Freedom of Information Act (FOIA) and Privacy Act Requests

A transparent Government is essential in a democratic society.  American citizens, as taxpayers, deserve to know what their Government is doing with their money.  And, equally important, Americans are entitled to know whether the Government is storing their personal information in a searchable database, and, if so, what this information says.

WHAT IS THE FREEDOM OF INFORMATION ACT (FOIA) AND WHY SHOULD I CARE?

Fortunately, the Freedom of Information Act (FOIA) provides a mechanism for us to find out what the Government is up to.  Subject to nine specific exceptions, 5 USC 552 allows anybody to ask the Government to disclose its records.  It does not matter why a person wants to see the Government’s records.  Freedom of Information Act (FOIA) applies to any and all federal agencies.  And, best of all, Congress has mandated that the Government use a “presumption of openness” when determining whether a record must be disclosed.  All you have to do is ask.  Once the federal agency receives your request, they have 20 days to either:

1) Take action to comply with your request, or

2) Provide a written explanation why your request is denied and explain how you can appeal.

In situations where the requester is not satisfied with the result of the request, they have the right under federal law, to appeal. If a person chooses to appeal, the federal agency is once again given 20 days to respond.  To make it easier for the public, the law requires that every federal agency:

1) Give a tracking number to all requesters, and

2) Establish a website or telephone system to allow requesters to see when the agency received the request and an estimated date of completion.

Limitations Under the Freedom of Information Act

While the Freedom of Information Act has allowed unprecedented access to all types of governmental files, it is not a free-for-all, and there are still types of documents, files and information that will not be released under any circumstances. Certain information that will not be disclosed upon request include:

1) Classified information

2) Internal personnel rules and practices

3) Information prohibited from disclosure by other federal law

4) Trade secrets and confidential financial information

5) Privileged communications, such as attorney-client communications

6) Information that would invade somebody’s personal privacy

7) Certain law enforcement records

8) Information about supervision of financial institutions

9) Geological information (including maps) on wells.

What is the Privacy Act?

The Privacy Act, among other uses, enables a person to see the Government’s records pertaining to him/her that are stored in any database.  Under 5 USC 552a, anybody can petition any federal agency to:

1) Examine and copy the records connected to his/her personally identifiable information; or

2) Request to amend inaccurate records.

Like the Freedom of Information Act, the Privacy Act the government does not have the option of choosing not to respond to a request.  All federal agencies are bound by law to provide a timely response to any request you make.  The Privacy Act does not impose the same finite number of days as Freedom of Information Act.  However, federal agencies are mandated by law to respond and act in a reasonably timely manner.  If it is going to take an unusually long time to gather the pertinent records, the agency must tell you why.  And if they fail to comply with these laws, you can sue the Government.

The Importance of Submitting a FOIA and/or Privacy Act Request

When persons are attempting to work with certain governmental programs such as: (1) Global Entry; (2) Security Clearances; (3) Hazardous Materials Endorsement (HME); or (4) a Transportation Worker Identification Credential (TWIC) their ability to defend themselves may be significantly hindered without additional information from the government.  The FOIA and Privacy Act requests forces the Government to provide information unless the information falls into one of the exemptions.  In many situations, the person may be having difficulty because information in a government database that may be incorrect or has not been updated.

Just because the government has made a denial, doesn’t mean it was just, and there are options to better understand the reasons for the denial. In many situations entries in these databases are false or not fully correct. In situations such as this, exercising rights under the Freedom of Information Act can help shed light on all the circumstances surrounding a denial. Further, the Freedom of Information Act also allows for requests to update false or inaccurate information, which could have been the primary reason for a denial.

Exercise Your Rights under the Freedom of Information Act

When you receive a notice of a denial from the federal government, you are entitled to know why.  It is unlikely that one of the nine Freedom of Information Act exemptions will apply to your case.  You may receive a letter from the federal government that is vague, ambiguous, or even untrue, but that is when the real fight begins.

If that is the case, it is imperative to utilize Freedom of Information Act and the Privacy Act to find out why you are being denied or revoked privileges.  After all, how can you refute a false accusation if you don’t know what the accusation is in the first place?  You have the right to know why the Government is withholding what you are entitled to.

The attorneys at Brett O’Brien Law, LLC can help you utilize these laws as well as their rights and protections, that were designed to protect us all and ensure that our Government remains transparent and accountable to the people. If your ability to work and earn has been jeopardized by a denial or revocation of your TWIC or HME request, we can help. Our firm is highly experienced in assisting those who are looking to maintain their ability to work and live by way of a Security Clearance, Global Entry or SENTRI privileges. Contact us now for a completely free and confidential consultation.

SECURITY CLEARANCE DENIED OR REVOKED

If you are appealing a security clearance determination, it is imperative that you obtain experienced legal representation. Doing so will provide you with the best opportunity to obtain or maintain your clearance.

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