The Freedom of Information
Act (FOIA), which
can be found in Title
5 of the United States
Code, section 552,
was enacted in 1966
and provides that
any person has the
right to request access
to federal agency
records or information.
All agencies of the
United States government
are required to disclose
records upon receiving
a written request
for them, except for
those records that
are protected from
disclosure by the
nine exemptions and
three exclusions of
the FOIA. This right
of access is enforceable
in court. The federal
FOIA does not, however,
provide access to
records held by state
or local government
agencies, or by private
businesses or individuals.
All states have their
own statutes governing
public access to state
and local records;
state agencies should
be consulted for further
information about
them.
This Reference Guide
is designed to familiarize
you with the specific
procedures for making
a FOIA request to
the Department of
Agriculture (USDA).
It is important
to understand that
there is no central
office in the government
which processes FOIA
requests for all federal
agencies. Each agency
responds to requests
for its own records.
Therefore, before
sending a request
to USDA you should
determine whether
this agency is likely
to have the records
you are seeking.
Other general sources
of information about
how to make a FOIA
request include:
"Your Right to Federal
Records," available
for fifty cents per
copy from the Consumer
Information Center,
Department 319E, Pueblo,
CO 81009. This publication
also can be accessed
electronically at:
"A Citizen's Guide
on Using the Freedom
of Information Act
and the Privacy Act
of 1974 to Request
Government Records."
This report is published
by the Committee on
Government Reform
and Oversight of the
House of Representatives.
It is available for
sale for $5.00 from
the U.S. Government
Printing Office, stock
number 052-071-01230-3.
It also can be accessed
on the World Wide
Web at:
The formal rules
for making FOIA requests
to USDA are sent forth
in Title 7, Part 1,
Subpart A, of the
Code of Federal Regulations.
II.
Access to Certain Records
Without a FOIA Request
All agencies are
currently in the process
of making certain
types of records,
created by the agency
on or after November
1, 1996, available
electronically. If
you have access to
the World Wide Web,
you will not need
to make a FOIA request
to obtain access to
these records. Such
records include: (1)
final opinions and
orders made in adjudicating
cases; (2) final statements
of policy and interpretations
which have not been
published in the Federal
Register; (3) administrative
staff manuals and
instructions to staff
that affect a member
of the public; (4)
copies of records
that have been the
subject of a FOIA
request and that are
of sufficient public
interest or curiosity
that the agency believes
other persons are
likely to request
them; and (5) the
agency's annual FOIA
report to Congress
- which includes such
information as the
number of requests
received by the agency,
the amount of time
taken to process requests,
the total amount of
fees collected by
the agency, information
regarding the backlog
of pending requests,
and other information
about the agency's
handling of FOIA requests.
USDA's Departmental
Administration (DA)
has a site on the
World Wide Web which
can be accessed at:
which contains FOIA-related
information. Each
USDA agency maintains
its own home page,
which contains a wide
variety of substantive
information for which
a FOIA request is
not required.
DA maintains a FOIA
home page which can
be accessed at:
This site includes
various reference
materials, information
on how to make a FOIA
request, and copies
of the relevant statutes.
Additionally, this
site provides links
to agency reading
rooms
USDA also makes
certain information,
such as publications,
available in paper
copy without requiring
a formal FOIA request.
III.
Where to Make a FOIA
Request
USDA is organized
into a number of agencies
and offices. These
subdivisions of the
Department are often
referred to as "agencies."
Within USDA, each
agency processes its
own records. Therefore,
your request will
receive the quickest
possible response
if it is addressed
directly to the agency
that you believe has
the records you are
seeking.
The functions of
each agency are also
summarized in the
Agency Mission Area.
In most cases, you
should send your FOIA
request to an agency's
central FOIA office.
For records held by
a field office of
the agency, you must
write directly to
that office.
If you believe that
USDA does maintain
the records you are
seeking, but are uncertain
about which agency
has the records, you
may send your request
to:
Rita Morgan
USDA FOIA Officer
Room 209-A, Jamie
Whitten Bldg.
1400 Independence
Avenue, S.W.
Washington, D.C.
20250-0103
Personnel in that
division will then
forward your request
to the USDA agency
that they believe
is most likely to
maintain the records
you are seeking.
IV.
How to Make a FOIA Request
A FOIA request can
be made for any agency
record. This does
not mean, however,
that USDA will disclose
any record sought.
There are statutory
exemptions that authorize
the withholding of
information of a sensitive
nature. When USDA
does withhold information
from you, it must
specify which exemption
of the FOIA permits
the withholding. FOIA
does not require agencies
to do research, to
analyze data, to answer
written questions,
or to create records
in order to respond
to a request.
Although certain
information may be
required from a FOIA
requester, no special
form is required by
USDA. Requests must
be in writing, either
handwritten or typed.
While requests may
be submitted by fax,
most agencies of USDA
do not yet have the
capability to accept
FOIA requests submitted
through the World
Wide Web.
In order to protect
your privacy, whenever
you request information
about yourself you
will be asked to provide
either a notarized
statement or a statement
signed under penalty
of perjury stating
that you are the person
that you claim to
be. If you request
information about
yourself and do not
follow one of these
procedures, your request
cannot be processed.
This requirement helps
to ensure that private
information about
you will not be disclosed
to anyone else.
When making your
request, you should
be as specific as
possible with regard
to names, dates, places,
events, subjects,
etc. You do not have
to give a requested
record's name or title,
but the more specific
you are about the
record or types of
records that you want,
the more likely it
will be that the agency
will be able to locate
those records.
When an agency receives
your FOIA request,
it will send you a
letter acknowledging
the request and assigning
it an initial request
number. If you do
not provide the necessary
information, the agency
will not process your
request, but will
advise you of what
additional information
is required.
Under certain circumstances,
you may be entitled
to receive more information
under the Privacy
Act of 1974 (a separate
federal statute) than
under the FOIA. Under
the FOIA, anyone can
request any agency
record. Privacy Act
requests are more
limited and can be
made only by U.S.
citizens or aliens
lawfully admitted
for permanent U.S.
residence, who are
seeking information
about themselves,
which is in a system
of records maintained
under their names
or other personal
identifiers. Even
if a request does
not mention the Privacy
Act, USDA automatically
treats requests as
being made under both
the FOIA and the Privacy
Act whenever it is
appropriate to do
so. In this way, requesters
receive the maximum
amount of information
available to them
by law.
V.
Response Times
Under the statute,
all federal agencies
are required to respond
to a FOIA request
within twenty business
days, excluding Saturdays,
Sundays, and legal
holidays. This period
does not begin until
the request is actually
received by the FOIA
office of the agency
that maintains the
records sought. An
agency is not required
to send out the releasable
documents by the last
business day; it can
send you a letter
informing you of its
decision and then
send out the documents
within a reasonable
time afterward.
Some agencies use
"multitrack processing"
queues to deal with
their heavy FOIA workloads.
Under the FOIA,
an agency may extend
the response time
for an additional
ten business days
when: (1) the agency
needs to collect responsive
records from field
offices; (2) the request
involves a "voluminous"
amount of records
which must be located,
compiled, and reviewed;
or (3) the agency
must consult with
another agency which
has a substantial
interest in the responsive
material or among
two or more other
agencies of USDA.
When such a time extension
is needed, the agency
may notify you of
this in writing and
offer you the opportunity
to modify or limit
your request.
When a determination
on your request is
not made within the
deadline described
above and you have
not agreed to a different
response deadline,
you may file suit
in federal court to
obtain a response.
If, however, the court
concludes that you
have unreasonably
refused to limit your
request or to accept
an alternate timetable
for response, the
court may find that
the agency's failure
to comply within the
statutory time period
is justified. The
court also may approve
a delay if it concludes
that the agency is
experiencing an unexpected,
substantial increase
in the number of requests
received. In addition,
the court may excuse
the lack of a timely
response if the agency
demonstrates that
it has a backlog of
requests on a first-come/first-served
basis, and that it
is making reasonable
progress in reducing
its backlog. In such
cases, the court may
postpone its consideration
of your lawsuit until
the agency reaches
your request in its
processing backlog.
IV.
Expedited Processing
Under certain conditions,
you may be entitled
to have your request
processed on an expedited
basis. However, you
should realize that
whenever a FOIA request
is expedited for a
particular requester,
it results in an additional
delay for previous
requesters who have
been waiting for a
response. Therefore,
in an effort to treat
all requesters equitably,
USDA ordinarily will
process a FOIA request
ahead of others only
in cases in which
there will be a threat
to someone's life
or physical safety,
or where an individual
will suffer the loss
of substantial due
process rights if
the records are not
processed on an expedited
basis.
The FOIA also requires
that requests be processed
on an expedited basis
if made by a person
primarily engaged
in disseminating information
to the public and
the information is
urgently needed to
inform the public
concerning some actual
or alleged government
activity. Requests
are not expedited
under this provision
merely because the
requester is a representative
of the news media.
A request for expedited
processing must be
accompanied by a statement
setting forth the
reasons why your request
should be expedited.
You should certify
that the reasons you
have given are true
and correct. The agency
will be required to
notify you of its
decision whether to
grant expedited processing
within no more than
ten days after receiving
your letter. If the
agency denies your
request for expedited
processing, you will
be advised of your
right to submit an
administrative appeal
of that denial.
VII.
Fees
There is no initial
fee to file a FOIA
request, however,
an agency is entitled
to charge certain
fees, which depend
on the category of
requester you fall
into.
For the purposes
of fees only, the
FOIA divides requesters
into three categories.
Commercial requesters
may be charged fees
for searching for
records, processing
the records, and photocopying
them. Educational
or noncommercial scientific
institutions and representatives
of the news media
are charged only for
photocopying expenses,
after the first 100
pages of copies. Requesters
who do not fall into
either of these two
categories are not
charged for processing;
they are charged only
for record searches
and photocopying -
and there is no charge
for the first two
hours of search time
or for the first 100
pages of photocopies.
USDA currently charges
.20 cents per page
for photocopying.
In all cases, if the
total fee does not
exceed a minimum amount,
currently $25.00,
USDA will not charge
any fee at all.
You may always include
in your request letter
a specific statement
limiting the amount
that you are willing
to pay in fees. If
you do not do so,
you will be asked
to express your commitment
to pay the estimated
fees and the processing
of your request will
be suspended until
you agree to do so.
You ordinarily will
not be required to
actually pay the fees
until the records
have been processed
and are ready to be
sent to you. If, however,
you have failed to
pay fees within 30
days of billing in
the past, or if the
estimated fees exceed
$250, you may be required
to pay the estimated
fees in advance, that
is, before the records
are processed. If
you agree to pay fees
and then fail to do
so within 30 days
of billing, you may
be charged interest
on your overdue balance
and USDA will not
process any further
requests from you
until payment has
been made in full.
If you agree to pay
fees for searching
for records, be aware
that you may be required
to pay such fees even
if the search does
not locate any responsive
records or, if records
are located, they
are withheld as entirely
exempt.
VIII.
Fee Waivers
If you expect or
are advised that a
fee will be charged,
you may request a
waiver of those fees.
However, fee waivers
are limited to situations
in which a requester
can show that the
disclosure of the
requested information
is in the public interest
because it is likely
to contribute significantly
to public understanding
of the operations
and activities of
the government and
is not primarily in
the commercial interest
of the requester.
Requests for fee waivers
from individuals who
are seeking records
pertaining to themselves
usually are denied
under this standard
because such disclosures
usually will not result
in any increase of
the public's understanding
of government operations
and activities. In
addition, a requester's
inability to pay fees
is not a legal basis
for granting a fee
waiver.
IX.
Initial Request Determinations
Once the agency
has processed your
request and any fee
issues have been resolved,
the agency will send
you a written initial
determination. The
FOIA provides access
to all federal agency
records (or portions
of those records),
except for those records
that are withheld
under any of nine
exemptions or three
exclusions (reasons
for which an agency
may withhold records
from a requester).
The determination
letter will advise
you of whether any
information is being
withheld pursuant
to one or more of
the exemptions. When
a page is being withheld
in its entirety, the
component usually
either will specify
the number of pages
being withheld or
will make a reasonable
effort to estimate
the volume of the
withheld information.
The exemptions authorize
federal agencies to
withhold information
covering: (1) classified
national defense and
foreign relations
information; (2) internal
agency rules and practices;
(3) information that
is prohibited from
disclosure by another
federal law; (4) trade
secrets and other
confidential business
information; (5) inter-agency
or intra-agency communications
that are protected
by legal privileges;
(6) information involving
matters of personal
privacy; (7) certain
types of information
compiled for law enforcement
purposes; (8) information
relating to the supervision
of financial institutions;
and (9) geological
information on wells.
The three exclusions,
which are rarely used,
pertain to especially
sensitive law enforcement
and national security
matters. Even if information
may be withheld under
the FOIA, the agency
may disclose it as
a matter of administrative
discretion if it is
not prohibited by
any law and would
not cause any foreseeable
harm, although the
agency is not legally
obligated to do so.
X.
Appeals
You may file an
administrative appeal
if you are not satisfied
with the agency's
initial response.
You may disagree with
the agency's withholding
of information or
you may believe that
there are additional
records responsive
to your request that
the agency failed
to locate. You also
may file an administrative
appeal if you have
requested expedited
processing or a fee
waiver and the agency
has not granted your
request. You may also
appeal a determination
that a record does
not exist, that a
record is not readily
reproducible in the
form requested, that
the requested information
is not a record subject
to the FOIA, or any
disputed fee matter.
You should be advised
of your right to file
an appeal in the initial
determination letter
sent by the agency
or in the letter denying
your request for expedited
processing or a fee
waiver. Ordinarily,
your appeal must be
received within 45
days of the date of
the agency's determination
letter.
Both the front of
the envelope and the
appeal letter should
contain the notation
"Freedom of Information
Act Appeal."
There is no specific
form or particular
language needed to
file an administrative
appeal. You should
include the initial
request number that
the agency assigned
to your request and
the date of the agency's
action. You may explain
the reasons why you
disagree with the
agency's action, but
a simple statement
that you are appealing
the decision ordinarily
is sufficient. If,
however, you are appealing
because you believe
there are additional
records that have
not been located in
response to your request,
you should specify
why you think such
records exist and,
if possible, where
you believe they might
be located.
XI.
Judicial Review
If you still believe
that USDA has not
handled your FOIA
request in accordance
with the law after
your appeal has been
decided, you have
the right to challenge
the agency's action
in a lawsuit filed
in federal court,
through the litigation
process known as "judicial
review." Before doing
so, you ordinarily
will be required first
to have filed an administrative
appeal and to have
received a response.
If USDA fails to respond
to either your initial
request or your appeal
within the time limits
discussed above, however,
you may file suit
as soon as the time
limits have expired.
If you do bring
a court action, you
may file your suit
in a federal district
court in any of the
following places:
(1) where you reside,
(2) where you have
your principal place
of business (if any),
(3) in the District
of Columbia, or (4)
where the records
are located, if they
are not located in
the District of Columbia.
If you have waited
until you have received
an administrative
appeal determination,
that final administrative
response letter will
advise you or your
right to seek judicial
review and will specify
where you can do so.
You have six years
to file suit from
the time your right
to sue begins.