agency's handling of FOIA requests. (Such records that were created prior to November 1, 1996, may be inspected in an agency reading room. See Attachment B [ for a listing of the Justice Department's reading room locations.)

The Department of Justice has a site on the World Wide Web which can be accessed at www.usdoj.gov, and which contains FOIA-related information. This site also includes a link to the Justice Department's Government Information Locator Service (GILS) site, as well as links to all other federal executive branch agencies. Each Justice Department component maintains its own home page, which contains a wide variety of substantive information for which a FOIA request is not required. Another good general source of information can be found under "Publications and Documents" on the main Justice Department home page.

The Department of Justice maintains a FOIA home page which can be accessed at www.usdoj.gov/04foia/indextxt.html. This site includes the Justice Department's annual FOIA report, various reference materials, information on how to make a FOIA request, and copies of the relevant statutes. Additionally, this site provides links to component reading rooms which contain the geographic address of the conventional reading room, as well as links to records required by the FOIA to be made electronically available.

The Department of Justice also makes certain information, such as publications, available in paper copy without requiring a formal FOIA request. These types of materials are described on a component-by-component basis in Attachment B [go to DOJ website to access]. Among these publications is the Justice Department's annual report on the Freedom of Information Act, which includes extensive statistical information about FOIA requests to the Justice Department. Copies of the Justice Department's annual FOIA report may be obtained from the Justice Management Division, U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530-0001, in addition to being accessible electronically through the Justice Department's Web site. As of 1999, the annual FOIA reports of all other federal agencies are available through the Justice Department's Web site. The Justice Department submits a calendar year report to Congress which describes our efforts to "encourage agency compliance" with the FOIA and which also lists all FOIA litigation cases against all federal agencies that were filed and in which decisions were rendered by the courts in that year.

Attachment C {access at DOJ website] of this Reference Guide contains descriptions of the Department's major information systems arranged in two ways--by component and also alphabetically. Individuals using print versions of this guide may .... [find them ]in Attachment C {access at DOJ website].

III. Where to Make a FOIA Request

The Department of Justice is organized into a number of bureaus, divisions, and offices. These subdivisions of the Department are often referred to as "components." Within the Justice Department, each component processes its own records. Therefore, your request will receive the quickest possible response if it is addressed directly to the component that you believe has the records you are seeking. Attachment B [obtain at DOJ website] contains a description of Justice Department components and their addresses.

The functions of each component are also summarized in the Department's regulations (Volume 28 of the Code of Federal Regulations, Part 0). The "United States Government Manual" also describes the activities of the Justice Department's components. The "United States Government Manual" is issued annually by the Government Printing Office and is available in most libraries. It may be purchased by writing to: Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. To obtain the current price you can call (202) 512-1800. You may also call that telephone number to place an order using one of several major credit cards. In addition, the United States Government Manual can be accessed online.

In most cases, you should send your FOIA request to a component's central FOIA office. For records held by a field office of the Federal Bureau of Investigation (FBI) or a district office of the Immigration and Naturalization Service (INS), however, you must write directly to that FBI or INS office. On the other hand, all requests for records held by a United States Attorney's Office should be sent directly to the Executive Office for United States Attorneys in Washington, D.C.

Because, over time, individual employees of the Justice Department may change job positions, it is not recommended that you address your request to a specific person. Rather, you should include the notation "Freedom of Information Act Request" on the front of your request envelope and also at the beginning of your request letter. In this way you will be sure that the responsible individual receives your request without delay.

If you believe that the Justice Department does maintain the records you are seeking, but are uncertain about which component has the records, you may send your request to: FOIA/PA Mail Referral Unit, Justice Management Division, U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530-0001, Attention: FOIA Request. Personnel in that division will then forward your request to the components of the Justice Department that they believe are most likely to maintain the records you are seeking.

IV. How to Make a FOIA Request

A FOIA request can be made for any agency record. This does not mean, however, that the Justice Department will disclose any record sought. As noted above, there are statutory exemptions that authorize the withholding of information of a sensitive nature. When the Justice Department does withhold information from you, it ordinarily must specify which exemption of the FOIA permits the withholding. As a matter of policy, the Justice Department will consider making a discretionary disclosure of exempt information whenever possible. You should be aware that the FOIA does not require agencies to do research for you, to analyze data, to answer written questions, or to create records in order to respond to a request.

Although, as discussed immediately below, certain information may be required from a FOIA requester, no special form is required by the Justice Department. Requests must be in writing, either handwritten or typed. While requests may be submitted by fax, most components of the Justice Department have not yet developed the capability to accept FOIA requests submitted through the World Wide Web.

In order to protect your privacy, whenever you request information about yourself you will be asked to provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person that you claim to be. You may fulfill this requirement by: (1) completing and signing Form DOJ-361 (see Attachment D [access at DOJ website]), (2) having your signature on your request letter witnessed by a notary, or (3) including the following statement just before the signature on your request letter: "I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]." If you request information about yourself and do not follow one of these procedures, your request cannot be processed. This requirement helps to ensure that private information about you will not be disclosed to anyone else. The INS has created an optional form which may be used by individuals making FOIA requests for their own files. A copy of this form is attached as Attachment D [obtain at DOJ website].

Likewise, files relating to another person regarding a matter that would invade that person's privacy ordinarily will not be disclosed. For example, if you seek information that would show that someone else (including even your spouse or another member of your immediate family) has ever been the subject of a criminal investigation--or even was mentioned in a criminal file--you will be requested to provide either: (1) a statement by that other person authorizing the release of the information to you which has been signed by that person and either was witnessed by a notary or includes a declaration made under penalty of perjury (using the language quoted in the preceding paragraph), or (2) evidence that the subject of your request is deceased, such as a death certificate, a newspaper obituary, or some comparable proof of death. Without proof of death or the subject's consent, in almost all cases components of the Justice Department will respond to a request made for information concerning another person's role in a law enforcement matter by advising that it will "neither confirm nor deny" the existence of responsive records. Such law enforcement information about a living person is released without that person's consent only when no privacy interest would be invaded by disclosing the information, when the information is already public or required to be made public, or when there is such a strong public interest in the disclosure that it overrides the individual's privacy interest.

In making your request you should be as specific as possible with regard to names, dates, places, events, subjects, etc. In addition, if you want records about a court case, you should provide the title of the case, the court in which the case was filed, and the nature of the case. If known, you should include any file designations or descriptions for the records that you want. You do not have to give a requested record's name or title, but the more specific you are about the record or types of records that you want, the more likely it will be that the Justice Department will be able to locate those records. For example, if you have been interviewed by a law enforcement component (such as the FBI) in connection with a law enforcement investigation and you wish to request a copy of the interview report, your listing of the date and location of the interview, and the name of the interviewing agent and subject of the investigation, if known, will be helpful to the component in determining where to search and in determining which records respond to your request. Additionally, you should be aware that Justice Department components ordinarily will use the date upon which they begin a record search as the "cut-off" date for including records.

In addition to the statements or information that have already been discussed, some components of the Justice Department require additional specific information in order to process a request for particular types of records. These special requirements are noted, where applicable, as part of the descriptions of components in Attachment B [obtain at DOJ website].

When a Justice Department component receives your FOIA request, it ordinarily will send you a letter acknowledging the request and assigning it an initial request number. If you do not provide the necessary information, the component will not process your request, but will advise you of what additional information is required.

Under certain circumstances you may be entitled to receive more information under the Privacy Act of 1974 (a separate federal statute) than under the FOIA. Under the FOIA anyone can request any agency record. Privacy Act requests are more limited and can be made only (1) by U.S. citizens or aliens lawfully admitted for permanent U.S. residence, (2) who are seeking information about themselves, (3) which is in a system of records maintained under their names or other personal identifiers. Even if a request does not mention the Privacy Act, however, the Justice Department automatically treats requests as being made under both the FOIA and the Privacy Act whenever it is appropriate to do so. In this way, requesters receive the maximum amount of information available to them by law.

V. Response Times

Under the statute, all federal agencies are required to respond to a FOIA request within twenty business days, excluding Saturdays, Sundays, and legal holidays. This period does not begin until the request is actually received by the FOIA office of the component that maintains the records sought. An agency is not required to send out the releasable documents by the last business day; it can send you a letter informing you of its decision and then send out the documents within a reasonable time afterward.

Some components of the Justice Department, such as the FBI and the DEA, receive thousands of requests each year. Many of these requests require a line-by-line review of hundreds and even thousands of pages of documents. Although the Justice Department is making every effort to respond to FOIA requests as promptly as possible, in some cases it simply cannot do so within the specified time period. This may be due either to the size of the request or to the fact that the component has a backlog of previously received requests that are awaiting processing. Some components use "multitrack processing" queues to deal with their heavy FOIA workloads; components' descriptions of their multitrack processing systems are contained in Attachment B [obtain at DOJ website].

Under the FOIA, a component may extend the response time for an additional ten business days when: (1) the component needs to collect responsive records from field offices; (2) the request involves a "voluminous" amount of records which must be located, compiled, and reviewed; or (3) the component must consult with another agency which has a substantial interest in the responsive material or among two or more other components of the Justice Department. When such a time extension is needed, the component may notify you of this in writing and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request.

When a determination on your request is not made within the deadline described above and you have not agreed to a different response deadline, you may file suit in federal court to obtain a response. If, however, the court concludes that you have unreasonably refused to limit your request or to accept an alternate timetable for response, the court may find that the component's failure to comply within the statutory time period is justified. The court also may approve a delay if it concludes that the component is experiencing an unexpected, substantial increase in the number of requests received. In addition, the court may excuse the lack of a timely response if the component demonstrates that it has a backlog of requests that were received before yours, that it processes its requests on a first-come/first-served basis, and that it is making reasonable progress in reducing its backlog. In such cases, the court may postpone its consideration of your lawsuit until the agency reaches your request in its processing backlog.

VI. Expedited Processing

Under certain conditions you may be entitled to have your request processed on an expedited basis. However, you should realize that whenever a FOIA request is expedited for a particular requester, it results in an additional delay for previous requesters who have been waiting for a response. Therefore, in an effort to treat all requesters equitably, the Justice Department ordinarily will process a FOIA request ahead of others only in cases in which there will be a threat to someone's life or physical safety, or where an individual will suffer the loss of substantial due process rights if the records are not processed on an expedited bases. In most cases, a request will not be expedited simply because the requester is facing a court deadline in some judicial proceeding. In both criminal prosecutions and civil litigation there is a process known as "discovery," which gives the parties certain rights to obtain relevant information apart from the FOIA. These discovery rights are usually sufficient to protect the requester's due process rights. In administrative proceedings that do not include such procedures for obtaining access to necessary information, expedited access may be granted when time is of the essence.

The FOIA also requires that requests be processed on an expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. Requests are not expedited under this provision merely because the requester is a representative of the news media. Similarly, the Justice Department also expedites requests when the subject is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity which affect public confidence.

A request for expedited processing must be accompanied by a statement setting forth the reasons why your request should be expedited. You should certify that the reasons you have given are true and correct. The component will be required to notify you of its decision about whether to grant expedited processing within no more than ten days after receiving your letter. If the component denies your request for expedited processing, you will be advised of your right to submit an administrative appeal of that denial, which will be handled expeditiously.

VII. Fees

There is no initial fee to file a FOIA request and, in the majority of requests made to the Justice Department, no fees are ever charged. By law, however, an agency is entitled to charge certain fees, which depend on the category of requester you fall into.

For the purposes of fees only, the FOIA divides requesters into three categories. Commercial requesters may be charged fees for searching for records, processing the records, and photocopying them. On the other hand, educational or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses, after the first 100 pages of copies. Requesters who do not fall into either of these two categories are not charged for processing; they are charged only for record searches and photocopying--and there is no charge for the first two hours of search time or for the first 100 pages of photocopies. The Justice Department currently charges 10 cents per page for photocopying. In all cases, if the total fee does not exceed a minimum amount, currently $14.00, the Justice Department will not charge any fee at all.

You may always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, the Justice Department will assume that you are willing to pay fees of up to $25. If a component estimates that the total fees for processing your request will exceed $25, it will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, you will be asked to express your commitment to pay the estimated fees and the processing of your request will be suspended until you agree to do so. You ordinarily will not be required to actually pay the fees until the records have been processed and are ready to be sent to you. If, however, you have failed to pay fees within 30 days of billing in the past, or if the estimated fees exceed $250, you may be required to pay the estimated fees in advance, that is, before the records are processed. If you agree to pay fees and then fail to do so within 30 days of billing, you may be charged interest on your overdue balance and the Justice Department will not process any further requests from you until payment has been made in full. If you agree to pay fees for searching for records, be aware that you may be required to pay such fees even if the search does not locate any responsive records or, if records are located, they are withheld as entirely exempt.

VIII. Fee Waivers

If you expect or are advised that a fee will be charged, you may request a waiver of those fees. However, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records pertaining to themselves usually are denied under this standard because such disclosures usually will not result in any increase of the public's understanding of government operations and activities. In addition, a requester's inability to pay fees is not a legal basis for granting a fee waiver.

IX. Initial Request Determinations

Once the component has processed your request and any fee issues have been resolved, the component will send you a written initial determination. In the vast majority of cases, Justice Department components will include any documents that can be disclosed along with the determination letter, although in exceptional cases the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions or three exclusions (reasons for which an agency may withhold records from a requester). The determination letter will advise you of whether any information is being withheld pursuant to one or more of the exemptions. When a page is being withheld in its entirety, the component usually either will specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information.

The exemptions authorize federal agencies to withhold information covering: (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) certain types of information compiled for law enforcement purposes; (8) information relating to the supervision of financial institutions; and (9) geological information on wells. The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security matters. Even if information may be withheld under the FOIA, the component still may disclose it as a matter of administrative discretion if that is not prohibited by any law and would not cause any foreseeable harm, although the component is not legally obligated to do so. The Justice Department strives to achieve maximum responsible information disclosure through this discretionary disclosure policy.

X. Appeals

You may file an administrative appeal if you are not satisfied with the component's initial response. You may disagree with the component's withholding of information or you may believe that there are additional records responsive to your request that the component failed to locate. You also may file an administrative appeal if you have requested expedited processing or a fee waiver and the component has not granted your request. You may also appeal a determination that a record does not exist, that a record is not readily reproducible in the form requested, that the requested information is not a record subject to the FOIA, or any disputed fee matter. You should be advised of your right to file an appeal in the initial determination letter sent by the component or in the letter denying your request for expedited processing or a fee waiver. Ordinarily, your appeal must be received within sixty days of the date of the component's determination letter. This time may be extended if the component failed to notify you of your right to appeal in its determination letter. All appeals must be made in writing and addressed to:

Office of Information and Privacy
U.S. Department of Justice
Flag Building, Suite 570
Washington, D.C. 20530-0001

Both the front of the envelope and the appeal letter should contain the notation "Freedom of Information Act Appeal."

There is no specific form or particular language needed to file an administrative appeal. You should include the initial request number that the component assigned to your request and the date of the component's action. If no request number has been assigned, it will help if you enclose a copy of the component's determination letter. Please do not attach copies of released documents unless they pertain to some specific point you are raising in your appeal. You may explain the reasons why you disagree with the component's action, but a simple statement that you are appealing the decision ordinarily is sufficient. If, however, you are appealing because you believe there are additional records that have not been located in response to your request, you should specify why you think such records exist and, if possible, where you believe they might be located.

Appeals from all components of the Justice Department are reviewed by an attorney in the Office of Information and Privacy. The attorney will ordinarily have available all of the documents processed in connection with your request and will make an independent determination as to whether the component has properly processed your request.

Under the FOIA, the Office of Information and Privacy is required to make a determination on your administrative appeal within twenty business days. The Office of Information and Privacy may take one of several actions on your appeal. It may affirm the component's action in full, in which case it will identify which exemptions (if any) have been appropriately claimed. Or it may affirm part of the component's action (identifying the applicable exemptions), but order the release of other information previously withheld. Finally, under some circumstances, it may return or "remand" the request to the component for complete reprocessing. When a case is remanded, you will have an opportunity again to appeal to the Office of Information and Privacy after the component has reprocessed the records if you remain dissatisfied with the component's action in any respect.

XI. Judicial Review

If you still believe that the Justice Department has not handled your FOIA request in accordance with the law after your appeal has been decided, you have the right to challenge the agency's action in a lawsuit filed in federal court, through the litigation process known as "judicial review." Before doing so, you ordinarily will be required first to have filed an administrative appeal and to have received a response. If the Justice Department fails to respond to either your initial request or your appeal within the time limits discussed above, however, you may file suit as soon as the time limits have expired.

If you do bring a court action, you may file your suit in a federal district court in any of the following places: (1) where you reside, (2) where you have your principal place of business (if any), (3) in the District of Columbia, or (4) where the records are located, if they are not located in the District of Columbia. If you have waited until you have received an administrative appeal determination, that final administrative response letter will advise you of your right to seek judicial review and will specify where you can do so. You have six years to file suit from the time your right to sue begins. Lastly, please understand that attorneys and employees of the Justice Department are prohibited from giving legal advice to members of the public on any matters, including Freedom of Information Act litigation.

A brief description of recent FOIA litigation may be found in Attachment E [obtain at DOJ website].


[available at DOJ website noted below]
A--Listing of FOIA contacts at all federal agencies
B--Description of Justice Department components and related information
C--Descriptions of major information systems
D--Copies of forms
E--Brief description of recent FOIA litigation
The above U.S. Dept. of Justice Reference Guide to the Freedom of Information Act was copied directly from: http://www.usdoj.gov/04foia/referenceguidemay99.htm.

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