Requesting records from the Albuquerque District, U.S. Army Corps of Engineers

The Freedom of Information Act (FOIA) is a Federal law that establishes the public’s right to request existing records from federal government agencies.

Any “person”, regardless of citizenship, can submit a FOIA request. This includes individuals, corporations, associations, state and local governments, and foreign governments, etc. Fugitives from justice and foreign governments requesting information from intelligence agencies cannot submit a FOIA request.

The FOIA’s scope includes Federal Executive Branch Departments, agencies, and offices, federal regulatory agencies, and federal corporations. However, Congress, the federal courts, and parts of the Executive Office of the President are not subject to the FOIA. State and local governments are likewise not subject to the FOIA, but some states have their own equivalent laws to provide the public with access to state records. Any information can be requested under FOIA; however, if responsive records are located, they must undergo a release determination process and the records (or portions thereof) may or may not be released dependent upon the application of FOIA exemptions.

Agency records are subject to the FOIA. This includes records either created or obtained by an agency, and those under agency control at the time of the FOIA request. The records may be in the form of paper documents, tapes, photos and electronic records generally in the possession and control of an agency. All records are subject to nine FOIA exemptions. 

Any product(s) of data compilation made or received by an agency of the United States Government under federal law in connection with the transaction of public business and in USACE possession and control at the time the FOIA request is made. Products of data compilation include all books, papers, maps, photographs, machine readable materials, inclusive of those in electronic form or format, and other documentary materials, regardless of physical form or characteristics.

Tangible objects or articles and personal records are not subject to the FOIA. In addition, Agencies are not required to create records or compile information in response to a FOIA request or add explanatory materials to any records disclosed.

No. Questions and interrogatories will not be processed as FOIA requests. The FOIA does not require federal agencies to answer questions, render opinions, do legal research, compile or analyze data, conduct surveys, speculate, or provide subjective evaluations. Proper FOIA requests are those seeking existing physical or electronic records, such as those mentioned above. 

FOIA requests must be in writing, must be submitted by physical mail or e-mail and must request agency records. Label both your envelope and letter as “Freedom of Information Act Request”.  Address the request directly to the FOIA Office that would likely have the documents you are seeking. You can find contact information for USACE FOIA Offices and Service Centers at: http://www.usace.army.mil/FOIA/Offices.aspx

If you are still unsure which Army element to contact for information, you may write to:

Or e-mail to foia@usace.army.mil.

When submitting your FOIA request you should state your willingness to pay applicable fees, if any. If you are requesting a fee waiver you must provide justification. Refer to the Fees section of this guide, beginning on page 8, for more information regarding fee waivers.

Also, be sure to describe the specific records you are requesting in enough detail so that they can be located easily. Please include the type of document, title, subject area, date of creation, contract number, originator, etc. or enough event-related information (date and circumstances surrounding the event the record covers) to permit organized and non-random search.

NOTE: Appendix A contains a sample FOIA request letter.

There are several reasons why USACE may not release a record requested under FOIA.  The reasons include the following:

• The record is not maintained by the office receiving the request.
• The record is not under the purview of the office receiving the request.
• The office receiving the request does not have the authority to release the record.
• The USACE Component determines, through knowledge of its files and reasonable search efforts, that it neither controls nor otherwise possesses the requested record.
• A record has not been described with sufficient detail to enable the USACE Component to locate it by conducting a reasonable search.
• The requester has failed to comply with procedural requirements, including payment of fees imposed by the FOIA, Department of Defense Policy and the governing Army Regulation 25-55.
• The request is withdrawn by the requester.
• The request is a duplicate or records have been previously provided to the requester.
• The information requested is not a record within the meaning of the FOIA and AR 25-55.
• The record is denied in whole or in part in accordance with procedures set forth in the FOIA and AR 25-55.  

The FOIA maintains nine exemptions to the general presumption of mandatory disclosure. Generally, Congress intended the exemptions to protect against disclosure of information which would substantially harm national defense or foreign policy, individual privacy interests, business proprietary interests, and the efficient operation of governmental functions. Records that meet the exemption criteria of the FOIA may be withheld from public disclosure and need not be published in the Federal Register, made available on public websites, in libraries, in electronic reading rooms, or provided in response to a FOIA request.

The nine exemptions are categorized and described below:

• (b) (1) – Protects records currently and properly classified in the interest of national defense, security or foreign policy.
• (b) (2) – Protects records that are related solely to internal personnel rules and practices of an agency, which, if released, would allow circumvention of an agency function, rule, policy or statute, thereby impeding USACE in the conduct of its mission. 
• (b) (3) – Protects information that has been specifically exempted from disclosure by statute.
• (b) (4) – Protects trade secrets or commercial or financial information obtained from a private source (person or organization) which is privileged or confidential and if publicly released would cause substantial competitive harm to the source if disclosed.
• (b) (5) – Protects inter-agency memos, letters or records that are deliberative in nature and are part of the decision making process that contain advice, subjective evaluations, opinions and recommendations. Also within the scope of this exemption are attorney-client and attorney work product privileged documents.
• (b) (6) – Protects records which, if released, would result in a clearly unwarranted invasion of personal privacy, such as information contained within personnel and medical files.
• (b) (7) – Protects investigatory records or information compiled for law enforcement purposes.
• (b) (8) – Protects records for the use of, or related to, examination, operating, or condition reports prepared by or for regulators or supervisors of financial institutions.
• (b) (9) – Protects records containing geological and geophysical information and data, (including maps) concerning wells.

A denial occurs under FOIA when information is withheld, whether in whole or in part, for one or more of the exemptions identified above. A denial also occurs when not all of the requested documents could be located and when there are simply no documents responsive to FOIA request (no records response). In any of these instances, you will be notified in writing by an Initial Denial Authority (IDA) and given appeal rights.

In some instances, records that are released may have been redacted. In a redacted record, the denied information is blacked out from where it was originally located within the document. If your request is denied in part, you will receive information regarding the portions that were withheld.

Yes. If your request is initially denied, in whole or in part, under one or more of the above exemptions, or you receive a “no records found” denial, you will be advised of your appeal rights and the proper procedures for submitting an appeal. You are usually given 60 days from the date of the correspondence to appeal. If you are not satisfied with the appeal determination, you may seek a judicial review.

Generally, USACE Office of Counsel processes requests in the order that they are received. Whenever possible, an initial determination to release or deny a record is made within 20 working days after receipt of the request by the appropriate FOIA Office. That is, the office that maintains the responsive information and/or is designated to respond regarding the subject matter requested.

If unusual circumstances exist that preclude a timely response, the responsive FOIA office will provide and interim response, giving an estimated completion date and reason(s) for delay. A onetime extension of up to 10 working days may be allowed for unusual circumstances which include:

• USACE Office receiving the request has a significant number of pending requests.
• The complexity of the request or volume of responsive records prevents a final response within 20 working days.
• The need to search for and collect the requested records from other facilities that are separate from the office determined responsible for a release or denial decision on the requested information.
• The need to search for, collect, and examine a voluminous amount of separate and distinct records.
• The need for consultations, with another agency or among two or more components within the same agency.

To qualify for expedited processing, you must request expedited processing and demonstrate one of the following compelling needs:

• Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.

• Information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity.

• Other reasons that the agency may deem appropriate (eg. an imminent loss of substantial due process rights).

The FOIA allows uniform fees to be charged to certain types of requesters, but it also provides that waivers or reductions in fees be given depending upon the category of the requester, and/or if disclosing the information is in the public interest.

USACE Albuquerque will make every effort to provide your request to the appropriate agency.  Misdirected requests will be forwarded to the FOIA Office with the responsibility for the records requested. The 20 working days allowed for responding to a FOIA request do not begin until the request is received by the FOIA Office that maintains the requested records.

Before we start the search for your records, you will need to inform us if there is a maximum you are willing to pay for search, review, and duplication charges related to your request. If you do not do so, USACE Albuquerque District will assume that you are willing to pay fees of up to a certain amount, currently $25.00. If we estimate that the total fees for processing your request will exceed $25.00, we will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you wish to proceed and request all of the records involved, 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 pay the fees until the records have been processed and are ready to be released to you. If, however, you have failed to promptly pay fees in the past, or if the estimated fees exceed $250.00, 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 USACE Albuquerque District will not proceed with any further requests from you until you have paid 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, even if they are withheld as entirely exempt.

Three types of fees exist under FOIA. They are:

1)  Search Fees – the time spent looking for material that is responsive to a request; searches may be done manually or by computer.

2)  Review Fees – determining whether the material is exempt from disclosure. This includes doing all that is necessary to excise the records and prepare them for release.

3)  Duplication Fees – the process of making copies of the documents or records.

All requesters must indicate their willingness to pay fees; however, this does not mean you will be charged fees. Request for fee waivers or reduction of fees will be reviewed on a case-by-case basis. A request for a fee waiver should be made at the time of the initial FOIA request. Indigence alone is not enough to automatically waive fees. Fee waivers may be granted when disclosure of the records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

The following factors are weighed in making a fee waiver determination:

• The subject of the request.

   

• The informative value of the information to be disclosed.

   

• The contribution to an understanding of the subject by the general public likely to result from the disclosure.

   

• The significance of the contribution to public understanding.

   

• Disclosure of the information is not primarily in the commercial interest of the requester.

   

• The ability of the requester to disseminate the information.

The FOIA requires that requesters be placed into one of three requester categories:

1)  Commercial-use Requesters - pay all fees for search, review, and duplication.

• Requesters who seek information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is being made, which can include furthering those interests through litigation. 

 2)  Favored Requesters - pay only duplication fees (no search or review fees).

• Educational Institutions – a school which operates a program of scholarly research (including preschools, elementary or secondary schools and institutions of higher learning).  The records must be sought in furtherance of scholarly research. Educational requesters only pay duplication fees, unless a decision is made to waive or reduce the fees as being in the public interest.  The first 100 pages are provided at no cost.
• Non-commercial scientific institutions – institutions operated for the purpose of conducting scientific research that does not promote a particular product and not operated on a commercial basis.
• News Media – representatives of the news media actively gathering news for an entity that is organized and operated to publish or broadcast news and freelance reporters.

3)  “Other” Requesters - receive the first two hours of search costs, all review costs, and the first 100 pages at no cost.

• Requesters who do not fall under Commercial-use Requesters or Favored Requesters, and normally make requests for agency records for their personal use.

An aggregating request is when multiple requests along with expended search time and duplication costs are combined for the purpose of determining a fee chargeable to the requester. Requests may be aggregated if a requester submits multiple requests at or near the same time, each seeking portions of a document or documents, or portions of a collection of records. When an agency reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of avoiding the assessment of fess, the agency may aggregate any such requests and charge accordingly.