The Freedom of Information Act (“FOIA”), is the mechanism created by Congress to allow the public access to records of agencies of the Executive branch of the federal government. The Privacy Act allows, among other things, individuals to gain access to their own records from these agencies. Since their passage in the 1960’s, these acts have resulted in the release of millions of pages of government records. Each state also has some type of FOIA, even though it may have another name such as Public Records act or Right to Know law.

Using these acts to gain access to records is not as simple as just writing a letter and sticking a stamp on the envelope. The FOIA allows for federal agencies to withhold information under nine (9) separate exemptions, many of which rely on statutes, executive orders or common law to define them. The Privacy Act grants many agencies power to withhold records in full as long as they are in certain categories established in the act itself. Additionally, agencies, even if they possess certain documents, may not have to search as thoroughly as requesters would like to find the requested material. The thirty plus years of litigation resulting from these Acts has resulted in a huge volume of case law. This case law details many nuances of the acts. Thus, the FOIA has become a complex legal area. The subject areas impacted by the FOIA and Privacy Act are large and continually expanding. Any area of law that intersects with the federal government may utilize these acts, especially if that area of law fails to provide for a discovery mechanism. For example, immigration law relies greatly on the FOIA and Privacy Act. Many Department of Homeland Security (previously INS) actions against aliens do not provide for discovery. These acts are the sole avenue available for finding relevant documents from the government. EEOC actions also utilize these acts, as those defending themselves or proving their claims need access to documents not otherwise available. Additionally, government contractors routinely seek to obtain previously issued contracts and proposals under the FOIA. They also are subject to the FOIA when others seek their information that was previously submitted to the government.

Even if discovery is available, the FOIA and Privacy Act may be useful tools in finding documents or information not covered by discovery. For instance, if a criminal prosecution is in a state court for a state crime, records of a previous conviction/investigation for an unrelated federal matter may be of use to the defense. Only these acts will grant access to these documents, as they will rarely be covered by the Brady requirements of discovery.

The FOIA and Privacy Acts have evolved into a very specialized area of law. Their concepts, processes and agency bureaucracies are all very specific to the FOIA and Privacy Act. To those unschooled in the acts, it is a very frustrating experience. Agencies move slowly, and often make mistakes. Judges and other government attorneys give FOIA and Privacy Act matters low priorities on their “to-do” lists.

A lawyer specializing in the FOIA and Privacy Act is a major asset to any effort to gain or prevent access to documents . If a company is the submitter of records to the government, the FOIA lawyer can help the company walk through the steps it needs to follow to protect its records. Government agency counsel is often overburdened, and doesn’t have a great stake in the outcome. A FOIA lawyer can also assist requesters in all stages of the FOIA process. A FOIA lawyer will help craft requests in a way which will result in the information being located; negotiate with agencies in getting the requests expedited, and review the agency action to pinpoint areas that should be either administratively appealed or litigated. Put succinctly, a FOIA lawyer will make entering the complex world of FOIA a much simpler and more pleasant experience.