info@nyvisalawyer.com

Freedom of Information Act (FOIA)

The Freedom of Information Act 5 U.S.C. § 552, is the United States’ federal law that requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the U.S. Federal Government upon request [full text of 5 U.S.C.§552]. The act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and includes nine exemptions that define categories of information not subject to disclosure. The act was intended to make U.S. government agencies’ functions more transparent so that the American public could more easily identify problems in government functioning and put pressure on Congress, agency officials, and the president to address them. The FOIA has been changed repeatedly by both the legislative and executive branches.

In the context of immigration law FOIA requests are a powerful and commonly used tool since it allows for immigrants to get a copy of their immigration file and the records the government has on them. This is done sometimes because immigrants lost documents or they had a lawyer that never gave them the documents, or sometimes to see if there are records of them being stopped years ago, and if so, to find out what exactly happened during that prior encounter with immigration since often the immigrant will not have any idea what was happening since everyone was speaking English at the time.

How to Make FOIA Requests to the Department of Homeland Security (DHS)

This page provides you with information on how to submit a Freedom of Information Act (FOIA) request or a Privacy Act request. FOIA allows any person to request that agency records be made public. The agency will first review the information and black out anything that must be withheld under the law. They will then send you the records you requested.[Full text of 5 U.S.C.§552].

To request your immigration-related records, you may find it useful to use U.S. Citizenship and Immigration Services Form G-639.   To file a first-party request for records not related to immigration, you may find it useful to use U.S. Department of Justice Certification of Identity Form DOJ-361.

USCIS is really pushing aggressively for people to make FOIA requests online.

Note: DHS is a large federal agency that has many agencies underneath it. US Citizenship & Immigration Services (USCIS), Customs and Border Patrol (CBP), and Immigration and Customs Enforcement (ICE), are all agencies that are under the umbrella of DHS.

If your request meets certain standards, you can ask for a fee waiver or expedited handling.  Failure to provide required information when submitting a FOIA request may result in a delay or rejection of requests.

To read about how to make a FOIA request to DHS (including USCIS, CBP, ICE, and lelegacy INS) see our FOIA guide or go to our post, “How to File a FOIA Request” here.


INFORMATION ABOUT FOIA

FOIA Exemptions

Exemption 1

Protects information that is properly classified in the interest of national security pursuant to Executive Order 12958.

Exemption 2

Protects records related solely to the internal personnel rules and practices of an agency.

Exemption 3

Protects information exempted from release by statute.

Example of information the Department of Homeland Security may withhold using Exemption 3 is information protected by the Critical Infrastructure Information (CII) Act of 2002. The CII Act defines Protected Critical Infrastructure Information (PCII)  as critical infrastructure information validated by the PCII Program pertaining to actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems (cyber) by either physical or computer-based attack or other similar conduct (including the misuse of or unauthorized access to all types of communications and data transmission systems) that violates federal, state, or local law, harms interstate commerce of the United States, or threatens public health or safety.

Exemption 4

Protects trade secrets and commercial or financial information which could harm the competitive posture or business interests of a company.

Example of information the Department of Homeland Security may withhold using 4: Commercially valuable formulas or other proprietary information not customarily released to the public entity from whom the information is obtained.

Exemption 5

Protects the integrity of the deliberative or policy-making processes within the agency by exempting from mandatory disclosure opinion, conclusions, and recommendations included within inter-agency or intra-agency memoranda or letters.

Example of information the Department of Homeland Security may withhold using 5: Draft documents and recommendations or other documents that reflect the personal opinion of the author rather than official agency position.

Exemption 6

Protects information that would constitute a clearly unwarranted invasion of personal privacy of the individuals involved.

Example of information the Department of Homeland Security may withhold using 6: Social Security Numbers, home addresses and telephone numbers, certain identifying information regarding Department employees.

Exemption 7

Protects records or information compiled for law enforcement purposes the release of which could reasonably be expected:

  • a. 7(A) – to interfere with enforcement proceedings.

Example of information the Department of Homeland Security may withhold using 7(A): Records pertaining to an open law enforcement investigation.

  • b. 7(B) – would deprive a person of a right to a fair trial or an impartial adjudication.

Example of information the Department of Homeland Security may withhold using 7(B): Information that could potentially contaminate a jury pool.

  • c. 7(C) – to constitute an unwarranted invasion of the personal privacy of a third party/parties (in some instances by revealing an investigative interest in them).

Example of information the Department of Homeland Security may withhold using 7(C): Identifying information of individuals associated with a law enforcement proceeding; i.e. law enforcement officers’ names, witness/interviewee identifying information.

  • d. 7(D) – to disclose the identity/identities of confidential sources.

Example of information the Department of Homeland Security may withhold using 7(D): Identifying information of confidential informants.

  • e. 7(E) – would disclose techniques and procedures for law enforcement investigations or prosecutions.

Example of information the Department of Homeland Security may withhold using 7(E): Law enforcement manuals, records pertaining to Watch Lists.

  • f. 7(F) –to endanger the life or physical safety of an individual.

Example of information the Department of Homeland Security may withhold using 7(F): Identifying information of law enforcement officers.

Exemption 8

Protects information that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

Example of information the Department of Homeland Security may withhold using 8: Exemption rarely invoked by Department of Homeland Security

Exemption 9

Protects geological and geophysical information and data, including maps, concerning wells.

FOIA Exclusions

In amending the Freedom of Information Act in 1986, Congress created a novel mechanism for protecting certain especially sensitive law enforcement matters, under subsection (c) of the Act. These three special protection provisions, referred to as record “exclusions,” are reserved for certain specified circumstances.  The record exclusions expressly authorize federal law enforcement agencies, under these exceptional circumstances, to “treat the records as not subject to the requirements of the FOIA.” For more information regarding FOIA Statutory Exclusions, visit http://www.justice.gov/oip/foiapost/2012foiapost9.html

(c)(1) Exclusion

The first of these novel provisions, known as the “(c)(1) exclusion,” provides as follows:

Whenever a request is made which involves access to records described in subsection (b)(7)(A) and (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(c)(2) Exclusion

The second exclusion applies to a narrower situation, involving the threatened identification of confidential informants in criminal proceedings.  The “(c)(2) exclusion” provides as follows:

Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of [the FOIA] unless the informant’s status as an informant has been officially confirmed.

(c)(3) Exclusion

The third of these special record exclusions pertains only to certain law enforcement records that are maintained by the FBI.  The “(c)(3) exclusion” provides as follows:

Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in [Exemption 1], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of the FOIA.

Appeals and Mediation

You can file an appeal to have the agency reconsider its initial handling of your request.  Send your appeal and a copy of the response within 90 days of the date of the response letter to the following address. Your envelope and letter should be marked “FOIA Appeal.”

Privacy Office, Attn: FOIA Appeals
Mail Stop 0655
U.S. Department of Homeland Security
2707 Martin Luther King Jr. AVE SE
Washington, D.C. 20528-065

Special Disclosure Rules

The special disclosure rules discussed in § 1610.17(d) of 29 C.F.R.  are contained in Section 83 of the Commission’s Compliance Manual. Section 83 is another means for aggrieved parties, charging parties respondents, and their attorneys to access their own charge files after the Commission has completed its proceedings on a charge. Aggrieved and charging parties and their attorneys can request access by submitting a signed written request during the 90-day Notice of Right to Sue period or when a lawsuit is pending. Respondents and their attorneys can request access by submitting a signed written request after an aggrieved charging party has filed suit.

Privacy Act Information

The Privacy Act, 5 U.S.C. Section 552a, passed by Congress in 1974, establishes certain controls over what personal information is collected by the federal government and how it is used. The act guarantees three primary rights: (1) the right to see records about oneself, subject to the Privacy Act’s exemptions; (2) the right to amend that record if it is inaccurate, irrelevant, untimely or incomplete; and (3) the right to sue the government for violations of the statute, including permitting others to see your records, unless specifically permitted by the act.

Reference