Making Use of the Freedom of Information Act (FOIA)
One of the most important tasks that paralegals perform for their supervisory attorneys is in the discovery process. Federal Rules of Procedure 26, 34 and 45 set out the basics of discovery. The 4000 series of rules lay out what is required in the Pennsylvania state courts. Paralegals schedule and summarize deposition, prepare notices of depositions, locate witnesses and send out interrogatories and requests for production of documents. Should the opposition not respond to discovery requests in a timely manner, the paralegal can follow up on the requests and prepare motions to compel discovery.
What is FOIA
In addition to the federal and state rules of procedure, another method of obtaining information is to utilize the Freedom of Information Act (FOIA). FOIA is a federal statute that allows a person to obtain documents and records held by the numerous federal agencies. FOIA can be found at 5 U.S.C. Sec. 552. The paralegal must be sure to get authorization from the supervisory attorney before any FOIA request is made.
The agencies are not obligated to do research but only to produce the documents that are already in their files. A good place to start is the official website for FOIA listed below. As noted on the official site, the paralegal should do some research first to determine if the information sought is already publicly available. Then determine the proper agency that is responsible for handling the request. The agency will then consider the request and respond. There is no special form, but the request must be in writing and state with specificity the material requested. Most agencies allow for an electronic request. Many agencies have a FOIA Officer who can be accessed from the website. Be aware that there are 9 exemptions to FOIA that are considered harmful to the government or a private entity.
These exemptions are…
Exemption 1 – protects national security information concerning national defense or foreign relations.
Exemption 2 – covers records related solely to internal personnel rules and practices of an agency.
Exemption 3 – authorizes withholding of information prohibited from disclosure by another Federal statute.
Exemption 4 – exempts trade secrets and information which is commercial or financial.
Exemption 5 – protects records of a pre-decisional nature, as necessary. Such records typically contain the opinions, conclusions, or recommendations of the author and are part of the decision-making/deliberative process. This encompasses inter-agency or intra-agency memoranda or documents; attorney-work product; attorney-client communications.
Exemption 6 – provides protection for personal privacy interests; permits withholding documents if disclosure would be a clearly unwarranted invasion of personal privacy.
Exemption 7 – protects from mandatory disclosure records compiled for law enforcement proceedings. Protects identities of personal information and confidential sources. Protects records in their entirety on ongoing investigations.
Exemption 8 – covers matters contained in or related to reports prepared by or for use by an agency responsible for regulation of financial institutions.
Exemption 9 – pertains to geological and geophysical information and data concerning wells and includes maps.
Fees with FOIA
Be aware that there are fees involved. One does not have to submit a fee with the request but a fee will be charged for the time required for the search. As general rule there is no charge for the first 2 hours of the search or for the first 100 pages. To avoid expensive costs to the firm, the paralegal can limit the amount of the fee to a reasonable amount in the request. The agency will stop the search when the amount has been reached. If the request is denied, the paralegal can draft an appeal with the U.S District Court.
A firm can utilize FOIA in products liability suits, other kinds of tort cases, and environmental litigation. FOIA can also be useful in administrative law cases where litigants can get access to factual information. Requests can be made to the IRS.
Important FOIA Contact Information
The use of FOIA is as varied as the agencies of the federal government. For a list of federal agencies:
States have statutes similar to FOIA, often called Right to Know Laws. For information on the Pennsylvania Right to Know Law click here:
Resources for FOIA
Office of Information Policy (OIP)
U.S. Department of Justice
1425 New York Avenue, N.W.
Washington, D.C. 20530