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Freedom Isn't Free: Successful FOIA's Can Take Time and Litigation (Guest Post)

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About the Author: Sean Kane is the Founder and President of Safety Research & Strategies, Inc. He is a frequent commentator on product safety matters and serves as editor of The Safety Record, a motor vehicle and product safety blog. Sean is actively involved with motor vehicle and product safety organizations and initiatives, including SafetyBeltSafe U.S.A, The Safety Institute, MassPINN, Safe Kids Massachusetts, the Society of Automotive Engineers and the International Motor Press Association. For more information, please visit Safety Research & Strategies, Inc.'s website at http://www.safetyresearch.net.

In January 2009, President Barack Obama opened his presidency with an Executive Order directing all federal agencies to, "adopt a presumption in favor" of Freedom of Information Act (FOIA) requests, and called on the Office of Management and Budget to issue recommendations on making the federal government more transparent.

"The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," the memo said.

But the lofty rhetoric has done little to let in the sunshine. In fact, extracting tax payer-sponsored information out of the government vaults has never been more daunting. Agencies have their own cultures. Many of their leaders have legal or political backgrounds, rather than technical knowledge. And, the spectrum of political agendas can and do influence how and what information is released to the public. Submitters of FOIA requests must not only understand how to style the request, but also be prepared to assess the adequacy of the response. More likely than not, an appeal will be necessary, and perhaps, litigation to force an agency to follow the FOIA law.

Deceiving the Public

For example, the Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) are among Washington, D.C.'s most secretive agencies. The NHTSA routinely fails to post public information, and conducts behind-the-scenes, unofficial investigations without the public release of investigation documents. In November 2011, the DOT's Office of the Inspector General (OIG) found fault with the lack of documentation and transprency within the NHTSA's investigation unit, the Office of Defects Investigation (ODI).

"Without comprehensive documentation of pre-investigation activities, ODI's decisions are open to interpretation and questions after the fact, potentially undermining public confidence in its actions," the OIG's report stated. It recommended, "a complete and transparent record system with documented support for decisions that significantly affect its investigations."

Such internal assessments underscore the importance of doing your homework before writing a FOIA request. Step one is to determine if the documents or data are already public. In addition, each agency has its own FOIA rules, fee structures and deadlines that impact how it responds to requests and how requesters can appeal an agency's response. For example, the U.S. Consumer Product Safety Commission (CPSC) is bound by Section 6(b) of the Consumer Product Safety Act to allow manufacturers to comment on the release of any negative information about their products. This special CPSC provision automatically adds to the CPSC response time. Manufacturers also retain veto power over any information they deem inaccurate.

FOIA Request Denials

Denials typically fall into two categories: the agency claims not to have a document or claims the requester is not entitled to the information. The former may indicate a document retention issue or an inadequate search. In fact, it's safe to assume that most searches have been less than thorough, especially if the request was broad.

Denials based on information that is exempt from the Freedom of Information Act stem from nine exemptions, intended primarily to protect against disclosure that could substantially harm national defense or foreign policy, efficient government operations, individual privacy interests and/or business proprietary interests. Two prominent exemptions are Exemption 4, which covers trade secrets and confidential commercial or financial information; and Exemption 5, which protects "inter-agency or intra-agency memorandum or letters," deemed to be part of an agency's "deliberative process" or "pre-decisional." In theory, Exemption 5 is supposed to be narrowly applied. In practice, agencies use Exemption 5 to shield any information used in formulating their decisions–even purely factual information, such as photographs.

Fighting for Information

In January 2012, Safety Research & Strategies (SRS) took NHTSA to court, alleging FOIA violations in requests for information regarding two Toyota Unintended Acceleration investigations and a recall for an Evenflo infant safety seat that separated from its base in actual crash tests. SRS successfully settled the first two cases, outing documents that should have been public and receiving repayment of legal expenses. The Evenflo case is still pending.

The higher the profile of the information, the less cooperation you can expect to receive. Be prepared to wage a protracted battle. And yet, it's one worth fighting. Information that comes from the government–be it data, technical papers or investigation reports–are routinely accepted by the public as authoritative. They are presented as settled facts in media stories, which ultimately influence the public. Few have the knowledge to criticize government information, or even realize that this information may be biased, poorly collected, or flat-out wrong. Only by aggressively seeking the documents and the data and by showing the agency's process and its factual foundation can the public understand if the information has any value at all.

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