From Johann_Opitz@smtp.esl.com Thu May 26 16:26:31 1994 Received: from nova.unix.portal.com (nova.unix.portal.com [156.151.1.101]) by jobe.shell.portal.com (8.6.4/8.6.5) with ESMTP id QAA25281 for ; Thu, 26 May 1994 16:26:29 -0700 Received: from gatekeeper.esl.com (gatekeeper.esl.com [129.193.146.11]) by nova.unix.portal.com (8.6.7/8.6.5) with SMTP id QAA07655 for ; Thu, 26 May 1994 16:26:27 -0700 Received: from smtp.esl.com (smtpout.esl.com) by gatekeeper.esl.com (4.1/SMI-4.1) id AA10457; Thu, 26 May 94 16:24:32 PDT Message-Id: Date: 26 May 1994 16:20:10 -0700 From: "Johann Opitz" Subject: save as a sample FIOA lette To: "Jeff Chan" X-Mailer: Mail*Link SMTP/QM 3.0.0FC2 Status: R Jeff, I've made a few changes, based on Andy's comments, to my previously posted FIOA request letter to BATF. The letter serves as a very good format for making any FIOA requests and it might be worthwhile saving it in your ftp director for future reference. -- Johann =========================================================================== xxxxxxxxxxx xxxxxxxxxxx 27 May 1994 Director Bureau of Alcohol, Tobacco, and Firearms 650 Massachusetts Avenue NW Washington, D.C. 20226 SUBJ: Freedom of Information Act Request Dear Sir: This is a request under the Freedom of Information Act [5 U.S.C. Sec. 552]. BATF Special Agent Pat Hynes commented on ABC's "Day One" program, broadcast May 16th, that BATF currently has 60 million records in its computer database. A. I write to request a copy of all agency records or portions thereof, in electronic or other form, which relate to the building of computer databases containing information from BATF Form 4473s collected from Federal Firearms License (FFL) holders. This request includes documents disclosing who authorized the collection of said computer database(s) and documents disclosing who has access and has had accessed the computer database(s). Furthermore, this request also includes any ancillary information about the computer database(s), such as data formats, procedures, standards, access methods, memos and documents about its use, access software, plans, etc. If the database(s) itself is stored in encrypted form, then this request also includes the computer programs and keys required to access it. B. I specifically request that you make these documents available in electronic form, such as on magnetic tape. I remind you that the long#030#standing rule that the FOIA "makes no distinction between records maintained in manual and computer storage systems," Yeager v. D.E.A., 678 F.2d 315, 321 (D.C.Cir. 1982), has recently been amplified in Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C. 1993). Any paper print-outs of electronic records, such as e-mail, must include all information in the electronic record. Assuming that there would be no loss of releasable information, such as written comments made on paper print-outs, I therefore ask you to release all responsive electronic records in electronic, i.e., machine-readable, form. C. As you know, the FOIA provides that an agency must make an initial determination of whether to comply with a FOIA request within ten working days of receiving the request. If there is a conflict between the statutory time limits and some regulation or policy that requires you to refer the records, the statutory requirement takes precedence over any Executive-branch regulation, policy, or practice. Congress placed a limit on the time which may be expended in referrals. The FOIA explicitly provides that referrals to other interested agencies or agency components are treated under the provision for "unusual circumstances," and cannot justify a delay of more than an additional 10 working days. 5 U.S.C. Sec. 552(a)(6)(B)(iii). "[W]hen an agency receives a FOIA request for 'agency records' in its possession it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere." McGehee v. C.I.A., 697 F.2d 1095, 1110 (D.C. Cir. 1983). Even records originated by other agencies are subject to immediate release under the applicable case law, if they were at the time of the request in the possession and control of your agency. D. As you know, the FOIA provides that even if some requested material is properly exempted from mandatory disclosure, all segregatable portions must be released. [5 U.S.C. Sec. 552(b)] If any or all material covered by this request is withheld, please inform me of the specific exemptions that are being claimed, and mark all deletions to indicate the exemption(s) being claimed to authorize each individual withholding. If the (b)(3) exemption is claimed, please indicate the relevant withholding statute(s). If any records are withheld, I request a Vaughn index or its equivalent during the administrative process. "[T]he objective of the Vaughn requirements, to permit the requesting party to present its case effectively, is equally applicable to proceedings within the agency." Mead Data Central v. Department of the Air Force, 402 F.Supp. 460 (D.D.C. 1974), remanded, 566 F.2d 242 (D.C. Cir. 1977) aff'd, 575 F.2d 932 (D.C. Cir. 1978). "[A] person cannot effectively appeal a decision about the releasability of documents ... if he is not informed of at least a list of the documents to which he was denied access ... and why those decisions were made. Denial of this information would in all likelihood be a denial of due process as well as effectively gutting the reasons for applying the exhaustion doctrine in FOIA cases." Shermco Industries, Inc. v. Secretary of the Air Force, 452 F.Supp. 306, 317 n.7 (N.D. Tex. 1978); see Oglesby v. Department of the Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing Shermco). It should be simple to prepare a list and the claimed exemptions as the records are processed. Disclosing such information would not disclose any exempt information and it would make it easier to appeal your initial determination on the merits. E. In addition, I ask that your agency exercise its discretion to release information that may be technically exempt. As you know, the Attorney General on October 4, 1993, directed that agencies should administer the FOIA under a presumption of disclosure, and that information which need not be withheld should not be. I remind you that under Chrysler v. Brown, 441 U.S. 281, 293 (1979), the 5 U.S.C. Sec. 552(b) exemptions are discretionary, not mandatory. An agency can generally choose to release exempt information. This discretionary review process for withholding cannot take precedence over the law, which requires a response within specified time limits. Moreover, that discretion, according to the Attorney General's October 4, 1993 memorandum, must be exercised in accordance with a presumption of disclosure. Even if a substantial legal basis exists for withholding, information is not to be withheld unless it need be. F. I also request that fees be waived because I should be deemed a media requester by your agency for FOIA purposes, and because the public interest would be furthered by a fee waiver. The D.C. Circuit Court of Appeals has held that "a representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." National Security Archive v. Department of Defense, 880 F.2d 1381, 1387 (D.C.Cir. 1989), cert. denied 494 U.S. 1029 (1990). I am gathering this information specifically for publication on the Internet and other electronic computer networks. In addition, I intend to submit it for publication to various print media. G. I believe that I am also entitled to a fee waiver because "disclosure of the information 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." In serving the public interest, the agency, through Special Agent Pat Hynes, has disclosed the existence of a computerized database. As I am sure you are well aware, there exists a tremendous public debate over the wisdom and efficiency of restrictions on firearms ownership being imposed or contemplated. Publicizing additional details about this database clearly serves the public interest as well. The information requested herein relates to these concerns; since specific information requested herein is not yet in the public record, the request makes a substantial contribution to the public understanding. This request is not for my commercial interest. I will not benefit financially from this information in any way. I intend to disseminate the requested records widely and freely to inform this public debate. H. Should there be any problem in this regard, I promise to pay up to $100 in fees, and you should therefore begin processing of this request without fee-related delays. I. As provided under the FOIA, I will expect a reply within ten (10) working days. Sincerely,