FOIA Advisor

Q&A (2019)

Q&A: Discriminating against me, EEOC?

Q&A (2019)Allan BlutsteinComment

Q. EEOC denied my FOIA request for my own case. It said cases are not public record, and only become public record if a lawsuit is filed in federal court. The response cited Exemption 3 and the Civil Rights Act of 1964. How can I get a copy of my own file?

A. The agency’s response is consistent with the public guidance EEOC provides to FOIA requesters (quoted below) -- i.e., charging parties have a narrow window to access their files prior to filing a discrimination lawsuit. Once that time period expires, those files are inaccessible until a lawsuit is filed.

5. Can my request for a copy of my charge file denied?

Yes. The two most common reasons for denying a request are:

  • If you request the file before EEOC has completed its investigation and issued a notice of right to sue, the request will be denied pursuant to exemption (b)(7)(A) of the FOIA. This exemption allows us to deny a request to prevent interference with an ongoing proceeding. Our concern is that the premature release of documents while the file is open may interfere with the EEOC investigation; or

  • If you received a Notice of Right To Sue but did not use it within 90 days to access your file or to file suit, the request will be denied pursuant to exemption (b)(3). After the time to file a lawsuit expires, the CP is considered a member of the public. Sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, as amended, (Title VII), Section 107 of the Americans With Disabilities Act (ADA) and Section 206 of the Genetic Information Nondiscrimination Act (GINA) prohibit disclosure of charge files to members of the public. If you request a file after the NRTS has expired, you will be asked to present a copy of your court complaint, so that we can verify that we may disclose the file to you.

Q&A: Stormy weather

Q&A (2019)Allan BlutsteinComment

Q. I filed a FOIA with NOAA in March of last year and the FOIA request has yet to be fulfilled. I reached out to inquire about the delay, taking great pains to be very patient with the process. If possible, I'd like to know how to proceed in filing an official complaint. 

A. If by "official complaint" you mean filing a lawsuit, the FOIA provides four options as to where that suit may be filed: (1) in the federal district in which you live; (2) in the federal district where you have your principal place of business; (3) in the federal district in which the agency records are located; or (4) in the District of Columbia.  You may file a complaint with or without the assistance of an attorney.  If you wish to file a lawsuit by yourself, for example in the U.S. District Court for the District of Columbia, see the following court guidance on how to proceed:   https://www.dcd.uscourts.gov/pro-se-help.  

Short of a lawsuit, you can request assistance from the Office of Government Information Services, aka the "FOIA Ombudsman," which is a component of the National Archives and Records Administration.  Here are instructions from OGIS about how to file a request for assistance:  https://www.archives.gov/ogis/mediation-program/request-assistance.

[P.S. An agency’s FOIA Public Liaison also may be a useful resource for requesters who encounter issues with their requests. In this case, the requester noted an extensive history of interactions with agency personnel, which was omitted from the original post.]

Q&A: In the beginning . . .

Q&A (2019)Allan BlutsteinComment

Q. When was the first FOIA request submitted? To which agency? And what records were sought?

A. I would guess that the first request was submitted on July 4, 1967, when the statute became effective. Given the passage of fifty-plus years, however, I doubt any documents exist that could definitively answer that or your other related questions — or if they do exist, they are buried within the National Archives.

Q&A: I'm sticking with the Union

Q&A (2019)Allan BlutsteinComment

Q. Is a government contractor's collective bargaining agreement (CBA) exempt from FOIA?

A. Maybe. If the CBA is already in the public domain, then it is not exempt. If the CBA is not in public domain and it was was submitted to a federal agency as part of a contract proposal, the CBA would be fully exempt under Exemption 3 if the proposal was not successful. If the proposal was successful, however, Exemption 3 would protect any portion of the proposal that is not set forth or incorporated by reference in the contract   See generally OIP's guidance on contract proposals.

If Exemption 3 does not resolve the matter, Exemption 4 would certainly be in play, particularly if the CBA includes information such labor rates.  The agency would then need to initiate the "submitter notice" process per Executive Order 12600 and agency regulations.

Q&A: The Longest Day?

Q&A (2019)Allan BlutsteinComment

Q. I requested the results of an “AR 15-6” investigation by the U.S. Army in July 2018. How long does a FOIA request generally take?

A.  If an AR 15-6 investigation is as detailed as a typical federal prosecution file, then the Army’s delayed response is unsurprising.  I cannot accurately predict, however, how much longer it might take.  Note that the Army receives approximately 25,000 requests annually.  Although many of them are "simple" requests that closed within two months, "complex" requests such as yours invariably will take longer. You might consider contacting the Army’s FOIA Requester Service Center at (571) 515-0306. If you are not satisfied with the response from this center, contact the Army FOIA Public Liaison, Alecia Bolling, at (571) 515-0306.