Freedom of Information Act

in Legislative Developments
November 10th, 2012

In October of 2012, the United States Justice Department announced that it would pursue litigation against Bank of America for allegedly “selling thousands of toxic mortgage loans to Fannie Mae and Freddie Mac.”[1] Also in late October of 2012, the Associated Press reported that the Consumer Financial Protection Bureau (CFPB) will begin supervising debt collectors in January of 2013.[2] Both stories may provoke academic inquiry by legal scholars and students. Because of the novelty of the stories, the only accessible information might be news accounts, which leave many questions unanswered. Fortunately, scholars can and should use the Freedom of Information Act to directly obtain information from the relevant federal agencies.[3]

While by no means a thorough manual for utilizing the Freedom of Information Act (FOIA), this article provides some suggestions for utilizing the FOIA to uncover information about government financial programs, using the CFPB scenario as an example.[4] Every executive agency must abide by the FOIA and has a link on its website with instructions to request information.[5] Requesters should submit a written letter directly to the agency, explaining the specific records they are seeking.[6] Requesters sometimes struggle to identify the specific records. Here are a few ways to identify relevant search material without knowing what might exist within the universe of records.

First, narrowing the date is particularly helpful; for this CFPB program, a good starting point would be February 2012 when the CFPB began accepting public comments.[7] If the documents produce relevant results indicating prior discussions, the requester can then submit a follow-up request. Second, some agencies use Boolean queries to search for records. Here, the requestor might want to specify search terms such as “debt collection”, “nonbank larger participants,” or “77 FR 9592″ (the rule number). [8] Finally, the requester should determine whether he or she wants correspondence including e-mails (which should be specified), schedules for meetings, public comments, or other documents.

Here, the requester might want a list of all public comments. While the FOIA does not require an agency to create new documents, it may already have such a list. Requesting a list in order to narrow the search among the voluminous public comments is a good way to conduct an effective search. In addition, the requester can request what is known as a Vaughn Index. Some agencies may be willing to create this document, which agencies typically prepare for FOIA litigation. The index can be beneficial to both the requester and agency by narrowing the search to a manageable task. The requester should enumerate each document in a bulleted format.

An academic requester should also request a fee waiver. The FOIA provides for fee waivers for the search for certain classes of requesters including educational institutions.[9] Demonstrating eligibility for the waiver may include providing the school’s information. The requester does not have to specify the purpose of his or her request. These exempted requesters still sometimes have to pay for the cost of duplication; thus, it would be wise to ask for available electronic copies or CDs.[10] Requesters can also set a fee limit to control the cost of duplication by stating the amount he or she is willing to pay. Declaring the fee limit in advance may expedite the process.

The agency will usually provide an acknowledgement letter. If a requester has not received this letter after approximately ten days, he or she should e-mail the FOIA liaison. As with all FOIA follow-ups, e-mail allows the requester to keep documentation on the request in case of future mediation or litigation. Within twenty business days, the agency should provide the requester with a response and relevant documents if there are any.[11] Most agencies fail to provide a response within the statutory limit, and while it is up to the requester to determine whether he or she wants to sue the agency, many judges will not entertain a lawsuit after only twenty days despite the statute being clear on the time limit. It is best to follow-up with the agency for a few additional weeks, documenting each follow-up. Should the requester still not receive a response, he or she could then sue the agency, which will be costly and require exhaustion of all administrative remedies including an administrative appeal. Alternatively, the requester may seek aid from the Office of Government Information Services, whose primary task is to resolve FOIA disputes.[12]

Once the requester receives the documents, he or she has the right to administratively appeal any redactions or determinations. Requesters should be aware that the FOIA provides for several exemptions.[13] The most common exemptions that requesters for financial programs will see include redactions for the deliberative process or for financial information.[14] Some agencies are heavy-handed in redacting, and an administrative appeal will be warranted. While the time to appeal an adverse determination is usually twenty business days, each agency has its own guidelines. The Federal Reserve, for example, requires an appeal within ten days.[15]

While scholars have many tools for researching financial laws, analysis of the financial crisis and subsequent regulation has heightened the need for these scholars to gain access to information not yet available to the public. In theory scholars should be evaluating information from a FOIA request within twenty days of launching an inquiry. In practice, it is incumbent upon the requester to follow-up with the agency, make the request precise, and maintain accurate documentation of all interactions with the federal agency to facilitate and expedite the request process.

-Jenny Small-

 


[1] Jonathan Stempel, U.S. Sues Bank of America Over “Hustle” Mortgage Fraud, Reuters, Oct. 24, 2012, http://www.businessspectator.com.au/bs.nsf/Article/US-sues-Bank-of-America-for-US1B-ZDS92?opendocument&src=rss.

[2] Gov’t Consumer Finance Watchdog to Oversee Biggest Debt-Collection Companies, Associated Press, Oct. 23, 2012, available at http://www.washingtonpost.com/business/govt-consumer-finance-watchdog-to-oversee-biggest-debt-collection-companies/2012/10/23/9da14e7e-1d5c-11e2-8817-41b9a7aaabc7_story.html.

[3] See generally The Freedom of Information Act, 5 U.S.C. § 552 (2012) (hereinafter “FOIA”).

[4] But see U.S. Dep’t of Justice, Office of Info. Policy, DOJ Guide to the Freedom of Info. Act (2009), http://www.justice.gov/oip/foia_guide09.htm.

[5] FOIA (a), (f)(1); see e.g. Freedom of Information Act, Consumer Fin. Prot. Bureau http://www.consumerfinance.gov/foia/ (last visited Nov. 2, 2012).

[6] The Freedom of Information Act, 5 U.S.C. § 552 (a)(3)(A) (2012).

[7] Defining Larger Participants in Certain Consumer Financial Product and Service Markets, 77 Fed. Reg. 9592 (proposed Feb. 17, 2012) (to be codified at 12 CFR 1090), https://www.federalregister.gov/articles/2012/02/17/2012-3775/defining-larger-participants-in-certain-consumer-financial-product-and-service-markets#p-33.

[8] See generally Edward Wyatt, New Federal Rules for Debt Collectors, N.Y. Times, Oct. 24, 2012, http://www.nytimes.com/2012/10/24/business/new-federal-rules-for-debt-collectors.html?_r=0; see also Defining Larger Nonbank Participants, Consumer Fin. Prot. Bureau, http://www.consumerfinance.gov/defining-larger-nonbank-participants/ (last visited Nov. 2, 2012); Defining Larger Participants in Certain Consumer Financial Product and Service Markets, 77 Fed. Reg. 9592 (proposed Feb. 17, 2012) (to be codified at 12 CFR 1090), https://www.federalregister.gov/articles/2012/02/17/2012-3775/defining-larger-participants-in-certain-consumer-financial-product-and-service-markets#p-33.

[9] FOIA (a)(4)(A)(ii)(II).

[10] FOIA (a)(4)(A)(ii)(II).

[11] FOIA (a)(6)(A)(i).

[12] The Office of Gov’t Info. Serv., https://ogis.archives.gov/ (last visited Nov. 2, 2012).

[13] FOIA (b).

[14] FOIA (b)(4), (b)(5).

[15] Freedom of Information Office: FOIA Appeals, Bd. of Governors of the Fed. Reserve Sys., http://www.federalreserve.gov/foia/appeals.htm (last visited Nov. 2, 2012).